Download Zipped Introduced WP 6.1 HB0105.ZIP 17,896 Bytes
[Status][Bill Documents][Fiscal Note][Bills Directory]
H.B. 105
1
2
3
4
5 AN ACT RELATING TO MILITIA AND ARMORIES; CREATING THE UTAH SERVICE
6 MEMBER'S CIVIL RELIEF ACT; PROVIDING FOR RELIEF FROM CERTAIN CIVIL
7 OBLIGATIONS WHILE IN ACTIVE STATE MILITARY SERVICE; PROVIDING FOR
8 STAYS AND POSTPONEMENTS BY THE COURT; CREATING PROVISIONS TO
9 PROTECT A SERVICE MEMBER'S DEPENDENTS DURING ACTIVE SERVICE;
10 PROVIDING PENALTIES; ALLOWING FOR THE SUSPENSION OF PROFESSIONAL
11 LIABILITY INSURANCE FOR SERVICE MEMBERS CALLED TO ACTIVE SERVICE;
12 AND PROVIDING AN EFFECTIVE DATE.
13 This act affects sections of Utah Code Annotated 1953 as follows:
14 ENACTS:
15 39-7-101, Utah Code Annotated 1953
16 39-7-102, Utah Code Annotated 1953
17 39-7-103, Utah Code Annotated 1953
18 39-7-104, Utah Code Annotated 1953
19 39-7-105, Utah Code Annotated 1953
20 39-7-106, Utah Code Annotated 1953
21 39-7-107, Utah Code Annotated 1953
22 39-7-108, Utah Code Annotated 1953
23 39-7-109, Utah Code Annotated 1953
24 39-7-110, Utah Code Annotated 1953
25 39-7-111, Utah Code Annotated 1953
26 39-7-112, Utah Code Annotated 1953
27 39-7-113, Utah Code Annotated 1953
1 39-7-114, Utah Code Annotated 1953
2 39-7-115, Utah Code Annotated 1953
3 39-7-116, Utah Code Annotated 1953
4 39-7-117, Utah Code Annotated 1953
5 39-7-118, Utah Code Annotated 1953
6 39-7-119, Utah Code Annotated 1953
7 39-7-120, Utah Code Annotated 1953
8 Be it enacted by the Legislature of the state of Utah:
9 Section 1. Section 39-7-101 is enacted to read:
10
11 39-7-101. Short title.
12 This chapter is known as the Utah Service Members' Civil Relief Act.
13 Section 2. Section 39-7-102 is enacted to read:
14 39-7-102. Definitions.
15 (1) "Dependent" means the spouse and children of a service member or any other person
16 dependent upon the service member for support.
17 (2) "Interest" includes service charges, renewal charges, fees, or any other charges in
18 respect to any obligation or liability.
19 (3) "Military service" means active, full-time service with a recognized military unit called
20 into service by the governor for at least 30 days.
21 (4) "Service member" means any member of the National Guard or unorganized militia
22 serving actively in an organized military unit.
23 Section 3. Section 39-7-103 is enacted to read:
24 39-7-103. Application of this act.
25 (1) This act shall apply to all service members on military orders who are unable to
26 perform, continue, or complete civil obligations due to military service.
27 (2) This act does not apply to military service performed under orders issued pursuant to
28 Title 10 or Title 32, United States Code.
29 (3) Proper application of this act shall suspend or postpone actions upon those obligations
30 until 60 days after discharge from active, full-time, military service.
31 Section 4. Section 39-7-104 is enacted to read:
1 39-7-104. Default judgment -- Affidavit -- Attorneys for persons in service-- Bond.
2 (1) A plaintiff, before the entry of a default judgment against a defendant for not
3 appearing, shall file with the court an affidavit stating that the defendant is not in military service.
4 If the plaintiff does not know whether the defendant is in military service or not, the affidavit shall
5 so state.
6 (2) If an affidavit is not filed or the affidavit states that the plaintiff does not know whether
7 the defendant is in military service, the court may not enter a default judgment unless it appoints
8 an attorney to represent the defendant and protect his interest. The attorney shall, through inquiry,
9 determine whether the service member's ability to comply with the terms of the obligation is
10 materially affected by his military service and report to the court or move for a stay in the service
11 member's behalf. An attorney appointed by the court to represent a defendant service member may
12 not waive any of the service member's rights or bind the service member by his acts.
