Bill Text: HI HB848 | 2022 | Regular Session | Introduced
Bill Title: Relating To Civil Relief For State Military Forces.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Introduced - Dead) 2021-12-10 - Carried over to 2022 Regular Session. [HB848 Detail]
Download: Hawaii-2022-HB848-Introduced.html
HOUSE OF REPRESENTATIVES |
H.B. NO. |
848 |
THIRTY-FIRST LEGISLATURE, 2021 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to civil relief for state military forces.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 657D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§657D- Termination of contract. (a)
In addition to the rights and protections regarding consumer
transactions, contracts, and service providers included in this chapter, a
service member may terminate or suspend a contract described in subsection (b)
at any time after the date the service member receives military orders to
relocate for a period of service of at least ninety days to a location that
does not support the contract.
(b) This section applies to a contract to
provide:
(1) Telecommunication
services;
(2) Internet
services;
(3) Television
services;
(4) Athletic club
or gym memberships; or
(5) Satellite radio
services.
(c) Each service provider shall provide the
service member with a written or electronic notice of the service member's
rights.
(d) Termination or suspension of a contract pursuant to this section must be made by delivery of a written or electronic notice of the termination or suspension and a copy of the service member's military orders to the service provider."
SECTION 2. Chapter 657D, Hawaii Revised Statutes, is amended to read as follows:
"[[]CHAPTER 657D[]]
CIVIL RELIEF FOR STATE MILITARY FORCES
PART I.
GENERAL PROVISIONS
§657D-1 Definitions. As used in this chapter, unless the context indicates otherwise:
["Active service" or
"active duty" includes but is not limited to the period during which
the persons in military service are absent from duty on account of sickness,
wounds, leave, or other lawful cause.]
"Court" [includes] means
any court or administrative agency of competent jurisdiction of the
State of Hawaii, including an administrative agency of a county, whether
or not a court or administrative agency of record.
"Dependent", with
respect to a service member, means:
(1) The service
member's spouse;
(2) The service
member's child; or
(3) An individual
for whom the service member provided more than one-half of the individual's
support for one hundred eighty days immediately preceding an application for
relief under this chapter.
"Full
time National Guard duty" means full time service in the National Guard as
defined in section 101(19) of title 32 United States Code.
"Judgment" means any
judgment, decree, order, or ruling, final or temporary.
"Military
service" means [service on state active duty in any of the state
military forces or full time National Guard duty.] any period during which
a service member is:
(1) Ordered to active
state duty by the adjutant general or the governor;
(2) Placed on full time
National Guard duty;
(3) Absent from
duty on account of sickness, wounds, leave, or other lawful cause; or
(4) Under a call to
active service authorized by the President or the Secretary of Defense of the
United States for a period of more than thirty consecutive days.
"Motor vehicle" means
any self-propelled vehicle to be operated on the public highways but does not include
a vehicle operated only on a rail line.
"Period
of military service" means the period beginning on the date on which [the
person] a service member enters [state active duty or full time National
Guard Duty] military service and ending on the date of the [person's]
service member's release from [state active duty or full time
National Guard duty] military service or the [person's] service
member's death while [on state active duty or full time National Guard
duty.] in military service.
"Person", when used with reference to the holder of any right alleged to exist against a person in military service or against a person secondarily liable under such right, includes individuals, partnerships, corporations, and any other forms of business association.
["Person in the military
service" and "persons in the military service of the State"
include all members] "Service member" means a member of
any of the state military forces, as defined in section 124A-1.
["State active duty"
includes any period during which a person in the military service of the State
is ordered to state active duty by the adjutant general or the governor.
[]§657D-2[]
Territorial application;
jurisdiction of courts; form of procedure.] Jurisdiction and application. (a)
This chapter [shall apply] applies to the United States,
the states [and], territories, and the District of
Columbia, including the political subdivisions thereof, and all
territories subject to the jurisdiction of the United States, and to judicial
or administrative proceedings commenced in any court [therein, and shall
be enforced through the usual forms of procedure in such courts or under their
rules.] or agency in any jurisdiction subject to this chapter. This chapter does not apply to criminal proceedings.
(b)
When under this chapter any application is required to be made to a
court in which no proceeding has already been commenced as to the matter, that
application may be made to any court[.] which would otherwise have jurisdiction
over the matter.
[[]§657D-3[]]
Protection of persons secondarily liable. (a)
Whenever[:] pursuant to this chapter a court stays, postpones,
or suspends:
(1) The enforcement of any obligation or liability;
(2) The prosecution of any suit or proceeding;
(3) The entry or enforcement of any order, writ, judgment, or decree; or
(4) The performance of
any other act[;
may be stayed, postponed, or suspended, the stay,
postponement, or suspension may likewise be granted in the discretion of the
court to sureties, guarantors, endorsers, accommodation makers, and others,
whether] the court may likewise grant such a stay, postponement, or suspension
to a surety, guarantor, endorser, accommodation maker, comaker, or other person
who is or may be primarily or secondarily subject to the obligation or
liability [that] the performance or enforcement of which is
stayed, postponed, or suspended.
(b)
When a judgment or decree is vacated or set aside in whole or in part as
provided in this chapter, the court [in its discretion] may likewise set
aside [and] or vacate [it], as the case may be, the judgment
or decree as to any surety, guarantor, endorser, accommodation maker, comaker,
or other person[, whether] who is or may be primarily or
secondarily liable upon the contract or liability for the enforcement of [which]
the judgment or decree [was entered].
(c)
[Whenever by reason of the military service of a principal, the
sureties of a criminal bail bond are prevented from enforcing the attendance of
their principal and performing their obligation, the court shall not enforce
the provisions of the bond during the military service of that principal.] A
court shall not enforce a bail bond during the period of military service of the
principal on the bond when military service prevents the surety from obtaining the
attendance of the principal. The
court, in accordance with principles of equity and justice, may discharge [those
sureties] the surety and exonerate the bail [either] during
or after [such service.] the period of military service of the principal.
(d)
[Nothing in this chapter shall] This chapter does not prevent
a waiver in writing of the [benefits afforded by] protections provided
under subsections (a) and (b) by any surety, guarantor, endorser,
accommodation maker, comaker, or other person whether primarily or
secondarily liable upon the obligation or liability[, except that no such
waiver shall be valid unless it is executed as an instrument separate from the
obligation or liability in respect of which it applies. No such waiver shall be valid after the
beginning of the period of military service if executed by:
(1) An individual
who subsequent to the execution of that waiver becomes a person in military
service; or
(2) A dependent of
the individual]. Any such waiver is
effective only if it is executed as an instrument
separate from the obligation or liability with respect to which it applies. If a waiver under this subsection is executed by
an individual who after the execution of the waiver enters military service, or
by a dependent of an individual who after the execution of the waiver enters military
service, the waiver is not valid after the beginning of the period of such military
service unless the waiver was executed by such individual or dependent during the
period specified in section 657D-5.
[[]§657D-4[]]
Notice of benefits to persons in and persons entering military service. The adjutant general shall ensure [the
giving of] that notice of the benefits accorded by this chapter is
provided in writing to service members and to persons entering [the
state military forces.] military service.
§657D-5
Extension of [benefits] rights and protections to persons
ordered to report for military service. Any
person who is ordered to report for military service shall be entitled to the [relief
and benefits] rights and protections provided to service members under this
part and parts II and III during[:
(1) The period of military service; and
(2) The] the period beginning on the
date of receipt of
the order and ending on the date upon which
the member reports
for military service, or the date on which
the order is revoked,
whichever is earlier.
[[]§657D-6[]] [Effect on rights, remedies, etc.,
pursuant to written agreements entered after commencement of military service.] Waiver of rights pursuant to written agreement. [Nothing in this chapter shall prevent:]
(a) A service member may waive any of
the rights and protections provided by this chapter. Any such waiver that applies to an action listed
in subsection (b) is effective only if it is in writing, is executed as an instrument
separate from the obligation or liability to which it applies, and is executed during
or after the service member's period of military service. The written agreement shall specify the legal instrument
to which the waiver applies and to which service member the waiver applies.
(b) The requirement in subsection (a) for a written
waiver applies to the following:
(1) The modification, termination, or cancellation of any contract, lease, or bailment or any obligation secured by mortgage, trust deed, lien, or other security in the nature of a mortgage; or
(2) The repossession,
retention, foreclosure, sale, forfeiture, or taking possession of property that
is security for any obligation or which has been purchased or received under a
contract, lease, or bailment[;
pursuant to a written agreement of the parties
thereto (including the person in military service, whether or not the person is
a party to the obligation), or their assignees, executed during or after the
period of military service of that person].
(c) Any waiver in writing of a right or protection
provided by this chapter that applies to a contract, lease, or similar legal instrument
shall be in at least twelve-point type.
