What is Non-Military Affidavit?
Non-Military Affidavit is a sworn statement in which a person states whether or not the defendant is currently in the military service. The affidavit is required to meet the requirements of Servicemember Civil Rights Act (SCRA) and other State and local regulations. SCRA is a federal regulation that entitles the servicemembers who are in military service to certain protections and benefits such as protections from default judgments, foreclosure, and evictions. As per § 521 of SCRA, before a default judgment can be entered by a court, the plaintiff (lender/servicer) is required to file an affidavit stating whether the borrower is in the military service and show necessary facts to support the affidavit.
Each jurisdiction has a different name for the Non-Military Affidavit, often depending upon the intended use. If it is used to state that the servicemember is in active duty, then it is known as the Non-Military Affidavit, Affidavit of Non Military Status, Affidavit of Non Military Service, or Military Service Affidavit. If the form is used to state whether or not the plaintiff is in military status, it is known as the SCRA Affidavit, Affidavit of Military Service, Military Service Declaration, or Affidavit of Military Investigation.
When Is the Non-Military Affidavit Required?
With respect to mortgages, the court will require the plaintiff to file the Non-Military Affidavit in cases relating to:
- Default Judgment: Some States require a judicial process for foreclosing on a property secured by a mortgage loan. Before a default judgment can be entered by a court, the plaintiff (lender/servicer) is required to file the affidavit. Default judgment may be given when the defendant has failed to appear before the court or has failed to provide a respond to the complaint.
- Eviction of the Tenant: Before a judgment for eviction can be entered, the court will require the plaintiff (lender/servicer) to file the affidavit. SCRA prohibits a landlord to evict a servicemember or the dependents of a servicemember during the period when the servicemember is in military service from property that is used as a primary residence and where rent does not exceed more than $2,400 (adjusted yearly for inflation after 2003).
SCRA applies not just to mortgages but to other areas as well such liens, insurances, and taxes. Use of Non-Military Affidavit in those cases is not discussed here.
Contents and Timing of the Non-Military Affidavit
Each jurisdiction requires different information to be included in the affidavit. You should contact the court system which has jurisdiction over the case to obtain the specific requirements for filing the affidavit. Below is general description of the information that is typically found in the affidavit.
- Statement of Military Service Status: The plaintiff must make a statement as to whether or not the defendant is currently in the military service.
- Facts Supporting Affidavit: The plaintiff must provide the facts that support the statement. Typically, the SCRA Certificate obtained from the Department of Defense's SCRA Website can be used as facts in support of the affidavit. However, the plaintiff may cite alternate sources to determine the military service status, such as contacting the Services directly, asking the defendant personally, spoke to neighbors, and defendant is elderly.
- Plaintiff’s Information: Name and signature of the plaintiff.
- Date: Date of executing the affidavit.
- Notarization: Notary’s name, signature, and seal.
- Statement of Purpose: The affidavit may state that the purpose of the affidavit is to comply with Servicemembers Civil Relief Act and to support the motion for default judgment against the named defendant/respondent.
At the time of filing, the affidavit generally must be less than 30 days old.
The affidavit provides the confirmation to the court that the defendant is not in military service, which allows the court to proceed with a default judgment.
Use in Mortgages
- When pursuing default judgments, especially for foreclosures.
- When pursing a judgment to evict a tenant.
- Non Military Affidavit
- SCRA Affidavit
- Affidavit of Military Service
- Affidavit of Non Military Status
- Affidavit of Non Military Service
- Military Service Declaration
- Military Service Affidavit
- Affidavit of Military Investigation
Plaintiff (Lender/Servicer or their attorney)
Yes (Some jurisdictions may not require)
Life Cycle Stage
Record retention period is not specified by SCRA. Other State and local laws may have separate requirements.
Different jurisdictions have their own requirements
§ 521 Servicemembers Civil Relief Act (50 USC appendix §§ 501 et seq.) Additionally, each jurisdiction may have separate regulations for the affidavit
§ 521. Protection of servicemembers against default judgments
(b) Affidavit requirement
(1) Plaintiff to file affidavit
In any action or proceeding covered by this section, the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit—
(A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or
(B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.
(4) Satisfaction of requirement for affidavit
The requirement for an affidavit under paragraph (1) may be satisfied by a statement, declaration, verification, or certificate, in writing, subscribed and certified or declared to be true under penalty of perjury.