ASSEMBLY, No. 1458

STATE OF NEW JERSEY

212th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2006 SESSION

 


 

Sponsored by:

Assemblyman JACK CONNERS

District 7 (Burlington and Camden)

Assemblyman HERB CONAWAY, JR.

District 7 (Burlington and Camden)

Assemblyman JOHN S. WISNIEWSKI

District 19 (Middlesex)

 

Co-Sponsored by:

Assemblymen Diegnan, Mayer, Johnson, Gordon, Chivukula, Assemblywomen Watson Coleman, Greenstein, Cruz-Perez and Assemblyman Manzo

 

 

 

 

SYNOPSIS

     Creates New Jersey Servicemembers' Civil Relief Act of 2005.

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel

  


An Act creating the New Jersey Servicemembers' Civil Relief Act of 2005, supplementing Title 38A of the New Jersey Statutes, and repealing P.L.1979, c.317.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.  This act shall be known and may be referred to as the "New Jersey Servicemembers' Civil Relief Act of 2005."

 

     2.  The Legislature finds and declares that the civil and property rights of persons serving on active duty in the Armed Forces of the United States and the New Jersey National Guard should be maintained, secured and protected as a matter of public policy of this State. To accomplish this purpose, the provisions of this act shall be liberally construed.  This act shall be deemed an exercise of the police power of the State for the protection of the public welfare, prosperity, health and peace of the people of the State.

 

     3.  When a person on active duty is involved as a plaintiff or defendant in an action or proceeding in a court commenced before or during the period of active duty or within 60 days thereafter, the court may stay the execution of a judgment or order entered against such person, or vacate or stay an attachment or garnishment of property, money, or debts, whether before or after judgment, at its discretion and on its own motion or upon application to it by the person on active duty or another person on his or her behalf.

     This section shall apply unless the court determines that the defendant's ability to conduct a defense or to comply with the judgment or order entered or sought, or the plaintiff's ability to prosecute the action, is not materially affected by reason of the active duty of the defendant or plaintiff.

 

     4.  A stay of an action, proceeding, attachment or execution ordered by a court under the provisions of this act may be ordered for the period of active duty and three months thereafter, or any part of such period.  A stay may be subject to such terms as may be just, including as to payment in installments of such amounts and at such times as the court may fix or otherwise.  If a person on active duty is a codefendant with others the plaintiff may nevertheless proceed against the others by leave of court.

 

     5. a.  If the defendant does not appear in a civil action or proceeding commenced in any court, the plaintiff may file an affidavit setting forth facts to show that the defendant is not serving on active duty. The affidavit shall be filed within 20 days before the entry of a judgment or final order.  If the plaintiff is unable to file such an affidavit, the plaintiff may file an affidavit to show either that the defendant is on active duty or that the plaintiff is not able to determine if the defendant is on active duty.  If no affidavit is filed to show that the defendant is not on active duty, a judgment or final order shall not be entered without first securing an order of court directing such entry.  Such an order shall not be made if the defendant is on active duty until after the court appoints an attorney to represent the defendant and protect the defendant's interest.

     A person who knowingly makes or uses a false affidavit for the purposes of this section shall be guilty of perjury.

     b.  In an action or proceeding in which a person on active duty is a party, the court may appoint an attorney to represent the person if such person does not personally appear therein or is not represented by an authorized attorney.  An attorney appointed under this act to protect a person on active duty shall not have the power to waive a right of the person for whom the attorney is appointed or bind the person by the attorney's acts.

     Unless it appears that the defendant is not on active duty, the court may require that the plaintiff file a bond, approved by the court and  conditioned to indemnify the defendant, as a condition before judgment or final order is entered  against loss or damage that the defendant, if on active duty,  may suffer by reason of a judgment or final order should the judgment or final order be thereafter set aside in whole or in part.  The court may make such other and further order or enter such judgment as in its opinion may be necessary to protect the rights of a defendant under this act.