(d) For the purposes of this section:
(1) A person to whom
section 657D-5 applies shall be considered to be a service member; and
(2) The period with
respect to such a person specified in section 657D-5 shall be considered to be a
period of military service.
[[]§657D-7[]] Exercise
of rights not to affect [lenders,
credit, or insurers.] certain
future financial transactions. Application by a [person in military
service] service member for, or receipt by a [person in military
service] service member of, a stay, postponement, or suspension
pursuant to this chapter in the payment of any tax, fine, penalty, insurance
premium, or other civil obligation or liability of that [person] service
member shall not by itself, without regard to other considerations,
provide the basis for any of the following:
(1) A determination by
any lender or other person that the [person in military service] service
member is unable to pay the civil obligation or liability in accordance
with its terms;
(2) With respect to a
credit transaction between a creditor and the [person in military service:]
service member:
(A) A denial or revocation of credit by the creditor;
(B) A change by the creditor in the terms of an existing credit arrangement; or
(C) A refusal by the
creditor to grant credit to [such person] the service member in
substantially the amount or on substantially the terms requested;
(3) An adverse report
on the creditworthiness of the [person in military service] service member
by or to any person [or entity] engaged in the practice of assembling or
evaluating consumer credit information; [or]
(4) A refusal by an
insurer to insure the [person.] service member;
(5) An annotation in a service member's record by a creditor
or a person engaged in the practice of assembling or evaluating consumer credit
information, identifying the service member as a member of the state military forces;
or
(6) A change in the terms offered or conditions required
for the issuance of insurance.
§657D-A Legal representatives. (a)
A legal representative of a service member for purposes of
this chapter may be either of the following:
(1) An attorney
acting on the behalf of a
service member; or
(2) An individual
possessing a power of attorney for a service member.
(b) Whenever the term "service member"
is used in this chapter, such term shall be treated as including a reference to
a legal representative of the
service member.
§657D-B Information for members of the state
military forces and their dependents on rights and protections under this
chapter. (a) The adjutant general shall provide to each service
member under the jurisdiction of the adjutant general pertinent information on
the rights and protections available to service members and their dependents
under this chapter.
(b) The information required to be provided under
subsection (a) to a service member shall be provided at the following times:
(1) During the
initial orientation training of the service member; and
(2) At such other
times as the adjutant general considers appropriate.
(c) The adjutant general may provide to the adult dependents of service members under the jurisdiction of the adjutant general pertinent information on the rights and protections available to service members and their dependents under this chapter."
PART II.
GENERAL RELIEF
[[]§657D-11[]
Default judgments; affidavits; bonds; attorneys for persons in service.] Protection
of service members against default judgments. (a) [In
a default of any appearance by the defendant in any action or proceeding
commenced in any court, no judgment shall be entered without first securing a
court order directing that entry, and no order shall be made if the defendant
is in the military service until after the court has appointed an attorney to
represent the defendant. The court, on
application, shall make such an appointment. If it appears that the defendant is in the
military service, the court may require the plaintiff to file a bond approved
by the court before judgment is entered.
The bond shall be to indemnify the defendant in military service against
any loss or damage that the defendant may suffer from any judgment should the
judgment be thereafter set aside in whole or in part. The court may make other and further orders
or enter a judgment that in its opinion may be necessary to protect the rights
of the defendant under this chapter.] This section applies to any civil action
or proceeding, including any child custody proceeding, in which the defendant does
not make an appearance.
(b) 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:
(1) Stating whether
or not the defendant is in military service and showing necessary facts to
support the affidavit; or
(2) 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.
If in an action covered by this section it
appears that the defendant is in military service, the court shall not enter a
judgment until after the court appoints an attorney to represent the
defendant. If an attorney appointed
under this subsection to represent a service member cannot locate the service member,
actions by the attorney in the case shall not waive any defense of the service
member or otherwise bind the service member.
If, based upon the affidavits filed in such an action, the court is
unable to determine whether the defendant is in military service, the court,
before entering judgment, may require the plaintiff to file a bond in an amount
approved by the court. If the defendant
is later found to be in military service, the bond shall be available to
indemnify the defendant against any loss or damage the defendant may suffer by
reason of any judgment for the plaintiff against the defendant, should the
judgment be set aside in whole or in part.
The bond shall remain in effect until expiration of the time for appeal
and setting aside of a judgment under state law or rule or under any applicable
county ordinance. The court may issue
such orders or enter such judgments as the court determines necessary to
protect the rights of the defendant under this chapter. The requirement for an affidavit under this
subsection may be satisfied by a statement, declaration, verification, or
certificate, in writing, subscribed and certified or declared to be true under
penalty of perjury.
[(b)] (c) Any person who makes or uses any affidavit,
statement, declaration, verification, or certificate [claiming that the
defendant is not in military service,] required under subsection (b)
knowing it to be false, shall be punished as provided in chapter 710, part V.
[(c) In any action or proceeding in which a person
in military service is a party and does not personally appear therein or is not
represented by an authorized attorney, the court may appoint an attorney to
represent the person. In that case, a
bond may be required and an order made to protect the rights of the person. But no attorney appointed under this chapter
to protect a person in military service shall have power to waive any right of
that person or bind that person.
(d) If any judgment shall be rendered in any
action or proceeding governed by this section against any person in military
service during the period of that service or within sixty days thereafter, and
it appears that the person in military service was prejudiced by reason of the
person's military service in making the person's defense thereto, then the
judgment, upon application made by the person or the person's legal
representative, not later than sixty days after the termination of the military
service, may be opened by the court rendering the same and the defendant or the
defendant's legal representative allowed to defend; provided it is made to appear
that the defendant has a meritorious or legal defense to the action or some
part thereof.
(e) Vacating, setting aside, or reversing any
judgment because of any of the provisions of this chapter shall not impair any
right or title acquired by any bona fide purchaser for value under the judgment.]
(d) In an action covered by this section in which
the defendant is in military service, the court shall grant a stay of
proceedings for a minimum period of ninety days upon application of counsel, or
on the court's own motion, if the court determines that:
(1) There may be a
defense to the action and a defense cannot be presented without the presence of
the defendant; or
(2) After due
diligence, counsel has been unable to contact the defendant or otherwise determine
if a meritorious defense exists.
(e) A stay of proceedings under subsection (d)
shall not be controlled by procedures or requirements under section 657D-12.
(f) If a service member who is a defendant in an
action covered by this section receives actual notice of the action, the
service member may request a stay of proceedings under section 657D-12.
(g) If a default judgment is entered in an action
covered by this section against a service member during the service member's
period of military service or within sixty days after termination of or release
from such military service, the court entering the judgment shall, upon
application by or on behalf of the service member, reopen the judgment for the
purpose of allowing the service member to defend the action if it appears that
the service member:
(1) Was materially
affected by reason of that military service in making a defense to the action;
and
(2) Has a
meritorious or legal defense to the action or some part of it.
An application under this subsection shall be
filed not later than ninety days after the date of the termination of or
release from military service.
(h) If a court vacates, sets aside, or reverses a
default judgment against a service member and the vacating, setting aside, or reversing
is because of a provision of this chapter, that action shall not impair a right
or title acquired by a bona fide purchaser for value under the default
judgment.
[[]§657D-12[]] Stay
of proceedings [where military
service affects conduct thereof.
In any action or proceeding in any court in which a person in military service
is involved, either as plaintiff or defendant, during the period of that service
or within sixty days thereafter, the court in its discretion, on application to
it by the person or a person on such person's behalf, shall stay the action or
proceeding at any stage as provided in this chapter. No stay shall issue if, in the opinion of the
court, the ability of the plaintiff to prosecute the action or the defendant to
conduct the defense is not materially affected by reason of the person's
military service.] when a service
member has notice. (a) This section applies to any civil action or
proceeding, including any child custody proceeding, in which the plaintiff or
defendant at the time of filing an application under this section:
(1) Is in military
service or is within ninety days after termination of or release from military
service; and
(2) Has received
notice of the action or proceeding.
(b) At any stage before final judgment in a civil
action or proceeding in which a service member described in subsection (a) is a
party, the court may on its own motion and shall upon application by the
service member stay the action for a period of not less than ninety days;
provided that an application for a stay shall include:
(1) A letter or
other communication setting forth facts stating the manner in which current
military duty requirements materially affect the service member's ability to
appear and stating a date when the service member will be available to appear;
and
(2) A letter or
other communication from the service member's commanding officer stating that
the service member's current military duty prevents appearance and that
military leave is not authorized for the service member at the time of the
letter or communication.
(c) An application for a stay under this section
does not constitute an appearance for jurisdictional purposes and does not
constitute a waiver of any substantive or procedural defense, including a defense
relating to lack of personal jurisdiction.
