Some Creditors Make Illegal Demands on Active-Duty Soldiers
By DIANA B. HENRIQUES
Published: March 28, 2005
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Sgt. John J. Savage III, an Army reservist, was about to climb onto a troop
transport plane for a flight to Iraq from Fayetteville, N.C., when his wife
called with alarming news: "They're foreclosing on our house."
Sergeant Savage recalled, "There was not a thing I could do; I had to jump
on the plane and boil for 22 hours."
He had reason to be angry. A longstanding federal law strictly limits the
ability of his mortgage company and other lenders to foreclose against
active-duty service members.
But Sergeant Savage's experience was not unusual. Though statistics are
scarce, court records and interviews with military and civilian lawyers
suggest that Americans heading off to war are sometimes facing distracting
and demoralizing demands from financial companies trying to collect on
obligations that, by law, they cannot enforce.
Some cases involve nationally prominent companies like Wells Fargo and
Citigroup, though both say they are committed to strict compliance with the
The problem, most military law specialists say, is that too many lenders,
debt collectors, landlords, lawyers and judges are unaware of the federal
statute or do not fully understand it.
The law, the Servicemembers Civil Relief Act, protects all active-duty
military families from foreclosures, evictions and other financial
consequences of military service. The Supreme Court has ruled that its
provisions must "be liberally construed to protect those who have been
obliged to drop their own affairs to take up the burdens of the nation."
Yet the relief act has not seemed to work in recent cases like these:
ļAt Fort Hood, Tex., a soldier's wife was sued by a creditor trying to
collect a debt owed by her and her husband, who was serving in Baghdad at
the time. A local judge ruled against her, saying she had defaulted, even
though specialists say the relief act forbids default judgments against
soldiers serving overseas and protects their spouses as well.
ļAt Camp Pendleton, Calif., more than a dozen marines returned from Iraq to
find that their cars and other possessions had been improperly sold to cover
unpaid storage and towing fees. The law forbids such seizures without a
ļIn northern Ohio, Wells Fargo served a young Army couple with foreclosure
papers despite the wife's repeated efforts to negotiate new repayment terms
with the bank. Wells Fargo said later that it had been unaware of the
couple's military status. The foreclosure was dropped after a military
The relief act provides a broad spectrum of protections to service members,
their spouses and their dependents. The interest rate on debts incurred
before enlistment, for example, must be capped at 6 percent if military duty
has reduced a service member's family income.
The law also protects service members from repossession or foreclosure
without a court order. It allows them to terminate any real estate lease
when their military orders require them to do so. And it forbids judges from
holding service members in default on any legal matter unless the court has
first appointed a lawyer to protect their interests.
The law is an updated version of the Soldiers' and Sailors' Civil Relief
Act, which was adopted on the eve of World War II and remained largely
unchanged through the Persian Gulf war of 1991. But in July 2001, a federal
court ruled that service members could sue violators of the relief act for
damages. And the terrorist attacks on Sept. 11 prompted Congress to take up
a long-deferred Pentagon proposal to update the old act. The revised
statute, clearer and more protective than the old one, was signed into law
in December 2003.
But the news was apparently slow in reaching those who would have to
interpret and enforce the law.
"There are 50,000 judges in this country and God knows how many lawyers,"
said Alexander P. White, a county court judge in Chicago and the chairman of
one of the American Bar Association's military law committees. "Are people
falling down on the job - the judges, the bar, the military? Probably." And
broad understanding of the law "is not going to happen overnight."
Military lawyers, credit industry organizations and some state courts and
bar associations have also tried to spread the word about the new law. But
these efforts are not enough, said Col. John S. Odom Jr., retired, of
Shreveport, La., who is a specialist on the act. "What we need is a way to
reach Joe Bagadoughnuts in Wherever, Louisiana," he said. "Because that's
where these cases are turning up."
One reason they are surfacing in unlikely places is the Pentagon's increased
reliance on Reserve and National Guard units that do not hail from
traditional military towns, said Lt. Col. Barry Bernstein, the judge
advocate general for the South Carolina National Guard. When these units are
called up, he said, their members find themselves facing creditors and
courts that may never have dealt with the relief act.
As a result, some service members heading off to war have confronted exactly
the kinds of problems the law was supposed to prevent. The Coast Guard alone
handled more than 300 complaints last year; military law specialists say the
numbers are probably higher in the branches sending troops abroad.
Sergeant Savage's lender eventually dropped its foreclosure against him
after receiving repeated warnings from military lawyers at Fort Bragg, N.C.
But damage was done. The foreclosure dispute remained on his credit history,
hurting his ability to revive his struggling wireless Internet connection
business when he returned home to Asheboro, N.C., he said. By then he had
retired on full disability after being seriously injured while working on a
sabotaged electrical system at the former Baghdad Convention Center.
Sergeant Savage has not let the matter end. Represented by Colonel Odom, he
has filed a lawsuit in federal court in Greensboro, N.C. He says the
EverHome Mortgage Company, a unit of the EverBank Financial Corporation in
Jacksonville, Fla., violated the relief act by failing to cap his mortgage
at 6 percent, wrongfully initiating foreclosure and, after dropping the
foreclosure, failing to remove information about it from his credit history.
