BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2365
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          Date of Hearing:  May 4, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                     AB 2365 (Lieu) - As Amended:  April 8, 2010

                                  PROPOSED CONSENT
           
          SUBJECT  :  VETERANS AFFAIRS: ADMINISTRATION

           KEY ISSUE  :  SHOULD U.S. SERVICE MEMBERS BE GIVEN ADDITIONAL  
          TOOLS, INCLUDING THE ABILITY TO RECOVER REASONABLE ATTORNEY'S  
          FEES, THAT WILL ENABLE THEM TO ENFORCE, ON THEIR OWN ACCORD,  
          SPECIFIED RIGHTS AND FINANCIAL PROTECTIONS UNDER THE MILITARY  
          AND VETERANS CODE THAT EXIST FOR THEIR BENEFIT?  

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.

                                      SYNOPSIS
          
          This non-controversial bill seeks to increase the ability of  
          service members to enforce, on their own accord, certain  
          financial and consumer-related rights and protections granted to  
          them under the Military and Veterans Code to assist them with  
          financial hardships associated with deployment.  To accomplish  
          this objective, the bill expressly authorizes service members to  
          recover actual damages, reasonable attorney's fees, and costs  
          from any person who violates any of these rights and protections  
          as specified throughout the Military and Veterans Code.   
          Supporters contend that the attorney's fees provision will  
          provide an incentive for attorneys to represent service members  
          and their families in cases where they are attempting to cope  
          with financial hardships associated with deployment of the  
          service member, which also has the effect of making the service  
          member unavailable to participate in efforts to enforce these  
          statutory rights on their own accord.  This bill would also  
          grant service members an expedited review of a certain petition  
          for relief, which would potentially help resolve the dispute  
          before the service member must ship out for deployment and  
          becomes unavailable to participate in the action.  This bill is  
          sponsored by the California Military Department and supported by  
          the National Guard Association of California.  It previously  
          passed the Assembly Committee on Veterans Affairs on consent and  
          has no registered opposition.








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           SUMMARY  :  Seeks to increase the ability of service members  
          deployed or facing deployment to enforce, on their own accord,  
          certain rights and protections granted to them under the  
          Military and Veterans Code.  Specifically,  this bill  :   

          1)Makes a person who has violated certain sections of the  
            Military and Veterans Code liable for actual damages,  
            reasonable attorney's fees, and costs incurred by the injured  
            party.  These sections generally afford financial and  
            consumer-related rights and protections to service members  
            designed to ease financial hardships associated with  
            deployment.  The existing code sections for which violators  
            are liable under this bill provide that:

             a)   A stay or postponement of payment of any tax, fine or  
               other civil liability shall not alone provide the basis for  
               a denial or revocation of credit, or a change in terms of  
               an existing credit arrangement, with respect to credit  
               transactions between the service member and creditors.   
               (Military and Veterans Code Section 401.  All further  
               references are to this code unless otherwise noted.)
             b)   The legal right of a service member who is a defendant  
               in a civil case to have an attorney represent and protect  
               his or her interests before any default judgment may be  
               entered against the service member in the case.  (Section  
               402.)
             c)   The service member's period of military service  
               (deployment) shall not be included in computing any statute  
               of limitations for bringing a civil action or other court  
               proceeding.  (Section 404.)
             d)   No obligation bearing interest at a rate greater than 6%  
               per year incurred by the service member before that  
               member's entry into service shall bear interest at a rate  
               greater than 6% during any part of the period of military  
               service.  (Section 405.)
             e)   The service member's family may not be evicted from  
               their principal residence during the member's period of  
               military service, unless otherwise ordered by a court.   
               (Section 406.)
             f)   No person engaged in an installment contract with the  
               service member prior to that member's deployment may  
               rescind or terminate the installment contract for any  
               breach for nonpayment of an installment occurring prior to  
               or during the service member's period of military service.   








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               (Section 407.)
             g)   In any proceeding to enforce nonpayment of an obligation  
               secured by mortgage or deed of trust, the court shall stay  
               the proceedings upon application of the service member.  In  
               addition, no sale, foreclosure, or seizure of property for  
               nonpayment of such an obligation shall be valid if made  
               during the service member's period of service or within  
               three months thereafter, except as provided.  (Section  
               408.)
             h)   No assignee of a service member's life insurance policy  
               shall, during the period of military service, exercise any  
               right or option by virtue of that assignment unless upon  
               leave of the court.  Furthermore, no person shall exercise  
               any right to foreclose or enforce any lien for storage of  
               household goods, furniture, or personal effects during the  
               service member's period of service or within three months  
               thereafter, except as provided.  (Section 409.1.)
             i)   The court may grant relief to the service member by  
               staying enforcement during the member's period of military  
               service of an obligation payable under a mortgage or a  
               contract to purchase real estate, as provided, and of  
               payment of any tax or assessment incurred by the member.   
               (Section 409.3.)
             j)   An exclusion or waiting period may not be imposed in  
               connection with reinstatement of health insurance coverage  
               held by the service member prior to the member's period of  
               military service.  (Section 409.4.)