(d) A service member who is granted a stay of a
civil action or proceeding under subsection (b) may apply for an additional
stay based on continuing material effect of military duty on the service
member's ability to appear. Such an
application may be made by the service member at the time of the initial
application under subsection (b) or when it appears that the service member is
unavailable to prosecute or defend the action.
The same information required under subsection (b) shall be included in
an application under this subsection. If
the court refuses to grant an additional stay of proceedings under this subsection,
the court shall appoint counsel to represent the service member in the action
or proceeding.
(e) A service member who applies for a stay under
this section and is unsuccessful may not seek the protections afforded by
section 657D-11.
(f) The protections of this section do not apply to section 657D-21.
[[]§657D-13[]] Fines
and penalties on contracts. When an
action for compliance with the terms of any contract is stayed pursuant to this
chapter, no fine or penalty shall accrue [by reason of] for
failure to comply with the terms of the contract during the period of the
stay. In any case where a [person]
service member fails to perform any obligation arising under contract
and a fine or penalty for the nonperformance is incurred, a court may [relieve
the enforcement of] reduce or waive the fine or penalty [on such
terms as may be just if the person] if:
(1) The service member
was in the military service when the fine or penalty was incurred;
and [that by reason of that service the ability of the person to pay or
perform was thereby materially impaired.]
(2) The ability of
the service member to perform the obligation was materially affected by such
military service.
[[§657D-14] Restrictions. (a) In
any action or proceeding commenced in any court, if an insurance policy was
assigned prior to the person's period of military service to secure the payment
of any obligation of that person, no assignee of the policy (except the insurer
in connection with a policy loan), during the period of military service of the
insured or within sixty days thereafter, except upon the consent in writing of
the insured made during the period or when the premiums thereon are due and
unpaid or upon the death of the insured, shall exercise any right or option by
virtue of the assignment unless upon leave of court granted upon an application
made by the assignee. The court may
refuse to grant leave unless the court finds that the ability of the obligor to
comply with the terms of the obligation is not materially affected by reason of
the obligor's military service. For the
purpose of this subsection, premiums which are guaranteed under part IV shall
not be deemed to be due and unpaid.
(b) No person shall exercise any right to
foreclose or enforce any lien for storage of household goods, furniture, or
personal effects of a person in military service during the person's period of
military service and for sixty days thereafter except upon an order previously
granted by a court upon application and a return made and approved by the
court. The court, after a hearing on an
application by the person in military service or some person on behalf of the
person in military service, unless in the opinion of the court the ability of
the defendant to pay the storage charges due is not materially affected by reason
of the person's military service, may find against a person in military service.
(c) Before or during the period of that service,
or within sixty days thereafter, the court, on its own motion or on application
to it by such person or a person on such person's behalf, unless in the opinion
of the court the ability of the defendant to comply with the judgment or order
entered or sought is not materially affected by reason of the defendant's
service shall:
(1) Stay the execution
of any judgment or order entered against this person, as provided in this
chapter; or
(2) Vacate or stay
any attachment or garnishment of property, money, or debts in the hands of
another, whether before or after judgment as provided in this chapter.]
§657D-15
Duration and term of stays; co-defendants not in service. (a) A stay of any action, proceeding, attachment,
or execution[, ordered by any court under this chapter, shall be] made
pursuant to the provisions of this chapter by a court may be ordered for
the period of military service and ninety days thereafter or any part of that
period[, and may be subject to such terms as may be just, including payment
in installments of specified amounts and at such times as the court may fix. Where the person in military service]. The court may set the terms and amounts for any
installment payments to be paid during this period as is considered reasonable by
the court.
(b)
If the service member is a
co-defendant with others[,] who are not in military service and who are
not entitled to the relief and protections provided under this chapter, the
plaintiff may proceed against the [others by leave of the court.]
other defendants with the approval of the court.
(c) This section does not apply to sections 657D-12
and 657D-61.
[[]§657D-16[]
Statutes] Statute of limitations [as affected by period of service]. (a) The period of a service member's
military service [shall] may not be included in computing any
period limited by law, rule, or order for the bringing of any action or
proceeding in any court, or [before a state or county agency] in any board,
bureau, commission, department, or other agency of the State or the counties
by or against [any person in military service] the service member
or [by or against] the [person's] service member's heirs, [personal
representatives,] executors, administrators, or assigns[, whether
the cause of action or right or privilege to institute that action or
proceeding accrued prior to or during the period of the military person's
service].
(b) [No part of the] A period of military
service [that occurs after July 1, 1994, shall] may not be
included in computing any period [now or hereafter] provided by any law
for the redemption of real property sold or forfeited to enforce any obligation,
tax, or assessment.
(c) This section shall not apply to any period of limitation
prescribed by or under title 14.
[[]§657D-17[]] Maximum
rate of interest[.] on debts incurred before military service.
(a) [No] An obligation
or liability bearing interest at a rate in excess of six per cent a year
incurred by a [person in military service] service member, or by the service
member and the service member's spouse jointly, before [that person's
entry into that service, during any part of the period of military service,]
the service member enters military service shall not bear interest
at a rate in excess of six per cent [a year unless,]:
(1) During the
period of military service and one year thereafter, in the case of an
obligation or liability consisting of a mortgage, trust deed, or other security
in the nature of a mortgage; or
(2) During the
period of military service, in the case of any other obligation or liability.
Interest at a rate in excess of six per cent a
year that would otherwise be incurred but for the prohibition in this subsection
shall be forgiven. The amount of any periodic
payment due from a service member under the terms of the instrument that
created an obligation or liability covered by this section shall be reduced by
the amount of the interest forgiven under this subsection that is allocable to
the period for which such payment is made.
(b) In order for an obligation or liability of a
service member to be subject to the interest rate limitation in subsection (a),
the service member shall provide to the creditor written notice and a copy of
the military orders calling the service member to military service and any
orders further extending military service, no later than one hundred eighty
days after the date of the service member's termination or release from
military service. Upon receipt of
written notice and a copy of orders calling a service member to military
service, the creditor shall treat the debt in accordance with subsection (a),
effective as of the date on which the service member is called to military
service.
(c) A court may grant a creditor relief from the limitations
of this section if, in the opinion of the court, [upon application
thereto by the obligee,] the ability of the [person in military service]
service member to pay interest upon the obligation or liability at a
rate in excess of six per cent per year is not materially affected by reason of
[that service, in which case the court may make such order as it deems just.]
the service member's military service.
(d) As used in this section [the term "interest"]:
"Interest" includes service charges, renewal charges, fees, or other charges, except bona fide insurance, as to the obligation or liability.
"Obligation or liability"
includes an obligation or liability consisting of a mortgage, trust deed, or other
security in the nature of a mortgage.
(e) Whoever knowingly violates subsection (a) shall
be guilty of a misdemeanor.
[[]§657D-18[]]
Limitation prescribed by state tax laws as affected by period of
service. Section 657D-16 shall not
apply to any period of limitation in state tax laws set forth in title 14.
§657D-C Child custody protection. (a)
If a court renders a temporary order for custodial responsibility for a
child based solely on a deployment or anticipated deployment of a parent who is
a service member, the court shall require that the temporary order shall expire
not later than the period justified by the deployment of the service member.
(b) If a motion or a petition is filed seeking a
permanent order to modify the custody of the child of a service member, no
court shall consider the absence of the service member by reason of deployment,
or the possibility of deployment, as the sole factor in determining the best
interest of the child.
(c) Nothing in this section shall create a
federal right of action or otherwise give rise to federal jurisdiction or
create a right of removal.
(d) In any case where state law applicable to a
child custody proceeding involving a temporary order as contemplated in this
section provides a higher standard of protection to the rights of the parent
who is a deploying service member than the rights provided under this section
with respect to such temporary order, the appropriate court shall apply the
higher state standard.
(e) As used in this section, the term
"deployment" means the movement or mobilization of a service member
to a location for a period of longer than sixty days and not longer than five
hundred forty days pursuant to temporary or permanent official orders:
(1) That are
designated as unaccompanied;
(2) For which
dependent travel is not authorized; or
(3) That otherwise
do not permit the movement of family members to that location.
§657D-D Enforcement
of storage liens. (a) A person holding a lien on the property or
effects of a service member shall not, during any period of military service of
the service member and for ninety days thereafter, foreclose or enforce any
lien on such property or effects without a court order granted before
foreclosure or enforcement. For the
purposes of this section, "lien" includes a lien for storage, repair,
or cleaning of the property or effects of a service member or a lien on such
property or effects for any other reason.
(b) In a proceeding to foreclose or enforce a
lien subject to this section, the court may on its own motion and shall if
requested by a service member whose ability to comply with the obligation
resulting in the proceeding is materially affected by
military service:
(1) Stay the
proceeding for a period of time as justice and equity require; or
(2) Adjust the
obligation to preserve the interests of all parties.
