What is a non-military affidavit and how does it relate to New York debt collection?
Filing suit against an individual? Regardless of whether your debt collection case is a commercial or consumer claim, there are additional requirements when seeking a judgment against someone.
An affidavit or affirmation of non-military affidavit is required whether you are trying to enter a judgment against an individual defendant because they did not appear in court or by way of inquest. Since you are seeking entry against an individual, you will need to obtain a non-military affidavit.
What Is a Non-Military Affidavit or Affirmation?
A non-military affidavit or affirmation states that the proposed judgment debtor is not on active duty with any branch of the United States military. This requirement comes from the Servicemembers Civil Relief Act, a federal law enacted in 1940, that prohibits suing a member of the armed forces while they are actively serving.
The need for a non-military affidavit or affirmation came about as a result of creditors bringing actions against servicemen who were on active duty at the time the lawsuit was filed. Service of the summons and complaint and pleading was improper since the serviceperson was out of the country and unable to defend themselves. When the serviceperson returned home from active duty, they found that judgments had been entered against them.
How Do You Obtain a Non-Military Affidavit or Affirmation?
To submit a non-military affidavit or affirmation with the judgment, the plaintiff or plaintiff’s attorney must first obtain a status report affidavit from the Department of Defense Manpower Data Center’s website. To run the search, you must know the defendant’s name as indicated in the court case, and either their date of birth or their social security number.
If the status report affidavit states that the defendant is not on active duty, then the plaintiff or counsel will draft an affirmation of investigator that states that on the date they printed the status report affidavit they “searched the designated Department of Defense website and received the appended Affidavit of (Name of Director of Defense of Manpower Data Center) stating that (Name of the Defendant) is not on active duty in the United States Military.” The Plaintiff or Counsel will append that status report to the signed affirmation and then submit it to the court along with the judgment.
However, if the status report states that the defendant is on active duty with the United States military, then judgment cannot be submitted or entered against the defendant pursuant to the Servicemembers Civil Relief Act.
But what if you don’t have access to the defendant’s date of birth or social security number? There is another way to submit an affirmation of investigator. You can have a process server investigate whether the defendant is presently in the military. A process server can speak with a neighbor of the defendant and ask whether:
- The defendant is in the military
- They were ordered to report for induction under the Selective Training and Service Act of 1940 or military service as a member of the Enlisted Reserve Corps
- Whether they are receiving any training or education under the supervision of the United States preliminary to induction
The process server would indicate on their affirmation of investigator the name and address of the neighbor with whom they spoke and their replies to each question. If the neighbor replies “no” to each question, the process server would state “from the facts above set forth, I am convinced that the said defendant is not in the military service at the present time.”
While not necessarily as definitive as an affirmation with a Department of Defense Manpower Data Center status report affidavit, the above process server affirmation would still satisfy the court’s requirement.
If you have a debt collection matter you need assistance with, contact Frank, Frank, Goldstein and Nager. We have the experience that pays.
