QUESTION: We ran into a problem recently that we were hoping you could answer. In Multnomah County, when we file an eviction (“FED”), we are required to file a document entitled “Declaration of Non-Military, Not Minor or Incapacitated.” This form requires us to select one of the following categories regarding the defendant’s protection under the Service Members Civil Relief Act (“SCRA” or “the Act”): (a) That the person is subject to protection, (b) that he/she is not subject to protection, or (c) that we are unable to determine whether the defendant is or is not subject to the Act.
We had checked the box saying we could not determine, and explained that “We have never seen any indication that this person is or was a service member.” The judge said this was insufficient and refused to grant the FED. He told us to seek legal counsel.
Any ideas on what we did wrong or how to avoid this problem? I believe there is a web page where you can look up service members, but in this case we don’t have a social security number on the resident, so we couldn’t look him up anyway.
ANSWER: I've never heard of a judge denying a declaration because a landlord hadn't run the tenant's information through Act’s website. In order to do the search, you need the tenant's first and last name and SSN. You can also put in their birth date, but I think the SSN gets the best results. The Act’s database cannot complete the search if you don't have a SSN or birth date. I'm surprised that the judge didn't set over the hearing and simply direct the you to the website. Perhaps you could have determined the answer if you had entered the birth date – assuming you had it. I suspect the judge was new to the job.
Here's the link to their site: https://www.dmdc.osd.mil/appj/scra/scraHome.do
When we don't have a SSN or birth date, we put a statement in the declaration similar to the one you used. Basically, all you should need to do is show that you have conducted a reasonable investigation based upon the information you have, and that you have been unable to determine through the website or other evidence, that the person is protected by the Act.
Here's an example that we've used at Multnomah County Circuit Court:
Due to lack of information, the Department of Defense’s SCRA military records website could not confirm whether or not defendants, John and Mary Doe, are currently on active duty. It appears to be very unlikely, since the community managers see the defendants on a regular basis and have no knowledge of either of them serving in the United States Military.
The problem you describe only occurs when the defendant does not appear at the first appearance hearing and the judge is uncomfortable granting the judgment of restitution by default without what he/she feels is sufficient evidence that they are not on active duty with the military. The rash of recent improper foreclosures against servicemen/women probably doesn't help the judge’s comfort level. The judge should have been more helpful, but you should be able to conduct your search on the website, then go back and try again.
I think the take-away here is that landlords should try to get as much information from their resident-applicants in order to avoid these situations in the future.