____________________________________________________________
November
27, 2018
THE HONORABLE JOHN MICHAEL VAZQUEZ
United States District Judge
Lautenberg U.S. Post Office &
Courthouse
Federal Square
Newark, New Jersey 07101
Tel.: 973-645-3097
RE: PLAINTIFF’S REPLY TO ATF, LLC DEFENDANTS’ OPPOSITION TO
PLAINTIFF’S MOTION TO ALLOW THE FILING OF AN AMENDED COMPLAINT
CIVIL ACTION COMPLAINT FOR COMPENSATORY AND PUNITIVE
DAMAGES AND FOR DECLARATORY JUDGMENT
Civil Action No. 02:12-cv-01793 (JMV-JBC)
Dear Judge Vazquez:
Plaintiff, Basilis N.
Stephanatos, PhD, JD, (“Plaintiff”, “Dr. Stephanatos”, “Stephanatos”) appearing
pro se, respectfully files this reply brief to ATF, LLC Defendants (ATF
Defendants or ATF, LLC Defendants)’ opposition to Plaintiff’s
Motion for Relief from the October 16, 2018 Order, pursuant to rules 60(b)(2),
(3), (5) and (6) of the Federal Rules of Civil Procedure. Stephanatos provides herein many instances of
deliberate lies to the courts where the lawyers of the Defendants certified
(i.e., swore under oath) that all procedures required by state law were used in
the forceful taking of Stephanatos’ home on June 28, 2011.
The ATF Defendants willfully and corruptly intended
to enter into a criminal and fraudulent transaction through the anti-trust
conspiracy. Its existence against the Plaintiff and
thousands of New Jersey homeowners was determined and confirmed by the federal
judge Michael A. Shipp in the federal antitrust case IN RE NEW JERSEY TAX SALES CERTIFICATES ANTITRUST LITIGATION, Master
Docket No. 3:12-CV-01893-MAS-TJB (see
http://www.njtaxliensettlements.com/
Both the Robert
U. Del Vecchio, Sr. (now deceased) and Robert A. Del Vecchio, Jr. are accused
of being participants in the antitrust conspiracy. They are both active in the tax lien
business, they are both lawyers, they are related by blood (father and son),
and they both share common place of business and place of residence in Hawthorn,
Passaic County, New Jersey. The Del
Vecchios also established similar “pension plans” to hide their ill-gotten
gains, such as the Robert Del Vecchio Pension Plan,
LLC. The Pension plans will be
added as Defendants in this action to recover the millions in damages caused by
the Del Vecchios. Robert Del Vecchio,
Sr. has pleaded guilty to a felony charge in Federal Court in Newark on
September 30, 2013.
According to the
court documents, Del Vecchio, Sr. and Michael Mastellone, of Cedar Knolls, New
Jersey were involved in the conspiracy with others not to bid against one
another at municipal tax lien auctions in New Jersey or to do mock biddings on
select liens that were of small amounts and would refrain from bidding on the
premium phase of the bidding. Since the conspiracy permitted the conspirators
to purchase tax liens with limited competition, each conspirator was able to
obtain liens that earned a higher interest rate or lower paid premium to the
municipality or through the monopoly would obtain rights for charging the
highest possible interest rate (18 percent) for all subsequent liens without
any bidding on the subsequent liens. Property owners were therefore made to pay
higher interest on their tax debts than they would have paid had their liens
been purchased in open and honest competition, the department said.
Robert A. Del Vecchio, Esq. an attorney at
law of Hawthorn, New Jersey provided false certifications to the Office of
Foreclosure that this was an uncontested case, despite the fact that
Stephanatos had fully contested this case; this way, Del Vecchio managed to
circumvent the Anti-Eviction Act, the Summary Dispossess Act of New Jersey and
fooled the Acting Law Clerk, Jennifer Perez, and the Office of Foreclosure into
issuance of an ex-parte writ of possession.
Del Vecchio also made false representations to this Court that
Stephanatos had no possessory interests and that there are no tenants or
residents on the property that must be protected by the Anti-Eviction Act
and/or the Summary Dispossess Act, when in fact Metropolitan Environmental
Services, a business owned by Stephanatos, was a tenant in the premises. Del Vecchio also fraudulently certified to
the Court that Stephanatos had not paid any taxes since 1993, an entirely
fraudulently assertion. Del Vecchio also
fraudulently certified to the Passaic County Court and to the Sheriff of that
County that Stephanatos had threatened him with violence, an entirely
fraudulent assertion. Del Vecchio also
fraudulently certified to this Court that this was a mortgage foreclosure case,
when in fact Stephanatos had no mortgage (he fully owned the property) and this
was a tax sale foreclosure case. Del
Vecchio fraudulently submitted forms and papers to the Office of Foreclosure
that pertain to mortgage foreclosures, although he knew that this was a tax
sale foreclosure. Del Vecchio
fraudulently presented and certified to the state Court mortgage foreclosure
cases as the basis of his certifications to the Court, although he knew that
this was not a mortgage foreclosure case.
