BILL ANALYSIS                                                                                                                                                                                                    �






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2013-2014 Regular Session


          AB 526 (Melendez)
          As Amended June 14, 2013
          Hearing Date: June 25, 2013
          Fiscal: Yes
          Urgency: No
          TH


                                        SUBJECT
                                           
                             Military Service: Benefits

                                      DESCRIPTION  

          Existing law protects all federal military reservists,  
          California National Guard service members, and their spouses and  
          legal dependents from the adverse effects of military deployment  
          by providing them with statutory payment deferral options for  
          certain financial obligations.  Obligations subject to deferral  
          must have been incurred prior to deployment, and include  
          mortgages, credit cards, retail installment contracts and  
          accounts, real property taxes and assessments, and automobile  
          loans and leases.  Existing law provides enhanced financial  
          protections to military reservists and National Guard personnel  
          ordered to active duty as part of the conflicts in Iraq and  
          Afghanistan.

          This bill would extend to a larger class of military reservists  
          the enhanced financial protections currently offered only to  
          service members ordered to active duty as part of the Iraq and  
          Afghanistan conflicts.  It would also add utility bills to the  
          list of financial obligations subject to statutory deferment.

                                      BACKGROUND  

          California law provides a variety of financial and  
          consumer-related protections for military service members, many  
          of which are intended to mitigate the potential adverse effects  
          of a deployment.  Within this group of existing protections is  
          AB 1433 (Horton, Chapter 60, Statutes of 2002), which  
          incorporated into state law several provisions of the federal  
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          Soldiers' and Sailors' Relief Act of 1940 (SSCRA), and granted  
          certain benefits to deployed service members regarding court  
          proceedings, credit contract obligations, rental agreements,  
          taxes, health insurance, and eviction protection.  Existing law  
          also provides additional protections for reserve and National  
          Guard service members regarding fees for recording a power of  
          attorney, termination of mobile telephone contracts, academic  
          tuition, state bar fees, vehicle leases, and residential utility  
          service.
          State law currently permits military reservists and National  
          Guard members ordered to active federal or state military  
          service to defer certain loans and financial obligations under  
          two different provisions of the Military and Veterans Code.   
          Military and Veterans Code Section 400 et seq. (Section 400)  
          suspends the enforcement of specified civil liabilities,  
          including financial obligations such as mortgages, automobile  
          loans, and installment contracts, for service members during  
          periods of active military service.  (Mil. & Vet. Code Sec.  
          409.3.)  The relief afforded under this section is available  
          only upon application to a court.  At the conclusion of a period  
          of suspension, the maturity date of a suspended financial  
          obligation is extended by the period of suspension (usually the  
          period of military service), and all unpaid principal and  
          accumulated interest is added to the principal balance of the  
          financial obligation.  Consequently, a service member who defers  
          an obligation under this provision may have to pay interest on  
          deferred interest, potentially increasing the amount due on an  
          obligation after all deferred sums are rolled back into the  
          obligation's principal.

          Military and Veterans Code Section 800 et seq. (Section 800), in  
          contrast, permits service members called to active duty  
          specifically as part of the conflicts in Iraq or Afghanistan to  
          defer payments on similar financial obligations for a period of  
          up to six months.  Rather than petitioning a court, a service  
          member need only send a letter to their lender requesting  
          deferment of a financial obligation in order to receive benefits  
          under this Section.  Unlike Section 400, Section 800 provides  
          that "[n]o interest shall be charged or accumulated on the  
          principal or interest on which the payment was delayed," meaning  
          that interest cannot accumulate on unpaid interest for an  
          obligation deferred under this Section.  (Mil. & Vet. Code Sec.  
          804.)

