Active Duty Service Member? How to Delay Any Small Claims Case, Traffic Ticket Case, Fine, Contract Bill or Collection Action in California

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Active duty service members can get a nearly automatic “stay” (pause) of any California small claims court proceeding, traffic ticket fine or collection action, or even finance contracts for the period of service plus up to 3 by law.

This stay in actions against service members is one of the many protections set forth in California’s Military and Veterans Code section 400 et seq. The two most important of those code sections may be section 401 and 403.

If you are on active duty somewhere, are a California resident or have a California court problem, the law says that you can get a stay for things like traffic ticket payment plans, scheduled court appearances, failure to appear penalties, repossessions, rental late fees and even credit card bills.

Were you ordered to a big pay fine by the court, but can’t because you are in Kandahar and not at work making money? You can get a stay under Military and Veterans Code section 403.

Are you unable to take care of that Hwy 1 speeding ticket on time you are doing the 54 hr. Crucible at Camp Pendleton? Request a section 403 stay.

Court threatening you with a warrant because you did not pay an old $25 dismissal fee, and they want to see you in person, but you cannot go because you are busy flying a C130 filled with MREs? Request a section 403 stay.

Need to stop a finance company from repossessing your family car? Section 401 applies to civil liabilities such as contracts.

End the stress by requesting a section 403 or section 401 stay. It is free and EZ.

If you are active duty, a section 403 stay is a routine pause in all court proceedings or against you unless a judge finds on the record your service is not “prejudicing” your ability to perform.

Active Duty United States Military Personnel or someone acting on their behalf can apply with a simple letter or 1 page form.

There is a standard 1 page stay request form by the California Judicial Council that works for all court cases.

If you are trying to stay a court case fine, or court date, or date to respond to a court deadline, the Judicial Council Form is the best way to make the request to the court.

The Judicial Council form number is MIL-100 and it is at: http://www.courts.ca.gov/documents/mil100.pdf

Requests to the court should be filed with the court clerk’s office by mail or in person. Some courts may accept email submissions.

Get proof you sent it and proof of delivery. Follow up in writing to the extent necessary. Watch your mail for a court response. Once a stay is requested and acknowledged, you can deal with the problem after service.

Section 403 also applies to stays in civil court actions, such as small claims court actions by a credit card company to collect an overdue account.

The related section 401 provides the same sort of protection to financial issues. It covers stays of “civil liabilities” and “contracts” such as financial contracts. It applies to repossession actions by car finance companies and other financial obligations that might get in the way of active duty service.

A quick read of the law, quoted below for educational purposes, can open one’s eyes to other situations that may help a busy service member and their family.

If the request for a stay does not involve a court case, such as a request for a stay on a contract, Section 401 stays can be made in letter form, by mail or even by email.

Here is a free Attorney drafted template for a section 401 stay request to a finance or credit card company:

http://store.payloadz.com/go?id=2488344

Edit it as you see fit.

Get proof you sent the request and proof of delivery. Follow up in writing to the extent necessary. Watch for a response. Once a stay is requested and acknowledged, you can deal with the problem after service.

If your request is verifiable and documented, there is little recourse for the “man” so to speak.

Persons or businesses that fail to comply with section 401 and 403 are liable for damages, attorneys fees needed to resolve the problem later, and face criminal charges.

Requests for section 403 and 401 stays should state the facts of active duty service, dates of service, and a citation to the law.

California Military and Veterans Code section 401, and 403 state:

401. (a) Application by a service member for, or receipt by a
service member of, a stay, postponement, or suspension pursuant to
this chapter in the payment of any tax, fine, penalty, insurance
premium, or other civil obligation or liability of that person shall
not itself, without regard to other considerations, provide the basis
for any of the following:
(1) A determination by any lender or other person that the service
member is unable to pay any civil obligation or liability in
accordance with its terms.
(2) With respect to a credit transaction between a creditor and
the service member, any of the following:
(A) A denial or revocation of credit by the creditor.
(B) A change by the creditor in the terms of an existing credit
arrangement.
(C) A refusal by the creditor to grant credit to the service
member in substantially the amount or on substantially the terms
requested.
(3) An adverse report relating to the creditworthiness of the
service member by or to any person or entity engaged in the practice
of assembling or evaluating consumer credit information.
(4) A refusal by an insurer to insure the service member.
(b) Any person violating any provision of this section is liable
for actual damages, reasonable attorney’s fees, and costs incurred by
the injured party.
(c) Any person violating any provision of this section is guilty
of a misdemeanor, and shall be punishable by imprisonment not to
exceed one year or by a fine not to exceed one thousand dollars
($1,000), or both.

______

403. (a) At any stage in any action or proceeding in which a
service member is involved, either as plaintiff or defendant, during
the period of military service or within 60 days thereafter, the
court may, in its discretion on its own motion, and shall, on
application to it by the service member or some person on his or her
behalf, stay the action or proceeding unless, in the opinion of the
court, the ability of the plaintiff to prosecute the action or the
defendant to conduct his or her defense is not materially affected by
reason of his or her military service.
(b) When an action for compliance with the terms of any contract
is stayed pursuant to this section, no fine or penalty shall accrue
by reason of failure to comply with the terms of the contract during
the period of the stay, and in any case where a person fails to
perform any obligation and if a fine or penalty for the
nonperformance is incurred a court may, on those terms as may be
just, provide relief against the enforcement of that fine or penalty
if it appears that the person who would suffer by that fine or
penalty was in the military service when the penalty was incurred and
that by reason of military service the ability of the person to pay
or perform was thereby materially impaired.
(c) In any action or proceeding against a service member, before
or during the period of the service, or within 60 days thereafter,
the court may, in its discretion on its own motion, or shall, upon
application to it by the service member or some person on his or her
behalf, unless in the opinion of the court the ability of the
defendant to comply with the judgment or order entered or sought is
not materially affected by reason of his or her military service, do
either of the following:
(1) Stay the execution of any judgment or order entered against a
service member.
(2) Vacate or stay any attachment or garnishment of property,
money, or debts in the hands of another, whether before or after
judgment.
(d) Any stay of any action, proceeding, attachment, or execution
ordered by any court under this section may, except as otherwise
provided, be ordered for the period of military service and three
months thereafter or any part of that period, and subject to those
terms as may be just, including terms with respect to payment in
installments of those amounts at those times as the court may fix. If
the service member is a codefendant with others the plaintiff may
nevertheless, by leave of court, proceed against the others.

Source is Official California Legislative Information: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=mvc&group=00001-01000&file=400-409.14

After a section 401 or 403 stay is granted, service members should keep good records of the situation and be prepared to address the claim or case on time once a stay ends.

If you need assistance making a section 401 or 403 request, or have questions about whether or not it will work for you, contact veteran’s benefits attorney
Christopher Dort
http://www.VeteransBenefitsRep.com

Questions? Leave a comment.

*This content was originally published on www.TrafficCourtBlog.com and is reprinted here by license. Copyright 2016. All rights reserved.

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