Del Vecchio also fraudulently represented to the state court the amount
allegedly owed by Stephanatos in the form of taxes, when he knew that no taxes
were due because of the impermissible over-assessment of Stephanatos’ residence
by more than 40 percent (properties proven fair market value was $330,000 but
it had impermissibly over-assessed at $475,000, making all taxes void ab
initio).
The New Jersey Court In Village of
Ridgefield Park et al., v. Bergen County Board of Taxation et al., 62 N.J.Super. 133, 162 A.2d 132 said
that any assessment levied in violation of the constitutional mandate of
uniformity is absolutely void Ab initio. Thus, the taxes were void, as a matter
of New Jersey law. Therefore, all
subsequent acts of the municipal, antitrust and county personnel were illegal,
as a matter of law.
Del Vecchio fraudulently certified to the
Chancery Court that ATF had lawfully obtained the tax sale certificate at zero
percent (0%) interest rate, when ATF colluded with Del Vecchio and others to
rig the bids. ATF in fact charged at
least eighteen percent (18%) interest for all years but the first year. Del
Vecchio and Bonchi also fraudulent failed to notify this Court that the writ
was void because it was issued by the Clerk in Mercer County in violation of
state statutes. N.J.S.A.
2A:18-57 provides that in summary dispossess proceedings "[n]o warrant of
removal shall issue until the expiration of 3 days after entry of judgment for
possession."
THE WRIT
OF POSSESSION WAS VOID AB INITIO BECAUSE THE CLERK OF THE SUPERIOR COURT HAD NO
JURISDICTION TO ISSUE THE EX-PARTE WRIT OF POSSESSION THE SAME DAME THE
JUDGMENT WAS ENTERED. HOUSING AUTHORITY OF CITY OF WILDWOOD v.
Hayward, et al., 406 A.2d 1318, 81 N.J.
311 (1979)
ATF
Defendants engaged in "knowing concealment, suppression and omission of
material facts," and made a false representation of fact and law which the
Chancery Court and the Mercer County Clerk relied upon. Former Judge Hochberg also coerced by the
fraudulent certifications of the Defendants into dismissing the timely filed
Section 1983 suit in 2012.
Plaintiff
has demonstrated that he had several cognizable equitable and property
interests under New Jersey law of which he could not have been deprived without
due process.
It
is well-established that where former owners of real property remain in
possession after a foreclosure sale, they become tenants at
sufferance. See In
re Atlantic Business & Community Corporation 901 F.2d at 328 (3rd
Cir. 1990) where the Third Circuit stated that a tenancy at sufferance creates
a property interest that is protected by federal and state laws and the U.S.
Constitution.
See the definition of tenant in the
New Jersey statutes: "Tenant"
includes, but is not limited to, a lessee or tenant at will or at sufferance or
for any duration, or any subtenants, assigns, or legal representatives of the
lessee or tenant. Title 46A – Landlord and tenant law. Article 5, eviction,
chapter 14, eviction generally.
46A:14-1: Tenant, landlord, residential rental premises; what is included. New Jersey law considers a homeowner who
remains in a home lost to foreclosure to be a tenant at sufferance. We have found that a tenant at sufferance is
"'one who comes into possession of
land by lawful title, usually by virtue of a lease for a definite period, and
after the expiration of the period of the lease holds over without any fresh
leave from the owner.'" Xerox Corp. v. Listmark Computer Sys., 142 N.J.
Super. 232, 240 (App. Div. 1976) (citing Standard Realty Co. v. Gates, 99 N.J.
Eq. 271, 275 (Ch. 1926)). WA GOLF
COMPANY, LLC v. ARMORED, INC, Appellate Division, August 6, 2014.
The
ATF Defendants fraudulently certified to state and federal courts that
Stephanatos had no possessory rights.
No motion and notice was provided to
Stephanatos for substituting the foreclosing plaintiff ATF, LLC to ATFH Real
Property, LLC. As a result, ATFH Real
Property, LLC lacked the standing to apply for final judgment and to apply for
a writ of possession from the office of foreclosure.
Furthermore, as the New Jersey Supreme
Court has ruled, in HOUSING AUTHORITY OF CITY OF WILDWOOD v. Hayward, et al., 406 A.2d 1318, 81 N.J. 311 (1979). Even if the judgment had been entered lawfully (we hold it was
not), the clerk had no *316 jurisdiction to issue the warrant of removal the
same day the judgment was entered. N.J.S.A. 2A:18-57 provides that in summary
dispossess proceedings "[n]o warrant of removal shall issue until the
expiration of 3 days after entry of judgment for possession."
THE
EX-PARTE JUDGMENT FOR POSSESSION WAS ALSO ENTERED UNLAWFULLY BECAUSE NO NOTICE
TO QUIT WAS PROVIDED TO STEPHANATOS PRIOR TO ENTERING THAT LANGUAGE INTO THE
FINAL JUDGMENT ON MAY 13, 2011
State law requires that prior to the
issuance of a judgment for possession, the owner must provide proof of notice
to quit, followed by an eviction proceeding before a judge who has jurisdiction
over the property and the person. Here are
the state statutes:
2A:18-56. Proof of notice to quit prerequisite to judgment
No judgment for possession in cases specified in paragraph
"a." of section 2A:18-53 of this Title
shall be ordered unless:
- The
tenancy, if a tenancy at will or from year to year, has been terminated by
the giving of 3 months' notice to quit, which notice shall be deemed to be
sufficient; or
- The
tenancy, if a tenancy from month to month, has been terminated by the
giving of 1 month's notice to quit, which notice shall be deemed to be
sufficient; or
- The
tenancy, if for a term other than at will, from year to year, or from
month to month, has been terminated by the giving of one term's notice to
quit, which notice shall be deemed to be sufficient; and
- It
shall be shown to the satisfaction of the court by due proof that the
notice herein required has been given.