          Both Section 400 and Section 800 contain other additional  
          benefits that mostly overlap with each other.  Each requires  
                                                                      



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          entities that were providing health care coverage prior to  
          deployment to "reinstate the health care coverage without  
          waiting periods or exclusion of coverage for preexisting  
          conditions," though the requirement in Section 400 is subject to  
          certain exceptions.  (Mil. & Vet. Code Sec. 806(a); see also  
          Mil. & Vet. Code Sec. 409.4(b).)  Both Sections extend their  
          respective class of benefits to spouses and legal dependents of  
          an eligible military reservist or National Guard service member  
          (see Mil. & Vet. Code Secs. 409.5, 811(a)), and prohibit the  
          assessment of penalties for the nonpayment of principal or  
          interest during a period of deferment (see Mil. & Vet. Code  
          Secs. 409.3(b), 804).

          According to the California Military Department, approximately  
          one-third of deploying California National Guard members use  
          Section 800 to defer home mortgages and car loans.  In contrast,  
          less than ten percent of National Guard members defer  
          obligations under Section 400.  Staff at the Military Department  
          indicate that they are only aware of 50 members deferring  
          obligations under Section 400 in the past year.

          This author-sponsored bill would expand the benefits and  
          eligibility criteria for deferring financial obligations under  
          Military and Veterans Code Section 800.  Specifically, it would  
          delete the requirement that a service member must have served in  
          the Iraq or Afghanistan conflicts in order to qualify for  
          deferment, and it would add utility payment obligations to the  
          list of financial obligations subject to deferment.  This bill  
          would also require a service member to send his or her lender a  
          copy of the service member's activation or deployment orders as  
          part of an application for deferment under Section 800.

                                CHANGES TO EXISTING LAW
           
           Existing law  permits a member of the United States Military  
          Reserve or the National Guard who is called to active duty as  
          part of the Iraq or Afghanistan conflicts to defer payments on  
          specified financial obligations, including mortgages, credit  
          cards, retail installment contracts and accounts, property  
          taxes, special assessments, and automobile loans and leases, for  
          a period of up to 180 days.  (Mil. & Vet. Code Secs. 800, 808.)

           Existing law  requires, in order for an obligation or liability  
          to be deferred under Military and Veterans Code Section 800, a  
          reservist or National Guard member to deliver to the lender a  
          letter signed by the member, under penalty of perjury,  
                                                                      



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          requesting deferment of the obligation.  (Mil. & Vet. Code Sec.  
          800.)

           Existing law  prohibits the imposition of penalties or the  
          charging or accumulation of interest on the nonpayment of  
          principal or interest during a period of deferment under  
          Military and Veterans Code Section 800 et seq.  (Mil. & Vet.  
          Code Sec. 804.)

           Existing law  permits any federal military reservist or National  
          Guard member who is called to active duty to, at any time during  
          his or her period of active duty service or within six months  
          thereafter, apply to a court for relief from an obligation or  
          liability incurred by the member prior to his or her period of  
          military service, or from any tax or assessment falling due  
          prior to or during the period of service.  (Mil. & Vet. Code  
          Sec. 409.3(a).)

           Existing law  authorizes, in the case of an installment contract  
          for the purchase of real estate, or other instrument in the  
          nature of a mortgage upon real estate, a stay of the enforcement  
          of the obligation during the applicant's period of military  
          service, or, if application is made after the service, for a  
          period of time up to the length of the period of military  
          service.  At the conclusion of the stay of enforcement, the  
          principal and accumulated interest due and unpaid shall be  
          repaid in equal installments during the remaining life of the  
          installment contract or other instrument, extended by a period  
          of time equal to the stay of enforcement, at the rate of  
          interest on the unpaid balance as prescribed in the contract, or  
          other instrument evidencing the obligation, for installments  
          paid when due, and subject to any other terms as may be just.   
          (Mil. & Vet. Code Sec. 409.3(d)(1).)

           Existing law  authorizes, in the case of any other obligation,  
          liability, tax, or assessment, a stay of the enforcement during  
          an applicant's period of military service, or, if application is  
          made after the service, for a period of time equal to the period  
          of military service of the applicant or any part of that period.  
           At the conclusion of the stay of enforcement, the balance of  
          principal and accumulated interest due and unpaid at the date of  
          termination of the period of military service or the date of  
          application, as the case may be, shall be repaid in equal  
          periodic installments during a period of time equal to the stay  
          of enforcement, at the rate of interest as may be prescribed for  
          the obligation, liability, tax, or assessment, if paid when due,  
                                                                      



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          and subject to any other terms as may be just.  (Mil. & Vet.  
          Code Sec. 409.3(d)(2).)

