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$&?!

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.

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Nelson
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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.)


Is this true in Ohio? Do you have any cases to back up what you say?
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$&?!

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Is this true in Ohio? Do you have any cases to back up what you say?


Nelson, if you just read the appellate cases regularly, you will find the answer yourself!

Although the appellate court didn't denominate the trial court's order as void, a decision handed down by the Ohio Court of Appeals TODAY illustrates the idea of a trial court losing plenary jurisdiction to vacate or alter its own final orders:

BAC Home Loans Servicing, LP v. Henderson, 2013-Ohio-275 (Ohio App. 8th Dist. 2013)
http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2013/2013-ohio-275.pdf

Once a final order is entered, it is subject to timely appeal or can be set aside via an Ohio Rule 60(B) motion.  But once the trial court loses plenary jurisdiction, it lacks the power to vacate its own orders EXCEPT using the Rule 60(B) procedure.

Because the plaintiff timely appealed the dismissal it was unnecessary for the appellate court to hold that the trial court's order was void.  It simply denominated the order erroneous, vacated the order and directed that the trial court reinstate its judgment.

In many places appellate courts might have instead simply stated that the original judgment remained in effect since that order could not be vacated by the trial court and the latter order purporting to vacate the judgment was a nullity.

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Irving
If void, = not final because void period.

Therefore, no 60(B) required.
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Ira
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If void, = not final because void period.

Therefore, no 60(B) required.


Do you have a reading comprehension problem? As has clearly been explained over and over again, the core problem is that swindlers and scam artists have been falsely representing to distressed borrowers that judgments are void when, in fact, these were at best voidable or erroneous.

Neither you, nor any of the other scam artists who now seem to populate this site, can identify and point to a single case where any court in the United States found that a foreclosure judgment was void on any basis other than those outlined in the exceptionally well explained post above.

Sure, IF a judgment was void no Rule 60(B) motion would be required. But since the vast preponderance of foreclosure judgments are merely voidable or erroneous, at best, those who continue to mislead and deceive distressed borrowers into thinking that they have some valid basis to overcome a judgment because the scamsters are mislabeling it as void are not only holding out false hope, but they are purposefully misleading people as a pretext for their swindles.

If you continue to post this drivel, then you are clearly just a shill for the scam artists. If you are a victim of the scam, then you need to wise up and act quickly to help bring about the prosecution of the people who are defrauding tens of thousands of borrowers who already lost their homes.

Once again, you are challenged to identify a single case anywhere in the United States where a foreclosure judgment was found to be void rather than voidable and to show and explain how the legal reasoning of such case might be more broadly applied. Neither you, nor any of the other scammers can do that. Those who expose your fruads can show not merely hundreds, but thousands of cases where it has been shown that these vacuous arguments are legally erroneous and invalid, simply leading to new losses by anyone stupid enough to fall for the scam.
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Irving

"Sure, IF a judgment was void no Rule 60(B) motion would be required."

since the vast preponderance of foreclosure judgments are void.

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Lane
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"Sure, IF a judgment was void no Rule 60(B) motion would be required."

since the vast preponderance of foreclosure judgments are void.


The distinction has been ably explained. You offer no rebuttal or impeachment of the thoughtful analysis. Instead, you simply repeat the tired and strained refrain of the swindlers. Based upon the explanation, it is clear that only a handful of foreclosures are actually void and the myths being spread about void judgments are being used to support various scams.
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TD
For arguments sake, can someone explain what would constitute a void judgment in a foreclosure? What are these limited circumstances that are being referenced?
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Henry
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For arguments sake, can someone explain what would constitute a void judgment in a foreclosure? What are these limited circumstances that are being referenced?


The answer is obvious from a careful reading of the origiinal post above.

