In my opinion, one of the most underutilized and misunderstood areas of debt and judgment defense litigation in Florida are the concepts of void and voidable judgments.
While the concepts are somewhat similar, the differences between them have serious and significant legal implications.
In Florida, a "void judgment" is so defective that it is deemed never to have had legal force and effect, while a "voidable judgment" is a judgment that has been entered based upon some error in procedure that allows a party to have the judgment vacated, but the judgment has legal force and effect unless and until it is vacated. Sterling Factors Corp. v. U.S. Bank Nat. Ass'n, 968 So. 2d 658 (Fla. 2d DCA 2007).
What this means in layman's terms is that a void judgment is inherently defective and of no legal significance. Nothing which is based upon it, therefore, can be considered valid as it is necessarily based on a judgment which is of no legal effect. A voidable judgment, however, is in fact legitimate and of legal significance until the moment that it is determined to be voidable. This means that any action taken subsequent to the entry of the judgment is not inherently illegitimate, as the judgment is valid until it is determined voidable.
For many, this can seem like a distinction without a meaningful difference. Nothing could be further from reality, though, when considering that every action which a creditor takes to pursue a final judgment in Florida is necessarily based on that judgment and its validity.
This means that in certain circumstances if a collateral jurisdictional attack on a final judgment is successful there may exist causes of action against the judgment creditor regarding use of post judgment execution remedies predicated upon the existence of the (void) final judgment.
Most commonly, these causes of action include violations of the Fair Debt Collections Practices Act (FDCPA), the Florida Consumer Collections Practices Act (FCCPA) and the Fair Credit Reporting Act (FCRA).
There are numerous reasons that a final judgment which has been entered in Florida may in fact be void as a matter of law:
- Lack of personal jurisdiction (this means that you were not provided with proper notice of the lawsuit or claim brought against you in strict compliance with Florida law)
- Lack of subject matter jurisdiction (claim improperly plead or plead in the wrong court)
- Failure to abide by and strictly follow procedural requirement related to due process as recognized by Florida law
- Failure to state a cause of action (sometimes)
And the following is a list of some reasons that a judgment may be voidable:
- Failure to state a cause of action (sometimes)
- Failure to observe procedural processes (except for processes related to due process)
While many of these issues can crop up in litigated cases, I most routinely find that judgments entered in Florida by default are the most likely suspects for due process deficiencies. It is not unheard of for some litigants to cut corners at the expense of strict compliance with due process procedural requirements in Florida resulting in void or voidable judgments that may go unchallenged for years while the judgment creditor proceeds with execution as if the judgment was valid and enforceable.
If recognized and utilized properly, a motion to vacate a void judgment under Florida law may provide significant relief for a judgment debtor who has had their due process rights violated.
While vacating a void judgment will not necessarily solve all of an individuals concerns with a debt, it is a huge step forward in setting a case up for a swift and meaningful resolution.
It is important to note that Fla. R. Civ. P. 1.540(b) provides specific timelines for motioning a court to vacate a judgment which is void or voidable under Florida law. If it is voidable, the law provides for 1 year after entry of the judgment and if its void, within a “reasonable time.” Because a void judgment cannot be willed or waived into existence, technically a challenge to a void judgment is proper at ANY time.
An in depth analysis of void judgments in Florida is well beyond the scope of this informational article and is indeed a topic in and of itself academically and legally.
If you have a judgment entered against you in Florida, especially if it was entered by default, contact me to see if there is anything I can do to help you resolve your situation utilizing my years of litigation experience throughout Florida. You might be surprised at some of the options which may be available to you.
At the Law Office of Alex McClure, I pride myself on working closely with my clients to provide practical solutions to their consumer debt problems. I do everything in my power to provide options that my clients didn't even know existed before consulting with me.
Contact the Law Office of Alex McClure today to find out how I can help you create a sustainable financial future for yourself.
The Law Office of Alex McClure provides services in Lake Mary, Sanford, Longwood, Deltona, Deland, Orlando and all of Seminole, Volusia, Orange, Brevard and Lake Counties.
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