           Existing law  permits a court to grant this 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. (Mil. & Vet. Code Sec.  
          409.3(d).)

           This bill  would expand the class of military reservists and  
          National Guard members eligible to receive benefits under  
          Military and Veterans Code Section 800 et seq., including  
          benefits related to the provision of health care coverage and  
          the deferment of financial obligations, to any reservist called  
          to active duty for a period of 30 or more consecutive days.

           This bill  would add utility payment obligations to the list of  
          financial obligations subject to deferment under Military and  
          Veterans Code Section 800.

           This bill  would also require, in addition to a letter signed by  
          the member under penalty of perjury requesting deferment of the  
          obligation, that a service member send the lender a copy of his  
          or her activation or deployment orders as part of an application  
          for deferment under Military and Veterans Code Section 800.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          According to the author:
          
               Military reservists who are called to active duty to serve  
               in Iraq and Afghanistan receive the financial protection to  
               defer payments without interest, up to 180 days, on a  
               mortgage, credit card, retail installment contract, retail  
               installment account, two car loans, and property tax.
               . . .
               AB 526 will expand the financial protections currently  
               given to military reservists called to active duty to serve  
               in Iraq and Afghanistan to all military reservists called  
               to active duty.  Also, utility payments will be added to  
               the list of able deferral obligations.
               . . .    
               With the Iraq and Afghanistan wars both winding down,  
                                                                      



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               military reservists are being called to active duty to  
               serve elsewhere in the world and within the United States.   
               Current California law provides financial protections for  
               reservists who are called to active duty to serve in Iraq  
               and Afghanistan but not if the reservists is called to  
               active duty elsewhere.  When a military reservist is called  
               to active duty they have to leave their civilian job, for  
               the time being, and are put on military pay which is  
               usually substantially less than what they were making as a  
               civilian.  With this dramatic shift in an individual's or  
               family's budget it can cause a lot of additional anxiety  
               and stress with budgetary shortfalls on top of the stress  
               of being called to fight for your country.

          2.   Support of California's armed forces  
           
           Courts across the United States have recognized the paramount  
          importance of protecting our service personnel from the  
          dislocating effects that military service can have on a  
          soldier's civil obligations.  The Supreme Court has held that  
          the federal Servicemembers Civil Relief Act (50 U.S.C. 510 et  
          seq.), which parallels many of the same protections offered  
          under California law, "must be read with an eye friendly to  
          those who dropped their affairs to answer their country's call"  
          (Le Maistre v. Leffers (1948) 333 U.S. 1, 6), and is "to be  
          liberally construed to protect those who have been obliged to  
          drop their own affairs to take up the burdens of the nation"  
          (Boone v. Lightner (1943) 319 U.S. 561, 575).  The public policy  
          underlying deferment statutes codified in Military and Veterans  
          Code Sections 400 and 800 "is to allow military personnel to  
          fulfill their duties unhampered by obligations incurred prior to  
          their call."  (Omega Indus., Inc. v. Raffaele (D. Nev. 1995) 894  
          F. Supp. 1425, 1434 [citing  Patrikes v. J.C.H. Service Stations,  
          Inc.  (N.Y.City Ct.1943) 41 N.Y.S.2d 158, 165].)  This policy  
          extents to protect military personnel in times of peace where no  
          national emergency exists (Conroy v. Aniskoff (1993) 113 S.Ct.  
          1562, 1564-66), is "always to be liberally construed" (Boone,  
          319 U.S. at 574), and is to be applied in a "broad spirit of  
          gratitude" towards service personnel (Patrikes, 41 N.Y.S.2d at  
          166).

