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Waiver of Benefits of the Act

Section 107

(50 U.S.C. App. § 517)

Nothing contained in this Act shall prevent--

(a) the modification, termination, or cancellation of any contract, lease, or bailment or any obligation secured by mortgage, trust, deed, lien, or other security in the nature of a mortgage, or

(b) the repossession, retention, foreclosure, sale, forfeiture, or taking possession of property which is security for any obligation or which has been purchased or received under a contract, lease, or bailment, pursuant to a written agreement of the parties thereto including the person in military service concerned, or the person to whom section 106 [App. § 516] is applicable, whether or not such person is a party to the obligation), or their assignees, executed during or after the period of military service of the person concerned or during the period specified in section 106 [App. § 516].

Congress added this section of the Act in 1942. It was designed to induce service members and their creditors to adjust their rights privately and to make it clear that no restrictions have been placed upon the usual right of the parties to re-negotiate an obligation. This section expressly permits foreclosures.

While service members might waive, in writing, certain benefits of the Act, they do not thereby waive all other rights under the Act. For example, re-negotiating a conditional sales contract will not waive the right, in the event of default, to regain possession as prescribed by sections 301 and 303. Additionally, when litigating the legality of the seizure, the service member does not waive the tolling of the statute of limitations as provided by section 205 of the Act. Finally, an agreement by a service member to waive SSCRA rights pursuant to a divorce decree, does not waive SSCRA rights to any subsequent litigation to enforce or interpret the divorce decree. Such a waiver must be forseeable, voluntary, and intentional.

Transfers to Take Advantage of the Act

Section 600

(50 U.S.C. App. § 580)

Where in any proceeding to enforce a civil right in any court it is made to appear to the satisfaction of the court that any interest, property, or contract has since October 17, 1940, been transferred or acquired with intent to delay the just enforcement of such right by taking advantage of this Act, the court shall enter such judgment or make such order as might lawfully be entered or made, the provisions of this Act to the contrary notwithstanding.

This section emphasizes the equitable nature of the Act and is designed to prevent its abuse. Debtors who are ineligible to receive the benefits of the Act are deprived of the opportunity to secure these benefits through colorable transfers or assignments to persons who are or may become service members.

The pivotal issue in the few decisions interpreting this section is the existence of an intent to delay or defeat the enforcement of rights. A court in Oklahoma held that reassignment of an interest in an oil and gas lease containing a nine month drilling provision to a person who had received orders to active duty, 6 weeks before reporting, was a transfer to take advantage of the Act. Similarly, when a corporation transferred mortgaged real estate, upon which it had not met previous payments, to one of its owners and officers on the day he entered military service, the court denied protection under the Act.

Certification of Period of Military Service--Treatment of Missing Persons

Section 601

(50 U.S.C. App. § 581)

(1) In any proceeding under this Act a certificate signed by The Adjutant General of the Army as to persons in the Army or in any branch of the United States service while serving pursuant to law with the Army of the United States, signed by the Chief of Naval Personnel as to persons in the United States Navy or in any branch of the United States service while serving pursuant to law with the United States Navy, and signed by the Commandant, United States Marine Corps, as to persons in the Marine Corps, or in any other branch of the United States service while serving pursuant to law with the Marine Corps, or signed by an officer designated by any of them, respectively, for the purpose, shall when produced on prima facie evidence as to any of the following facts stated in such certificate:

That a person named has not been, or is, or has been in military service; the time when and the place where such person entered military service, his residence at that time, and the rank, branch, and unit of such service that he entered, the dates within which he was in military service, the monthly pay received by such person at the date of issuing the certificate, the time when and the place where such person died in or was discharged from such service.

(2) It shall be the duty of the foregoing officers to furnish such certificate on application, and any such certificate when purporting to be signed by any one of such officers or by any person purporting upon the face of the certificates to have been so authorized shall be prima facie evidence of its contents and of the authority of the signer to issue the same.

(3) Where a person in military service has been reported missing he shall be presumed to continue in the service until accounted for, and no period herein limited which begins or ends with the death of such person shall begin or end until the death of such person is in fact reported to or found by the Department of Defense, or any court, or board thereof, or until such death is found by a court of competent jurisdiction. No period herein limited which begins or ends with the death of such person shall be extended hereby beyond a period of six months after the time when this Act ceases to be in force.

In a proceeding involving section 205 of the Act, a properly authenticated certificate of service in the United States Marine Corps was prima facie evidence of the fact of the service. Subsection 601(3) creates the presumption that when persons in the military service are reported missing, they will be deemed to have continued in the service until they are accounted for.

Cases involving missing persons, affected by section 601(3), should be viewed in conjunction with Chapter 10 of Title 37, United States Code.

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Above Information Courtesy of United States Army JAG Corps