If you own or manage apartments in Forsyth County you need to be aware that the courts in Forsyth have instituted a new policy that requires plaintiffs, in cases where the defendant does not appear, to swear as to whether or not they know if a defendant is in the military or swear that they cannot ascertain it one way or another. This stems from a federal law that prevents any court from entering a default judgment against a service member unless that court first requires the plaintiff to file the affidavit, and Forsyth County is the first, and so far only, county to interpret the law to apply to evictions.
When this first came to light at the end of April, representatives of PTAA (Executive Director Jon Lowder and attorney Chris Loebsack) met with the Clerk of Court to discuss the matter and get some clarity as to what will be required of our members in eviction cases. The good news is that the process will not need to be as time consuming as we originally thought (see below), but because this is based on a Federal law and cannot be changed other than through an act of Congress, the bad news is that this is something our members will have to live with. For the time being Forsyth County is the only jurisdiction in NC that is interpreting the law as applying to small claims court.
So what does this mean for you? Originally the Clerk was requiring the filing of a completed affidavit that they had developed for this purpose (found on their website at this link) but after meeting with her we were able to determine that members could visit the US Government’s SCRA website (found here) at which they can confirm the military status of any person, print the results and staple them to the complaint or bring it with them to court.
We asked for some clarification on timing and received the following via email from the Clerk after she checked with the District Court judge: How many days would the Status Report be acceptable? For the duration of the case was her answer. Presenting the Status Report or Affidavit at the time of hearing and not at filing is acceptable. She is meeting with magistrates and conveying these same issues with them to have consistency.
So in a nutshell, what you can do is either use the affidavit provided by the Clerk or you can print off the results of the search from the SCRA website. You can attach the affidavit or printout to the complaint or you can bring it with you to court.
If you have cases in Forsyth County in which your experience is not consistent with what you have read here, or if you have different experiences or interpretations from magistrates on various cases, please do not hesitate to contact PTAA.