Note: Unlike residential tenants,
who are mostly protected by the Anti-Eviction Act, commercial tenants (like
Metropolitan Engineering Services, PC and Metropolitan Environmental Services)
may be evicted at the end of their lease terms. However, a Notice to Quit is
still required before the eviction action may be filed. No such notice was ever provided. That the eviction of Stephanatos’ businesses
from the property was unlawful.
The landlord-tenant law
also requires the same notice for removal of residential tenants (like Dr.
Stephanatos):
2A:18-61.2 Removal of
residential tenants; required notice; contents; service.
No
judgment of possession shall be entered for any premises covered by section 2
of this act, except in the nonpayment of rent under subsection a. or f. of
section 2, unless the landlord has made written demand and given written notice
for delivery of possession of the premises.
Here,
no notice to quit and no eviction hearing ever took place. What the conspirator Robert Del Vecchio did
was to include language in the judgment for foreclosure order that also
included a judgment for possession, without any notice for such possession
hearing ever provided to Stephanatos, as is required by state law: 2A:18-56. Proof
of notice to quit prerequisite to judgment.
HOUSING
AUTHORITY OF CITY OF WILDWOOD v. Hayward, et al., 406 A.2d 1318, 81 N.J. 311 (1979).
The
state law N.J.S.A. 2A:39-1 cited by
Judge Jacobson, prohibits the
unlawful entry in any real property occupied
solely as a residence by the party in possession, unless the entry and
detention is made pursuant to legal process as set out in N.J.S.A. 2A:18-53 et seq. The
Defendants failed to do so and instead circumvented that statutory process and
applied for an ex-parte writ.
Thus,
this intentional violation of state law represents a violation of Stephanatos’ procedural
due process rights for both the judgment for possession and the writ of possession. Since the Defendants’ lawyers certified (i.e.
swore under oath) to Judge Hochberg that “all the proceedings were done in
accordance with the law”, they lied to that judge, successfully coerced the
judge into dismissing the timely-filed suit and therefore committed fraud on
the court.
DEVIATION FROM SERVICE OF PROCESS RULES' TYPICALLY MAKES
A JUDGMENT OR ORDER VOID.
The requirements of the Rules with respect to service of process go to the
jurisdiction of the court and must be strictly complied with." Berger v. Paterson Veterans Taxi Serv., 244
N.J. Super. 200, 204, 581 A.2d 1344 (App. Div. 1990) (quoting Driscoll v. Burlington-Bristol Bridge Co.,
8 N.J. 433, 493, 86 A.2d 201 (1952)). "'[S]ubstantial deviation from
service of process rules' typically makes a judgment void." M & D
Associates v. Mandara, 366 N.J. Super. 341, 353, 841 A.2d 441 (App. Div. 2004)
(quoting Jameson v. Great Atl. and Pac. Tea Co., 363 N.J. Super. 419, 425, 833
A.2d 626 (App. Div. 2003)).
FRAUD ON THE COURT REQUIRES SETTING ASIDE THE 2012
DISMISSAL OF THE TIMELY-FILED 42 USC §1983 SUIT. In re:
Bressman, No. 16-3244 (3d Cir. 2017)
Plaintiff
has alleged fraud on the court as an additional basis for reopening the case
and allowing Stephanatos to amend his timely filed 2012 Section 1983
complaint. The legal authority for this
request is also provided by the recent case In
re: Bressman, No. 16-3244 (3d Cir. 2017) where the federal courts dismissed
a final judgment with prejudice several years after the fraud on the court was
discovered. Here is what the Third
Circuit wrote regarding the intentional omission of a settlement agreement by a
plaintiff’s lawyer:
We
next address whether Folkenflik's [the plaintiff’s lawyer] failure to disclose
the Settlement Agreement rises to the level of intentional fraud. As officers
of the court, attorneys are required “to conduct themselves in a manner
compatible with the role of courts in the administration of justice.” This
responsibility is sometimes—albeit rarely—disregarded. When, however, counsel
has failed to act with candor, preservation of the integrity of the judicial
process may require courts to depart from their usual adherence to the
principle that final judgments should be left undisturbed. We confront one such situation here.
A
court may set aside a judgment based upon its finding of fraud on the court
when an officer of the court has engaged in “egregious misconduct.” We
have said that such a finding “ ‘must be supported by clear, unequivocal and
convincing evidence’ ” of “(1) an intentional fraud; (2) by an
officer of the court; (3) which is directed at the court itself․ ”In addition, fraud on the court may
be found only where the misconduct at issue has successfully deceived the
court. Folkenflik contests
the Bankruptcy Court's findings on two grounds: First, he claims that any fraud
was not intentional, and second, he argues that the alleged deceit
does not constitute the kind of egregious misconduct that the fraud on the
court doctrine aims to address. Both contentions are belied by the properly
found facts.
