§ 8.01-15.2.Servicemembers Civil Relief Act; default judgment; appointment of counsel.

Subsection A protects defendants who may be away on military duty and unaware of a pending suit against them. Notwithstanding § 8.01-428, a Virginia court cannot enter a default judgment against a nonappearing defendant until the plaintiff files an affidavit either stating whether the defendant is in military service and showing the facts supporting that statement, or stating that the plaintiff is unable to determine the defendant’s military status. The Supreme Court, subject to § 8.01-3, prescribes the affidavit’s form, though the requirement can also be satisfied by a written statement, declaration, verification, or certificate subscribed and certified or declared true under penalty of perjury. A default judgment entered in violation of the federal Servicemembers Civil Relief Act may be set aside as the Act provides, but failure to file the affidavit is not, by itself, grounds to set aside an otherwise valid default judgment against a defendant who was not a servicemember at the time of service or entry of default.

Subsections B through D govern counsel appointed to represent a servicemember defendant under the federal Act. The court may assess reasonable attorney fees and costs against any party as it deems appropriate — including against a party who violated the Act — directing in its order which party pays, though fees cannot be assessed against the Commonwealth unless it is the party that obtained the judgment, and any fee award is capped at $125 unless the court finds a higher amount appropriate. Appointed counsel may issue a subpoena duces tecum for discoverable electronic and print files, records, documents, and memoranda bearing on the transactional basis for the suit, and if the subpoena requests it, the plaintiff must also turn over documents or information about the servicemember’s location.

The final subsection keeps the appointment independent: counsel appointed under the Act cannot be selected by the plaintiff or have any affiliation with the plaintiff, though the plaintiff’s own counsel may, if the court asks, supply a list of attorneys familiar with the Act’s requirements.