The topic of void versus voidable judgments is a subject that even gets a few attorneys befuddled, at least those who were sleeping through some of their law school courses and had to cram for the bar exam.
I will admit having had some trouble myself with this topic, particularly given the amount of misinformation posted online.
A while back when the subject was previously being debated, I contacted Mr. Roper to ask his opinion and guidance.
What an education I received from that great man! His command of the law is just unbelievable. He can instantly explain complex issues with such great clarity that they are easy to comprehend. Although he seemed to drift beyond the bounds of my original question, when he was finished he had given me an extemporaneous lesson on void versus voidable that was far better than anything I had seen set forth in written court opinions of any state. Yet with his explanation, when I went back and re-read the opinions, I could see that he was precisely right and that I had been struggling over wording and meaning of language in decisions that seemed opaque until I had the additional insight he was able to provide. When I revisited all of the different decisions, everything made sense and the nonsense being put out by the scam artists was totally exposed for the fraud that it is.
I took a few notes during our conversation, but Mr. Roper explained everything with such great precision and clarity that I can recount almost everything he said from memory and will attempt to do so for the benefit of others.
Authority of a Court To Act
Mr. Roper began by explaining that subject matter jurisdiction at its heart is concerned with the authority of a court to take up and decide a case. He pointed out that some courts have exclusive jurisdiction over certain kinds of cases, while other courts have jurisdiction over other matters. In some cases, a court has exclusive jurisdiction over certain cases and in other instances that jurisdiction is shared with more than one court sharing concurrent jurisdiction.
Examples he gave as to exclusive jurisdiction included Federal Bankruptcy court jurisdiction over Federal bankruptcy cases, Federal court jurisdiction (in the U.S.) over international admiralty claims and state court jurisdiction over domestic relations and probate cases. State courts also have exclusive jurisdiction over cases involving state criminal charges while Federal courts have exclusive jurisdiction over Federal criminal statutes.
By contrast, contract disputes and torts can very often be determined in more than one court where courts in possibly more than one state share jurisdiction over the same subject matter and also may share jurisdiction with Federal courts.
Even within a state, a constitutional or statutory framework may vest authority over different matters in different courts. For example, many states have inferior courts called by various names that have jurisdiction over less significant matters, but which lack the authority to hear other types of cases. These have various names.
As Mr. Roper explained, if a Federal Judge were to sign an order purporting to grant a divorce or if a state court judge were to sign an order purporting to discharge debts subject to Federal Bankruptcy laws, such orders would be void on their face and void ab initio. Each court clearly lacks the authority to make or enforce such an order and it is entitled to no respect by any other tribunal or officer. Such an order can simply be ignored.
Similarly, suppose that a court in Missouri entered a decree of foreclosure in respect of a property located in Florida. Such a judgment would also be void ab initio, because the state courts of Missouri have no authority over real property situated in Florida (except in probate). Similarly, I cannot be prosecuted in Missouri for a crime that was alleged to have taken place in Florida to the injury of a Florida citizen. Certainly, I can be arrested in Missouri and bound over to Florida authorities for prosecution, but if a judge in Missouri signed a final judgment declaring that I was convicted of a Florida crime, such a judgment would be void ab initio.
Loss of Plenary Jurisdiction
Another kind of problem can arise when a court has had jurisdiction, but loses it. Or where a court can only obtain jurisdiction under certain circumstances.
For example, in most states and in Federal Courts, under the court rules a court retains jurisdiction to alter or vacate its own orders for a limited period of time. That is, a court retains plenary jurisdiction during this interval and a judgment or other final order remains subject to the court's alteration under a procedure such as set out in Rule 59.
Suppose that a judge signed a final order or judgment which included some egregious error. This error then went unnoticed by the parties and the court and the time passed for the judge to alter the order. That is, the court lost it plenary jurisdiction over the case.
If one of the parties later brought the error to the court's attention and sought and received what purported to be a corrective order, such order might very well be void ab initio. Even though the court had jurisdiction over the case before, it lost its jurisdiction when the time periods set forth within the statutes or the rules expired. (Usually, there are some special provisions to resurrect such cases, such as Rule 60, but absent a proper Rule 60 motion, a court cannot simply later alter a final order because it lacks the jurisdiction to do so.)
At the appellate level, the courts face this same jurisdictional restraint in two ways right up front. First, in most states, appellate courts have jurisdiction to review a judgment on appeal for only a limited amount of time, usually about 30 to 60 days. If a notice of appeal or other filing initiating an appeal is filed after this period has run, the appellate court usually lacks the jurisdiction to hear and decide the appeal and must dismiss the case. Another jurisdictional problem arises on appeal when a party seeks to appeal an order which is not actually a final order or judgment. While there are a handful of interlocutory orders that are appealable under the rules or by statute, in most cases is an order isn't final, it isn't appealable. And if the order isn't appealable, that means that the appellate court lacks jurisdiction to hear a case.