The Defendants’
lawyers were required to disclose to the court opinions and decisions that
constitute legal authority. They were
also required to not make intentional false statements of material fact. They were also required to not make
intentionally false certifications to the courts that the Defendants complied
with all state law, when they knew that they had not complied with state law.
Here,
the lawyers for the Defendants intentionally violated state statutes (2A:18-56. Proof of notice to quit
prerequisite to judgment and N.J.S.A. 2A:18-57 that provides that in summary dispossess
proceedings "[n]o warrant of removal shall issue until the expiration of 3
days after entry of judgment for possession."). New
Jersey Supreme Court decisions have already settled this law and have ruled
that the writs issued in violation of these statutes were void (not voidable,
but void ab ignition without any force).
HOUSING AUTHORITY OF CITY OF WILDWOOD v.
Hayward, et al., 406 A.2d 1318, 81
N.J. 311 (1979). The
Defendants have also violated a myriad of other statutes and intentionally
interfered with Stephanatos’ constitutional rights as detailed herein.
The Defendants were able to successfully deceive Judge Hochberg
into dismissing the 2012 timely suit against them. Justice was not served then. Justice will not be served now if this Court
refuses to re-open the case and allow the Plaintiff to file an amended
complaint.
THE
STEPHANATOS’ CLAIMS
Stephanatos’ amended complaint will
include at least 24 counts and a number of state law claims (unjust enrichment,
defamation, infliction of emotional distress, fraud, etc.):
1.
A
claim for malicious abuse of process and abuse of process;
2.
A
claim for conspiracy to prosecute maliciously;
3.
A
claim for violation of the right to access to the courts;
4.
A
claim in violation of the Fourth Amendment’s guarantee against unreasonable
search and seizure (against the Individual Defendants) actionable under 42 USC §1983;
5.
A
claim for illegal and false arrest in violation of the Fourth Amendment inside
Plaintiff’s home without possessing a search warrant and without possessing an
arrest warrant and lack of exigent circumstances and by fabricating charges;
6.
A
claim for violation of the Fourteenth Amendment’s command that no person be
deprived of liberty and property without due process of law, actionable here
under 42 U.S.C. § 1983;
7.
A
§ 1983 claim for failure to properly train, supervise and control officers
(against the Passaic County sheriff department);
8.
A
state law tort claim for failure to properly train, supervise and control
officers (against the sheriff department);
9.
An
alleged conspiracy to violate federal civil rights (against the Individual
Defendants); claims of conspiracy, in
violation of § 1983 and New Jersey law, respectively, to violate federal and
state civil rights by filing false and misleading police reports, by filing
false certifications with the courts, and by knowingly giving false and
misleading grand jury testimony;
10.
An
alleged conspiracy to violate state civil rights (against the Individual
Defendants);
11.
A
Fourteenth Amendment stand-alone claim under section 1983 for fabrication of
evidence;
12.
A
claim for retaliation in violation of his First Amendment rights and for false
imprisonment (against the Individual Defendants).
13.
A
claim for violation of his Due Process rights under the Fifth and Sixth
Amendment due to the 7.5 years in delaying the adjudication of the criminal
charges against him for allegedly assaulting the sheriff employees and
hindering apprehension;
14.
A
claim for violation of his Procedural Due Process rights under the Fourteenth
Amendment regarding the lack of any pre-deprivation notices and hearings in
violation of state law;
15.
A
claim for uncompensated taking of his homestead property in violation of the
Fifth Amendment
16. VIOLATION OF THE
NEW JERSEY ANTITRUST ACT N.J.S.A. § 56:9-3 AND SECTIONS 1 AND 2 OF
THE SHERMAN ACT 15 U.S.C. § 1 AND §2
17.
A
CLAIM UNDER CIVIL RICO FOR VIOLATING 18 USC SECTION §1962 [(A) (B) (C) (D)] OF
RICO
The Defendants, both
individually and jointly, constituted a RICO “enterprise” and that the
confiscation and forceful taking of Stephanatos’ residence and the permanent
damage of his two businesses and the destruction of his personal and business
property involved the “collection of unlawful debt,” in violation of 18
U.S.C. § 1962(c), and gave rise to a RICO conspiracy, in violation
of 18
U.S.C. § 1962(d).
18.
A
CLAIM THAT DEFENDANTS INTERFERED WITH PLAINTIFF’S PROCEDURAL DUE PROCESS,
SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION RIGHTS UNDER THE FEDERAL AND NEW
JERSEY CONSTITUTIONS;
19. VIOLATION OF THE
NEW JERSEY TAX SALE
LAW EXCESSIVE FEE OR CHARGE IN THE REDEMPTION
OF A TAX SALE CERTIFICATE N.J.S.A. § 54:5-63.1
The Defendants violated the Tax Sale
Law, N.J.S.A. 54:5-1 to-137 (“TSL”) or the TSL (enacted in 1910) was
unconstitutional in its application to Stephanatos
20.