 

     6.  If a judgment or final order is rendered in an action or proceeding governed by section 5 of this act against a person while on active duty or within 30 days after being released from such duty, and it appears that the person was prejudiced by reason of the person's service on active duty in making his or her defense, the judgment or order may be opened by the court that rendered the judgement or final order, if it appears the defendant has a meritorious or legal defense to the action or proceeding or to some part thereof.  Application to open the order may be made by a person who served on active duty or that person's legal representative not later than 90 days after the termination of active duty.

     Vacating, setting aside, or reversing a judgment or final order because of a provision of this act shall not impair a right or title acquired by a bona fide purchaser for value under such judgment or order.

 

     7.  When an action for compliance with the terms of a contract is stayed pursuant to this act, no fine or penalty shall accrue by reason of failure to comply with the terms of such contract during the period of such stay.  When a person fails to perform an obligation and a fine or penalty for such nonperformance is incurred, a court may grant relief against the enforcement of such fine or penalty if it appears that the person who would suffer by such fine or penalty was on active duty when the penalty was incurred and that by reason of service on active duty the ability of such person to pay or perform was materially impaired.  The relief granted against enforcement shall be on such terms may be just.

 

     8.  The period of active duty shall not be included in computing a period now or hereafter limited by a law, regulation or order for the bringing of an action or proceeding in any court, board, bureau, commission, department or other agency of government of this State, or a subdivision thereof, by or against a person serving on active duty, or by or against that person's heir, executor, administrator or assigns.  This provision shall apply whether such cause of action or the right or privilege to institute such an action or proceeding accrued prior to or during the period of active duty.  A part of such period shall not be included in computing a period provided by law for the redemption of real property sold or forfeited to enforce an obligation, tax or assessment.

 

     9.  a.  When the enforcement of an obligation or liability, the prosecution of a suit or proceeding, the entry or enforcement of an order, writ, judgment or decree, or the performance of an act may be stayed, postponed or suspended pursuant to a provision of this act, such stay, postponement or suspension may likewise be granted to a surety, guarantor, endorser and other subject to the obligation, liability, performance or enforcement, at the discretion of the court.

     b.  When a judgment or decree is vacated or set aside, in whole or in part, as provided in this act, the judgment or decree may likewise be set aside and vacated as to a surety, guarantor, endorser, accommodation maker or other person whether primarily or secondarily liable upon the obligation or enforcement, at the discretion of the court.

     c.  Nothing contained in this act shall prevent a waiver in writing of the benefits afforded by subsections a. and b. of this section by a surety, guarantor, endorser, accommodation maker, or other person whether primarily or  secondarily liable upon the obligation or liability.  A waiver shall not be valid unless it is executed as an instrument separate from the obligation or liability to which it applies.  A waiver shall not be valid after the beginning of the period of  active duty if executed by a person who is called to active duty subsequent to the execution of such waiver.

 

     10.  a.  An obligation or liability bearing interest at a rate in excess of six percent per year that is incurred by a person on active duty, or the person and the person's spouse jointly, before the person begins active duty shall not bear interest at a rate in excess of six percent per year during the period of active duty.  Interest at a rate in excess of six percent per year that would otherwise be incurred but for the prohibition in this paragraph shall be forgiven.

     The amount of any periodic payment due under the terms of the instrument that created an obligation or liability covered by this section shall be reduced by the amount of the interest forgiven that is allocable to the period for which such payment is made.

     b.  In order for an obligation or liability to be subject to the interest rate limitation in subsection a. of this section, a person on active duty shall provide to the creditor written notice and a copy of the military orders calling the person to active duty and any orders further extending active duty, not later than 180 days after the date of the person's termination or release from active duty.  Upon receipt of written notice and a copy of orders calling a person to active duty, the creditor shall treat the debt in accordance with subsection a. of this section, effective as of the date on which the person is called to active duty.

     c.  A court may grant a creditor relief from the limitations of this section if, in the opinion of the court, the ability of the person on active duty to pay interest upon the obligation or liability at a rate in excess of six percent per year is not materially affected by reason of the person's service on active duty.

     d.  As used in this section, the term "interest" includes service charges, renewal charges, fees, or any other charges, except bona fide insurance, with respect to an obligation or liability.