If an appellate court was to take up a case after the period to consider the appeal had run or to take up a case where the trial court had not entered a final order, it might be found that an appellate order (other than an order dismissing the case) might be void.
Jurisdiction Based Upon Amount or Diversity of Citizenship
Mr. Roper's lesson on jurisdiction then shifted to a discussion of cases where a court had jurisdiction over cases of a maximum value or a minimum value and cases involving diversity of citizenship. He pointed out that in many places, there existed certain inferior courts that had jurisdiction to hear cases up to some maximum amount of damages, those courts popularly called "small claims courts".
He observed that in a state where the jurisdictional limit on a small claims case was say $5,000, a judgment from such a court for $10,000 or $20,000 might be void on its face since that court had no authority to hear and determine cases involving larger amounts. He said this probably varied by jurisdiction, but threw this out as an example where with reference to the judgment itself and a state's laws or constitution, one could see that the judgment was void simply by reading it, without reference to the pleadings, the record or transcript. Such a judgment, on its face, like the other examples above cries out that it is void.
A somewhat more complex but opposite problem can arise in a Federal Court. Suppose that A sues B in Federal Court for a breach of contract alleging damages of $50,000 under a Federal diversity of citizenship jurisdiction. This case ought to be dismissed, because the Federal jurisdictional minimum is $75,000. The defendant should make a Rule 12(h) motion to dismiss. Even if the defendant fails to do this, the court ought to sua sponte dismiss the case. Without an allegation of damages that exceed the statutory minimum, the Federal Court has no authority to hear and decide the case.
Now consider another different variant. Suppose that A sues B in Federal Court for $100,000. A makes very clear allegations and claims setting forth a claim for damages that exceeds the jurisdictional minimum. Now, the complaint ought to survive a Rule 12(h) motion, since the complaint on its face makes allegations which would vest jurisdiction in the Federal Court. Now further suppose that the case goes to trial and at trial the jury finds for A agreeing that B has breached the contract, but that the jury further determines that the amount of damages is only $70,000. Can a Federal Judge enter an order for $70,000 or must it dismiss the case??
Mr. Roper encouraged me to read the cases on that situation, but gave me a clue to the correct answer by giving me a different jurisdictional problem as to Federal diversity issues. Suppose that A, a resident of Missouri, sues B, a resident of Connecticut, for $100,000 under a Federal Diversity jurisdiction theory. B, being properly served, answers the complaint. Then, B moves to Missouri. Since B is now a resident of Missouri, there is no longer any diversity of citizenship! Voila! It seems that the Federal Court no longer has jurisdiction over the case. But as Mr. Roper explained, looks can be deceiving. I do not remember the U.S. Supreme Court decision he cited from memory, but he instantly told me that it had been decided in the early 1800s in a decision written by Chief Justice John Marshall and that the court enunciated that jurisdiction was determined at the commencement of a suit and that once a court obtained jurisdiction that such jurisdiction couldn't be ousted by subsequent events! He said that this was the very principle that underpins all of the important decisions on standing.
Personal Jurisdiction: Failure To Name and Serve
Mr. Roper further explained that another type of jurisdictional problem arose in respect of personal jurisdiction rather than subject matter jurisdiction. Basically, in order for a court to obtain jurisdiction over a person, usually that person has to be named and served with some sort of official process for the suit. There are obviously various elaborations on this principle involving special rules for service by publication and rules for determining what constitutes valid service.
It is in respect of problems with personal service that the distinction between void and voidable starts to come into particularly sharp focus. Suppose that A sues B and employs a sewer service firm which produces what appears to be a valid affidavit of service averring that B has been served with a summons or other citation. Further suppose that B was never actually served and instead the sewer service enterprise's employees spend each day shooting dice and simply prepare robosigned and perjured affidavits of service.
A obtains a judgment against B. Is this judgment void or voidable?
Admittedly, it kind of feels like this judgment should be void, but in most places that is not the case! This is merely a voidable judgment, subject to being set aside upon timely motion by the defendant showing that the defendant was never served. As Mr. Roper explained, there is a strong public policy reason to insist that this is merely a voidable judgment. Otherwise, in almost any default case, a defendant could reappear years later and demand that the matter be reopened.
Mr. Roper gave two other distinguishing examples which bring the issue into even sharper focus.
Suppose that A sued B. During the trial of the case, A proved that he had been wronged by both B and C. C was never named as a defendant in the suit and C was never served with a summons or citation. At the conclusion of the trial, the judge ruled in favor of A and A presented a final judgment to the court for signature finding against both B and C.
Here, the problem isn't merely that C wasn't really served. In this instance, C was not even named as a defendant, didn't appear at the trial to defend and never had any opportunity to put on a defense. Moreover, if one were to check the court's record, there is no affidavit of service on file alleging that C was served, perjured or otherwise.
Is this order void or voidable? In most places, Mr. Roper explained that this would be a void order, at least as to C, since it was clear from the face of the order and the record that C was never served.