13 (3) If the court enters a default judgment, no execution may be made on the judgment
14 unless the plaintiff posts a bond approved by the court to indemnify the defendant, if in military
15 service, against any loss or damage that he may suffer as a result of the judgment if it is later set
16 aside.
17 (4) Any person who makes or uses an affidavit required under this section, or a statement,
18 declaration, verification, or certificate certified or declared to be true under penalty of perjury
19 knowing it to be false, is guilty of a misdemeanor.
20 Section 5. Section 39-7-105 is enacted to read:
21 39-7-105. Reopening default judgments.
22 (1) A default judgment rendered in any action or proceeding governed by this chapter
23 against a service member during a period of military service or within 30 days after termination
24 of the military service may be set aside if:
25 (a) it appears that the person was prejudiced by reason of his military service in making
26 a defense to the action;
27 (b) application by the person or his legal representative is made to the court rendering the
28 judgment not later than 60 days after the termination of the military service; and
29 (c) the application provides enough facts that make it appear that the defendant has a
30 meritorious or legal defense to the action or some part of the action.
31 (2) Vacating, setting aside, or reversing any judgment because of any of the provisions of
1 this chapter may not impair any right or title acquired by any bona fide purchaser for value under
2 the judgment.
3 Section 6. Section 39-7-106 is enacted to read:
4 39-7-106. Stay of proceedings.
5 (1) If at any point during an action or proceeding it appears that a plaintiff or defendant
6 is a service member and in the conduct of the proceedings may be adversely affected by his
7 military service, the court may, on its own motion, stay the proceedings.
8 (2) The court shall stay the proceedings if the service member or another person on his
9 behalf makes a request in writing to the court, unless the court determines on the record that the
10 ability of the plaintiff to prosecute the action or the defendant to conduct his defense is not
11 materially affected by reason of his military service.
12 Section 7. Section 39-7-107 is enacted to read:
13 39-7-107. Fines and penalties on contracts.
14 (1) If compliance with the terms of a contract is stayed pursuant to this chapter, a fine or
15 penalty may not accrue by reason of failure to comply during the period of the stay.
16 (2) If a service member has not obtained a stay and a fine or penalty is imposed for
17 nonperformance of an obligation, a court may relieve enforcement if the service member was in
18 military service when the penalty was incurred and his ability to pay or perform was materially
19 impaired.
20 Section 8. Section 39-7-108 is enacted to read:
21 39-7-108. Exercise of rights not to affect future financial transactions.
22 Application by a service member in military service for, or receipt of, a stay, postponement,
23 or suspension under the provisions of this chapter in the payment of any, fine, penalty, insurance
24 premium, or other civil obligation or liability may not be used for any of the following:
25 (1) a determination by any lender or other person that the service member is unable to pay
26 any civil obligation or liability in accordance with its terms.
27 (2) with respect to a credit transaction between a creditor and a service member:
28 (a) a denial or revocation of credit by the creditor;
29 (b) a change by the creditor in the terms of an existing credit arrangement; or
30 (c) a refusal by the creditor to grant credit to the service member in substantially the
31 amount or on substantially the terms requested;
1 (3) an adverse report relating to the creditworthiness of the service member by or to any
2 person or entity engaged in the practice of assembling or evaluating consumer credit information;
3 or
4 (4) a refusal by an insurer to insure the service member;
5 Section 9. Section 39-7-109 is enacted to read:
6 39-7-109. Stay of execution of judgment.
7 Unless the court determines on the record that the ability of the service member to comply
8 with the judgment or order entered or sought is not materially affected by reason of his military
9 service, the court may, on its own motion, or upon application to it by the service member or
10 another person on his behalf:
11 (1) stay the execution of any judgment or order entered against the service member, as
12 provided in this chapter; and
13 (2) vacate or stay any attachment or garnishment of property, money, or debts in the hands
14 of another, whether before or after judgment as provided in this chapter.
15 Section 10. Section 39-7-110 is enacted to read:
16 39-7-110. Duration of stays.
17 (1) Any stay of any action, proceeding, attachment, or execution, ordered by any court
18 under the provisions of this act may be ordered for the period of military service plus three months
19 after its termination or any part of that time period.
