HOUSE OF REPRESENTATIVES

H.B. NO.

848

THIRTY-FIRST LEGISLATURE, 2021

 

STATE OF HAWAII

 

 

 

 

 

 

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.