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Can a bank foreclose on our house while my husband is on active duty for the National Guard?

Metairie, LA |
Filed under: Military law

My husband is away at training camp in Alabama. Has been on active duty for 3 weeks and 4 days. We took the loan out from the bank years before my husband became active duty.

Attorney Answers 4

  1. The Servicemembers Civil Relief Act does not prohibit foreclosure. But it does have some protections for people who are affected by their military service in being present for court proceedings.
    He should immediately make contact with the legal office at the Camp where he is located for some free legal assistance advice.;; 703-298-9562, 800-401-1583. Answering your question does not create an attorney-client relationship.

  2. As per 50 U.S.C. App. Section 533 of the Servicemembers Civil Relief Act (SCRA), for pre-service mortages, a creditor may not sell, foreclose upon, or seize property secured by a mortgage or trust deed without a valid court order at any time during the period of service or for nine months after the servicemember is released from active duty.

    When foreclosure has already been adjudged, the court may reopen the proceedings and/or set aside the judgment. A non-judicial foreclosure of a qualifying property is invalid during a period of military service.

    Go and see an attorney specializing in SCRA rights immediately. They should take your case for free. 50 U.S.C. App Sections 597a and 597b authorize an award of damages and attorney fees for violating any of the provisions of the SCRA, as well as "any remedy otherwise available under other law, including consequential and punitive damages."

    Also, if the mortgagor knowingly made the foreclosure in violation of the SCRA, they may face criminal penalties under Federal law.

    Good luck to you!

  3. Mr. Cave and Mr. Brumer have provided you excellent advice. Start with your basic legal office and then speak to an attorney in your area familiar with the SSCRA. Best of luck.

  4. SCRA has certain protections but there are some very specifc provisions for members of the National Guard. The individual needs to be Title 10, on orders for more than 30 days for an emergency,... If he is on some sort of training or AT and only in Title 32 status SCRA may not apply. I assume your husband is in the LA National Guard by your location... If so I would recoomend a visit to the unit JAG or the LA state JAG office for some initial advice...

    This is for general information only. Nothing in this information should be construed as creating an attorney-client relationship nor shall any of this information be construed as providing legal advice. Laws change over time and differ from state to state. These answers are based on California Law.Applicability of the legal principles discussed may differ substantially in individual situations. You should not act upon the information presented herein without consulting an attorney about your particular situation. No attorney-client relationship is established.

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