In 2008 Congress passed legislation which extended the protection from foreclosure actions for active duty servicemembers for up to 9 months after the end of a servicemember’s military service. In 2012, Congress extended that time to 12 months after the end of the military service. When the prior legislation expired at the end of 2015, the protection for servicemembers reverted to a period of 90 days after the end of the military service period.

Senate Bill 2393, the Foreclosure Relief and Extension for Servicemembers Act of 2015, has been adopted by Congress and was signed in to law by President Obama on March 31, 2016. The bill was sponsored by Senator Sheldon Whitehouse of Rhode Island. The law as currently adopted extends the protections for 12 months after the end of military service. In addition, the Act is retroactive to January 1, 2016 and has a sunset provision of December 31, 2017.

The law applies to obligations for which the servicemember is still obligated that are secured by a mortgage, trust deed or other security in the nature of a mortgage on real or personal property and which originated before the period of military service. If a foreclosure is filed against a servicemember during military service or within 12 months after military service, the court may, on its own motion or own application of the servicemember, when the ability of the servicemember to comply with the terms of the obligation is materially affected by military service, (1) stay the proceedings for a period of time as justice and equity may require, or (2) adjust the obligation to preserve the interest of all parties. A sale, foreclosure or seizure of property of a servicemember within the protected period for breach of the obligation shall not be valid except (1) upon a court order granted by a Federal or State Court prior to the sale, foreclosure or seizure; or (2) made pursuant to written waiver of rights agreement as provided by 50 U.S. Code § 3918.

The term “Servicemember” means a member of the uniform services on active duty or a member of the National Guard under a call to active service as authorized by the President or Secretary of Defense for a period of more than 30 days. The term “Servicemember” also includes a commissioned officer of the Public Health Service or National Oceanic and Atmospheric Administration. The period of military service begins on the date on which the servicemember enters the service on active duty and ends when the servicemember is released from active duty or dies in service.

Any person who knowingly makes or causes to be made a foreclosure or seizure of property which is prohibited by this act or who knowingly attempts to do so may be found guilty of a misdemeanor and may be fined, or imprisoned for not more than a year, or both.

North Carolina Gen. Stat. § 45-21.12A parallels the federal legislation in many aspects. However, it applies only to power of sale foreclosures and offers protection for servicemembers of only 90 days after the period of military service. The federal legislation would now control with the expanded 12 month protected period and would be applicable to all foreclosure actions on real or personal property.

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