A
CLAIM FOR VIOLATION OF N.J.S.A. 2A:39-1 – UNLAWFUL ENTRY PROHIBITED
The ATF
Defendants and the Passaic County Sheriff and its deputies committed a
prohibited self-help after they used a void ab initio writ of possession to
enter Stephanatos’ residence, and forcefully evicted Stephanatos damaging his
personal and business property;
21.
violations of the Consumer Fraud Act (cfa) (N.J.S.A.
56:8-1, ET SEQ) – UNCONSCIONABLE COMMERCIAL PRACTICES AND DECEPTION and false
promises and/or misrepresentations
New Jersey’s Consumer Fraud Act prohibits deceptive
practices relating to the sale of real estate as follows:
[t]he act, use or employment by any person of any unconscionable commercial
practice, deception, fraud, false pretense, false promise, misrepresentation,
or the knowing, concealment, suppression, or omission of any material fact with
intent that others rely upon such . . . in connection with the sale or advertisement
of any merchandise or real estate . . . is declared to be an unlawful practice.
N.J.S.A. 56:8-2. In order to prevail on a CFA claim, the claimant must
establish: “(1) unlawful conduct by defendant; (2) an ascertainable loss by
plaintiff; and (3) a causal relationship between the unlawful conduct and the
ascertainable loss.” D’Agostino v.
Maldonado, 216 N.J. 168, 184 (2013). Courts should construe the CFA
liberally in favor of consumers. Belmont
Condominium Ass’n v. Geibel, 432 N.J. Super. 52, 75 (App. Div. 2013).
Accordingly, it is “the capacity to
mislead that is the prime ingredient of all types of consumer fraud under the
CFA.” Suarez v. Eastern Int’l College, 428 N.J. Super. 10, 32 (App. Div. 2012).
Plaintiff
presented "cognizable" CFA and common law fraud claims that presented
an equitable bar to ATF Defendant’s foreclosure complaint.
Allegations
of fraud must be pled with specificity and a litigant's failure to do so should
result in dismissal of the complaint. State,
Dep't of Treasury v. Qwest Commc'ns Int'l, Inc., 387 N.J. Super. 469, 484 (App.
Div. 2006); see R. 4:5-8(a) (requiring any complaint alleging fraud set
forth the "particulars of the wrong, with dates and items if necessary, .
. . insofar as practicable"). Alleged violations of the CFA must also be
pled with the same level of specificity. Hoffman
v. Hampshire Labs, Inc., 405 N.J. Super. 105, 112 (App. Div. 2009).
ATF
Defendants engaged in "knowing concealment, suppression and omission of
material facts," and made a false representation of fact and law which the
Chancery Court and the Mercer County Clerk relied upon. The writ entered by the Clerk of Mercer
County was void ab initio because it was entered in violation of state law N.J.S.A. 2A:18-57.
No motion and notice was provided to
Stephanatos for substituting the foreclosing plaintiff ATF, LLC to ATFH Real
Property, LLC. As a result, ATFH Real
Property, LLC lacked the standing to apply for final judgment and to apply for
a writ of possession from the office of foreclosure. No notice to quit was provided in violation
of state law: 2A:18-56. Proof
of notice to quit prerequisite to judgment
Furthermore, as the New Jersey Supreme
Court has ruled, in HOUSING AUTHORITY OF CITY OF WILDWOOD v. Hayward, et al., 406 A.2d 1318, 81 N.J. 311 (1979). Even if the judgment had been entered lawfully (we hold it was
not), the clerk had no *316 jurisdiction to issue the warrant of removal the
same day the judgment was entered. N.J.S.A. 2A:18-57 provides that in summary
dispossess proceedings "[n]o warrant of removal shall issue until the
expiration of 3 days after entry of judgment for possession."
22.
ALTER EGO/PIERCING THE CORPORATE VEIL OF ATF, LLC
23.
Pre- and POST FORECLOSURE FRAUD AND civil CONSPIRACY
24.
VIOLATION
OF THE FEDERAL FAIR DEBT COLLECTION PRACTICES ACT (FDCPA), 15 U.S.C. § 1692 ET
SEQ., THE NEW JERSEY FAIR CREDIT COLLECTION PRACTICES ACT (NJFCEUA), AS
AMENDED BY PUBLIC LAW 104-208, 110 STAT. 3009 (SEPT. 30, 1996)
The
plaintiff alleges that the defendants have not complied with their obligations
under these laws as they obtained fraudulent and/or illegal or void ex-parte
judgment of possession and void ex-parte writ of possession and that he was
being charged excessive collection fees and costs and interest and penalties by
defendants in their attempt to collect an unlawful tax bill. Specifically, the
plaintiff alleges that the defendants violated the FDCPA by charging "an
amount (including any interest, fee, penalty, charge, or expense incidental to
the principal obligation)," that was not expressly authorized by the debt
agreement or permitted by law. See 15 U.S.C. § 1692f(1). Furthermore, Plaintiff alleges that the
Defendants failed to validate the alleged debt and committed false and
misleading representations, harassment and abuse. In addition, the plaintiff
claims that the defendants' letters did not inform the recipient that they were
from a debt collector as required by 15 U.S.C. § 16926(H), nor did the letters
include validation notices pursuant to 15 U.S.C. § 1692(g). Sixth Circuit Holds State Law
Violations May Constitute FDCPA Violations under 1692f and 1692e(5) Currier v. First Resolution Investment
Corp., 2014 WL 3882745 (6th Cir. Aug. 8, 2014).
