- The Washington Times - Friday, October 29, 2010

ANALYSIS/OPINION:

The Washington Timesreported on our nation’s foreclosure crisis Wednesday and minimized the significance of “paperwork problems” that threaten to bring the foreclosure process to a grinding halt and of law firms short-cutting procedures (“Who will win if foreclosures halted?” Page 1).

As of Tuesday, 788,949 citizen warriors had been called to duty since Sept. 11, 2001. Some of the “paperwork problems” in the foreclosure mess have to do with false affidavits stating that the homeowner is not in the military when in fact he is. There are good reasons for the steps that must be taken before a homeowner loses his home. We should not sanction law firms that skip them.

The Due Process Clause of the 14th Amendment and the Servicemembers Civil Relief Act (SCRA) protect the interests of active-duty members of our armed forces during foreclosure situations. SCRA requires the plaintiff to aver under oath that the defendant is not a member of the armed forces on active duty. If the defendant is on active duty, federal law requires that certain steps be taken to ensure the defendant can present his side of the case. Those serving in Afghanistan may not even be aware of the lawsuit.

In Hurley v. Deutsche Bank Trust Company Americas, Sgt. James B. Hurley was on active duty in Iraq when Deutsche Bank initiated a foreclosure. A paralegal at a foreclosure mill signed an affidavit stating: “The undersigned, being first duly sworn, states that upon investigation he is informed and believes that none of the persons named in the notice attached to the sheriff’s deed of mortgage foreclosure, nor any person on whom they or any of them were dependent, were in the military service of the United States at the time of the sale or for six months prior thereto.”

Through the Defense Manpower Data Center (DMDC), anyone can determine in a few minutes whether or not a person is on active duty. Before signing an affidavit attesting that somebody is not on active duty, people should first use this free service.

SAMUEL F. WRIGHT

Director, Service Members Law Center of the Reserve Officers Association

Captain, Judge Advocate General’s Corps, U.S. Navy (retired)

Arlington, Va.

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