(c) The provisions of this subsection do not
affect the scope of section 657D-23.
(d) A person who knowingly takes or attempts to
take an action contrary to this section shall be guilty of a misdemeanor.
§657D-E Stay or vacation of execution of judgment attachments and garnishments. (a) If a service member, in the opinion of the court, is materially affected by reason of military service in complying with a court judgment or order, the court may on its own motion and shall on application by the service member:
(1) Stay the
execution of any judgment or order entered against the service member; and
(2) Vacate or stay
any attachment or garnishment of property, money, or debts in the possession of
the service member or a third party, whether before or after judgment.
(b) This section applies to an action or
proceeding commenced in a court against a service member before or during the
period of military service or within ninety days after such service terminates.
PART III. RENT, INSTALLMENT CONTRACTS, MORTGAGES,
LIENS, ASSIGNMENTS, LEASES, TELEPHONE SERVICE
CONTRACTS
[[]§657D-21[]]
Eviction [or] and distress [during military service; stay; penalty
for noncompliance; allotment of pay for payment]. [(a)
No eviction or distress shall be made during the period of military
service for any premises occupied chiefly for dwelling purposes by the spouse
or other dependents of a person in military service, except upon leave of court
granted upon application or granted in an action or proceeding on the right of possession.]
(a)
Except by court order, a landlord or another person with paramount title
shall not:
(1) Evict a service
member or the dependents of a service member, during a period of military
service of the service member, from premises:
(A) That
are occupied or intended to be occupied primarily as a residence; and
(B) For
which the monthly rent does not exceed
$ , as adjusted under this
section for years after 2021; or
(2) Subject such
premises to a distress during the period of military service.
(b) [On any such application or in any such
action the court may, in its discretion and on its own motion, and shall, upon
application, unless in the opinion of the court the ability of the tenant to pay
the agreed rent is not materially affected by reason of such military service,
stay the proceedings for not longer than three months, or it may make such
other order as may be just. Where the
stay is granted or other order is made by the court, the owner of the premises
shall be entitled, upon application therefor, to relief in respect of the
premises similar to that granted persons in military service in sections
657D-22 and 657D-23 to such extent and for such period as may appear to the court
to be just.] For calendar years
beginning with 2022, the amount in effect under paragraph (a)(1)(B) shall be
increased by the housing price inflation adjustment for the calendar year
involved.
For purposes of this section:
(1) The housing
price inflation adjustment for any calendar year is the percentage change, if
any, by which the CPI housing component for November of the preceding calendar
year, exceeds the CPI housing component for November of 2021; and
(2) The term
"CPI housing component" means the index published by the Bureau of
Labor Statistics of the Department of Labor known as the Consumer Price Index
for All Urban Consumers, Rent of Primary Residence, U.S. City Average.
(c) Upon an application for eviction or distress
with respect to premises covered by this section, the court may on its own
motion and shall if a request is made by or on behalf
of a service member whose ability to pay the agreed rent is materially affected
by military service:
(1) Stay the
proceedings for a period of ninety days, unless in the opinion of the court,
justice and equity require a longer or shorter period of time; or
(2) Adjust the
obligation under the lease to preserve the interests of all parties.
If a stay is granted under
this section, the court may grant to the landlord or other person with
paramount title such relief as equity may require.
[(c)] (d) Any person who [shall] knowingly [take]
takes part in any eviction or distress otherwise than as provided in
subsection (a), or who knowingly attempts so to do, shall be guilty of a
misdemeanor.
[(d) The adjutant general is empowered, subject to
rules adopted under chapter 91, to order an allotment of the pay of a person in
military service in reasonable proportion to discharge the rent of premises
occupied for dwelling purposes by the spouse or other dependents of the person.]
(e) To the extent required by a court order
related to property which is the subject of a court action under this section,
the adjutant general shall make an allotment from the pay of a service member to
satisfy the terms of such order, except that any such allotment shall be
subject to rules adopted under chapter 91 establishing the maximum amount of
pay of service members that may be allotted under this subsection.
(f) Section 657D-12 is not applicable to this
section.
[[]§657D-22[] Installment]
Protection under installment contracts for purchase [of
property.] or lease. (a) [No
person who has received, or whose assignor has received, under a contract] After
a service member enters military service, a contract by the service member
for [the]:
(1) The
purchase of real or personal property, including a motor vehicle; or [of]
(2) The lease
or bailment [with a view to purchase] of that property,
[a deposit or installment of the purchase price,
or a deposit or installment under the contract, lease, or bailment, from a person
or from the assignor of a person who, after the date of payment of such deposit
or installment, has entered military service, shall exercise any right or option
under the contract to rescind or terminate the contract or resume possession of
the property for nonpayment of any installment due or for any other breach of
the terms occurring prior to or during the period of such military service,
except by action in a court of competent jurisdiction.] may not be
rescinded or terminated for a breach of terms of the contract occurring before
or during the service member's military service, nor may the property be
repossessed for such breach without court order. This section applies only to a contract for
which a deposit or installment has been paid by the service member before the
service member enters military service.
(b)
Any person who knowingly resumes possession of property [that is the
subject of this section otherwise than as provided] in violation of
subsection (a) or in violation of section 657D-6 or who knowingly
attempts so to do, shall be guilty of a misdemeanor.
(c)
[Upon the] In a hearing [of that action] based on
this section, the court [may order]:
(1) May order
the repayment of prior installments or deposits or any part thereof, as a
condition of terminating the contract and resuming possession of the property[,
or on];
(2) May on its
own motion [or on application to it by the person in military service or a
person on behalf of such person, shall order a stay of proceedings as provided
in this chapter unless, in the opinion of the court, the ability of the
defendant to comply with the terms of the contract is not materially affected
by reason of that service; or it may make] and shall on application by a
service member when the service member's ability to comply with the contract is
materially affected by military service, stay the proceedings for a period of time
as, in the opinion of the court, justice and equity require; or
(3) May make such other disposition of the case as may be equitable to preserve the interests of all parties.
§657D-23 Mortgages[,] and trust deeds[,
and other securities].
(a) This section applies solely
to obligations secured by mortgage, trust deed, or other security in the nature
of a mortgage upon real or personal property owned by a [person in military
service] service member originating before [or at the
commencement of] the period of the service member's military service
and [still owned by the person.] for which the service member is still
obligated.
(b)
In any [proceeding commenced in any court] action filed
during [the] or within one year after a service member's period
of military service to enforce [that] an obligation [arising
out of nonpayment of any sum due or out of any other breach of the terms
occurring prior to or during the period of the person's military service,] described
in subsection (a), the court may, after hearing and on its own motion, [or]
and shall, on application to it by the [person in military service or
some person on behalf of the person in military service, unless in the opinion
of the court the] service member, when the service member's ability [of
the defendant] to comply with the terms of the obligation is [not]
materially affected by [reason of the defendant's] military service:
(1) Stay the
proceedings [as provided in this chapter;] for a period of time as justice
and equity require; or
(2) [Make such
other disposition of the case as may be equitable to conserve] Adjust the
obligation to preserve the interests of all parties.
(c) [No sale, foreclosure, or seizure of property
for nonpayment of any sum due under any such obligation, or for any other
breach of the terms thereof, whether under a power of sale, under a judgment
entered upon warrant of attorney to confess judgment contained therein,] A
sale, foreclosure, or seizure of property for a breach of an obligation described
in subsection (a) shall not be valid if made during or within one
year after the period of the service member's military service [or
within one year thereafter,] except:
(1) Upon a court
order granted before such sale, foreclosure, or seizure with a return made and
approved by the court; or
(2) If made pursuant
to an agreement as provided in section 657D-6[, unless upon an order
previously granted by the court and a return thereto made and approved by the
court].
(d)
Any person who knowingly makes[,
attempts,] or causes to be made any [such] sale, foreclosure, or seizure
of property[,] that is prohibited by subsection (c), or who knowingly
attempts to do so, shall be guilty of a misdemeanor.
[[]§657D-24[]] Settlement
of [cases involving stayed
proceedings to foreclose mortgage on, resume possession of, or terminate contract
for purchase of,] stayed cases
relating to personal property. (a) Where a proceeding to foreclose a mortgage
upon or to [resume possession of] repossess personal property, or
to rescind or terminate a contract for [its] the purchase[,]
of personal property, has been stayed as provided in this chapter, the
court[, unless in its opinion an undue hardship would result to the
dependents of the person in the military service,] may appoint three
disinterested parties to appraise the property [and, based upon the report
of the appraisers, order that sum, if any, as may be just, paid to the person
in military service or the person's dependent, as the case may be,].