25.
STATE LAW CLAIMS (UNJUST ENRICHMENT, DEFAMATION, FALSE
LIGHT, NEGLIGENCE,
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, PAIN AND SUFFERING, LOSS OF
CONSORTIUM, CONVERSION, TORTIOUS AND INTENTIONAL INTERFERENCE WITH PROSPECTIVE
ECONOMIC ADVANTAGE)
CASES
DEALING WITH THE LIABILITY OF THE SHERIFF AS A TRESPASSER WHEN HE EXECUTES VOID
WRITS OR VOID JUDGMENTS
According
to well-established New Jersey law (see above), the Writ of Possession was VOID
AB INITIO and as result the Passaic County Sheriff was a trespasser (see Mushback v. Ryerson, 11 N.J.L. 346, 351 (Sup.Ct.1830);
Borromeo v. Diflorio, A-3979-07T2, decided August 9, 2009 “[I]n New
Jersey it has been the established principle, making lands liable to be sold
for the payment of debts, that the right of the sheriff to sell and convey
lands, is a mere naked power, so that to render a title under his deed
available, every requisite of the law must be shown to have been complied
with[.]” Todd v. Philhower, 24 N.J.L.
796, 800 (E. & A. 1854). From
these authorities, we conclude the requirements in the statute are not merely
directory but mandatory, such that the failure to comply with a statutory
provision affects subsequent actions.).
As defined by the New Jersey
Supreme Court in James v. Francesco, 61
N.J. 480, 485 (1972), "a judgment is void if there has been a failure
to comply with a requirement which is a condition precedent to the exercise of
jurisdiction by the court." A void judgment is one rendered by a court
lacking jurisdiction with regard to the party against whom it is rendered or
lacking jurisdiction of the subject matter of the action, Restatement, Judgments (2d) Section 1 pp 30-33 (1982), and it may
be set aside without the need of showing a meritorious defense. See Jameson v. Great Atlantic, 363 N.J. Super.
419, 425 (App. Div. 2003). Moreover, a judgment is void if there is lack of
personal jurisdiction or notice absent intervening rights of a third party, City of Newark v. (497) Block, 1854, 244
N.J. Super. 402 (App. Div. 1990). In this case, the Mercer County Court
and/or its acting law clerk had no personal jurisdiction over the Defendant. The
Clerk also entered the Writ the same day as the final judgment on May 13, 2011
(See Exhibit A). This was in violation
of the mandatory state law: N.J.S.A. 2A:18-57 provides that in summary dispossess
proceedings "[n]o warrant of removal shall issue until the expiration of 3
days after entry of judgment for possession."
Therefore, the judgment and
the subsequent fraudulently-obtained writ were void for reasons of lack of
personal jurisdiction, for lack of jurisdiction or lack of authority by the
Clerk to enter such judgments or orders, as well.
A judgment is void for lack
of subject matter jurisdiction when the court has no authority to adjudicate
the controversy. See Bank v. Kim, 361
N.J. Super. 331, 339 (App. Div. 2003) (mortgage foreclosure judgment void
in violation of bankruptcy automatic stay). As stated above, the
Mercer County Court had no jurisdiction over contested cases. See also Riverview Towers Assocs. v. Jones, 358 N.J.
Super. 85, 88 (App. Div. 2003) in which the court held that the court
lacked subject matter jurisdiction to issue judgments of possession against
tenants where the landlord failed to comply with HUD lease termination notice
requirements. Such requirements are required for jurisdiction for summary
dispossession of protected HUD tenancies. Here, the criminal conspirators
(Robert Del Vecchio, ATF, the sheriff, etc.) failed to obey several New Jersey
statutes prior to applying for a Judgment of Possession and/or Writ of
Possession. Thus, the judgment and/or Writ were void ab initio for lack
of subject matter jurisdiction, as well.
Furthermore,
American Tax Funding and/or Passaic County Sheriff failed to obtain a mandatory
Warrant of Removal in violation of New Jersey Law for entry into residential
dwellings (see N.J.S.A. 2A:39-1 Unlawful entry prohibited);
THE
EXECUTION OF A VOID WRIT BY THE SHERIFF MADE THE SHERIFF A TRESPASSER ON JUNE
28, 2011 AND LIABLE FOR DAMAGES
Upon
the second point, authorities were read to explain the case produced by the
plaintiff's council, and to show a distinction between an erroneous and a void
writ. That the sheriff was bound to execute and return the writ, although erroneous,
if the court had jurisdiction. But when the court had no jurisdiction, the writ
was void, and the sheriff was a trespasser if he dared to obey it; a void
authority being the same as none.
