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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 98-60523
_______________________
In The Matter Of: FREDERICK D. KNIGHT; POSIE C. KNIGHT,
Debtors,
____________________
BANK OF MISSISSIPPI,
Appellant,
versus
FREDERICK D. KNIGHT; POSIE C. KNIGHT; MALACO INCORPORATED; COUCH &
MADISON,
Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
April 13, 2000
Before KING, Chief Judge, and JONES and STEWART, Circuit Judges.
EDITH H. JONES, Circuit Judge:
The Bank of Mississippi appeals a judgment of the
bankruptcy court, affirmed by the district court, which invalidated
the judgment lien that the Bank sought to enforce against the
debtor and two garnishees. The lower courts held that as the
Bank's original 1988 judgment against the debtor, Frederick D.
Knight, was void for insufficient service of process, the Bank's

1995 judgment on a suit to renew the 1988 judgment must also be
void. We disagree with the bankruptcy and district courts'
interpretation of Mississippi law and accordingly reverse and
remand.
The background facts are undisputed. In 1988, the Bank
filed suit against Knight in a Mississippi county court to recover
amounts he owed on a promissory note. At that time, Knight lived
in Alabama. The Bank served process on Mr. Knight by mail pursuant
to Mississippi Rule of Civil Procedure 4(c)(5), which requires
"restricted delivery" service.
The Bank mailed the summons and complaint to Knight's
address in Birmingham by certified mail, return receipt requested.
Marked for "restricted delivery", the notice was delivered to
Knight's home but Mrs. Knight received the mail and signed the
return receipt card. Knight did not answer the complaint, and the
Bank took a default judgment on July 6, 1988.
In 1995, the Bank filed suit against Knight to renew the
1988 judgment within the period prescribed by state law. Miss.
Code Ann. § 89-5-19. Since Knight did not answer the second suit
to renew the 1988 judgment, although he was properly served, the
Bank took another default judgment against him on August 22, 1995.
Mr. and Mrs. Knight filed for bankruptcy on January 13,
1997. The Bank attempted to enforce its 1995 judgment lien, filing
an adversary proceeding for a declaration that its 1995 judgment
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was valid and enforceable against Knight and two parties the Bank
had unsuccessfully attempted to garnish. From adverse judgments,
the Bank has appealed.
DISCUSSION
The Bank does not contest the invalidity of the 1988
judgment in this court. Instead, the Bank asserts that the 1995
judgment was valid and enforceable under Mississippi law
notwithstanding that the 1988 judgment may have been void for
insufficient service of process. We review the lower courts'
resolution of this question of law under a de novo standard.
Matter of Midland Industrial S'vces., 35 F.3d 164 (5th Cir. 1994).
Knight persuaded the bankruptcy and district courts that
the 1995 judgment must have no effect because it is based on the
void 1988 judgment, and a void judgment is a nullity which "can
furnish no basis for any subsequent action." Southern Trucking
Service, Inc. v. Miss. Sand and Gravel, Inc., 483 So.2d 321, ____
(Miss. 1986). As an Erie-bound court, we cannot argue with
Mississippi's law concerning the impact in its courts of void
judgments. But this does not mean that we must accept Knight's
reading of Mississippi law. The statement in Southern Trucking,
elaborated by an earlier Mississippi Supreme Court case,1 is the
1
In Bryant v. Lovett, 97 So.2d 730, 731-32 (Miss. 1957),
the court stated,
"It was not possible, by subsequent recitals, to reaffirm the
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core of Knight's defense. His argument oversimplifies Mississippi
law by ignoring the state's rules for orderly procedure.
The present case differs procedurally from Southern
Trucking and Bryant because Knight never mounted a defense to the
suit to renew the judgment. In 1995, the Bank filed a simple state
court lawsuit predicated on the 1988 judgment, pleading that the
judgment had never been paid, discharged or satisfied, and
attaching a copy of the judgment. Knight was properly made a party
to the 1995 lawsuit. Knight could have raised the alleged
invalidity of the 1988 judgment as an affirmative defense, but he
chose neither to appear nor to defend. Mississippi procedure did
not, however, afford him the luxury of inaction.
In Hertz Commercial Leasing v. Morrison, 567 So.2d 832
(Miss. 1990), the state Supreme Court held that the contractual
defense of illegality is an affirmative defense which must be pled
under the state's procedural Rule 8(c) or it is waived. The court
then enforced a judgment founded on an illegal contractual penalty
provision precisely because the defendant had not affirmatively
pled the defense. The court's dissenters emphasized the
significance of Hertz in terms applicable to this case:
But surely, Rule 8(c) does not obligate a court to
enforce a contract which the unfettered proof at trial
shows is against public policy and therefore void simply
validity of the final judgment. Subsequent proceedings cannot
breathe life into the prior dead [void] judgment."
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because a party has failed to affirmatively plead it.
567 So.2d at 837 (Hawkins, J., dissenting).
Not only did Hertz espouse the interpretation of Rule 8(c) feared
by the dissent, but the majority also explained that, even where
illegal contracts are, like gambling contracts, void ab initio,
they are subject to the affirmative defense pleading requirement
embodied in Rule 8(c). 567 So.2d at 834-35.
Hertz also notes that Rule 8(c) expressly covers "any
other matter constituting an avoidance or affirmative defense."
Referring to a defendant's pleading, the court defines an
"avoidance or affirmative defense" as a response that "assumes the
plaintiff proves everything he alleges and asserts, even so, the
defendant wins." 567 So.2d at 835.
From Hertz, two conclusions are inescapable. First, the
alleged voidness of the 1988 judgment constituted an avoidance or
affirmative defense that Knight was required to raise in defense of
the 1995 lawsuit to avoid its waiver. Second, if Knight's position
were correct, and he need not have even responded to the second
lawsuit (after valid service), he would be in a better position
than the party who responded but failed to affirmatively plead the
void judgment; yet no reason has been advanced why Mississippi
courts would countenance this strange result, or why a defense
based on a prior void judgment should be more compelling than any
other affirmative defense, including illegality.
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The cases declaring a void judgment a "nullity" are
neither inconsistent with Hertz nor undermine its applicability
here. In both Bryant and Southern Trucking, the first judgment was
declared void during post-judgment collection and enforcement
proceedings in which the judgment debtor appeared to defend
himself. Although caught off guard by or not a party to errors
made in the initial lawsuit, neither defendant sat by when
collection efforts were pursued in court. As these cases do not
address what should happen when the debtor wholly fails to respond
in a subsequent suit based on the enforceability of the first
judgment, they offer no support for Knight's attempt to ignore the
second service of summons and avoid his obligation to plead his
affirmative defense.
For the foregoing reasons, we conclude that the Bank's
1995 judgment was valid and subsisting when Knight filed bankruptcy
and the Bank sought to enforce a judgment lien. Even if the 1988
judgment was flawed, Knight could not fail to defend himself in the
1995 lawsuit and decline to raise an affirmative defense. The
judgments of the bankruptcy and district courts that held to the
contrary are REVERSED and this case is REMANDED for further
proceedings.

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