(b)
Based on the appraisal, and if undue hardship to the service member's
dependents will not result, the court may order
that the amount of the service
member's equity in the property be paid to the service member or the service
member's dependents as a condition of foreclosing the mortgage, [resuming
possession of] repossessing the property, or rescinding or
terminating the contract.
§657D-25
Termination of residential or motor vehicle leases [by
lessees].
(a) The lessee on a
lease described in subsection (b) may, at the lessee's option, terminate the
lease at any time after:
(1) The lessee's
entry into military service; or
(2) The date of the
lessee's military orders described in subsection (b), as the case may be.
A lessee's termination of a lease pursuant to
this section shall terminate any obligation of a spouse or dependent of the lessee
may have under the lease.
(b)
This section applies to[:] the
following leases:
(1) [Any] A lease of premises
occupied or intended to be occupied by a service member or a service member's
dependents for [a dwelling, or for] residential, professional,
business, agricultural, or similar purposes in any case in which:
(A) The lease was executed by or on the behalf of
a person who, after the execution of the lease[, entered] and during the
term of the lease enters military service; [and
(B) The leased premises have been occupied for
one or more of those purposes by the person or by the person and the person's
dependents; and] or
(B) The service member, while in military service,
executes the lease and thereafter receives military
orders for permanent change of station or to deploy with a military unit or as
an individual in support of a military operation for a period of not less than
ninety days; or
(2) A lease of a motor vehicle used[,] or
intended to be used[,] by a [person] service member or [the
person's] a service member's dependents for personal or business
transportation [who, after the execution of the lease, entered military
service.] if:
(A) The
lease is executed by or on behalf of a person who thereafter and during the
term of the lease enters military service under a call or order specifying a
period of not less than one hundred eighty days or who enters military service
under a call or order specifying a period of one hundred eighty days or less
and subsequently, without a break in service, receives orders extending the period
of military service to a period of not less than one hundred eighty days; or
(B) The
service member, while in military service, executes the lease and thereafter
receives military orders:
(i) For
a change of permanent station from a location in the State to any location
outside the State; or
(ii) To
deploy with a military unit or as an individual in support of a military
operation for a period of not less than one hundred eighty days.
[(b) Any] (c) Termination of a lease described in subsection
[(a) may be terminated by notice in writing delivered to the lessor or the
lessor's grantee or to one of their agents by the lessee at any time following the
date of the beginning of the lessor's or the lessor's grantee's period of
military service.] (b) shall be made by:
(1) Delivery by the
lessee of written notice of such termination and a copy of the service member's
military orders to the lessor or the lessor's grantee or to the lessor's agent
or the agent's grantee; and
(2) In the case of
a lease of a motor vehicle, return of the motor vehicle by the lessee to the lessor
or the lessor's grantee or to the lessor's agent or the agent's grantee not
later than fifteen days after the date of the delivery of written notice under
paragraph (1).
Delivery of the notice under paragraph
(1) may be [made] accomplished by [mailing it.
(c) Termination] hand delivery; private business
carrier; or mailing it in a sealed envelope, postage prepaid, return receipt requested,
and addressed to the lessor or lessor's grantee or to the
lessor's agent or the agent's grantee.
(d)
In the case of any lease in
subsection (b)(1) providing for monthly payment of rent [shall
not be], termination of the lease under subsection (a) is effective [until]
thirty days after the first date on which the next rental payment is due
and payable following the date [of delivery or mailing of] on which
the notice[.] under subsection (c) is delivered. In the case of all other leases[,] described
in subsection (b)(1), termination [shall be effected] of the lease
under subsection (a) is effective on the last day of the month following
the month in which the notice is delivered [or mailed and in such case any
unpaid rental for a period preceding termination shall be computed pro rata and
any rental paid in advance for a period succeeding termination shall be
refunded by the lessor or the lessor's assignee]. In the case of a lease described in
subsection (b)(2), termination of the lease under subsection (a) is effective on the day on
which the requirements of subsection (c) are met
for such termination.
(e) Rent amounts for a lease described in
subsection (b)(1) that are unpaid for the period preceding the effective date
of the lease termination shall be paid on a prorated basis. The lessor shall not impose an early
termination charge but any taxes, summonses, or other obligations and
liabilities of the lessee in accordance with the terms of the lease, including
reasonable charges to the lessee for excess wear, that are due and unpaid at
the time of termination of the lease shall be paid by the lessee. Lease amounts for a lease described in
subsection (b)(2) that are unpaid for the period preceding the effective date
of the lease termination shall be paid on a prorated basis. The lessor shall not impose an early
termination charge but any taxes, summonses, title and registration fees, or
other obligations and liabilities of the lessee in accordance with the terms of
the lease, including reasonable charges to the lessee for excess wear or use
and mileage, that are due and unpaid at the time of termination of the lease shall
be paid by the lessee.
(f) Rents or lease amounts paid in advance for a
period after the effective date of the termination of the lease shall be refunded
to the lessee by the lessor or the lessor's assignee or the assignee's agent
within thirty days of the effective date of the termination of the lease.
(g)
Upon application by the lessor to [the
appropriate] a court prior to the termination [period] date
provided [for] in the written notice, [any] relief granted
in this [subsection shall be subject to such modifications or restrictions
the court may find in the interests of] section to a service member may be
modified as justice and equity[.] require.
[(d)
Termination of a motor vehicle lease is
effective only upon return of the motor vehicle by the lessee to the lessor (or
the lessor's grantee), or to the lessor's agent (or the agent's grantee), not
later than fifteen days after the date of the delivery of written notice under
subsection (b). Lease amounts for a
lease described in subsection (a)(2) that are unpaid for the period preceding the
effective date of the lease termination shall be paid on a prorated basis. The lessor may not impose an early termination
charge, but any taxes, summonses, title and registration fees, or other obligations
and liabilities of the lessee in accordance with the terms of the lease,
including reasonable charges to the lessee for excess wear or use and mileage,
that are due and unpaid at the time of termination of the lease shall be paid
by the lessee.
(e)]
(h) Any person who knowingly
seizes, holds, or retains the personal effects, [clothing, furniture,] security
deposit, or other property of [any person] a service member or service
member's dependent who [has] lawfully [terminated] terminates
a lease covered by this section, or [in any manner] who knowingly
interferes with the removal of such property from the premises covered by such
lease, for the purpose of subjecting or attempting to subject any such property
to a claim for rent accruing subsequent to the date of termination of such
lease, or attempts to do so, shall be guilty of a misdemeanor.
(i) For the purposes of this section, "military
orders" means official military orders or any notification, certification,
or verification from a service member's commanding officer, with respect to the
service member's current or future military duty status.
[[]§657D-26[] Life]
Protection of life insurance policies[; penalties]. (a) [Where
any life insurance policy on the life of a person in military service is the
subject of an action or proceeding under this chapter, the court may:
(1) Stay the
proceedings as provided in this chapter; or
(2) Make such other
disposition of the case as may be equitable to preserve the interest of all
parties.
This subsection shall not be
construed in any way as affecting or as limiting the scope of section 657D-23.
(b) Any person who knowingly acts in violation of
this section, or attempts to do so, shall be guilty of a misdemeanor.] If
a life insurance policy on the life of a service member is assigned prior to
military service to secure the payment of any obligation, the assignee of the
policy (except the insurer in connection with a policy loan) may not exercise,
during the period of military service of the service member or within one year
thereafter, except upon the consent in writing of the insured made during the
period of military service or when the premiums thereon are due and unpaid or
upon the death of the insured, any right or option by virtue of the assignment
without a court order.
(b) The court may refuse to grant an order if the
court finds that the ability of the service member to comply with the terms of
the obligation is materially affected by reason of military service.
(c) For the purpose of this section, premiums
which are guaranteed under part IV shall not be deemed to be due and unpaid.
(d) A person who knowingly takes or attempts to
take an action contrary to this section shall be guilty of a misdemeanor.
[[]§657D-27[]] Extension
of [benefits] protections to dependents. [Dependents of a person in military
service shall be entitled to the benefits accorded to persons in military service
under this part upon] Upon application to a court [therefor,
unless in the opinion of the court the], a dependent of a service member
is entitled to the protections of this part if the dependent's ability [of
these dependents] to comply with [the terms of the obligation,] a
contract, lease, [or] bailment, or other obligation [has not
been] is materially [impaired] affected by reason of
the service member's military service [of the person upon whom the
applicants are dependent].
§657D-F Termination of telephone service
contracts. (a) A service member may terminate a
contract described in subsection (b) at any time after the date the service
member
receives military orders to relocate for a period
of not less than ninety days to a location that does not support the
contract. In the case that a service
member terminates a contract as described in subsection (b), the service
provider under the contract shall provide such service member with written or
electronic notice of the service member's rights under this section. Termination of a contract under this section
shall be made by delivery of a written or electronic notice of such termination
and a copy of the service member's military orders to the service provider,
delivered in accordance with industry standards for notification of
terminations, together with the date on which the service is to be terminated.