1. A foreclosure judgment entered by a court within your state lacking the authority to grant foreclosures. For example, in Pennsylvania a Court of Common Pleas has jurisdiction to hear and determine foreclosure cases. A Pennsylvania District Court, Philadelphia Municipal Court and Philadelphia Traffic Court does not. A foreclosure judgment entered by a District Court in Pennsylvania would be void. In New York State, the New York Supreme Court has jurisdiction over land and authority to enter foreclosures. NY Surrogate Courts, Family Courts, District Courts, City Courts and Town Courts do not. A foreclosure judgment entered by a District Court in New York would be void. In Florida, Circuit Courts have jurisdiction over foreclosure matters. Florida County courts lack such jurisdiction. A foreclosure judgment entered by a County Court in Florida would be void. In Texas, District Courts have exclusive jurisdiction over matters involving title to land. Texas County Courts, Justice of the Peace Courts and Municipal Courts do not. A foreclosure judgment entered by a Justice of the Peace Court in Texas would be void.

In short, a plaintiff would have a void judgment if it filed in the wrong court and the judge was stupid enough to sign the judgment. This almost never happens.

2. A foreclosure judgment entered by an out of state court concerning land in your state. A judgment by a PA Court of Common Pleas in respect of Florida land would probably be void on its face and void ab initio. This also never happens.

3. A foreclosure judgment by a Federal court lacking jurisdiction. For example, U.S. Bankruptcy Courts would lack jurisdiction to hear and decide a foreclosure case. U.S. District Courts would usually have diversity jurisdiction when properly pled. But even a U.S. District Court would lack jurisdiction if the complaint failed to allege the minimum jurisdictional amount, for example a foreclosure suit alleging a default for $50,000 wouldn't meet the Federal jurisdictional minimum. Also, it might be necessary to file in the U.S. District Court where the land is located. I am less sure about this. That is I am uncertain whether a U.S. District Court in the Northern District of Florida (or a U.S. District Court in GA) could enter a foreclosure judgment in respect of land in the Southern District of Florida. That might require some more research. Doesn't matter. This never happens either.

4. A foreclosure judgment entered after the trial court has lost plenary jurisdiction. For example, suppose that the matter is brought in the correct court and the judge enters an order dismissing the case. Suppose that there has been extended inactivity and the trial court dismisses for lack of prosecution. Further suppose that the time allowed to vacate or set aside a final judgment or to appeal is passed. (Note that some states have rules that allow for reinistatement of cases dismissed for lack of proscution by a special motion within some specified amount of time.) Now, after dismissing the case, further suppose that after the valid time periods have passed that the court enters an order reinstating the case and then enters a foreclosure judgment. In those places where the plenary jurisdiction of the trial court to alter its own orders has expired, the order reinstating the case and the judgment are probably void and nullities. This probably happens now and then, but infrequently.

5. A foreclosure judgment entered against a dead man would usually be void. This happens occasionally. But it is rare because usually the borrower calls up the lender or the law firm and calls the error to the bank's attention and helps the bank to improve its case by filing against the correct party.

6. A foreclosure judgment against a non-party to the case would usually be void as to the non-party. Suppose that title to the real estate is vested in A, B and C and the mortgage was granted by A, B and C. If the bank sues A and B and the case proceeds to judgment, if the bank presents to the court a final judgment purporting to be against A, B, and C, but C was never named or served in the suit, then the judgment is probably void as to C. But the judgment in this instance would still usually be valid as to A and B.

But realize that if the bank sues A, B, and C, serving A and B and filing a perjured affidavit of service alleging service against C, even though C has never been served, the judgment is probably only voidable as to C. C will usually need to come forward within a specified period of time by petition or motion to have the judgment vacated due to failure to serve C.

*

By contrast, the failure of a plaintiff to have standing at commencement would almost never void a judgment unless this defect in standing was apparent from the face of the order or judgment. A court with authority over the matter has jurisdiction to determine its own jurisdiction. Thus, if the court has found that it has jursidiction, even when it should not have reached this conclusion, this is usually merely error and can be remedied only by a timely motion to vacate or a timely appeal.

Everything is there in the original post. If you read the cases, this is exactly what all of the appellate decisions say. This is really very, very easy!