NATHAN v. VIRGINIA. 1 U.S. 77 (1 Dall. 77, 1 L.Ed. 44)
Indeed it seems
agreed as a general rule, that wherever a sheriff or other authority has a
person in custody by virtue of an authority from a court having jurisdiction
over the matter, the officer cannot judge of the validity of the process, and,
therefore, cannot take advantage of any errors in them. But if the court had no jurisdiction in the
matter, then all is void, and an escape upon such void authority is not
actionable. This distinction has been laid down in Moore 274, Dyer 175, Poph.
202, Leon. 80 and numerous other cases. See also 3 Bac. Abr. 392. THE AMERICAN LAW REGISTER. SEPTEMBER 1878.
THE LAW OF ESCAPE IN CIVIL ACTIONS. (Goncluded from the August No., ante, p. 486.)
Thus, if the landlord evicts a tenant
without first filing a dispossessory action and obtaining a writ of possession,
or without following the dispossessory procedures for handling the tenant's
personal property, the landlord “can be held liable for wrongful eviction and
trespass.” Ikomoni, 309 Ga.App. at 84(2); see
also Steed, 301 Ga.App. at 805(1)(a)
(“[A] landlord who forcibly evicts a tenant without filing a dispossessory
action and obtaining a writ of possession is subject to damages in tort for the
wrongful eviction.”). Court of Appeals
of Georgia. FENNELLY v. LYONS. No. A15A0506.
Decided: July 13, 2015
If the officer acting under this VOID writ,
by the direction of the appellants, took actual charge of the cattle, or
prohibited appellees from looking after them, and during this time some of
them, through his negligence, were lost by straying, being stolen, or dying
from want of proper attention, all parties thus acting together would, of
course, be liable for the resulting damage.
The point is also made, that inasmuch
as the court from which the attachment was issued was without jurisdiction of
the case, the writ was void, and consequently an attempted levy thereof in
compliance with the statutes above quoted would not place the property in
custodia legis. This position seems to us to be sound, and presents
an additional reason why appellees' case is dependent upon the acts done by the
parties, in addition to the mere office indorsement of the attempted levy upon
the writ. The mere entry of such a levy upon a void writ would not ordinarily
create liability. Donald Cobb V. Carpenter 8 Tex. Civ. App. 32127
S.W. 1053
Liability for Execution of Void Writ
ALL DEFENDANTS HAD NOTICE OF PLAINTIFF’S LAWSUIT WITHIN
THE STATUTE OF LIMITATIONS. THE THIRD CIRCUIT HAS RULED THAT THERE IS A LIBERAL
AMENDMENT POLICY UNDERLYING FED.R.CIV.P. 15(A).
ALSO, PURSUANT TO NEW JERSEY RELATION BACK RULE 4:9-3, A PARTY MAY AMEND HIS PLEADING. PLAINTIFF SHOULD BE
ALLOWED TO AMEND HIS TIMELY FILED 2012 COMPLAINT AT LEAST ONCE.
Plaintiff
asks the Court to permit the amendment of his 2012 timely filed complaint by
the addition of newly discovered evidence and case law and by the addition of
new claims pursuant to Federal Rules of Civil Procedure 15(c)(1)(A) and (C),
New Jersey’s fictitious party Rule, N.J.R.
4:26-4, the general New Jersey relation back rule, N.J.R. 4:9-3, the doctrine of equitable estoppel, and the New
Jersey discovery rule.
The
answer to the relation back question involves the interplay of Fed. R. Civ. P.
15(c)(1)(A) and (C), New Jersey Rules 4:26-4 and 4:9-3, and equitable concepts
including equitable estoppel, the discovery rule, and the doctrine of
substantial compliance.
Amendments
in federal cases are governed by Rule 15 of the Federal Rules of Civil
Procedure, which provides in pertinent part as follows:
Rule 15. Amended and Supplemental Pleadings
(c) Relation Back
of Amendments.
(1) When an Amendment Relates Back. An
amendment to a pleading relates back to the date of the original pleading when:
(A) the law that
provides the applicable statute of limitations allows relation back;
(B) the amendment
asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set out–or attempted to be set out–in the original pleading; or
(C) the amendment
changes the party or the naming of the party against whom a claim is asserted,
if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule
4(m) for serving the summons and complaint, the party to be brought in by
amendment:
(i) received
such notice of the action that it will not be prejudiced in defending on the
merits; and
(ii) knew or
should have known that the action would have been brought against it, but for a
mistake concerning the proper party’s identity.
Amendments
to add allegations of fact, claims, and theories of recovery are the least
complex. Basically, if the new allegations or claims arise out of the same
operative facts as did the claims in the original complaint, they relate back.
If, for instance, an original complaint contains allegations of medical
malpractice, and a plaintiff later wishes to sue for medical battery based on
the same treatment, the new claims would relate back to the date of the filing
of the old claims, notwithstanding the fact that the statute of limitations
might have run in the interim.
Similarly, a new claim of fraud would likely relate back to the date of
an original claim for breach of contract, if the same actions on the part of
the defendant gave rise to both.