(b) A
contract for cellular telephone service or telephone exchange service entered
into by the service member before receiving the military orders referred to in
subsection (a) shall be subject to this section.
(c) In
the case of a contract terminated under subsection (a) by a service member whose
period of relocation is for a period of three years or less, the service provider
under the contract shall, notwithstanding any other provision of law, allow the
service member to keep the telephone number the service member has under the
contract if the service member re-subscribes to the service during the ninety-day
period beginning on the last day of the period of relocation.
(d) In the case of a contract for cellular
telephone service entered into by any individual in which a service member is a designated beneficiary
of the contract, the individual who entered into the contract may terminate the
contract with respect to:
(1) The service member if the service member is
eligible to terminate contracts pursuant to subsection (a); and
(2) All of the designated beneficiaries of such
contract if all such beneficiaries accompany the service member during the
service member's period of relocation.
(e) For
any contract terminated under this section, the service provider under the
contract shall not impose an early termination charge, but any tax or any other
obligation or liability of the service member that, in accordance with the terms of the
contract, is due and unpaid or unperformed at the time of termination of the
contract shall be paid or
performed by the service member. If the service member re-subscribes to the
service provided under a covered contract
during the ninety-day period beginning on the
last day of the service member's period of relocation, the service provider shall
not impose a charge for reinstating service, other than the usual and customary
charges for the installation or acquisition of customer equipment imposed on
any other subscriber.
(f) No
later than sixty days after the effective date of the termination of a contract
under this section, the service provider under the contract shall refund to the service
member any fee or other amount to the extent paid for a period extending until after such
date, except for the remainder of the monthly or similar billing period in which
the termination occurs.
(g) For
purposes of this section:
"Cellular telephone
service" means commercial mobile service, as that term is defined in title
47 United States Code section 332(d).
"Telephone exchange
service" has the meaning given that term under title 47 United States Code
section 153.
PART IV.
LIFE INSURANCE
[[]§657D-31[]]
Definitions. As used in this
part:
"Insured" [includes any
person in the state military forces, whose life is insured under and who is the
owner and holder and has an interest in a policy.] means a service
member whose life is insured under a policy.
"Insurer" includes any
firm, corporation, partnership, [or] association, or business that is
chartered or authorized to [engage in the] provide insurance [business
to] and issue [a policy] contracts or policies as
defined by the laws of a state or [of] the United States.
"Policy" [includes]
means any individual contract [of life insurance or policy on
a life,] for whole, endowment, universal, or term [plan,]
life insurance other than group term life insurance coverage, including
any benefit in the nature of [life] such insurance arising out of
membership in any fraternal or beneficial association, [that does not
provide for the payments of any sum less than the face value thereof or for the
payment of an additional amount as premiums if the insured engages in the
military service of the United States or which does not contain any limitations
or restrictions upon coverage relating to engagement in or pursuit of certain
types of activities which a person might be required to engage in by virtue of
the person's being in that military service, and:
(1) Which is in
force on a premium-paying basis at the time of application for benefits
hereunder; and
(2) Which was made
and a premium paid thereon not less than one hundred eighty days before the
date insured entered into the military service.
This definition does not apply to policies or
contracts of life insurance issued under the War Risk Insurance Act, as amended,
the World War Veterans Act, as amended, or the National Service Life Insurance
Act of 1940, as amended.] which:
(1) Provides that
the insurer may not:
(A) Decrease
the amount of coverage or require the payment of an additional amount as
premiums if the insured engages in military service, except increases in
premiums in individual term insurance based upon age; or
(B) Limit
or restrict coverage for any activity required by military service; and
(2) Is in force not
less than one hundred eighty days before the date of the insured's entry into
military service and at the time of application under this part.
"Premium" [includes]
means the amount specified in [the] an insurance policy [as
the stipend] to be paid [by the insured at regular intervals during the
period therein stated.] to keep the policy in force.
[[]§657D-32[] Persons
entitled to benefits; applications; amount of insurance protected.] Insurance rights and protections. (a) The [benefits and privileges of] rights
and protections under this part [shall] apply to [any] the
insured when the insured, [or a person designated by the insured, makes
written application] the insured's legal representative, or the
insured's beneficiary in the case of an insured who is outside the State
applies in writing for protection under this part, unless the insurance
commissioner [in passing on the application finds] determines that
the insured's policy is not entitled to protection under this part.
(b) The [adjutant general shall give notice to
the state military forces of the provisions of this part, and shall include in
the notice an explanation of the provisions for the information of those desiring
to make application for benefits.] insurance commissioner shall notify
the adjutant general of the procedures to be used to apply for the protections
provided under this part. The applicant
shall send the original [of the] application [shall be sent by
the insured] to the insurer[,] and a copy to the insurance
commissioner.
(c) The total amount of life insurance [on
the life of one insured under policies covered] coverage protection provided
by this part [shall] for a service member may not exceed [$10,000. If an insured applies for protection of policies
on the insured's life totaling insurance in excess of $10,000, the insurance
commissioner may have the amount of insurance divided into two or more policies
so that the protection of this part may be extended to include policies for a
total amount of insurance not to exceed $10,000, and a policy which affords the
best security to the government shall be given preference.] the greater
of $ , or the Servicemember's Group
Life Insurance maximum limit regardless of the number of policies submitted.
[[]§657D-33[]
Form of application; reports to insurance commissioner by insurer;
policy deemed modified upon application for protection.] Application for insurance protection.
(a) Any application for protection under this part
shall:
(1) Be in writing
and signed by the insured [and identifying], the insured's legal
representative, or the insured's beneficiary, as the case may be;
(2) Identify
the policy and the insurer[, and agreeing]; and
(3) Include an acknowledgment
that the insured's rights under the policy are subject to and modified by this
part[, shall be sufficient as an application for the benefits of this part,
but the].
(b) The insurance commissioner may require additional
information from the applicant, the insured, and insurer to [execute
other appropriate forms.] determine if the policy is entitled to protection
under this part.
(c) Upon receipt of the application of the
insured, the insurer shall furnish [such] a report to the insurance
commissioner concerning the policy as shall be prescribed by rules adopted
under chapter 91. [When an insured
has applied for protection under this part, the policy is deemed to have been
modified to conform to the provisions of this part.]
(d) Upon application for protection under this part, the insured and the insurer shall have constructively agreed to any policy modification necessary to give this chapter full force and effect.
§657D-34
[Determination of policies] Policies entitled
to protection[; notice to parties;]
and lapse of policies [for nonpayment of premiums, etc].
(a) The insurance
commissioner shall determine whether [the] a policy is entitled
to protection under this part and shall notify the insured and the insurer of
that determination.
(b) Any policy [found by] that the
insurance commissioner [to be] determines is entitled to
protection under this part[, subsequent to date of application and during
the period of military service of the insured and for sixty days after the expiration
of that service,] shall not lapse or otherwise terminate or be forfeited
for the nonpayment of a premium [becoming due and payable, or the nonpayment
of any indebtedness or interest.], or interest or indebtedness on a premium,
after the date on which the application for protection is received by heh insurance
commissioner.
(c) The protection provided by this part applies
during the insured's period of military service and for a period of two years thereafter.
[[]§657D-35[] Rights
and privileges of insured during period of protection. No] Policy restrictions. (a) While
a policy is protected under this part, a dividend or other monetary benefit
under a policy [shall] may not be paid to an insured or used to
purchase dividend additions [while a policy is covered by this part except
with] without the approval of the insurance commissioner. [Without this approval, those] If such
approval is not obtained, the dividends or benefits shall be added to the
value of the policy to be used as a credit when final settlement is made with
the insurer.
(b) While a policy is protected under this part,
[No] cash value, loan value, withdrawal of dividend accumulation,
unearned [premium,] premiums, or other value of similar character
[shall] may not be available to the insured [while the policy
is covered under this part except upon] without the approval [by]
of the insurance commissioner.
The insured's right to change a beneficiary designation or select an
optional settlement for a beneficiary shall not be affected by this part.
[[]§657D-36[]]
Deduction of unpaid premiums [upon
settlement of policies maturing during protection]. [In the event of maturity
of] (a) If a policy [as a
death claim] matures as a result of a service member's death or
otherwise [before the expiration of the period of protection] during the
period of protection of the policy under this part, the insurer in making settlement
shall deduct from the [amount of] insurance proceeds the amount
of the unpaid premiums guaranteed under this part, together with interest [thereon
at the rate fixed in the policy for policy loans.] due at the rate fixed
in the policy for policy loans.
(b) If no rate of interest is specifically fixed
in the policy, the rate shall be the rate fixed for policy loans in other
policies issued by the insurer at the time the insured's policy [brought
under this chapter] was issued.
