2001 - 2002 LEGISLATURE
October 16, 2001 - Introduced by
Veterans and Military Affairs. Referred to
Committee on Veterans and Military Affairs.
1An Act to amend
45.53 (title); and to create
21.75 of the statutes; relating to:
2the rights of persons who are called into active state service.
Analysis by the Legislative Reference Bureau
Under current federal law, persons who are in active service in the U.S. armed
forces and their dependents are given certain protections related to lawsuits, leases,
obligations and contracts for the period that they are in active service. Generally,
these protections are provided under federal law only if the service in the military
materially affects the armed forces member's ability to meet the obligation. In most
cases, the armed forces member may waive the protections afforded by the law if he
or she does so in writing after entering the armed forces.
Under federal law, all interest on obligations incurred before entry into the
armed forces is capped at six percent for the duration of the military service. The
federal law tolls the running of all statutes of limitations during the period of active
service with respect to civil and administrative proceedings involving the service
member as either a plaintiff or a defendant. The federal law stays all civil actions
affecting the service member, including actions to repossess property and
garnishment actions. Under the federal law, if in a court action a default judgment
is requested, the person requesting the default judgment must submit an affidavit
regarding the military status of the opposing party, and the court is required to
appoint an attorney for the other party if he or she may be in military service. That
attorney may seek a stay of the proceedings under federal law. Federal law also
allows the reopening of a default judgment if that judgment was entered against a
service member during or with 30 days after his or her period of active service.
Under federal law, members of the U.S. armed forces and their dependents are
protected from eviction from their dwelling if the monthly rent does not exceed
$1200. In addition, the federal law allows a service member to terminate a lease
occupied as a dwelling or for professional, business, or agricultural purposes if the
lease was entered into before the service member was called into active service. In
this situation, the service member does not need to be materially affected to
terminate the lease. The federal law allows a court to stay the enforcement of
installment contracts, storage liens, and mortgage obligations.
This bill provides these same benefits to persons who are called into state
service either as part of the state national guard or as part of the state militia.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB571, s. 1
21.75 of the statutes is created to read:
221.75 Soldiers' and sailors' relief act; state service. (1) Definitions.
(a) "Active state service" means active service for 30 days or more in the 5
national guard or the state defense force under an order of the governor issued under 6
this chapter or active service for 30 days or more in the national guard under 32 USC
(f) or 506
that is not considered to be "service in the uniformed services," as 8
defined in 38 USC 4303
(b) "Court" means a court of record.
(c) "Department" means the department of military affairs.
(d) "Service member" means a person who may be called into active state 12
(e) "Period of active state service" means the period beginning on the date on 14
which the service member receives an order to enter active state service and ending
on the date of the service member's release from active state service or death while 2
in active state service.
3(2) Protection of persons secondarily liable.
(a) If this section results in the 4
stay or suspension of any obligation, liability, court action, order, writ, or judgment, 5
the court that issued the stay or suspension may grant the same remedy to sureties, 6
guarantors, endorsers, and others subject to the obligation, liability, court action, 7
order, writ, or judgment.
(b) If a service member is the principal on a criminal bail bond and his or her 9
active state service causes the surety upon the bond to be prevented from enforcing 10
the attendance of the service member at court, the court shall not enforce the 11
provisions of the bond during the service member's period of active state service and 12
may either during or after the period of active service discharge the surety and 13
exonerate the bail.
(c) A surety, guarantor, endorser, or other person subject to the obligation, 15
liability, court action, order, writ, or judgment under par. (a) or (b) may waive in 16
writing the rights afforded by this subsection, except that the waiver is not valid 17
unless the waiver is executed as an instrument separate from the obligation, liability, 18
court action, order, writ, or judgment. The waiver under this paragraph is not valid 19
after the beginning of the period of active state service if executed by a service 20
member who subsequently is called into active state service. The waiver under this 21
paragraph is not valid if executed by a dependent of a service member unless the 22
waiver is executed during the period of active state service.
23(3) Effect on rights under a written agreement.
This section does not prevent 24
the modification, termination, or cancelation of any contract, lease, bailment, or 25
secured obligation, or the repossession, retention, foreclosure, sale, or forfeiture of
property that is security for any obligation or which has been purchased or received 2
under a contract, lease, or bailment under a written agreement of the parties if that 3
agreement is executed during or after the period of active state service.
4(4) Exercise of rights.
No person may use the fact that a service member has 5
applied for, or received, a stay, postponement, or suspension in the payment of a tax, 6
fine, penalty, insurance premium, or other civil obligation or liability as the basis for 7
doing any of the following:
(a) If the person is a lender, determining that the service member is unable to 9
pay any such civil obligation or liability in accordance with the terms of the obligation 10
(b) If the person is a creditor, denying or revoking any credit extended to the 12
service member, changing the terms of a credit agreement to which the service 13
member is a party, or refusing to grant credit to the service member in substantially 14
the amount or on substantially the terms requested by the service member.
(c) If the person is in the business of assembling or evaluating consumer credit 16
information, making an adverse report on the creditworthiness of the service 17
(d) If the person is an insurer, refusing to insure the service member.
19(5) Default judgments, affidavits, and attorney representation.
(a) If, in any 20
court action, there is a default of any appearance of the defendant, the plaintiff, when 21
requesting a default judgment, shall file with the court an affidavit setting forth facts 22
showing that the defendant is not in active state service. If the plaintiff is unable to 23
file such an affidavit, the plaintiff shall, when requesting a default judgment, file an 24
affidavit setting forth that the defendant is in active state service or that the plaintiff 25
is unable to determine if the defendant is in active state service. If an affidavit is not
filed showing that the defendant is not in active state service, a default judgment 2
may not be entered without a court order. A court may not order the entry of a default 3
judgment if the defendant is in active state service until the court has appointed an 4
attorney to represent the defendant and protect the defendant's interests. Unless 5
the court determines that the defendant is not in active state service, the court may 6
require, as a condition of entering judgment, the plaintiff to file a bond to indemnify 7
the defendant, if he or she is in active state service, against any loss or damage 8
resulting from the judgment if any part of the judgment is later set aside. The court 9
may make any other order as may be necessary to protect the interests of the 10
defendant under this section.