          2)Provides that, with respect to the California Military  
            Families Financial Relief Act, or any provision of the  
            California Military Families Financial Relief Act of 2005:

             a)   Any person violating any provision of either Act shall  
               be liable for actual damages, reasonable attorney's fees,  
               and costs incurred by the injured party.
             b)   A service member or other person seeking to enforce  
               rights under either Act shall not be required to pay a  
               filing fee or court costs.

          3)Prohibits the court from charging a service member any filing  
            fee or court costs for a petition for relief from an  
            obligation or liability incurred prior to the member's period  
            of military service, or from a tax or assessment falling due  
            prior to or during the period of service.  Specifies further  
            procedural requirements, including that:








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             a)   The court shall set a hearing on the petition within 25  
               days from the filing date of the petition.
             b)   The petition shall be served at least 10 days before the  
               hearing.
             c)   The respondent shall file and serve a response at least  
               five days before the hearing.  

           EXISTING LAW  :  

          1)Provides legal rights and financial protections for service  
            members, with respect to credit agreements, court proceedings,  
            interest liabilities, eviction proceedings, contracts,  
            mortgages and trusts, leases, life insurance policies, taxes  
            and assessments, and health insurance policies, as specified.   
            (Sections 401 to 409.4, 800 to 811, 820 to 828.)

          2)Establishes the California Military Families Financial Relief  
            Act (Chapter 3 of Division 4 of the Military and Veterans  
            Code, commencing with Section 800) which provides financial  
            relief for a service member who is called to active duty as  
            part of the Iraq and Afghanistan conflicts.  (Sections 800 to  
            811.)

          3)Establishes the California Military Families Financial Relief  
            Act of 2005 (Chapter 3.3 of Division 4 of the Military and  
            Veterans Code, commencing with Section 820), which provides  
            financial rights and relief to service members called into  
            active duty, generally.  (Sections 820 to 828.)

          4)Permits a service member to apply to the court for relief from  
            an obligation or liability incurred prior to the member's  
            period of military service, or from a tax or assessment  
            falling due prior to or during the period of service, and  
            allows the court to grant specified relief after appropriate  
            notice and hearing, unless in its opinion the ability of the  
            service member to comply with the obligation or pay the tax or  
            assessment has not been materially affected by reason of the  
            member's military service.  (Section 409.3.)

           COMMENTS  :  This non-controversial bill seeks to increase the  
          ability of service members to enforce, on their own accord,  
          certain financial and consumer-related rights and protections  
          granted to them under the Military and Veterans Code to assist  
          them with financial hardships associated with deployment.  To  








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          accomplish this objective, the bill expressly authorizes service  
          members to recover actual damages, reasonable attorney's fees,  
          and costs from any person who violates any of these rights and  
          protections as specified throughout the Military and Veterans  
          Code.  The attorney's fees provision, in particular, is intended  
          to provide an incentive for attorneys to represent service  
          members and their families in cases where they are attempting to  
          cope with financial hardships associated with the deployment  
          (and prolonged absence) of the service member.  

           Statutory Protections for Service Members in the California  
          Military and Veterans Code.   In 2002, the Military Department  
          sponsored AB 1433 (Horton), which was chaptered into law and  
          repealed California MVC 399 and 399.5 and added Chapter 7.5  
          "Protections," commencing with 400 through 420.  The new law  
          provided financial protection for military members performing  
          military service in regards to court proceedings, credit  
          contract obligations, rental agreements, taxes (except income  
          taxes), and health insurance, as well as eviction protection for  
          the military members' families.  The law also enabled National  
          Guard members serving in state or federal status and other  
          military reservists performing federal duty to receive financial  
          protections consistent with those found within the federal  
          SSCRA.

          In December 2003, President Bush signed an updated version of  
          the SSCRA, now known as the Servicemembers Civil Relief Act  
          (SCRA).  The new federal statute revised and expanded the  
          protections included in the outdated SSCRA to reflect new  
          economic realities.  

          California Military and Veterans Code Sections 800 to 811 were  
          amended in 2005, with the chaptering of AB 306 (Baca).  As part  
          of the California Military Families Financial Relief Act of  
          2005, this legislation applied to members of the California  
          National Guard or Reserves called to active federal duty for the  
          Iraq or Afghanistan conflicts, and ensured that these service  
          members would be provided enhanced financial protections during  
          the period of their deployment.