If you are reading the posts at the purported foreclosure defense web sites, you might be easily confused. If you focus on reading the appellate decisions in any state, using the outline given in the original post, everything is crystal clear.
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Cal
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4. A foreclosure judgment entered after the trial court has lost plenary jurisdiction. For example, suppose that the matter is brought in the correct court and the judge enters an order dismissing the case. Suppose that there has been extended inactivity and the trial court dismisses for lack of prosecution. Further suppose that the time allowed to vacate or set aside a final judgment or to appeal is passed. (Note that some states have rules that allow for reinistatement of cases dismissed for lack of proscution by a special motion within some specified amount of time.) Now, after dismissing the case, further suppose that after the valid time periods have passed that the court enters an order reinstating the case and then enters a foreclosure judgment. In those places where the plenary jurisdiction of the trial court to alter its own orders has expired, the order reinstating the case and the judgment are probably void and nullities. This probably happens now and then, but infrequently.


The situation discussed in No. 4 above is precisely the opposite of what is shown in the illustrative case posted by $&?! in Post No. 3 in answer to Nelson (Post No. 2):

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Although the appellate court didn't denominate the trial court's order as void, a decision handed down by the Ohio Court of Appeals TODAY illustrates the idea of a trial court losing plenary jurisdiction to vacate or alter its own final orders:

BAC Home Loans Servicing, LP v. Henderson, 2013-Ohio-275 (Ohio App. 8th Dist. 2013)
http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2013/2013-ohio-275.pdf

Once a final order is entered, it is subject to timely appeal or can be set aside via an Ohio Rule 60(B) motion. But once the trial court loses plenary jurisdiction, it lacks the power to vacate its own orders EXCEPT using the Rule 60(B) procedure.

Because the plaintiff timely appealed the dismissal it was unnecessary for the appellate court to hold that the trial court's order was void. It simply denominated the order erroneous, vacated the order and directed that the trial court reinstate its judgment.

In many places appellate courts might have instead simply stated that the original judgment remained in effect since that order could not be vacated by the trial court and the latter order purporting to vacate the judgment was a nullity.


Alas, it is quite uncommon for the trial courts to dismiss a case at all, so a dismissal followed by a tardy attempted reinstatement and judgment is rare. Even the case readily identified by $&?! seems pretty rare, though $&?! was able to instantly find a recent example.
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Ken
There is an interesting new decision out of the Ohio Court of Appeals for the Twewth District today:

Nix v. Lytle, 2013-Ohio-331 (Ohio App. 12th Dist. 2013)
http://www.supremecourt.ohio.gov/rod/docs/pdf/12/2013/2013-ohio-331.pdf

In that case, the appellant sought to argue that the judgment was void due to lack of personal jurisdiction. The Court of appeals shot down that argument using logic similar to that discussed above in the original post.

As seems to be continuously the case, every new decision supports the analysis and reasoning presented by those who have carefully read and subscribed to Mr. Roper's posts. No case has ever been presented that supports the myths perpetrated by the scam artists.

Other than an occasional mangled reading of a decision, such as Texas' failed invocation of a 150 year old U.S. Supreme Court case (in another thread), where it was quickly shown that Texas had relied on arguments outside of the decision which were actually rejected by the U.S. Supreme Court, the scam artists have never presented a single case ever in any thread that supports their various debt elimination scams.

All we ever hear are the same discredited attacks upon those who have researched and posted valid legal reasoning and supporting case law.
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Maureen
The New York Supreme Court Appellate Division, 2nd Department, rather clearly shot down the argument that a lack of standing could be argued post judgment to set aside an order of reference entered by default. The appeal was of a denial of a motion to vacate. The case is:

U.S. Bank Natl. Assn. v Allen, No. 2012-01626, 2013 NY Slip Op 00479 (N.Y. 2nd Dept. Jan 30, 2013)

This decision is consistent with every other New York appellate decision I have ever seen. A problem with standing would never make a judgment void in New York. As shown in this decision, it doesn't even make the judgment voidable! When a defendant fails to answer and interpose standing as a defense, this defense is considered to be waived in New York State.