          AB 526 furthers this important public policy by removing the  
          requirement that a service member must have served in support of  
          a conflict in Afghanistan or Iraq in order to qualify for the  
          class of benefits available under Section 800.  It recognizes  
          that when service members are deployed, regardless of where they  
                                                                      



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          are deployed to, it may be difficult or impossible for them to  
          manage their financial obligations remotely, and that the added  
          stress of worrying about finances back home could undermine  
          their effectiveness and safety.  This bill ensures that all  
          recalled military reservists are afforded the same opportunity  
          to defer financial obligations, regardless of where they are  
          called to serve.

          Absent amendments by the Legislature, Military and Veterans Code  
          Section 800 will become unusable in the near future, since its  
          provisions are only available to service members called to  
          active duty as part of the Iraq or Afghanistan conflicts.  As  
          those conflicts come to a close, the enhanced financial  
          protections offered under Section 800 will no longer apply to  
          California's recalled military service personnel.  However,  
          there is no indication that military reservists and National  
          Guard personnel won't continue to deploy as part of military  
          missions both in California and abroad.  This bill ensures that  
          the protections currently offered under Section 800 to those who  
          serve in Iraq and Afghanistan will remain available to all  
          citizen-soldiers who answer the call to service.

          3.   Impact to contractual obligations  

          The demands placed upon our deployed military service personnel  
          must be balanced against the importance of honoring contractual  
          obligations made in the course of civic life.  Public policy in  
          California weighs these competing interests, and allows service  
          members to defer certain financial obligations with the  
          understanding that they will be required to honor their  
          contractual commitments when they return home from service.   
          This bill maintains that balance by granting all military  
          reservists up to six months of interest-free deferments on  
          financial obligations without having to go to a court (as is  
          required to defer obligations under Military and Veterans Code  
          Section 409.3).  It ensures that all recalled military  
          reservists are afforded the same opportunity to defer financial  
          obligations, regardless of where they are called to serve.

          By expanding the class of reservists and dependents eligible to  
          claim benefits under Section 800, this bill could have a minor  
          impact on the earnings of lenders and other entities that would  
          otherwise collect interest on deferred obligations, based on the  
          number of California service members that would be eligible to  
          use this benefit.  According to the California Military  
          Department, the California National Guard has deployed over  
                                                                      



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          39,000 soldiers and airmen since September 2001.  Fourteen  
          hundred of these reservists are currently on deployment.  Given  
          that California has an estimated population of approximately 38  
          million people, the enhanced protections offered by this bill  
          are expected have an extremely small impact on lenders and other  
          entities doing business in the state.

          Similarly, AB 526 is not likely to significantly impact the  
          finances of public or private utilities by adding utility bills  
          to the list of obligations subject to deferment under Section  
          800.  Federal reservists and members of the National Guard who  
          are called to full-time active military service already receive  
          utility shutoff protection under the California Military  
          Families Financial Relief Act of 2005 (Mil. & Vet. Code Sec. 820  
          et seq.).  Further, staff notes that utility bills likely fall  
          within the scope of obligations eligible for deferment under  
          existing provisions in Military and Veterans Code Section 409.3.  
           As noted above, the expected impact from permitting deferrals  
          of obligations owed to utility companies is likely to be small,  
          given the disparity between the size of a utility's consumer  
          base and the number of service members and dependents eligible  
          to defer obligations under Section 800. 

          4.   Compatibility with SB 720  

          This Committee has already heard a parallel bill (SB 720,  
          Correa) this legislative session which would expand the benefits  
          available to military reservists seeking to defer financial  
          obligations under Military and Veterans Code Section 400 et seq.  
           SB 720 was passed out of Committee on April 30th by a vote of  
          7-0 and has been referred to the Assembly Committees on Veterans  
          Affairs and the Judiciary.  That bill, sponsored by the  
          California Military Department, would amend Military and  
          Veterans Code Section 409.3 to prohibit certain financial  
          obligations, including installment contracts for real estate  
          purchases and mortgages secured by real estate, as well as any  
          other obligation, liability, tax, or assessment, from incurring  
          interest on deferred interest during a period of deferment.  It  
          would, in essence, extend the enhanced six-month deferment  
          option codified in Military and Veterans Code Section 800 that  
          is currently available only to reservists deployed to Iraq or  
          Afghanistan, to the full duration of a military deployment for  
          all deployed reservists who obtain the requisite court order.