The second contrasting example is one that has also been a subject of several recent posts.
Mr. Roper presented the problem of suppose that A sues B. A employs a sewer service outfit that produces an affidavit of service claiming that B has been served. But B is actually DEAD. The sewer service firm couldn't possibly have served B, since B is six feet under. Nor could B have responded to the suit even if B had been properly served, since B is dead. Mr. Roper explained that the philosophy that underlies the principle that a judgment against a dead man is void rather than merely voidable is that it is an impossibility to obtain personal jurisdiction over a dead man. This certainly cannot be overcome by publication or alternative service. The central idea of service is to give a defendant notice of a suit so that the defendant can appear and defend. If a plaintiff desires a judgment against the estate of a dead man or against a dead man's heirs, then the suit must name and serve either the personal representative or the heirs!
So the general dimensions of the distinction between void and voidable in respect of personal jurisdiction is that where there is no showing that a person was named and served, a judgment against such a person is usually absolutely void. When the person is dead and can neither be served nor possibly answer and defend, the judgment is usually absolutely void. By contrast, where the judgment was based upon the fraudulent representations appearing in a perjured affidavit of service, the judgment is usually merely voidable and it is precisely this sort of fraud that is expressly contemplated by Rule 60(b).
Returning To Void Versus Voidable And Subject Matter Jurisdiction
Having led me through the foregoing discussion, Mr. Roper then returned to the topic of standing and subject matter jurisdiction. He explained that ripeness and standing at inception as well as mootness throughout a case were essential to the justiciability of a case. He explained that justiciability was a central element of subject matter jurisdiction in those jurisdictions where the constitution imposed a restraint on judicial authority.
He explained that this restraint was implicit in Article III of the U.S. Constitution, limiting the courts to consideration of cases and controversies. He said that a similar restraint was implicit in the state open courts provisions of many state constitutions. He said many states require that civil cases be brought in respect of an actual injury.
He then distinguished the problem of justiciability from the questions about a court's authority to take up and decide a case. While a judgment made by a court clearly exceeding the bounds of its authority that can be ascertained from the face of the order may be void, at core, the issues associated with whether a particular plaintiff has standing at commencement is a matter that most often will be determined from the factual record. While in a few cases, it may be readily apparent to the judge that a plaintiff lacks standing even without a defensive pleading, courts have the authority to assess and determine their own jurisdiction. Sometimes -- all too often, as Mr. Roper pointed out -- courts reach an erroneous conclusion about standing.
Sometimes, he added, this also arose from mispleading by defendants, especially in Ohio and Florida, who made two really key mistakes. The first mistake was denominating the standing argument as a Rule 17 real party at interest argument. These two arguments are closely related, but different. Real party at interest is based upon the Rules and can change during the course of a case. Standing is essential and determined at commencement.
Mr. Roper called my attention to posts that he had made about this at the Forum as early as 2007. He pointed out that many defendants had lost their cases because they were making the wrong defensive argument.
The second mistake that he pointed to he said was even more insidious and one that continues to be made by mediocre foreclosure defense attorneys throughout the U.S. This is the mistake of misdenominating the standing argument as an affirmative defense. When a defendant identifies standing as an affirmative defense, the defendant is suggesting to the court that the defendant has the burden of proof on this point.
Mr. Roper explained that an erroneous decision by a court as to whether a plaintiff has standing is not the sort of problem that renders a judgment void. Instead, the judgment is merely voidable if timely challenged by a proper Rule 60 motion or by a timely appeal. Like the problem with sewer service and a perjured affidavit of service, when the final order or judgment is regular on its face and an inquiry into the validity of the plaintiff's standing requires a full examination of the evidentiary record, the matter is usually one of error, a sort of problem that needs to be timely addressed.
Mr. Roper also agreed that the people who were promoting the idea that these various judgments were void rather than merely voidable were mostly involved in various debt elimination scams, as mentioned by others here at the Forum in many prior posts. He said that for a long time he spent so little time visiting other purported foreclosure defense sites that he had no idea of the scale and breadth of the swindles going on nationally. Once Mr. Roper began looking at other foreclosure defense sites, he said he quickly realized that almost all of these sites are actually operated as a pretext to draw in new swindle victims. He said that he had posted some expository information about this at the Forum, but that his posts had been removed. He told me that he concluded that the Forum was now also being operated as a sham for the benefit of the scam artists and this was why he no longer participated here.
When you understand the circumstances that distinguish void from voidable and carefully read the decisions, everything Mr. Roper said is correct. He knows this stuff better than any attorney I have ever spoken with and can explain these concepts as well as any professor. I am passing along what I learned. Next time you read a post from someone telling you that a judgment is void, look very carefully at the facts, the arguments and the agenda of the person who is advocating this position. Most often the proponent is either a scam artist or a gullible victim of some swindle who doesn't yet appreciate that he or she has been ripped off.