The law on this is so clear here that the scam artists usually stear clear of New York with their swindles. New York has a lot of very consumer friendly provisions of its foreclosure law and a defendant can often draw out a foreclosure action for years. But the NY rules on standing are particularly onerous.

If a scam artist like Mike H. sought to peddle his scams in New York, he would almost surely be prosecuted.
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Nathan
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The New York Supreme Court Appellate Division, 2nd Department, rather clearly shot down the argument that a lack of standing could be argued post judgment to set aside an order of reference entered by default. The appeal was of a denial of a motion to vacate. The case is:

U.S. Bank Natl. Assn. v Allen, No. 2012-01626, 2013 NY Slip Op 00479 (N.Y. 2nd Dept. Jan 30, 2013)

This decision is consistent with every other New York appellate decision I have ever seen. A problem with standing would never make a judgment void in New York. As shown in this decision, it doesn't even make the judgment voidable! When a defendant fails to answer and interpose standing as a defense, this defense is considered to be waived in New York State.

The law on this is so clear here that the scam artists usually stear clear of New York with their swindles. New York has a lot of very consumer friendly provisions of its foreclosure law and a defendant can often draw out a foreclosure action for years. But the NY rules on standing are particularly onerous.

If a scam artist like Mike H. sought to peddle his scams in New York, he would almost surely be prosecuted.


All of the cases in Connecticut say the same thing. The scam artists try to say that a judgment is void when a plaintiff lacks standing. But if a defendant fails to answer and lets a default judgment be entered, then the standing issue is never directly raised and cannot form the basis of either a motion to vacate or an appeal.

One recent case showing this is:

PHH MORTGAGE CORPORATION v. JEAN-JACQUES, No. AC 33965 (Conn. App. December 18, 2012)
http://scholar.google.com/scholar_case?case=8597552177046907320

If someone is telling you that the judgment is void, they are either an idiot, a scam artist or a shill for the scam artists. Break off the conversation with such a person because it is at best a complete waste of time and at worst a criminal conspiracy!
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Smithlife


Pls share more info like this.






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Kohler
Is this true?
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dlunn1107
This case has a twist that I haven't been able to find a definite answer for yet: I'll state the case and my opinion of the judgment:

New York state Supreme Court foreclosure case that has a hearing scheduled for a decision on a motion for summary judgment in favor of the plaintiff. The defendant produces a letter at the hearing stating that the plaintiff sold the loan 3 months prior to the hearing. The letter is not introduced into evidence; the judge orders the caption to be amended substituting in the 'new owner' as the plaintiff and then grants the summary judgment to the substituted in plaintiff. 
As the substituted plaintiff: did not request or consent to be substituted in; had no contact whatsoever with the court regarding the case; is not registered to do business in NY; was not requested by the original plaintiff to be substituted in and there is no evidence of a transfer of interest on record. 
My opinion is that the judge lacked personal jurisdiction over the 'new' plaintiff to allow the substitution, let alone grant a summary judgment to them. Lacking personal jurisdiction renders the judgment VOID. 
 
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dlunn1107
The plot thickens...the judge must have realized his error in granting the judgment; now  the case has the original request for the index number modified to the substituted plaintiff, who btw, had nothing to do with the case until 5 months after the index number request was filed. Yet all motions, the RJI, pleadings, and the certificate of merit  reference the original plaintiff as  the owner and holder of the mortgage and note. All this info is listed as a 'pre-note post judgment ruling' The status of the case went from disposed to restored. What in the love of justice is this judge attempting to do???
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JohnB
Newby Here Doing Pro Se.... I live in Oregon....and I am very green, so forgive my Lack of Proper Words...[wink] 