(b) If a judgment is rendered in a court action against a service member during 12
the period of active state service or within 30 days after the end of that period of active 13
state service, and it appears that the service member was prejudiced in making a 14
defense by reason of his or her active state service, the court may reopen that 15
judgment if all of the following conditions exist:
1. The service member moves the court to reopen the judgment within 90 days 17
after his or her period of active state service ends.
2. The service member has a meritorious or legal defense to the action.
(c) Vacating, setting aside, or reversing a judgment under this subsection does 20
not impair any right or title acquired by a bona fide purchaser for value under the 21
(d) Any person who shall make or use an affidavit required under this 23
subsection that he or knows to be false shall be fined not more than $10,000 or 24
imprisoned for not more than 9 months, or both.
1(6) Stay of action.
During any stage of a court action in which a service 2
member in active state service is involved as a party, or within 60 days after the end 3
of the period of active state service, the court in which the action is pending may on 4
its own motion, and shall, on application of the service member or some person acting 5
on behalf of the service member, stay the action unless the court determines that the 6
service member's ability to represent his or her interest in the action is not materially 7
affected by reason of his or her active state service.
8(7) Stay or vacation of executions or attachments
. In any court action that 9
is commenced against a service member before or after entering active state service, 10
or within 60 days after the period of active state service ends, the court may on its 11
own motion, and shall, on application of the service member or some person acting 12
on behalf of the service member, stay the execution of any judgment or order entered 13
against the service member, or stay or vacate any attachment or garnishment 14
regarding the service member's property, unless the court determines that the 15
service member's ability to comply with the judgment or order is not materially 16
affected by reason of his or her active state service.
17(8) Duration and terms of stays.
(a) Any stay of any action, attachment, 18
execution, or garnishment under this section may be ordered for the period of the 19
active state service and 3 months after that period has ended, or for any part of that 20
(b) Any stay under par. (a) may be subject to such terms as may be just, 22
including the payment of installments in an amount and at the times that the court 23
(c) If the service member is a codefendant in an action, the plaintiff may, by 25
leave of the court, proceed against the other codefendants.
1(9) Statutes of limitations.
The period of active state service may not be 2
included in computing any period for the bringing of any action or proceeding in any 3
court or before any public agency, as defined in s. 36.54 (2) (a) 2., by or against a 4
person in active state service or by or against his or her heirs, executors, 5
administrators or assigns, whether the cause of action or proceeding or the right to 6
bring the action or proceeding accrued before or during the period of active state 7
8(10) Maximum interest rate.
Notwithstanding ss. 138.04, 138.09 (7) (b), (bm), 9
(bn), and (bp), 138.12 (10) (a), 218.0101 to 218.0163, 422.201 (2), (3), (9), and (10s), 10
422.205 (1), and 422.206 (2), no obligation or liability bearing interest at a rate in 11
excess of 6 percent per year incurred by a service member in active state service 12
before his or her entry into that service may, during any part of the period of active 13
state service, bear interest in excess of 6 percent per year except by court order. If, 14
upon application by an obligee, a court determines that the ability of the service 15
member to pay interest upon the obligation or liability at a rate in excess of 6 percent 16
per year is not materially affected by reason of his or her active state service, the 17
court may make any order that is just. In this subsection, "interest" includes service 18
charges, renewal charges, fees, or other charges, other than insurance, in respect to 19
the obligation or liability.
) Eviction stay
. (a) No eviction may be made during the period of active 21
state service in respect to any premises for which the agreed rent does not exceed 22
$1,200 per month, occupied chiefly for dwelling purposes by the spouse, children, or 23
other dependents of a service member who is in active state service, except upon 24
order of a court in an action affecting the right of possession.
(b) In an action for eviction under par. (a), the court may on its own motion, and 2
shall, on application of the service member or some person acting on behalf of the 3
service member, stay the proceedings for not longer than 3 months unless the court 4
determines that the ability of the tenant to pay the agreed rent is not materially 5
affected by the active state service. The court may make any other order in the 6
eviction action as it considers necessary and just. If a stay or order is issued under 7
this paragraph, the court may, upon the request of the owner of the premises, make 8
any other order as may be applicable to conserve the interests of all of the parties.
(c) Any person who knowingly takes part in any eviction prohibited under par. 10
(a) except as provided in this subsection, or attempts to do so, shall be fined not more 11
than $10,000 or imprisoned not more than 9 months, or both.
12(12) Action to enforce obligation secured by mortgage.
(a) In this 13
subsection, "obligation" means an obligation of a service member in active state 14
service that was incurred before the service member's period of active state service 15
began and that is secured by a mortgage, deed of trust, or other security in the nature 16
of a mortgage on real or personal property that is owned by the service member.
(b) If a court action against a service member is commenced during the service 18
member's period of active state service to enforce an obligation for nonpayment of 19
any sum due or for any other breach of terms occurring before or during the service 20
member's period of active state service, the court shall hold a hearing on the matter. 21
Unless the court determines that the service member's ability to comply with the 22
terms of the obligation is not materially affected by reason of his or her active state 23
service, the court on its own motion may, or upon application of the service member 24
or another person on his or her behalf shall, do any of the following:
1. Stay the action as provided in this section.
2. Make such other disposition of the case as the court determines is equitable 2
to the interests of all parties.