 

     11.  a.  An eviction or distress shall not be made during the period of  active duty with respect to premises for which the rent is less than $2,400 per month and which is occupied chiefly for dwelling purposes by the spouse, children, or other dependents of a person on active duty, except upon leave of court granted upon application or in an action or proceeding affecting the right of possession.  The amount of rent described in this paragraph shall be adjusted for inflation by the Consumer Price Index annually.

     b.  On an application or in an action, a court may stay the proceedings as provided in sections 3 and 4 of this act for a period of three months, or it may make such other order as may be just.

     c.  A person who knowingly takes part in an eviction or distress other than as provided in subsection a. of this section, or attempts to do so, shall be adjudged a disorderly person, and shall be punished by imprisonment not to exceed six months, or by a fine not to exceed $1,000, or both.

 

     12.  a.  A lease that covers premises occupied by a person or the person and the person's dependent for dwelling, professional, business, agricultural, or similar purposes, and was executed by or on behalf of a person who began service on active duty after the execution of the lease, may be terminated by notice in writing delivered to the lessor, or the lessor's grantee or the lessor's or grantee's agent, by the lessee at any time following the beginning of the period of active duty.  Termination of a lease providing for monthly payment of rent shall not be effective until 30 days after the date on which the next rental payment is due, and rent shall be payable until the date when the notice is delivered or mailed.

     b.  For all other leases, termination shall be effected on the last day of the month following the month in which the notice is delivered or mailed, and an unpaid rental for the period preceding termination shall be prorated.  A rental paid in advance for a period succeeding termination shall be refunded by the lessor or the lessor's assignee.

     c.  Upon application by the lessor to the appropriate court prior to the termination period provided for in the notice, relief  granted in this section shall be subject to such modifications or restrictions as, in the opinion of the court, justice and equity may in the circumstances require.

     d.  A person who knowingly seizes, holds or detains the personal effects, clothing, furniture or other property of a person who has lawfully terminated a lease covered by this section, or in any manner interferes with the removal of property from the premises covered by such lease, for the purpose of subjecting or attempting to subject such property to a claim for rent accruing subsequent to the date of termination of such lease, or who attempts to do so, shall be adjudged a disorderly person and shall be punished by imprisonment not to exceed six months, or by a fine not to exceed $1,000, or both.

 

     13.  a. (1) A person who has received, or whose assignor has received,  a deposit or installment under a contract for the purchase of real or personal property, or for a lease or bailment with a view to purchase of such property, from a person or from the assignor of a person who has begun service on active duty after the date of payment of such deposit or installment shall not exercise a right or option under such contract to rescind or terminate the contract or resume possession of the property for nonpayment of an installment thereunder due or for another breach of the terms thereof occurring prior to or during the period of active duty, except by action in a court of competent jurisdiction.  Nothing contained in this section shall prevent the modification, termination or cancellation of such a contract, or prevent the repossession, retention, foreclosure, sale or taking possession of property which is purchased or received, or which is security for an obligation under such contract, pursuant to a mutual agreement of the parties thereto or their assignees if such agreement is executed in writing subsequent to the making of such contract and during or after the period of active duty of the person concerned.

     (2)  A person who prior to serving on active duty for a period of more than 90 consecutive days leased a non-commercial motor vehicle for personal use, with or without a view to purchase, may cancel the lease by giving written notice of cancellation to the lessor or the lessor's assignor at any time following the date of receipt of the order to enter active duty.  Cancellation of a lease providing for monthly lease payments shall not be effective until the last day of the month following the month in which notice of cancellation is made, or when the leased motor vehicle is returned to the lessor or the lessor's assignor, whichever is later.  Upon cancellation of the lease, the former lessee and a co-signer shall have no further liability to the lessor or the lessor's assignor, except that the lessee and a co-signer shall be obligated to the lessor or assignor for damages to the motor vehicle and excess mileage over the pro rata amount permitted as of the date of cancellation of the lease.  The lessor or lessor's assignor shall not impose a penalty or charge upon the lessee or a co-signer on the lease for early cancellation of the lease.  This subsection shall apply whether or not the person is the sole signatory of the lease.

