Postponing a Lawsuit Against You

A scale on a table in a courtroom

What if I am sued while on active duty?
The Servicemembers Civil Relief Act (SCRA) can provide a 90-day stay (delay) of a civil lawsuit against you. You will need to ask the court for this delay. You may be able to do this with a letter, but you may need to file a form called a Motion for Stay of Proceedings. Click here for an Interactive Sample Form Packet (with motion and letters)

What if I cannot return in 90 days? 
Under the SCRA you can request either the original 90-day stay or request an extension after the original 90-day stay. If you are granted the first stay, you may be able to apply for an additional stay based on continuing material affect of military duty on your inability to appear.
 
What happens if my request for an additional stay is refused? 
If the court refuses to grant an additional stay of proceedings then the court must appoint counsel to represent you.

Is there a fine or penalty for requesting a stay?
When a court grants a stay of proceedings under the SCRA, there should not be a fine or penalty added to the debt.

What is a default judgment? 
This is a judgment awarded in favor of the plaintiff when the defendant fails to appear.

What if I have received a default judgment while serving?
If a default judgment is entered against you during your period of military service (or within 60 days after you are released from the service), the court that entered the judgment can reopen the case so you can defend yourself if:

•    You were materially affected by reason of that military service in making a defense to the action and

•    You have a worthy or legal defense to the action or some part of it.

You must apply for this - It is NOT AUTOMATIC.

How do I file the motion?
Different states will have different rules for filing forms with the court.  You may be able to locate your state’s Rules of Civil Procedure online and review the rules by going to your state court’s website. Or ask the court clerk for information about filing and serving motions.

Generally, to file a pleading involving a lawsuit, you can mail the pleading and attachments to the court clerk where the lawsuit has been filed. You also have to notify the other party. So make one copy for yourself and one copy to the other side's lawyer. Again, your state or local rules will specify how you must notify the other party. You must always follow the local rules of procedure.

Send a self-addressed stamped envelope with your motion. The court clerk can send you back two copies of the file marked pleading. One of the copies should be sent to the opposing party. The other copy is for your records.

You will need the motion and the following two (2) letters included with the motion as exhibits:
•    Letter from you: This letter should include a statement of how your current military services stops you from going to court and when you can go to court (likely date) and
•    Letter from Commanding Officer: This letter should include a statement from your CO about how your current military service prevents you from going to court and that you are not allowed military leave at this time

Additional Resources:
•    Go to Interactive Form Packet: Motion to Stay of Proceedings
•    Go to Sample Form Packet: Motion to Stay of Proceedings (PDF)
•    Fact Sheet: SCRA - Postponing a Lawsuit Against You (PDF version of this resource)

Authority: Servicemembers Civil Relief Act, 50 U.S.C. §§ 3931-3932.
Resource Date: July 2018