ready2win Posted March 21, 2011 Report Share Posted March 21, 2011 I saw another post about this but would like a bit more information. I'm in California and my husband has been sued by a JDB. Since I tend to be the researcher of the family, I've been doing all of the work on the suit. We've responded to the summons, sent out a request for a bill of particulars (which received basically a non-response) and followed up with our interrogatories, request for admissions and request for documents. The case management conference is scheduled for late May but my husband won't be here. He'll be away from home on military orders and I'll have full power of attorney. The court does offer telephonic appearance but the nature of my husband's orders won't allow for that either. My question is this, what should I include with the Case Management Statement? Would copies of his orders and the power of attorney be appropriate? I don't think that it would be best for me to just show up without giving the presiding judge prior knowledge of the situation. Link to comment Share on other sites More sharing options...
Seadragon Posted March 21, 2011 Report Share Posted March 21, 2011 I saw another post about this but would like a bit more information. I'm in California and my husband has been sued by a JDB. Since I tend to be the researcher of the family, I've been doing all of the work on the suit. We've responded to the summons, sent out a request for a bill of particulars (which received basically a non-response) and followed up with our interrogatories, request for admissions and request for documents. The case management conference is scheduled for late May but my husband won't be here. He'll be away from home on military orders and I'll have full power of attorney. The court does offer telephonic appearance but the nature of my husband's orders won't allow for that either. My question is this, what should I include with the Case Management Statement? Would copies of his orders and the power of attorney be appropriate? I don't think that it would be best for me to just show up without giving the presiding judge prior knowledge of the situation.I don't believe the court will allow you to appear for him. I saw the same situation in court. the court did not allow the power of attorney to even speak. I know that the JDB is suposed to sign an affidavit that the defendant is not a military member. I believe you will have to get a lawyer for the day to speak and get the case dismissed. I will look into it. I think they may have violated rosenthal. Link to comment Share on other sites More sharing options...
ready2win Posted March 21, 2011 Author Report Share Posted March 21, 2011 I don't believe the court will allow you to appear for him. I saw the same situation in court. the court did not allow the power of attorney to even speak. I know that the JDB is suposed to sign an affidavit that the defendant is not a military member. I believe you will have to get a lawyer for the day to speak and get the case dismissed. I will look into it. I think they may have violated rosenthal.Thanks for the insight and for looking into the rosenthal violation. My husband's situation may be a bit of an oddity because he's in the Reserves but as soon as he starts these orders he'll be active duty for the better part of two years. I'm not sure if that makes a difference in terms of the plaintiff's attorney having committed a violation. Link to comment Share on other sites More sharing options...
Guest usctrojanalum Posted March 21, 2011 Report Share Posted March 21, 2011 When your husband becomes active duty, the case should be stayed until he gets back. I'm not sure what happens in this scenario, I've never seen a case where a person was served while not on active duty but then during the litigation received orders to be on active duty. The SCRA might have provisions on what happens in this scenario and I would look there first. Logically, I think the case would be stayed. Link to comment Share on other sites More sharing options...
Chapel Hill Posted March 21, 2011 Report Share Posted March 21, 2011 Call your local bar association or just call 10 different civil law firms from the local yellow pages. Follow the consensus. I have appeared twice on behalf of spouses. This was in small claims court however. You might also inquire around your local law library. Link to comment Share on other sites More sharing options...
ready2win Posted March 21, 2011 Author Report Share Posted March 21, 2011 When your husband becomes active duty, the case should be stayed until he gets back. I'm not sure what happens in this scenario, I've never seen a case where a person was served while not on active duty but then during the litigation received orders to be on active duty. The SCRA might have provisions on what happens in this scenario and I would look there first. Logically, I think the case would be stayed.Thanks for that info. I don't know why I didn't think of the SCRA. I took a cursory look at some info on military.com and it basically said that the request for a stay would have to come from my husband's CO. The site also mentioned that it's a tricky area and best to have our civilian attorney (the one that we don't have yet) speak to a Military Legal Assistance Attorney. It's definitely not something that I'd delve into on my own. Call your local bar association or just call 10 different civil law firms from the local yellow pages. Follow the consensus. I have appeared twice on behalf of spouses. This was in small claims court however. You might also inquire around your local law library.Thanks for the additional info. I think that I'll take a day or two to make some calls, do some research, and look at all of our options. I'll update the thread with more info when I get it. I know that mine is a strange situation but maybe I can leave some insight for someone who has the same type of question. Link to comment Share on other sites More sharing options...