     b.  A person who knowingly resumes possession of property described in this section other than as provided in subsection a. of this section, or who attempts to do so, shall be adjudged a disorderly person and shall be punished by imprisonment not to exceed six months, or by a fine not to exceed $1,000, or both.

     c.  Upon the hearing of such action, the court may order the repayment of prior installments or deposits or any part thereof as a condition of terminating the contract and resuming possession of the property.  The court also may order a stay of proceedings as provided in this act at its discretion and on its own motion, or shall order such stay on application to it by a person on active duty or another person on his or her behalf, except as provided in section 13 of this act.  A stay under this section may be ordered for the period of active duty and six months thereafter or any part of such period unless the ability of the defendant to comply with the terms of the contract is not materially affected, in the opinion of the court, by reason of service on active duty.  The court may make such other disposition of the case as may be equitable to conserve the interests of all parties.

 

     14.  a.  When an obligation is secured by mortgage, trust deed or other security in the nature of a mortgage upon real or personal property owned by a person on active duty originating prior to the commencement of the period of active duty, a court may stay a proceeding as provided in this act commenced during the period of active duty to enforce such obligation arising out of nonpayment of a sum due or out of another breach of terms occurring prior to or during the period of active duty, or make such other disposition of the case as may be equitable to conserve the interest of all parties. The court may do so at its discretion and on its own motion or upon application to it by the person on active duty or another person on his or her behalf. This subsection shall apply unless the ability of the defendant to comply with the terms of the obligation, in the opinion of the court,  is not materially affected by reason of service on active duty.

     b.  A sale, foreclosure or seizure of property for nonpayment of a sum due under such an obligation, or for another breach of the terms thereof, whether under a power of sale, under a judgment entered upon warrant of attorney to confess judgment contained therein or otherwise, shall not be valid if  made during the period of active duty or within three months thereafter except upon an order of sale previously granted by the court and a return thereto is made and approved by the court.

     c.  A person who knowingly causes to be made a sale, foreclosure or seizure of property defined as invalid by subsection b. of this section, or attempts to do so, shall be adjudged a disorderly person and shall be punished by imprisonment not to exceed six months, or by a fine not to exceed $1,000, or both.

 

     15.  When a proceeding to foreclose a mortgage or to resume possession of personal property, or to rescind or terminate a contract for the purchase thereof, has been stayed as provided in this act the court may appoint three disinterested parties to appraise the property, unless in its opinion an undue hardship would result to the dependents of the person on active duty.  Based upon the report of the appraisers, the court may order such sum, if any, as may be just to be paid to the person on active duty or the person's dependent as a condition of foreclosing the mortgage, resuming possession of the  property or rescinding or terminating the contract.

 

     16.  a. A sale of property shall not be made to enforce the collection of  a general or special tax or an assessment for failure to pay prior to or during the period of active duty with respect to personal property, money or credits or real property owned and occupied for dwelling, agricultural, or business purposes by a person on active duty or the person's dependents  at the commencement of the period of active duty and still occupied by the person's dependents or employees in a proceeding or action commenced for such purpose except upon leave of court granted upon application made by the collector of taxes or other officer whose duty it is to enforce the collection of taxes or assessments. The court may stay such proceedings or sale as provided in this act for a period extending not more than six months after the termination of the period of  active duty, unless in the opinion of the court the ability of the defendant to comply with the terms of the obligation is not materially affected by reason of service on active duty.

     This section shall not apply to taxes on income.

     b.  When by law property may be sold or forfeited to enforce the collection of a tax or assessment described in subsection a. of this section, a person on active duty shall have the right to redeem, or commence an action to redeem such property, at any time not later than six months after the termination of service on active duty.  The provisions of this subsection shall not be construed to shorten a period provided by the laws of the State, or a political subdivision thereof, for such redemption.

     c.  If a tax or assessment is not paid when due, it shall bear interest until paid at the rate of six percent per annum from the date when the tax first became a lien.  Another penalty or interest shall not be incurred by reason of such nonpayment, whether the penalty or interest accrued prior or accrues subsequent to the commencement of the period of active duty.  A lien for unpaid taxes or assessment shall also include such interest.