20 (2) Where the service member in military service is a codefendant with others, the plaintiff
21 may, with leave of the court, proceed against the others.
22 Section 11. Section 39-7-111 is enacted to read:
23 39-7-111. Statutes of limitations affected by military service.
24 The period of military service is not included in computing any period limited by law, rule,
25 or order for the bringing of any action or proceeding in any court, board, bureau, commission,
26 department, or other agency of government by or against any person in military service or by or
27 against his heirs, executors, administrators, or assigns, whether the cause of action or the right or
28 privilege to institute the action or proceeding has accrued prior to or during the period of military
29 service.
30 Section 12. Section 39-7-112 is enacted to read:
31 39-7-112. Maximum rate of interest.
1 An obligation or liability bearing interest at a rate in excess of six percent per year incurred
2 by a service member in military service before his entry into military service may not, during any
3 part of the period of military service, bear interest at a rate in excess of six percent per year unless,
4 in the opinion of the court and upon application to the court by the obligee, the ability of the
5 service member to pay interest upon the obligation or liability at a rate in excess of six percent per
6 year is not materially affected by reason of his service. The court may make any order in the
7 action that, in its opinion, is just.
8 Section 13. Section 39-7-113 is enacted to read:
9 39-7-113. Dependent benefits.
10 Dependents of a service member in military service are entitled to the benefits accorded
11 to service members in military service under the provisions of Sections 39-7-114 through 39-7-118
12 upon application to a court, unless, in the opinion of the court, the ability of the dependents to
13 comply with the terms of the obligation, contract, lease, or bailment has not been materially
14 impaired by reason of the military service of the service member upon whom the applicants are
15 dependent.
16 Section 14. Section 39-7-114 is enacted to read:
17 39-7-114. Eviction or distress of dependents.
18 (1) A landlord may not evict or take and hold property of a service member or his
19 dependents for nonpayment of rent during the period of military service if the rent on the premises
20 occupied by the service member or his dependents is less than $1,200 per month unless a court
21 allows it after application to the court and an order granted in an action or proceeding affecting the
22 right of possession.
23 (2) In any action affecting the right of possession, the court may, on its own motion, stay
24 the proceedings for not longer than three months, or make any order the court determines to be
25 reasonable and just under the circumstances, unless the court finds that the ability of the tenant to
26 pay the agreed rent is not materially affected by reason of the service member's military service.
27 (3) When a stay is granted or other order is made by the court, the owner of the premises
28 shall be entitled, upon application, to relief with respect to the premises similar to that granted
29 service members in military service in Sections 39-7-115 through 39-7-117 to the extent and for
30 any period as the court determines to be just and reasonable under the circumstances.
31 (4) Any person who knowingly takes part in any eviction or distress otherwise than as
1 provided in Subsection (1), or attempts to do so, is guilty of a misdemeanor.
2 (5) The governor is empowered to order an allotment of the pay of a service member in
3 military service in reasonable proportion to discharge the rent of premises occupied for dwelling
4 purposes by any dependents of the service member.
5 Section 15. Section 39-7-115 is enacted to read:
6 39-7-115. Installment contracts.
7 (1) The creditor of a service member who, prior to entry into military service, has entered
8 into an installment contract for the purchase of real or personal property may not terminate the
9 contract or repossess the property for nonpayment or any breach occurring prior to or during
10 military service without an order from a court of competent jurisdiction.
11 (2) The court, upon application to it under this section, may, unless the court finds on the
12 record that the ability of the service member to comply with the terms of the contract is not
13 materially affected by reason of his military service:
14 (a) order repayment of any prior installments or deposits as a condition of terminating the
15 contract and resuming possession of the property;
16 (b) order a stay of the proceedings on its own motion, or on motion by the service member
17 or another person on his behalf; or
18 (c) make any other disposition of the case it considers to be equitable to conserve the
19 interests of all parties.
20 (3) Any person who knowingly repossesses property which is the subject of this section
21 other than as provided in Subsection (1) is guilty of a misdemeanor.
22 Section 16. Section 39-7-116 is enacted to read:
23 39-7-116. Mortgage foreclosures.
24 (1) The creditor of a service member who, prior to entry into military service, has entered
25 into a mortgage contract with the service member or his dependent for the purchase of real or
26 personal property may not foreclose on the mortgage or repossess the property for nonpayment or
27 any breach occurring prior to or during military service without an order from a court of competent
28 jurisdiction.
