More On Void vs. Voidable

Whether one is looking to undo or unwind an abusive real estate deal, set aside a deed, mortgage or other conveyance, or vacate/void a foreclosure judgment, the distinction between its status as void and voidable may, in many cases, be the most important issue to address.

In this regard, the following reminder as to the fundamental difference between void and voidable (in the context of a court judgment under attack) appeared in a recent ruling from an Ohio appeals court, a reminder that can't be repeated enough:

• {¶11} " 'The distinction between "void" and "voidable" is crucial. If a judgment is deemed void, it is considered a legal nullity which can be attacked collaterally.
  
  Conversely, if a judgment is deemed voidable, it will have the effect of a proper legal order unless its propriety is successfully challenged through a direct attack on the merits. * * * ' " GMAC, LLC v. Greene, 10th Dist. No. 08AP-295, 2008-Ohio-4461, ¶27, quoting State v. Montgomery, 6th Dist. No. H-02-039, 2003-Ohio-4095, ¶10, quoting Clark v. Wilson (July 28, 2000), 11th Dist. No. 2000-T-0063.
  
  A judgment is void where service of process has not been accomplished or where the court lacks subject-matter jurisdiction. Deckerd v. Deckerd (June 24, 1999), 7th Dist. No. 98-CO-59.
  
  In contrast, "[a] voidable judgment is one rendered by a court having jurisdiction and although seemingly valid, is irregular and erroneous." GMAC at ¶26, quoting Montgomery at ¶9, citing Black's Law Dictionary (7 Ed.1999) 848.(1)

The significance of the distinction(2) lies in:

1. the timing and (in the context of court judgments) method of attack relating to any challenge made by the injured party:
   
   (void - can be challenged at any time and (in the context of court judgments) can be collaterally attacked; voidable - subject to time constraints and (in the case of court judgments) rules set forth in the state rules of civil procedure);
2. the effect on the rights of those who subsequently acquire an interest in any property, the title to which may be implicated by the judgment, conveyance, contract, etc.:
   
   (void - all subsequent acquirers are out of luck and acquire nothing, even those who may otherwise qualify as bona fide purchasers; voidable - will not trump the rights of subsequent purchasers and encumbrancers if, and only if, they qualify for protection as bona fide purchasers).

For the ruling, see Wagenbrenner v. Wagenbrenner, 2011-Ohio-2811 (Ohio App. 10th Dist., Franklin County, June 9, 2011).

(1) For Ohio civil procedure junkies, the court then added this point:

• {¶12} It is well-settled that a court has the inherent authority to vacate a void judgment and that a void judgment may be challenged at any time. The Milton Banking Co. v. Dulaney, 4th Dist. No. 09CA10, 2010-Ohio-1907, ¶26.
  
  However, "[a] voidable judgment is subject to direct appeal and to the provisions of Civ.R. 60(B). A Civ.R. 60(B) application for relief must be made to the trial court that rendered the judgment from which relief is sought." Montgomery at ¶9 (internal citations omitted). See also GMAC; Deckerd (exclusive means to challenge a voidable judgment is Civ.R. 60(B)); Brown v. Brown (Feb. 5, 1991), 2d Dist. No. 90-CA-41 (because the judgments were voidable and not void the appellant should have sought relief through Civ.R. 60(B)); McIntyre v. Braydich, 11th Dist. No. 96-T-5602 (a court has no inherent authority to vacate voidable judgments); Evans v. Supreme Court of Ohio, 10th Dist. No. 02AP-736, 2003-Ohio-959, ¶17 (voidable judgments may only be challenged on direct appeal); Mayfield Hts. v. N.K., 8th Dist. No. 93166, 2010-Ohio-909 (because the judgment was voidable the trial court did not have the authority to vacate it).

(2) See Beyond a Definition: Understanding the Nature of Void and Voidable Contracts for an analysis (in the context of contracts) of the problems encountered when making the distinction between what is truly void, and what is merely voidable (footnotes conained in the original text omitted):

• Contract law has a problem. With predictable recurrence, court opinions, statutes, scholarly literature, and contract draftsmen use the words “void,” “voidable,” and “unenforceable” – as well as dozens of other terms of the same ilk – to describe flawed contracts.
  
  Yet the meaning of these declarations is persistently and maddeningly slippery. In the rare case where the precise meanings of these words are pressed into service in the courtroom, litigants are often surprised to find the court announce that a transaction formerly (and unequivocally) declared to be void is, in fact, merely voidable or unenforceable.
  
  The scope of the problem is as widespread as it is trifled; though the distinction between void and voidable is sometimes the most important issue in contract disputes, very little serious, scholarly attention has been paid to the nature of the distinction. DeedVoidVoidable