 

     17.  A policy that has not lapsed for the nonpayment of premium before the commencement of the period of active duty of the insured, and which has been brought within the protection of the federal "Servicemembers Civil Relief Act," 50 App. U.S.C. s. 501 et seq., shall not lapse or be forfeited for the nonpayment of premium during the period of active duty or during one year after the expiration of such  period.

     For the purposes of this section,

     "policy" means any individual contract for whole, endowment, universal, or term life insurance, other than group term life insurance coverage, including any benefit in the nature of such insurance arising out of membership in a fraternal or beneficial association but shall not mean insurance exceeding a total face value of $400,000, or an amount equal to the Servicemembers' Group Life Insurance maximum limit, whichever is greater, whether in one or more companies.

     "insured"  means a person whose life is insured under a policy.

     "insurer"  means a corporation, partnership, or other form of association which secures or provides insurance under a policy.

     "premium" shall include the membership dues or assessments in a fraternal or beneficial association with the date of issuance of policy as herein limited referring to the date of admission to membership in such association.

 

     18.  a.  When a person leaves a position other than a temporary one in the employ of an employer in order to serve on active duty, the  employer shall restore such person to the position, or to a position of like seniority, status and pay, unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so, if the person:

     receives a certificate of completion of active duty duly executed by an officer of the applicable force of the Armed Forces of the United States or by an officer of the applicable force of the National Guard;

     is still qualified to perform the duties of such position; and

     in the case of a private employer, makes application for reemployment within 90 days after the person has completed service on active duty.

     b.  The benefits, rights and privileges granted to persons on active duty by this section shall be applicable to a person who temporarily leaves a position other than a temporary one in the employ of an employer in order to participate in assemblies or annual training or in order to attend service schools conducted by the Armed Forces of the United States for a period up to and including three months, if the person is still qualified to perform the duties of such position and  makes application for reemployment within 10 days after completion of such temporary period of service.  A person shall not be entitled to the benefits, rights and privileges for such attendance at a service school exceeding a total of three months during any four-year period.

     c.  The benefits, rights and privileges granted to persons on active duty by this section shall be applicable to a person who is or becomes a member of the National Guard or of a reserve component of the Armed Forces of the United States and who is discharged or suspended by his employer because of such membership, if the person is still qualified to perform the duties of such position and makes application for reemployment or termination of suspension within 10 days after such discharge or suspension.

     d.  A person who is restored to a position in accordance with the provisions of this section shall be considered as having been on furlough or leave of absence during the period of active duty, temporary service, discharge or suspension. The person shall be so restored without loss of seniority and entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person began serving on active duty or commenced such temporary service or was so discharged or suspended.  The person shall not be discharged from the position without cause, within one year after such restoration.

     e.  If a private employer fails or refuses to comply with the provisions of this section, a person entitled to the benefits of such provisions may file a complaint in the Superior Court and the court shall have the power to specifically require the employer to comply with such provisions.  The court may also compensate the person for  loss of wages or benefits suffered by reason of the employer's unlawful action. The court shall order an expedited hearing in such a case. A person claiming to be entitled to the benefits of the provisions of this section may appear and be represented by counsel.  A person may request in writing that the Attorney General of the State appear and act on the person's behalf. If the Attorney General is reasonably satisfied that the person so applying is entitled to such benefits, the Attorney General shall appear and act as attorney for such person in the amicable adjustment of the claim, or in the filing of a complaint and the prosecution thereof. In the hearing and determination of a complaint or application under this section, fees or court costs shall not be assessed against a person applying for such benefits.

 

     19.  When it appears to the satisfaction of the court in a proceeding to enforce a civil right that an interest, property, or contract has been transferred or acquired with intent to delay the just enforcement of the right by taking advantage of this act, the court shall enter such judgment or make such order as may lawfully be entered or made, notwithstanding the provisions of this act to the contrary.