29 (2) The court, upon application to it under this section, may, unless the court finds on the
30 record that the ability of the service member to comply with the terms of the mortgage is not
31 materially affected by reason of his military service:
1 (a) order repayment of any prior installments or deposits as a condition of terminating the
2 contract and resuming possession of the property;
3 (b) order a stay of the proceedings on its own motion, or on motion by the service member
4 or another person on his behalf; or
5 (c) make any other disposition of the case as it considers to be equitable to conserve the
6 interests of all parties.
7 (3) In order to come within the provisions of this section, the service member or dependent
8 must establish the following:
9 (a) that relief is sought on an obligation secured by a mortgage, trust deed, or other
10 security in the nature of a mortgage on either real or personal property;
11 (b) that the obligation originated prior to the service member's entry into military service;
12 (c) that the property was owned by the service member or his dependent prior to the
13 commencement of military service; and
14 (d) that the property is still owned by the service member or his dependent at the time
15 relief is sought.
16 (4) Any person who knowingly forecloses on property which is the subject of this section
17 other than as provided in Subsection (1) is guilty of a misdemeanor.
18 Section 17. Section 39-7-117 is enacted to read:
19 39-7-117. Application for relief.
20 (1) A person may, at any time during his period of military service or within three months
21 after discharge or termination, apply to a court for relief in respect of any obligation or liability
22 incurred by the person prior to his period of military service.
23 (2) The court, after appropriate notice and hearing, unless in its opinion the ability of the
24 applicant to comply with the terms of the obligation or liability has not been materially affected
25 by reason of his military service, may grant the following relief:
26 (a) In the case of an obligation payable under its terms in installments under a contract for
27 the purchase of real estate, or secured by a mortgage or other instrument in the nature of a
28 mortgage upon real estate, a stay of the enforcement of the obligation during the applicant's period
29 of military service and, from the date of termination of the period of military service or from the
30 date of application if made after termination of military service, for a period equal to the period
31 of the remaining life of the installment contract or other instrument plus a period of time equal to
1 the period of military service of the applicant, or any part of the combined period, subject to
2 payment of the balance of principal and accumulated interest due and unpaid at the date of
3 termination of the period of military service or from the date of application, in equal installments
4 during the combined period at the rate of interest on the unpaid balance as is prescribed in the
5 contract, or other instrument evidencing the obligation, for installments paid when due, and subject
6 to any other terms as the court may consider just.
7 (b) In the case of any other obligation or liability, a stay of the enforcement during the
8 applicant's period of military service and, from the date of termination of the period of military
9 service or from the date of application if made after termination of the period of military service,
10 for a period of time equal to the period of military service of the applicant or any part of that
11 period, subject to payment of the balance of principal and accumulated interest due and unpaid at
12 the date of termination of the period of military service or the date of application, in equal periodic
13 installments during the extended period at the rate of interest prescribed for the obligation or
14 liability, if paid when due, and subject to other terms the court considers to be reasonable and just.
15 (3) When any court has granted a stay as provided in this section, a fine or penalty may
16 not be accrued for failure to comply with the terms or conditions of the obligation or liability for
17 which the stay was granted during the period the terms and conditions of the stay are complied
18 with.
19 Section 18. Section 39-7-118 is enacted to read:
20 39-7-118. Storage liens.
21 (1) A person may not exercise any right to foreclose or enforce any lien for storage of
22 household goods, furniture, or personal effects of a service member in military service during the
23 service member's period of military service and for three months after termination or discharge,
24 except upon an order previously granted by a court upon application and a return to the court made
25 and approved by the court. In the proceeding the court may, after hearing the matter, on its own
26 motion, and shall, on application to it by the service member in military service or another person
27 on his behalf, unless in the opinion of the court the ability of the service member to pay the storage
28 charges due is not materially affected by reason of his military service:
29 (a) stay the proceedings as provided in this chapter; or
30 (b) make any other disposition the court considers to be equitable to conserve the interest
31 of all the parties.
1 (2) The enactment of the provisions of this section may not be construed in any way as
2 affecting or limiting the scope of Section 39-7-116.
3 (3) Any person who knowingly takes any action contrary to the provisions of this section,
4 or attempts to do so, is guilty of a misdemeanor.