The mortgage company denied that it violated the act or treated Sergeant
Savage unfairly. His case "has unique and extenuating circumstances" that
will be raised when the dispute comes to trial, Michael C. Koster,
EverHome's president, said in a written statement.
"We are confident that court documents will reveal that EverBank treated Mr.
Savage equitably and worked diligently to resolve this matter," Mr. Koster
Extent of Coverage
When Sgt. Michael Gaskins of Fort Hood, Tex., was sent to Iraq last April,
his wife, Melissa, was left to cope with a dispute over a delinquent loan
from the Tallahassee Memorial Hospital credit union; the couple took out the
loan just before Sergeant Gaskins enlisted in November 2001. When the credit
union took the couple to court in Texas last year, a military lawyer at Fort
Hood alerted the local judge that the new relief act required that the case
be deferred because Sergeant Gaskins was abroad.
But on Feb. 18, a county court judge in Gatesville, Tex., ruled that Mrs.
Gaskins had lost the case by default. She was ordered to pay the credit
union more than $6,000 and turn over the family truck, which secured the
loan. Colonel Odom, who is also representing the couple, is trying to have
the default judgment overturned, in part on the ground that the relief act
protects spouses as well as service members.
The credit union in Tallahassee, Fla., disputes that. "It's our position the
act does not protect her," said Palmer Williams, a lawyer for the
organization. Judge Susan R. Stephens, the county judge who signed the
default judgment, said she did not think that Mrs. Gaskins had ever invoked
the relief act but said she would review the matter when it came before her.
The relief act was also supposed to prevent the kind of situation that the
marines returning to Camp Pendleton faced when they discovered that their
cars and other possessions had been sold to cover towing and storage fees.
"The act says you need a court order to do that, and you can't get a court
order without notice to the service member," said Maj. Michael R. Renz,
director of the joint legal assistance office there. "I've got six attorneys
here, and each one of us has handled at least two or three of these cases
within the last eight months."
'I'm Not Sleeping'
Stephen Lynch, a civilian lawyer for the Coast Guard in Cleveland, said he
had stepped in repeatedly over the past year to help service members invoke
their rights under the act.
One of them is a young soldier sent to east Asia, leaving a wife and two
children at home in northern Ohio. His periods of unemployment and the death
of a newborn daughter last July left the young family struggling
financially. Their situation was aggravated by delays in the processing of
his first military paychecks, said Mr. Lynch, who asked that the couple's
name not be used because their debt problems could hurt the soldier's
The soldier's wife said she had tried for months to renegotiate their
mortgage with Wells Fargo Home Mortgage. But on March 8, just three weeks
after paying the bank $3,000 that the U.S.O. had raised on her behalf, she
was served with foreclosure papers.
"I'm having anxiety attacks," the wife said in an interview that night. "I'm
not sleeping." She said she was especially worried about how much to tell
her husband. "The other military wives I've spoken to all say, 'Don't let
them know you're upset; don't let them hear you cry.' "
Kevin Waetke, a spokesman for Wells Fargo, said the foreclosure action was
dropped as soon as Mr. Lynch contacted the bank's lawyers. The bank had not
known the couple was eligible for relief, he said.
A Coast Guardsman, Kevin Cornell, was baffled by his experience with
Citigroup's credit card unit. When he enlisted, he had a Citibank card and
another from Sears, whose credit card operations Citibank acquired in late
2003. When he applied last fall to have the interest rates on both cards
capped at 6 percent, Citibank did even better: it cut the rate on his
pre-enlistment balance to zero.
But the Sears card was another story; a different Citibank employee refused
to make the interest rate cut on that card retroactive to his date of
enlistment, as the new relief act requires. Again, Mr. Lynch intervened. But
he said he wondered how many other service members had been misinformed.
Janis Tarter, a spokeswoman for the bank, said the company's policy was to
go beyond the requirements of the relief act on all its credit cards. "We
regret the difficulty that our customer encountered," Ms. Tarter said. "It
is not representative of the level of service we work to provide."
Burden of Enforcement
Some problems that military personnel are confronting suggest that the new
law may need more work by Congress. For example, although mandatory
arbitration clauses are becoming increasingly common in credit agreements,
arbitration is not even mentioned in the relief act.
But the biggest problem, both bankers and military lawyers say, is that the
enforcement of the act rests initially on the shoulders of the service
members themselves. They must notify their creditors or landlords of their
military status to invoke their rights under the act. It is one more chore
for a soldier getting ready for overseas duty, and it often does not get
And if a landlord or creditor, out of ignorance or intransigence, refuses to
comply with the act, the service member may not have the time or money to
fight back, said Capt. Kevin P. Flood, a retired Navy lawyer.
"Sure, if you take them to court and win, you can even collect damages,"
Captain Flood said. "But most of our people are not in that position. They
are just regular Joes, and they don't have the money to hire a lawyer."