In July 2019, the North Carolina General Assembly and Governor Roy Cooper signed into law the North Carolina Servicemembers Civil Relief Act (the “NC SCRA”). Most of the provisions of the NC SCRA became effective on October 1, 2019. The NC SCRA was intended to incorporate into state law the rights, benefits, and protections of the federal SCRA (codified in Chapter 50 of Title 50 of the United States Code) and to extend those rights, benefits, and protections to members of the North Carolina National Guard serving on State active duty and to members of the National Guard of other states serving on state active duty who reside in North Carolina.
The NC SCRA affords new protections to servicemembers and their dependents with regard to certain prepaid entertainment contracts such as contracts for telecommunication service, internet service, television service, and satellite radio service. The NC SCRA, however, requires that the servicemember give those service providers written or electronic notice of the termination and a written or electronic copy of the military order stating the effective date of the termination.
The NC SCRA makes knowing violations of its provisions an unfair or deceptive trade practice under Chapter 75 of the General Statutes, entitling the North Carolina Attorney General or an aggrieved servicemember to commence civil actions against violators for an injunction, payment of restitution, damages, a $5,000 civil penalty, costs, or any other remedy provided by Chapter 75.
The NC SCRA also provides that a dependent of a servicemember engaged in military service has the same rights and protections provided to a servicemember under Subchapter II (titled “General Relief”) of the federal SCRA. That Subchapter includes, among other safeguards, certain protections and stays against default judgments and other relief in civil actions.
Quick to comply with the NC SCRA, the North Carolina Administrative Office of the Courts amended its SCRA Affidavit that litigants are required to sign and file in connection with North Carolina civil lawsuits—to affirm whether the parties they are suing are afforded the protections of the SCRA. Troublingly, the new affidavit requires that the affiant affirm that the defendant is or is not a dependent of a servicemember. However, there is no database to search for whether someone is a dependent of a servicemember. Further, the definition of a “dependent” in the SCRA includes—not just the servicemember’s spouse and children—but also “any individual for whom the servicemember provided more than one-half of the individual’s support for 180 days immediately preceding an application for relief under this chapter.” How anyone is supposed to know whether an individual has received more than ½ of his financial support from a servicember within the last 180 days is beyond this author’s understanding. It’s a bit like affirming precisely how many angels can fit on the head of a pin.
One easy takeaway from all of this: Now more than ever, it is absolutely essential for clients to be aware of the federal SCRA and the NC SCRA, to adhere to their requirements, and to provide their lawyers with any and all information they have about whether their customers are servicemembers or their dependents.
Published by Michael Stein on October 14, 2019.