Crash coarse of my situation.
1.)  I refi'd in Aug, 2006   The Broker Was From Ohio, and in Court there for Mortgage Fraud...go figure ( learned this Recently ) 
2.)  within Days of signing I was In a WaMu PSA...   it was closed  Oct 6th 2006.....  Deutsche Bank as Trustee of said PSA
3.)  in Oct 2007  Deutsche Bank Fraudulently assigned themselves to My Loan/Note/Deed  One Registered and Verified Robo Signer plus other Notary Fraud.
4.)  On Same Date in Oct 2007 Deutsche Assigned Sub Trustee ( Attorney ) to Act on behalf of them.... And  Entered a Default Elect to sell Non Judicial Foreclosure 
5.)  From 2007 to 2013 WaMu Then Chase and Now SPS have Run me thru the MOD MILL......  
      from 2007-2012  I was Non judicially Foreclosed on 5-7 times by them, with sale dates, and then Rescissions from them
6.)  SPS took over servicer rights in May 2013, after Deutsche Moved me into a Judicial Foreclosure process in Feb of 2013...
      I defaulted as a No Show to this , As I was across the Country Driving at the Time..
      ( I thought the paper I got was just yet another scare tactic On the part of the Attorney )   I didn't open it up till Jan 2014
7.)  In Oct 2013 The Attorney entered an Official Motion to Foreclose And again I did not open any paper from them at this point thinking it was just more crap.
8.)  In Dec 2013 I got a Sheriffs Sale date Posted on my Door for Jan of 1014.  It came and Went, Still in Home
9.)  In Sept 2014 I got another Sheriffs Sale date Posted to my Door For Nov. of 2014.....It came and Went still in Home  All this Time SPS is MOD MILLING me....
10.) In Dec 2014 I get a 3rd Sheriffs Sale date posted to my door for Jan of 2015... It came and Went still here in Home...
11.) In March 2015  I got a 4th Sheriffs Sale Date posted on my Door For May 28th 2015
12.) By my own research I accidently came across Court Documents that the Attorney For Deutsche Put into Record on Feb 4th of 2015... By their Own words In this              Documnet Subbited to the Judge they state that they sent 4 Letters Out via  USPS..... One to My Ex, One to my Wife, One to the State, and one to myself....                3 of us did not Get this Letter, and I am Talking with the State Attorney to verify if they got said letter. I am 95% sure they did not....

Which Brings me to my Current Status.....

I am researching how and what to Submit as a Law Suit / Motion to Dismiss or Vacate / 

My Reason for posting in this Subject header, is To ask 

1.) I want to call this a Voidable Judgement based on info above....??

2.) the Current Full Judgement for Foreclosure is  [  IN REM  ]
 
IN REM  = adj. from Latin "against or about a thing," referring to a lawsuit or other legal action directed toward property, rather than toward a particular person. 

My Property Did not and never could or can SIGN a CONTRACT......  So how or why are they Foreclosing against it....??  Can they Do So Legally..?

I am looking for case law to back up This VOIDABLE..??  JUDGEMENT  , or case law showing the Attorney cannot Foreclose on the [ IN REM  ]  REAL PROPERTY

I have a Consensus Written by several Oregon Judges in a Different County from Mine And in it their Very First Restraint for all Foreclosures Coming before them is this Statement

1.) NO  [  In Rem  ] Foreclosures.  
          The foreclosure of a Mortgage or trust deed is, at bottom, a contract Action. It is not a statutory forfeiture action. Unless the REAL PROPERTY signed the NOTE and MORTGAGE or TRUST DEED, the real property is NOT a proper party and CANNOT be the Debtor on a judgement.
          The property itself should not be named as a party and no Judgement, by default or otherwise, is entered against property on a trust deed or mortgage                       Foreclosure.                                     

By this Statement if I read and interpret it correctly, these Judges have Stated that they will Immediately toss a Case if the Judgement is Stated as IN REM....??

If This is True, how Can I use this to my advantage on my situation...?

Hope this All made Sense...???

Look forward to feed back ....

Please draw it in crayon or marker in big easy words....As i am still very green to this crap.....UGH

Many thanks, John. 





We the People Must Stand.....
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