ready2win Posted March 21, 2011 Author Report Share Posted March 21, 2011 So, I decided to call an attorney so I searched for one through the National Association of Consumer Advocates. He was extremely helpful and looked through his files for a case that he worked on a few years ago to get me an answer about the SCRA. He told me to file a motion to stay the action (per section 202, app. 522) and that I should make the plaintiff wait as long as possible because at the very least it would give us time to save money to pay them off (I'd much rather have a dismissal of course) and at best they'd get tired of waiting and just drop it. He also led me to the section of the SCRA that allows me to speak for my husband if I have power of attorney:SEC. 109. [50 U.S.C. App. 519] LEGAL REPRESENTATIVES.(a) REPRESENTATIVE.—A legal representative of aservicemember for purposes of this Act is either of the following:(1) An attorney acting on the behalf of a servicemember.(2) An individual possessing a power of attorney.The last thing that he mentioned is to have my husband add a declaration to state his status and inability to be physically present and to attach a copy of section 522 to the declaration. My husband isn't too happy about getting the necessary documentation from his CO, it's required per the SCRA in order to stay the action. One little nagging thing is this wording in App. 522:SEC. 202. [50 U.S.C. App. 522] STAY OF PROCEEDINGS WHENSERVICEMEMBER HAS NOTICE.(a) APPLICABILITY OF SECTION.—This section applies to anycivil action or proceeding, including any child custody proceeding,in which the plaintiff or defendant at the time of filing an applicationunder this section—(1) is in military service or is within 90 days after terminationof or release from military service; and(2) has received notice of the action or proceeding.My husband's active duty service starts as soon as he leaves the state. It looks like a catch-22 where he has to be on active duty to file the motion but he'll be gone as soon as he's on active duty. I wonder if it's best to file the motion and try our luck with the judge hearing it. I'm going to try and find some specialized info about SCRA and ask my husband to talk to a military lawyer.The worst case scenario right now is that we don't even file the motion and I appear at the case management meeting for him. It looks like I've got my work cut out for me but I'm fine with either outcome.Thanks to everyone who has responded!!! This site is an amazing resource for all of us who were unsure where to turn and who don't have the resources to just go out and hire an attorney. Link to comment Share on other sites More sharing options...
BTO429 Posted March 22, 2011 Report Share Posted March 22, 2011 If he is leaving on orders the Soldiers and Sailors act covers him. Look up the SSA. I would ask for a motion to dismiss with prejudice based on the fact he is on orders and has to leave.If he is on orders contact JAG and your base family support people. If he is national guard or reserve his unit should have a family support contact person. Go to his unit and talk to his unit administrator he/she will give the numbers you need. First go to JAG that is there job to protect the soldiers.Take from a Marine that has been there umpteen dozen times. With the support our troops get from the majority of the nation, I doubt a judge will let the case continue. Actually he has no choice in the matter as it is federal law. Link to comment Share on other sites More sharing options...
BTO429 Posted March 22, 2011 Report Share Posted March 22, 2011 What state are you in. What base are you on. Is he National guard or reserve. I was in the marines for 26 years please let know so I can direct you to the right place. I want to help a fellow soldier. Link to comment Share on other sites More sharing options...
BTO429 Posted March 22, 2011 Report Share Posted March 22, 2011 sorry i see he's reserve now. His co needs ti file the 522. Take a copy of the soldiers and sailors act to the court, thats what I did. The case has to be held until he returns. The judge has no choice its a federal law. Link to comment Share on other sites More sharing options...
ready2win Posted March 22, 2011 Author Report Share Posted March 22, 2011 sorry i see he's reserve now. His co needs ti file the 522. Take a copy of the soldiers and sailors act to the court, thats what I did. The case has to be held until he returns. The judge has no choice its a federal law.Thanks so much! It's always nice to know that the military family is there to help. I've already talked to my husband about getting a letter from the CO to include with the motion. Link to comment Share on other sites More sharing options...
loanmod Posted March 22, 2011 Report Share Posted March 22, 2011 (edited) I appreciate the suggestion and post of segregation. I think you should follow his statement. Loan Modification Edited March 22, 2011 by loanmod Link to comment Share on other sites More sharing options...
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