          This bill does not conflict with the amendments proposed in SB  
          720.  Similar to that bill, AB 526 borrows some elements of  
                                                                      



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          existing law (specifically, from Military and Veterans Code  
          Section 400 et seq.) and incorporates them into an existing  
          financial obligation deferment statute (Section 800 et seq.).   
          This bill would remove the requirement that a service member  
          must have served in the Iraq or Afghanistan conflicts in order  
          to qualify for a deferment under Section 800, and would expand  
          the class of deferment eligible obligations to include  
          obligations owed to a utility company, both of which are  
          presently provided for in Section 400.  This bill would also  
          require a service member to send a lender a copy of his or her  
          activation or deployment orders as part of an application for  
          deferment, which a court entertaining a service member's request  
          for deferment under Section 400 would also likely require. 


           Support  :  American Legion - Department of California; AMVETS -  
          Department of California; California Association of County  
          Veterans Service Officers; California State Commanders Veterans  
          Council; Vietnam Veterans of America - California State Council

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  SB 720 (Correa) would expand the  
          benefits available to military reservists seeking to defer  
          financial obligations under Military and Veterans Code Section  
          409.3.  Specifically, this bill would extend certain enhanced  
          protections currently offered only to military reservists and  
          National Guard personnel ordered to active duty as part of the  
          conflicts taking place in Iraq and Afghanistan, including  
          protection from having to pay interest on deferred interest at  
          the end of a deferment, to all federal military reservists and  
          California National Guard service members ordered to active  
          duty.  This bill is in the Assembly Committee on Veterans  
          Affairs.


           Prior Legislation  :

          AB 713 (Block, Chapter 105, Statutes of 2011) clarified that  
          recall to active military service gives a service member the  
          ability to apply to a court for relief from certain financial  
          obligations.  This bill also extended to the dependents of those  
                                                                      



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          service members an existing provision of law that protects  
          service members from the assessment of interest at a rate  
          greater than six percent.

          AB 2455 (Nava, Chapter 124, Statutes of 2010) extended to  
          spouses and dependents of service members certain financial  
          protections with respect to the deferment of vehicle loans.
                               
          AB 2365 (Lieu, Chapter 385, Statutes of 2010) enabled a service  
          member to recover actual damages, reasonable attorney fees, and  
          litigation costs from any person who violates specified rights  
          and protections codified in the Military and Veterans Code,  
          including financial protections for active duty personnel.  This  
          bill granted service members an expedited review of certain  
          petitions for relief from financial obligations, and provided  
          that a court shall not charge a filing fee or court costs for  
          specified actions.

          AB 306 (Baca, Chapter 291, Statutes of 2005) authorized service  
          members who are called to active duty as part of the Iraq or  
          Afghanistan conflicts to defer payments on specified obligations  
          for the period of active duty, plus 60 calendar days, or 180  
          days, whichever is less.

          AB 1433 (Horton, Chapter 60, Statutes of 2002) enabled service  
          members to petition a court for specified relief with respect to  
          credit contract obligations, rental agreements, taxes (except  
          income taxes), and health insurance, as well as for eviction  
          protection for the service member's families.

          SB 1284 (Battin, 2002) would have extended certain financial  
          protections to military reservists called to serve on active  
          duty for national emergencies caused by the terrorist attacks on  
          New York City and the Pentagon.  This bill would have extended  
          certain existing misdemeanor provisions relating to rent relief  
          to a larger class of military reservists.  This bill died in the  
          Senate Committee on the Judiciary. 

           Prior Vote  :

          Assembly Veterans Affairs Committee (Ayes 9, Noes 0)
          Assembly Appropriations Committee (Ayes 17, Noes 0)
          Assembly Floor (Ayes 76, Noes 0)

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