Servicemember Civil Relief guide updated due to changes engendered by local case

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(l) - PHOTO COURTESY of  schuitman, cooper, CYPHER & KNOTEK (r) - photo courtesy of WMU-cooley law school

by Cynthia Price
Legal News

When Thomas M. Cooley Law School, now Western Michigan University Cooley Law School (WMU-Cooley), had a Center for Ethics, Service, and Professionalism run by Heather Spielmaker, in 2009, the Service to Soldiers program created The Michigan Judge’s Guide to the Servicemembers Civil Relief Act.

Fast forward to 2015: there is no longer a Center for Ethics, Service, and Professionalism; Spielmaker is a Cooley student; there have been significant changes to the Service-
members Civil Relief Act (SCRA); and an updated guide has just been released to reflect them.

Paw Paw attorney Matt Cooper, of Schuitmaker, Cooper, Cypher & Knotek, P.C., was an integral part of those changes, and, though Spielmaker acted as (in her own words) “project supervisor,” Cooper played a leading role in the revision. He worked with WMU-Cooley students on research, co-authored the update, and in the long run was the impetus for its recent publication.

Honigman’s Sean Crotty assisted in the project, to provide continuity with the Honigman attorneys who had overseen the original version, and the students were Nathan Chan and Matthew J. Flynn.

The Soldiers’ and Sailors’ Civil Relief Act of 1918, which expired, was expanded when it became the Soldiers’ and Sailors’ Civil Relief Act of 1940, with the intention of temporarily suspending certain civil judicial and administrative proceedings for active-duty military members to “provide for, strengthen, and expedite the national defense by protecting servicemembers, enabling them to ‘devote their entire energy to the defense needs of the Nation.’”

It was not until 2003 that SCRA itself was enacted,  with the major difference that SCRA, reflecting current reality, does not expire.

WMU-Cooley Professor Brigadier General Michael McDaniel comments, “A lot of judges at the state and federal levels weren’t aware of the act, or didn’t understand it, and that was the purpose of creating the guide.”

Or as Matthew Flynn, who now works for U.S. Senator Thom Tillis from North Carolina, puts it, “It makes a much easier pathway for the judges to understand the act. And it also gets the information out there in front of servicemembers when officers and leaders may not know how to articulate these rights to people in their platoons.”

Flynn was assigned to the project  and sought out Matt Cooper’s involvement because he knew of Cooper’s expertise through working on the Service to Soldiers program.

“Matt Cooper is one of the top experts on this Act, and it was a pleasure to work with him. He was really instrumental in this revision,” Flynn commented.

Cooper comes by his expertise based on his practice. He was the attorney for servicemember James Hurley in a U.S. District Court for the Western District of Michigan that ultimately resulted in Congress passing critical amendments.

The crux of the matter was whether SCRA provided for individual private causes of action, or merely penalties and criminal actions.

McDaniel explains, “Matt Cooper had a client named James Hurley whose house was foreclosed on while he was on active duty. Hurley sued Deutsche Bank and the mortgage company, but when it went before Judge Gordon Quist, at first it looked like the case was going against Hurley. But then Judge Quist surprisingly granted a motion for reconsideration, and ruled that an individual servicemember can not only bring a private action, but also that he or she is entitled to damages.”

The first guide was written at the point  where the question was unresolved. A footnote read, “[A]lso, Hurley v Deutsche Bank Trust Co Americas, No 1:08-CV-361, 2008 WL 4539478 (WD Mich, Sept 30, 2008) (finding that the SCRA does not create a private right of action for damages arising from foreclosure, redemption, eviction, or sale to a bona fide purchaser).”

Since that time, in what are sometimes referred to as “the Hurley amendments,” Congress has codified that right in the law. It now states, “Private right of action—Sec. 802 (50 U.S.C. app. §597a) In addition to the right to join a previously commenced case, covered individuals have the ability to commence a civil action for an alleged violation of the SCRA in their own right. The court may grant an appropriate equitable or declaratory relief, including monetary damages...”

When Cooper saw the original guide, he was surprised to see that it did not reflect the updates. “Hurley was cited to say the opposite of what it now means. At the time of the final decision, Hurley was big in the news. It was on the front page of The New York Times, and on CBS and Fox News and MSNBC, and it was picked up all over the country.”

“So it was important that we do this updated guide.”

Indeed, Judge Quist’s decision to change his opinion was based on further exploring Batie v. Subway Real Estate Corp., another case where the court reconsidered its original decision. Quist’s March 2009 opinion stated, “As part of that analysis, the Court cited Batie, supra. In a rather cursory analysis, the Batie court initially said that the SCRA does not afford a ‘private cause of action to remedy violations of the statute.’ ... That court subsequently reconsidered its decision in a brief order, in which it concluded, based upon ‘the precedent cited,’ that the SCRA creates a private right of action.”

The other precedents in U.S. Courts included Marin v. Armstrong  and Moll v. Ford Consumer Finance Company, which stated that Congress must have intended that a private right of action be available  “because otherwise the relief would [be] of no value at all.”

This history, the news coverage, and the current scope of SCRA are reflected in the website of a foundation called the Servicemembers Civil Relief Act Foundation, Inc. (www.scrafoundation.org), started by Matt Cooper and other attorneys.

Cooper played another role in bringing the guide to fruition. When Cooley reorganized after affiliating with Western Michigan University, Service to Soldiers and the Center for Ethics, Service, and Professionalism were discontinued after Spielmaker resigned to focus on her studies. The Michigan Judge’s Guide to the Servicemembers Civil Relief Act update project was not completed, and there was no funding identified for its publication. The SCRA Foundation and Cooper came up with the money, and it became a reality.

“I thought that the guides had been printed and were ready for distribution, so when?I?heard that the program was eliminated, I?sent an email to General McDaniel,” says Cooper. He started the foundation in part to complete the publication.

The guide is available at scrafoundation.org. A physical copy has now been sent to all military, state, and tribal judges in Michigan.?

The complexity of the law, and its unique quality, necessitate such wide distribution. “It’s important to be clear the law is not intended as a benefit for servicemembers, it’s intended as a shield or protection,” says McDaniel. “But even though it’s up to the servicemembers to let people know they’ve been deployed, after that it’s supposed to just kick in. There are a lot of things like that judges need to know.”

A secondary goal of the update was educational. “We wanted to create a learning opportunity for the students, and Matt Cooper mentored them. And it gave two of our students a really cool opportunity to get published,” Spielmaker said.

Flynn said it was well worth it. “The 2015 [guide] is the culmination of a great effort and true passion to protect the rights of our servicemembers... It’s truly heartwarming to be able to give back to those who sacrifice everything to protect the freedoms we enjoy as Americans,” he commented.

And Cooper, who continues to represent clients under SCRA, said, “I never had the honor or privilege of serving my country, which I regret — I have a lot of loved ones who have served. I think that’s part of what’s motivated me in this.”