          Also in 2005, AB 1666 (Frommer), the California Military  
          Families Financial Relief Act of 2005, was enacted to provide  
          additional protections for members of the California National  
          Guard and Reserves ordered to military duty.
           








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          Need for the Bill.   According to the author, the California  
          Military Department has recently coordinated with State Military  
          Reserve Judge Advocate General (JAG) Officers to assist deployed  
          and deploying service members who incur financial hardship  
          because of their deployments.  In the past year, these  
          experienced lawyers have either counseled or represented 22  
          service members, but the resources that the California Military  
          Department can expend on these issues are very limited.  

          Generally, these cases arise when service members seek to  
          exercise the financial rights and protections afforded to them  
          under the Military and Veterans Code.  The form of relief may  
          vary from deferment of a financial obligation or reduction of an  
          interest rate to the statutory requirement of 6%.  In a typical  
          case, the service member might contact a creditor directly  
          seeking relief, but is denied the protection of his statutory  
          right to relief.  At this point, many service members are at an  
          impasse.  Judge Advocates are limited by regulation and  
          geography from doing anything more than sending a letter on  
          behalf of the service members.  The service member is limited by  
          geography and his or her own limited sophistication in enforcing  
          these rights in court.

          The author of this bill, himself a Judge Advocate General,  
          contends that this legislation is necessary to enable service  
          members, on their own accord, to fully enforce the rights and  
          protections afforded to them under the Military and Veterans  
          Code.  In support, the author states:

               This legislation is critical because more Citizen  
               Soldiers and Airmen of California are being called to  
               active duty in Iraq and Afghanistan.  As a result,  
               service members and their families are suffering the  
               hardships of these ongoing deployments.  It is  
               necessary to provide an enforcement mechanism to  
               ensure the Legislature's stated intent to enable  
               service members to devote their entire energy to the  
               defense needs of the nation or state.

           This bill enables service members to recover an award of  
          reasonable attorney fees.   Not only is finding an attorney to  
          represent a service member difficult without an attorney's fees  
          provision, but on a typical claim the service member cannot be  
          made whole when a significant portion of his or her damages  
          award must go toward non-recoverable attorney's fees.  According  








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          to the author, finding an attorney to take such a case is nearly  
          impossible unless that attorney knows that reasonable  
          compensation will be allowed by the court for undertaking such  
          an action to protect the rights of a service member.  The author  
          further explains:

               Many of the rights sought to be enforced have either  
               no damages or minimal damages.  The service member is  
               primarily seeking an order from the court compelling  
               the lender to stop violating the Military and Veterans  
               Code and honor his or her requests.  An example is a  
               case to clear up the service members' credit after the  
               institution has wrongfully denied the service members  
               the protections of the Military and Veterans Code.   
               There would be no damages in a case where the service  
               members is only seeking a court order to accurately  
               reflect his or her credit if no attorney's fees are  
               available.  There is no money to pay an attorney in an  
               injunction action.

          The author believes voluntary compliance will be much more  
          likely if creditors know that litigation over violations of the  
          Military and Veterans Code may result in an award against them  
          of the service members' reasonable attorney's fees and costs.   
          In addition, many service members do not have the ability to  
          immediately pay court fees at the time of filing because of  
          financial hardship, which is compounded when the member has been  
          deployed overseas or faces imminent deployment.  This bill would  
          also waive some court filing fees for service members so that  
          they may proceed to enforce statutory protections on their own  
          accord.

           This bill would also grant service members an expedited review  
          of a petition for relief  .  Under current law, a service member  
          may not be able to enforce these protections until the service  
          member returns from deployment.  Expedited review of a service  
          member's petition for relief can be very helpful in resolving  
          disputes before the service member must ship out for deployment  
          and becomes unavailable to participate in the action.  Delay in  
          enforcement unfortunately may cause irreversible credit problems  
          for some service members, regardless of the eventual outcome of  
          the case.  In a matter concerning obligations, taxes, or  
          assessments that are past due, this bill requires a court to set  
          a hearing on the service member's petition for relief within 25  
          days from filing, lending more certainty to the process than the  








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          current statute which simply authorizes the court to grant  
          relief "after appropriate notice and hearing."  

           ARGUMENTS IN SUPPORT  :  The National Guard Association of  
          California writes in support:  "AB 2365 will ensure that  
          California National Guard members and Reservists receive court  
          awarded damages, including reasonable attorney fees and court  
          costs, incurred while pursuing certain protections under  
          specified sections of the Military and Veterans Code.  AB 2365  
          will greatly assist Service members in accessing the courts to  
          enforce their rights."

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Military Department (sponsor)
          National Guard Association of California (NGAC)

           Opposition 
           
          None on file
           
          Analysis Prepared by  :   Anthony Lew / JUD. / (916) 319-2334