15 www.loubar.org August 2025 unconstitutional defect in due process. For these reasons, the dissent offers a po- tentially more sound alternative reading to Federal Rule 60(b)-(c) to the one proposed by the majority and warrants the Supreme Court’s consideration on cert. The Choice with a Void Judgment The U.S. Supreme Court has stated that a defendant who contests jurisdiction has a choice: (1) Submit to the jurisdiction of the court for the limited purpose of challenging jurisdiction and agree to abide by the court’s determination, subject to appeal; or (2) Ig- nore the judicial proceedings, risk a default judgment and then challenge that judgment on jurisdictional grounds in a collateral proceeding. An assumption underlying this case was that the judgment was in fact void. Rather than having a registered agent, the entity had identified itself as its own registered agent. While the U.S. Supreme Court may hold that “any time” is a reasonable time for a Rule 60(b)(4) motion, the bankruptcy court may decide service was valid on remand. Ignoring proceedings—even if not subject to jurisdiction—comes with inherent risks, which should be considered in advising clients both in and outside of bankruptcy. Brian Pollock is a member of the Creditors’ Rights & Bankruptcy Service Group at Stites & Harbi- son PLLC. Josh Wolford is an associate in the Credi- tors’ Rights & Bankruptcy Service Group at Stites & Harbison PLLC. Both attorneys focus on repre- sentation of creditors in bankruptcy court, lender liability matters, com- mercial and residential foreclosures, defense of avoidance and preference actions, real estate litiga- tion and commercial litiga- tion. J. Gabriel Dennery is an attorney at Kaplan Johnson Abate & Bird, LLP. Dennery is a gradu- ate of the UK J. David Rosenburg School of Law (J.D.,2024). His primary area of practice is com- mercial bankruptcy law. Pollock and Dennery are chair and vice-chair, respectively, of the LBA Bankruptcy Section. n do about a void judgment.” Judge McKeague thought that acknowledg- ing a jurisdictional defect does tell us what to do: set aside the judgment. Id. at 452. “A federal rule cannot alter a constitutional requirement.” Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 64 (2d Cir. 2012). Nor should it be interpreted to do so. See, generally, St. Martin Evangelical Lutheran Church v. S. Dakota, 451 U.S. 772, 780, 101 S. Ct. 2142, 2147, 68 L. Ed. 2d 612 (1981) (“[a] statute, of course, is to be construed, if such a construc- tion is fairly possible, to avoid raising doubts of its constitutionality”). The dissent offers a practicable and straightforward alternative reading: any time in seeking to set aside a judgment which lacks jurisdiction could be a “reasonable” time. This does not require the fairness based, “fact-specific inquiry” which the majority embraces, and thereby prevents the curious emersion of a simultaneously void but enforceable judgment. The majority relied on United States v. Dailide, 316 F.3d 611, 618-19 (2003), a prior Sixth Cir- cuit decision in which a four-year delay in mov- ing to set aside a citizenship revocation, entered pursuant to a federal statute, was deemed to be an unreasonably long time. However, the dis- sent points out United Student Aid Funds, Inc. v. Espinosa, which cites with approval 11 Fed. Prac. & Proc. Civ. § 2862 (3d ed.), an author- ity stating that time alone does not render a void judgment valid. Besides that, the dissent further emphasizes that personal jurisdiction is an “essential element” of a court’s jurisdic- tion, “without which the court is ‘powerless to proceed to an adjudication.’” This require- ment of personal jurisdiction “represents a ‘restriction on judicial power’ and is framed as a ‘matter of individual liberty.’” Whereas subject matter jurisdiction is often a statutory matter, personal jurisdiction is a requirement “rooted in fundamental due process principles, ensuring that parties to a suit are legitimately subject to a court’s lawful authority before the court adjudicates their rights.” So yes, despite the absence of a carve-out in the reasoning in Dailide for decisions lacking personal jurisdiction, “a judgment obtained without personal jurisdiction” is arguably “more void than one obtained without subject- matter jurisdiction.” Assuming Dailide is not undermined by these Supreme Court authorities, it can be distinguished from the instant case, wherein there was an allegedly (Continued from previous page) Kay Bauer Harris County Attorney’s Office Audrey Ernstberger Kentucky Resources Council Erika Fisher Gordon Rees Scully Mansukhani LLP Joseph D. 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