321.62 Service members civil relief; state active duty.

1,619 words·~7 min read·/wi/chapter-321/321-62

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(1)Definitions. In this section:

(a)“Court” means a Wisconsin circuit court, a Wisconsin court of appeals, or the Wisconsin supreme court.

(b)“Period of state active duty” means the period beginning on the date on which the service member receives an order to enter state active duty and ending on the date of the service member’s release from state active duty or death while on state active duty.

(bm)“Public agency” means a county, city, village, town, public inland lake protection and rehabilitation district, lake sanitary district, or school district or an agency of this state or of a county, city, village, town, public inland lake protection and rehabilitation district, lake sanitary district, or school district.

(c)“Service member” means a member of the national guard or state defense force who is ordered into state active duty for 30 days or more.

(2)Protection of persons secondarily liable.

(a)If this section results in the stay or suspension of any obligation, liability, court action, order, writ, or judgment, the court that issued the stay or suspension may grant the same remedy to sureties, guarantors, endorsers, and others subject to the obligation, liability, court action, order, writ, or judgment.

(b)If a service member is the principal on a criminal bail bond and his or her state active duty causes the surety upon the bond to be prevented from enforcing the attendance of the service member at court, the court shall not enforce the provisions of the bond during the service member’s period of state active duty and may either during or after the period of state active duty discharge the surety and exonerate the bail.

(c)A surety, guarantor, endorser, or other person subject to the obligation, liability, court action, order, writ, or judgment under par.

(a)or

(b)may waive in writing the rights afforded by this subsection, except that the waiver is not valid unless the waiver is executed as an instrument separate from the obligation, liability, court action, order, writ, or judgment. The waiver under this paragraph is not valid after the beginning of the period of state active duty if executed by a service member who subsequently is ordered into state active duty. The waiver under this paragraph is not valid if executed by a dependent of a service member unless the waiver is executed during the period of state active duty.

(3)Effect on rights under a written agreement. This section does not prevent the modification, termination, or cancellation of any contract, lease, bailment, or secured obligation, or the repossession, retention, foreclosure, sale, or forfeiture of property that is security for any obligation or which has been purchased or received under a contract, lease, or bailment under a written agreement of the parties if that agreement is executed during or after the period of state active duty.

(4)Exercise of rights. No person may use the fact that a service member has applied for, or received, a stay, postponement, or suspension in the payment of a tax, fine, penalty, insurance premium, or other civil obligation or liability as the basis for doing any of the following:

(a)If the person is a lender, determining that the service member is unable to pay any such civil obligation or liability in accordance with the terms of the obligation or liability.

(b)If the person is a creditor, denying or revoking any credit extended to the service member, changing the terms of a credit agreement to which the service member is a party, or refusing to grant credit to the service member in substantially the amount or on substantially the terms requested by the service member.

(c)If the person is in the business of assembling or evaluating consumer credit information, making an adverse report on the creditworthiness of the service member.

(d)If the person is an insurer, refusing to insure the service member.

(5)Default judgments, affidavits, and attorney representation.

(a)If, in any court action, there is a default of any appearance of the defendant, the plaintiff, when requesting a default judgment, shall file with the court an affidavit setting forth facts showing that the defendant is not in state active duty. If the plaintiff is unable to file such an affidavit, the plaintiff shall, when requesting a default judgment, file an affidavit setting forth that the defendant is in state active duty or that the plaintiff is unable to determine if the defendant is in state active duty. If an affidavit is not filed showing that the defendant is not in state active duty, a default judgment may not be entered without a court order. A court may not order the entry of a default judgment if the defendant is in state active duty until the court has appointed an attorney to represent the defendant and protect the defendant’s interests. Unless the court determines that the defendant is not in state active duty, the court may require, as a condition of entering judgment, the plaintiff to file a bond to indemnify the defendant, if he or she is in state active duty, against any loss or damage resulting from the judgment if any part of the judgment is later set aside. The court may make any other order as may be necessary to protect the interests of the defendant under this section.

(b)If a judgment is rendered in a court action against a service member during the period of state active duty or within 30 days after the end of that period of state active duty, and it appears that the service member was prejudiced in making a defense by reason of his or her state active duty, the court may reopen that judgment if all of the following conditions exist:

1. The service member moves the court to reopen the judgment within 90 days after his or her period of state active duty ends.

2. The service member has a meritorious or legal defense to the action.

(c)Vacating, setting aside, or reversing a judgment under this subsection does not impair any right or title acquired by a bona fide purchaser for value under the judgment.

(d)Any person who shall make or use an affidavit required under this subsection that he or she knows to be false shall be fined not more than $10,000 or imprisoned for not more than 9 months or both.

(6)Stay of action. During any stage of a court action in which a service member in state active duty is involved as a party, or within 60 days after the end of the period of state active duty, the court in which the action is pending may on its own motion, and shall, on application of the service member or some person acting on behalf of the service member, stay the action unless the court determines that the service member’s ability to represent his or her interest in the action is not materially affected by reason of his or her state active duty.

(7)Stay or vacation of executions or attachments. In any court action that is commenced against a service member before or after entering state active duty, or within 60 days after the period of state active duty ends, the court may on its own motion, and shall, on application of the service member or some person acting on behalf of the service member, stay the execution of any judgment or order entered against the service member, or stay or vacate any attachment or garnishment regarding the service member’s property, unless the court determines that the service member’s ability to comply with the judgment or order is not materially affected by reason of his or her state active duty.

(8)Duration and terms of stays.

(a)Any stay of any action, attachment, execution, or garnishment under this section may be ordered for the period of the state active duty and 90 days after that period has ended, or for any part of that time.

(b)Any stay under par.

(a)may be subject to such terms as may be just, including the payment of installments in an amount and at the times that the court determines.

(c)If the service member is a codefendant in an action, the plaintiff may, by leave of the court, proceed against the other codefendants.

(9)Statutes of limitations. The period of state active duty may not be included in computing any period for the bringing of any action or proceeding in any court or before any public agency by or against a person in state active duty or by or against his or her heirs, personal representatives, or assigns, whether the cause of action or proceeding or the right to bring the action or proceeding accrued before or during the period of state active duty.

(10)Maximum interest rate. No obligation or liability bearing interest at a rate in excess of 6 percent per year incurred by a service member in state active duty before his or her entry into that duty may, during any part of the period of state active duty, bear interest in excess of 6 percent per year except by court order. If, upon application by an obligee, a court determines that the ability of the service member to pay interest upon the obligation or liability at a rate in excess of 6 percent per year is not materially affected by reason of his or her state active duty, the court may make any order that is just. In this subsection, “interest” includes service charges, renewal charges, fees, or other charges, other than insurance, in respect to the obligation or liability.

(11)Eviction stay.