 

     20.  a.  In a proceeding under this act, a certificate executed by an officer of  the applicable force of the Armed Forces of the United States or by an officer of the applicable force of the National Guard shall be prima facie evidence of the facts therein certified and of the authority of the signer to issue the same.

     b.  When a person serving on active duty is reported missing, the person shall be presumed to continue on active duty until accounted for.  A period herein limited that begins or ends with the death of such person shall not begin or end until the death of such person is in fact reported to or proved by the applicable force of the Armed Forces of the United States or of the National Guard, or proved by a court of competent jurisdiction.

 

     21.  a.  At any time during the period of active duty or within six months thereafter, a person may apply to a court for relief with respect to an obligation or liability incurred by such person prior to the period of active duty or with respect to an tax or assessment which becomes due prior to or during the period of active duty.  Unless in the court's opinion the ability of the applicant to comply with the terms of such obligation or liability or to pay such tax or assessment has not been materially affected by reason of service on active duty, the court may grant the following relief after appropriate notice and  hearing.

     (1) In the case of an obligation payable under its terms in installments under a contract for the purchase of real estate, or secured by a mortgage or other instrument in the nature of a mortgage upon real estate, a court may stay the enforcement of such obligation during the applicant's period of active duty and, from the date of termination of such period of active duty or from the date of application if made after active duty, for a period equal to the period of the remaining life of the installment contract or other instrument plus a period of time equal to the period of active duty of the applicant, or any part of such combined period.  The stay shall be subject to payment of the  balance of principal and accumulated interest due and unpaid at the date of  termination of the period of active duty or from the date of application in equal installments during such combined period at such  rate of interest on the unpaid balance as is prescribed in such contract, or  other instrument evidencing the obligation, for installments paid when due.  The court may impose such other terms as may be just.

     (2) In the case of another obligation, liability, tax or assessment, a court may stay  the enforcement thereof during the applicant's period of active duty and from the date of termination of the period of active duty or from the date of application if made after active duty, for a period of time equal to the period of active duty of the applicant or any part of such period.  The stay shall be subject to payment of the balance of principal and accumulated interest due and unpaid at the date of the termination of such period of active duty or the  date of application in equal periodic installments during such extended period at such rate of interest as may be prescribed for such  obligation, liability, tax or assessment, if paid when due. The court may impose such other terms as may be just.

     b.  When any court has granted a stay as provided in this section, a fine or penalty shall not accrue during the period the terms and conditions of such stay are complied with by reason of failure to comply with the terms or conditions  of the obligation, liability, tax or assessment with respect to which such stay was granted.

 

     22.  As used in this act:

     "active duty" means duty, other than for training, by a person in the active military service of the Armed Forces of the United States or of the National Guard of the State pursuant to an order of the Governor.

     "person" means an individual, partnership, corporation, and any other form of business, when the term is used with reference to the holder of a right alleged to exist against a person on active duty or against a person secondarily liable under such right.

 

     23.  The New Jersey Soldiers' and Sailors' Civil Relief Act of 1979, P.L.1979, c.317 (C.38:23C-1 et seq.) is repealed.

 

     24.  This act shall take effect immediately.

 

 

STATEMENT

 

     This bill creates the New Jersey Servicemembers' Civil Relief Act of 2005 and repeals the New Jersey Soldiers' and Sailors' Civil Relief Act of 1979 (C.38:23C-1 et seq.).  The purpose of the bill is to update and modernize the benefits and protections afforded to individuals serving on active duty in the military.  No benefits or protections are reduced in this bill.

     Additionally, the bill includes a provision to reduce to six percent interest rates on an obligation or liability incurred by a person on active duty.  This provision mirrors a section in the federal Servicemembers Civil Relief Act, Public Law 108-189.

     Some of the benefits and protections afforded to individuals serving on active duty in the military are:

     stays of judgement in civil proceedings.

     relief for contracts that cannot be performed due to service.

     termination of leases executed before an individual was called to active duty.

     relief with evictions, foreclosing of mortgages, and taxes on property.

     nonlapsing of life insurance policies executed before an individual was called to active duty.

     employment protections.

     The bill is consistent with the federal Servicemembers Civil Relief Act, 50 App. U.S.C. s.501 et seq., and the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Public Law 109-13.