Affidavit for Military Status of Defendant

Purpose of the Form
This is a form that you will likely need to use (or the judge may require you to use his or her own similar form) in any eviction lawsuit in which the defendant does not file an answer. By law, if a defendant does not file an answer in an eviction lawsuit, the judge must appoint an attorney for the defendant unless it can be determined that the defendant (your tenant) is not in the military. The judge will require you to sign an affidavit stating that you know that the defendant is or is not in the military, or that you do not know one way or the other even after making a search. This is one reason that it is so important to obtain information about a tenant’s military status.

When to Use
You would use this form whenever you file for an eviction of a tenant and the tenant does not file an answer.

If a tenant files an answer, this is a moot point as the defendant, your tenant, can speak for himself and assert any protections under the Servicemembers Civil Relief Act (SCRA). You may need to evict a tenant when by mistake you have not obtained the tenant’s signature on your lease or you have a non-TSSA lease that does not contain the language required by statute in order to foreclose. You may also evict from time-to-time because you simply want to “get rid of” a tenant who is not in default of the lease but for whatever reason you would like to see them removed, and you have given that tenant notice and he has refused to move out by your 15-day notice deadline (the 15-day vacate notice that you are allowed to give any tenant under paragraph 9 of the TSSA lease).

If you file for an eviction against the tenant, the tenant will be served with process (or served by alternative service if the constable cannot find the tenant) and the tenant will be given a deadline by which to file an answer to the suit. If he does not file an answer by this deadline, you may get a “default judgment,” meaning that normally the judge will award you all of the items you are requesting due to the fact that the tenant never answered the law suit. However, before a judge will enter a default judgment, virtually all judges require you to sign a military affidavit stating that you have conducted a reasonable search and what your findings were with regard to the tenant’s military status.

Tips for Use
The best website to verify military status is the Department of Defense Manpower Datacenter Website (DMDC): https://scra.dmdc.osd.mil/

In order to verify with certainty whether someone is in the military, this site will ask you for first name, last name, middle name, date of birth (including the year), and Social Security number. You can perform the search using solely a name, but the answer to your inquiry will state that the DMDC cannot authoritatively assert that this is the same individual that your query refers to unless you have the Social Security number and date of birth. Lack of a Social Security number and date of birth will in all likelihood not result in a judge refusing to allow you to go forward, but may lead to additional questions from the judge.

The eviction process is outlined in detail behind the “Eviction” tab of the TSSAGoldbook©. There is also a comprehensive legal article regarding the SCRA behind the “Federal Statutes tab.”

The bottom line is that a judge in an eviction suit in which a defendant does not answer the suit may require you to sign an affidavit of military status of your tenant, and will want to know that you have done a diligent search as to whether this tenant is in the military, and the results of that search. The affidavit must be notarized.