(c) The amount deducted [by reason of the
protection afforded by this part] under this section, if any, shall
be reported by the insurer to the insurance commissioner.
[[]§657D-37[]
Guarantee of premiums] Premiums and interest guaranteed
by State[; settlement of amounts
due upon expiration of protection; subrogation of state crediting debt repayments]. (a) Payment of premiums and interest thereon at
the rate specified in section 657D-36 [becoming] which become due
on a policy while protected under this part is guaranteed by the State, and if
the amount so guaranteed is not paid to the insurer prior to the expiration of
the period of insurance protection under this part, the amount then due shall
be treated by the insurer as a [policy] loan[.] on the policy. If at the expiration of [that period] insurance
protection under this part, the cash surrender value of a policy is
less than the amount [then] due[,] to pay premiums and interest
on premiums on the policy, the policy shall [then cease] terminate
and the State shall pay the insurer the difference between the amount due
and the cash surrender value.
(b) The amount paid by the State to an insurer [on
account of applications approved] under this part shall [become] be
a debt [due] payable to the State by the insured on whose [account]
policy payment was made [and, notwithstanding any other law, the].
Such amount may be collected [either
by deduction from any amount due the insured] by the State, either as an
offset from any amount due the insured by the State or as otherwise authorized
by law. Such debt payable to the State
is not dischargeable in bankruptcy proceedings.
(c) Any moneys received by the State as
repayment of [debt] debts incurred by an insured under
this part shall be credited to the appropriation for the payment of claims
under this part.
[[]§657D-38[]]
Rules; [finality of determinations.]
review of findings of fact and conclusions of law. The insurance commissioner shall adopt rules
under chapter 91 to implement this part.
The findings of fact and conclusions of law made by the insurance
commissioner in administering this part [shall be final, and shall not be]
are subject to review [by any other official or agency of the
government.] as provided in chapter 91.
PART V.
TAXES AND PUBLIC LANDS
§657D-41 Taxes respecting [personalty,] personal
property, money, credits, or [realty; sale of property to enforce collection;
redemption of property sold; penalty for nonpayment; notice of rights to
beneficiaries of section.]
real property. (a) This section applies [to] in
any case in which a tax or assessment, whether general or special, other
than a tax on personal income, [unpaid taxes or assessments, that fall]
falls due and remains unpaid prior to or during the period of military
service[, on personal] with respect to a service member's:
(1) Personal
property, money, or credits, including motor vehicles; or [real]
(2) Real property
[owned and] occupied for dwelling, professional, business, or agricultural
purposes by [persons in military service] a service member or the
[person's] service member's dependents [at the commencement of
the period of military service and still so occupied by the person's dependents
or employees. This section does not
apply to taxes on income.] or employees:
(A) Before
the service member's entry into military service; and
(B) During
the time the tax or assessment remains unpaid.
(b) [No sale of any property] Property described
in subsection (a) [shall] may not be [made] sold to
enforce the collection of any state or county tax or assessment[, and no
proceeding or action for that purpose shall commence, except upon leave of
court granted upon application made by the state department of taxation or
appropriate county agency. The court,
unless in its opinion the ability of the person in military service to pay the taxes
or assessments is not materially affected by reason of military service, may stay
the proceedings or the sale for a period of not more than sixty days after the
termination of the period of military service of the person.] except by court
order and upon the determination by the court that military service does not
materially affect the service member's ability to pay the unpaid tax or
assessment. A court may stay a
proceeding to enforce the collection of such tax or assessment or sale of such
property during a period of military service of the service member and for a
period not more than one hundred eighty days after the termination of or
release of the service member from military service.
(c) When [by law the property may be] property
described in subsection (a) is sold or forfeited to enforce the collection
of the tax or assessment, [the person in military service] a service member
shall have the right to redeem or commence an action to redeem the [property,
at any time not later than sixty days after the termination of military service,
but in no case later than sixty days after the date if this chapter is repealed;]
service member's property during the period of military service or
within one hundred eighty days after termination of or release from military
service; provided this subsection shall not be construed to
shorten any period provided by any other state or county law providing for [that]
redemption.
(d)
Whenever [under this chapter any tax or assessment is not required to
be paid when due,] a service member does not pay a tax or assessment on property
described in subsection (a) when due, the amount of the tax or
assessment due and unpaid shall bear interest until paid at the rate of six per
cent a year, and no other penalty or interest shall be incurred by reason of the
nonpayment. Any lien for the unpaid taxes
or assessment [shall also] may include [the] interest [thereon.]
under this subsection.
(e) This section applies to all forms of property
described in subsection (a) owned individually by a service member or jointly
by a service member and a dependent or dependents.
§657D-42 Rights [to]
in public lands [not forfeited; grazing lands]. (a) No right to any lands owned or controlled by
the State, initiated or acquired under any laws of the State, including the mining
and mineral leasing laws, by a [person] service member prior to
entering military service shall during the period of that service be forfeited
or prejudiced by reason of the [person's] service member's absence
from the land or [the person's] failure to [perform] begin or complete
any work or [make any] improvements [thereon or the person's failure
to do any other act required by or under those laws.] to the land.
(b) This section does not control specific requirements contained in this part.
[[]§657D-43[]]
Income taxes[; collection deferred; interest; statute
of limitations]. [[](a)[] The] Upon notice to the department of taxation,
the collection [from any person in the state military forces] of any
income tax on the income of [such person] a service member
pursuant to chapter 235[, whether] falling due prior to or during [the
person's period of] military service[,] shall be deferred for a
period of not more than [sixty] one hundred eighty days after the
termination of [the person's period of] or release from military
service if [such person's] a service member's ability to pay such
income tax is materially [impaired by reason of the] affected by
military service.
(b) No interest [on any amount of tax,
collection of which is deferred for any period under this section, and no] or
penalty [for nonpayment of such amount during such period,] shall accrue
for such period of deferment by reason of nonpayment[.] on any amount
of tax deferred under this section.
(c) The running of any statute of limitations
against the collection of [such] tax [by distraint] deferred under
this section, by seizure or otherwise shall be suspended for the period of
military service of [any person whose tax collection is deferred under this
section,] the service member and for an additional period of [sixty]
two hundred seventy days [beginning with the day following the period
of military service.] thereafter.
[[(b)]] (d) The provisions of this section shall not
apply to the retention or recovery of debt under sections 231-51 to 231-59.
PART VI.
ADMINISTRATIVE REMEDIES
[[]§657D-51[] Transfers
to take advantage of chapter. Notwithstanding the provisions of this chapter
to the contrary, the court shall enter such lawful judgment or order, in any
proceeding to enforce a civil right, where the court is satisfied] Inappropriate
use of chapter. If a court determines,
in any proceeding to enforce a civil right, that any interest, property, or
contract[, since July 1, 1994,] has been transferred or acquired with
intent to delay the just enforcement of such right by taking advantage of this
chapter[.], the court shall enter such judgment or make such order as
might lawfully be entered or made concerning such transfer or acquisition.
[[]§657D-52[]]
Certificates of service; persons reported missing. (a) In
any proceeding under this chapter, a certificate signed by the adjutant general
[shall be] is prima facie evidence as to any of the following
facts stated in the certificate:
(1) That a person
named is, is not, has been, or has not [served, is serving, or has
served] been in [the state] military [forces;] service;
(2) The time when and
the place where the person entered military service[, the];
(3) The
person's residence at [that time, and] the time the person entered military
service;
(4) The rank, branch,
and unit of [such] military service that the person entered;
[(3)] (5) The
inclusive dates of the [person served in the state military
forces;] person's military service;
[(4)] (6) The
monthly pay received by the person at the date of issuing the certificate; and
[(5)] (7) If
applicable, the time when and the place where the person died in or was [discharged]
terminated or released from such military service.
(b)
[It is the duty of the] The adjutant general [to] shall
furnish a certificate [on application; and any] under subsection (a) upon
receipt of an application for such a certificate. A certificate appearing to be
signed by [any one of the officers of] the adjutant general [or by
any person purporting upon the face of the certificates to have been so
authorized shall be] is prima facie evidence of its contents and of
the signer's authority [of the officer] to issue it.
(c)
[Where a person in military service] A service member who
has been reported missing[, the person shall be] is presumed to
continue in [the] service until accounted for[, and no period].
A requirement under this chapter
which begins or ends with the death of [such person shall] a service member
does not begin or end until the [death of such person] service member's
death is [in fact] reported to or [found by the department of
defense, or any court or board thereof, or until death is] determined by
the adjutant general or by a court of competent jurisdiction. [No period limited by this chapter that
begins or ends with the death of such person shall be extended beyond a period
of six months after the time when this chapter ceases to be in force.
