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Q: I’ve recently heard stories about service members who were overcharged on their mortgages or had their homes foreclosed on, despite legal protections that exist. What are those protections?
A: The Department of Justice recently announced that it is investigating whether certain lenders failed to honor protections that the Servicemembers Civil Relief Act provides military personnel. That came after a major bank admitted to mistakenly overcharging military families a total of more than $2 million on their mortgage payments and improperly foreclosing on at least 14 service members.
Under the SCRA, a service member who has a mortgage when he enlists or is ordered to active duty has the right to have the interest rate on the mortgage reduced to six percent, so long as his military duty materially affects his ability to pay the debt at the original interest rate. Further, when a service member does not fulfill his mortgage obligation, the SCRA requires the lender to obtain a court order before the property may be foreclosed, seized, or sold. This is true even in states that do not otherwise require a court order for a foreclosure. Additionally, the SCRA only allows a judge to issue such an order after he or she holds a hearing where the service member is represented.
In one reported instance, a reservist fell behind on his mortgage payments after he deployed to Iraq. The lender contacted the reservist’s wife on multiple occasions, including at odd hours of the night. Although she frequently informed the lender that her husband had been called to active duty, the lender refused to provide any relief without a copy of the husband’s military orders. Eventually, the lender foreclosed on the home without obtaining a court order.
The lender’s actions were improper on one, and possibly two, counts. First, although a lender typically does require a copy of one’s military orders before reducing the interest rate on a mortgage, a lender is required to obtain a court order before foreclosing whenever the lender simply has reason to believe that the mortgagor is a service member. Second, the lender may have violated the Fair Debt Collection Practices Act, which is intended to eliminate abusive practices by debt collectors, including using the telephone to harass.
The FDCPA limits when and where a debt collector may contact someone about a debt, and requires the collector to cease communication with that person if the person provides a written request. Abusive practices by debt collectors should be reported to the Fair Trade Commission and your state attorney general’s office.
This column is not intended as individual or specific legal advice. If you have specific issues or concerns, you should consult a judge advocate at 421-4152/civ. 0711-729-4152.