5 Section 19. Section 39-7-119 is enacted to read:
6 39-7-119. Professional liability protection for certain persons ordered to active duty
7 in the armed forces.
8 (1) This section applies to a person who:
9 (a) is ordered to military service, other than training; and
10 (b) immediately before receiving the order to military service:
11 (i) was engaged in the furnishing of health-care services or other services determined by
12 rule to be professional services; and
13 (ii) had in effect a professional liability insurance policy that does not continue to cover
14 claims filed with respect to the service member during the period of the service member's active
15 duty unless the premiums are paid for coverage for that period.
16 (2) (a) Coverage of a person referred to in Subsection (1) by a professional liability
17 insurance policy shall be suspended by the insurance carrier in accordance with Subsection (3)
18 upon receipt of a written request by the service member.
19 (3) A professional liability insurance carrier:
20 (a) may not require that premiums be paid by or on behalf of a service member for any
21 professional liability insurance coverage suspended pursuant to Subsection (2); and
22 (b) shall refund any amount paid for coverage for the period of the suspension or, upon
23 the election of the service member, apply the amount for the payment of any premium becoming
24 due upon the reinstatement of the coverage.
25 (4) A professional liability insurance carrier is not liable with respect to any claim that is
26 based on professional conduct, including any failure to take any action in a professional capacity
27 of a person that occurs during a period of suspension of that person's professional liability
28 insurance under this section. For the purposes of the preceding sentence, a claim based upon the
29 failure of a professional to make adequate provision for patients to be cared for during the period
30 of the professional's military service is considered an action or failure to take action before the
31 beginning of the period of suspension of professional liability insurance under this section, except
1 in a case in which professional services were provided after the date of the beginning of the period.
2 (5) (a) Professional liability insurance coverage suspended in the case of any service
3 member pursuant to Subsection (2) shall be reinstated by the insurance carrier on the date on which
4 the service member transmits to the insurance carrier a written request for reinstatement.
5 (b) The request of a service member for reinstatement shall be effective only if the service
6 member transmits the request to the insurance carrier within 30 days after the date on which the
7 service member's military service is terminated. The insurance carrier shall notify the person of
8 the due date for payment of the insurance premium. The premium shall be paid by the person
9 within 30 days after receipt of the notice.
10 (6) The period for which professional liability insurance coverage shall be reinstated for
11 a service member under this section may not be less than the balance of the period for which
12 coverage would have continued under the policy if the coverage had not been suspended.
13 (7) An insurance carrier may not increase the amount of the premium charged for
14 professional liability insurance coverage of any service member for the minimum period of the
15 reinstatement of coverage required under Subsection (5) to an amount greater than the amount
16 chargeable for the coverage for the period before the suspension, except to the extent of any
17 general increase in the premium amounts charged by that carrier for the same professional liability
18 coverage for other persons similarly covered by the same insurance during the period of the
19 suspension.
20 (8) This section does not:
21 (a) require a suspension of professional liability insurance coverage for any person who
22 is not a person referred to in Subsection (1) and who is covered by the same professional liability
23 insurance as a person referred to in Subsection (1); or
24 (b) relieve any person of the obligation to pay premiums for the coverage not required to
25 be suspended.
26 (9) A civil or administrative action for damages on the basis of the alleged professional
27 negligence or other professional liability of a person whose professional liability insurance
28 coverage has been suspended under Subsection (2) shall be stayed until the end of the period of
29 the suspension if:
30 (a) the action was commenced during that period;
31 (b) the action is based on an act or omission that occurred before the date on which the
1 suspension became effective; and
2 (c) the suspended professional liability insurance would, except for the suspension, on its
3 face cover the alleged professional negligence or other professional liability negligence or other
4 professional liability of the person.
5 Section 20. Section 39-7-120 is enacted to read:
6 39-7-120. Rulemaking authority.
7 The Adjutant General may make rules in accordance with Title 63, Chapter 46a, Utah
8 Administrative Rulemaking Act, to implement this chapter.
9 Section 21. Effective date.
10 This act takes effect on July 1, 1997.
Legislative Review Note
as of 1-29-97 11:53 AM
A limited legal review of this bill raises no obvious constitutional or statutory concerns.
Office of Legislative Research and General Counsel
[Bill Documents][Bills Directory]