[]§657D-53[] Revocation
of interlocutory] Interlocutory orders. Any interlocutory order issued by a court
under this chapter[, made upon the court's own motion,] may be revoked,
modified, or extended by [it] the court upon its own motion or otherwise,
upon [appropriate notice to the parties.] notification to affected parties
as required by the court.
PART VII. FURTHER RELIEF
[[]§657D-61[]
Stay of enforcement of obligations, liabilities, taxes.] Anticipatory relief.
(a) A [person, at any time] service
member may, during [the person's period of] military service or
within [sixty] one hundred eighty days [thereafter, may] of
termination of or release from military service, apply to a court for
relief from [any]:
(1) Any
obligation or liability incurred by [that person] the service member
prior to the [person's period of] service member's military service;
or [for relief of any]
(2) Any tax or
assessment whether falling due prior to or during the [person's period of]
service member's military service.
[The court, after appropriate notice and hearing, unless in its opinion
the ability of the applicant to comply with the terms of such obligation or liability
or to pay such tax or assessment has not been materially affected by reason of
the applicant's military service, may]
(b) In a case covered by subsection (a), the court may, if the ability of the service member to comply with the terms of such obligation or liability or pay such tax or assessment has been materially affected by reason of military service, after appropriate notice and hearing, grant the following relief:
(1) In the case of an
obligation payable [under its terms] in installments under a contract
for the purchase of real estate, or secured by a mortgage or other installment
in the nature of a mortgage upon real estate, a stay of the enforcement of the
obligation during the [applicant's] service member's period of military
service and, from the date of termination of [such period of] or release
from military service or from the date of application if made after [such
service,] termination of or release from military service. Any stay under this paragraph shall be for
a period equal to the period of the remaining life of the installment contract
or other instrument plus a period of time equal to the period of military
service of the [applicant,] service member, or any part of such
combined period, subject to payment of the balance of the principal and
accumulated interest due and unpaid at the date of termination [of the period
of] or release from the service member's military service or from the
date of application[, as the case may be,] in equal installments during
the combined period at the rate of interest on the unpaid balance as is
prescribed in the contract, or other instrument evidencing the obligation, [for
installments paid when due,] and subject to other terms as may be [just;]
equitable; and
(2) In the case of any
other obligation, liability, tax, or assessment, a stay of [the]
enforcement [thereof] during the [applicant's period of] service
member's military service and, from the date of termination of [such
period of] or release from military service or from the date of
application if made after [such service,] termination or release from
military service. Any stay under this paragraph
shall be for a period of time equal to the period of the service member's
military service [of the applicant] or any part of such period, subject
to payment of the balance of principal and accumulated interest due and unpaid
at the date of termination [of such period of] or release from
military service or from the date of application[, as the case may be,]
in equal periodic installments during such extended period at such rate of
interest as may be prescribed for such obligation, liability, tax, or
assessment, if paid when due, and subject to such other terms as may be [just.]
equitable.
[(b)] (c) When any court [has granted] grants
a stay as provided in this section, [no] a fine or penalty [by
reason of failure to comply with the terms or conditions of] shall not accrue
on the obligation, liability, tax, or assessment [as to which the stay
was granted, shall accrue during] for the period in which the terms
and conditions of the stay are complied with.
[[]§657D-62[]]
Power of attorney. (a) [Notwithstanding any other provision of law,
a] A power of attorney [that:] of a service member shall be
automatically extended for the period the service member is in a missing status
as defined in title 37 United States Code section 551(2) if the power of
attorney:
(1) Was duly executed
by [a person in the military service who is in a missing status (as defined
in section 551(2) of title 37, United States Code);] the service member
while in military service or before entry into military service but after the
service member:
(A) Received
a call or order to report for military service; or
(B) Was
notified by an official of the department of defense that the person could
receive a call or order to report for military service;
(2) Designates [that
person's] the service member's spouse, parent, or other named relative
as the [person's] service member's attorney in fact for certain,
specified, or all[,] purposes; and
(3) Expires by its
terms after [that person] the service member entered a missing status[,
and before or after July 1, 1994;
shall be automatically extended for the period
that the person is in a missing status].
(b)
[No] A power of attorney executed [after July 1, 1994]
by a [person in the military service may] service member shall not
be extended under subsection (a) if the document by its terms clearly indicates
that the power granted expires on the date specified even though [that
person,] the service member, after the date of execution of the
document, enters a missing status.
[[]§657D-63[]]
Reinstatement of health insurance [coverage upon release from service]. (a) A [person] service member who,
by reason of military service in the state military forces is entitled
to the rights and [benefits] protections of this chapter, shall
be entitled upon termination or release from such military service to
reinstatement of any health insurance which was:
(1) In effect on the day before such service commenced; and
(2) Terminated effective on a date during the period of such service.
(b)
[An exclusion or a waiting period may not be imposed in connection
with] The reinstatement of health insurance coverage for [a] the
health or physical condition of a [person] service member under
subsection (a), or [a health or physical condition for] any other person
who is covered by the insurance by reason of the coverage of [such person,]
the service member, shall not be subject to an exclusion or waiting period,
if:
(1) The condition
arose before or during [that person's period of training or service in the
state military forces;] the period of such service;
(2) An exclusion or
waiting period would not have been imposed for the condition during [a] the
period of coverage [[or] participation by such person in the insurance];
and
(3) [The] In
the case in which the condition relates to the service member, the
condition [of such person] has not been determined by the adjutant general
to be a disability incurred or aggravated in the line of duty, within the
meaning of [[]title[]] 38 United States Code section 105.
(c)
Subsection (a) does not apply [in the case of] to a service member
entitled to participate in employer-offered insurance benefits [in which
a person referred to in such subsection is entitled to participate]
pursuant to [[]title[]] 38 United States Code [section 2021 et
seq.] chapter 43.
(d) An application under this section shall be
filed not later than one hundred twenty days after the date of the termination
of or release from military service.
(e) The amount of the premium for health
insurance coverage that was terminated by a service member and required to be
reinstated under subsection (a) shall not be increased, for the balance of the
period for which coverage would have been continued had the coverage not been
terminated, to an amount greater than the amount chargeable for such coverage
before the termination. This subsection does
not prevent an increase in premium to the extent of any general increase in the
premiums charged by the carrier of the health care insurance for the same
health insurance coverage for persons similarly covered by such insurance
during the period between the termination and the reinstatement.
§657D-G Business or trade obligations. (a)
If the trade or business, without regard to the form in which such trade
or business is carried out, of a service member has an obligation or liability
for which the service member is personally liable, the assets of the service
member not held in connection with the trade or business shall not be available
for satisfaction of the obligation or liability during the service member's
military service.
(b)
Upon application to a court by the holder of an obligation or liability
covered by this section, relief granted by this section to a service member may
be modified as justice and equity require.
§657D-H Enforcement by the attorney general. (a)
The attorney general may commence a civil action in any appropriate
court of the State against any person who:
(1) Engages in a
pattern or practice of violating this chapter; or
(2) Engages in a violation
of this chapter that raises an issue of significant public importance.
(b) In a civil action commenced under subsection
(a), the court may:
(1) Grant any
appropriate equitable or declaratory relief with respect to the violation of
this chapter;
(2) Award all other
appropriate relief, including monetary damages, to any person aggrieved by the
violation; and
(3) May, to
vindicate the public interest, assess a civil penalty:
(A) In
an amount not exceeding $ for a
first violation; and
(B) In
an amount not exceeding $ for
any subsequent violation.
(c) Upon timely application, a person aggrieved by
a violation of this chapter with respect to which the civil action is commenced
may intervene in such action, and may obtain such appropriate relief as the
person could obtain in a civil action under section 657D-I with respect to that
violation, along with costs and a reasonable attorney's fee.
§657D-I Private right of action. (a)
Any person aggrieved by a violation of this chapter may in a civil
action:
(1) Obtain any
appropriate equitable or declaratory relief with respect to the violation; and
(2) Recover all
other appropriate relief, including monetary damages.
(b) The court may award to a person aggrieved by
a violation of this chapter who prevails in an action brought under subsection
(a) the costs of the action, including reasonable attorneys' fees.
§657D-J Preservation of remedies. Nothing in section 657D-H or 657D-I shall
be construed to preclude or limit any remedy otherwise available under other
law, including consequential and punitive damages.
§657D-K Filing fees and court costs. A service member or other person seeking to enforce rights pursuant to this chapter shall not be required to pay a filing fee or court costs."
SECTION 3. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect on July 1, 2021.
INTRODUCED BY: |
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Report Title:
Civil Relief for State Military Forces.
Description:
Conforms chapter 657D, Hawaii Revised Statutes, concerning civil relief for state military forces, to the federal Servicemember's Civil Relief Act. Waives filing fees and court costs for a service member or other person seeking to enforce rights pursuant to chapter 657D.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.