The
Third Circuit has also ruled that plaintiff’s should be given reasonable
opportunity to amend the complaint based on liberal amendment policy underlying Fed.R.Civ.P. 15(a). "[T]his
court has consistently held that when an individual has filed a complaint under
section 1983 which is dismissable for lack of specificity, he should be given a
reasonable opportunity to cure the defect, if he can, by amendment of the
complaint...." Darr v. Wolfe,
767
F.2d 79, 81 (3d Cir.1985). Although both Hill
and Rose already have amended their original complaints once, we do not believe
that they are thereby automatically precluded from seeking to amend their
complaints a second time in accordance with our analysis here, in light of the
liberal amendment policy underlying Fed.R.Civ.P. 15(a). Rose v. Bartle, 871
F.2d 331 (1989).
Also,
pursuant to New Jersey Rule 4:9-3, a
party may amend his pleading and it will relate back to the date of the
original pleading “whenever the claim or defense asserted in the amended
pleading arose out of the conduct, transaction or occurrence set forth or
attempted to be set forth in the original pleading.” All claims here relate back to the date of
original pleading. Furthermore, the
amendment does not change the party or parties against whom the claim is
made. All parties are the same as the in
the original complaint and the parties have received notice of the institution
of the action back in 2012 (as is required by the Court Rule) and will not be
prejudiced in maintaining a defense on the merits.
Finally,
Pursuant to Rule 4:26-4, a party is permitted to sue a defendant under a
fictitious name if the defendant’s true name is unknown to the plaintiff. He is
required to state it to be fictitious and add on an appropriate description
sufficient for identification.
UNDER NEW JERSEY LAW, COURTS INVOKE THE DOCTRINE OF
SUBSTANTIAL COMPLIANCE TO AVOID TECHNICAL DEFEATS OF VALID CLAIMS
Under New Jersey law, substantial rather than hypertechnical
compliance with the Rule 4:9-3 court rule is sufficient for an amended pleading to relate
back. In order to show substantial
compliance with a statute of limitations under New Jersey law, a plaintiff must
demonstrate the following elements: (1) the lack of prejudice to the defending
party; (2) a series of steps taken to comply with the statute involved; (3)
general compliance with the purpose of the statute; (4) reasonable notice of
plaintiff's claim; and (5) a reasonable explanation why there was not strict
compliance with the statute. Fahey, 2009
WL 749856, at *3 (citing Negron v. Llarena, 156 N.J. 296, 305 (1998)). “Courts invoke the doctrine of substantial
compliance to avoid technical defeats of valid claims.” Negron v. Llarena, 156
N.J. 296, 305 (1998) (internal citation omitted).
WHEREFORE, Plaintiff respectfully requests the
Court to grant this Motion for Relief from the Court’s October 16, 2018 Order
pursuant to Fed.R.C.P. 60(b) (2), (3), (5), and (6), allowing him to file an
amended complaint.
Respectfully submitted,
________________________________ Dated November 27, 2018
Basilis N. Stephanatos, PhD, JD
CERTIFICATION OF BASILIS N. STEPHANATOS
I hereby certify under penalty of
perjury that the foregoing statements made by me are true and correct. I am aware that if any of the foregoing
statements made by me are willfully false, I am subject to punishment. NJ Court Rule R. 1:4-4(b); 28 U.S.C.
§1746.
DATE: November
27, 2018
Respectfully Submitted,
___________________________________
Basilis
N. Stephanatos, PhD, PE, JD
Pro
Se
IN
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
____________________________________
)
BASILIS
N. STEPHANATOS, )
)
Plaintiff,
Pro Se )
)
v. ) CIVIL
ACTION
) No.
02:12-cv-01793 (JMV-JBC)
) FOR DAMAGES FOR VIOLATION
WAYNE
TOWNSHIP ) OF CIVIL RIGHTS UNDER 42 U.S.C.
AMERICAN
TAX FUNDING, LLC., ) SECTION 1983; CONSPIRACY
WAYNE
TOWNSHIP TAX COLLECTOR,) UNDER RICO;
MAYOR
OF WAYNE TOWNSHIP, indiv. ) ABUSE OF PROCESS,
ROBERT
DEL VECCHIO, indiv. ) PROCEDURAL DUE PROCESS VIOLATION
OFFICER
RONALD LUCAS, indiv. )
RETALIATION
OFFICER
D’AGOSTINO, indiv. )
STATE LAW DAMAGES (DEFAMATION,
PASSAIC
COUNTY, ) NEGLIGENCE, INTENTIONAL
JOHN
DOEs 1-30 ) INFLICTION OF EMOTIONAL
) DISTRESS, PAIN AND
Defendants. )
SUFFERING)
)
)
JURY TRIAL DEMANDED
PLAINTIFF’S
REPLY TO ATF, LLC DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO ALLOW THE
FILING OF AN AMENDED COMPLAINT
Plaintiff, Basilis N.
Stephanatos, PhD, JD, (“Plaintiff”, “Dr. Stephanatos”, “Stephanatos”) appearing
pro se, respectfully files this reply to ATF, LLC Defendants (ATF Defendants or
ATF, LLC Defendants)’ opposition to Plaintiff’s
Motion for Relief from the October 16, 2018 Order, pursuant to rules 60(b)(2),
(3), (5) and (6) of the Federal Rules of Civil Procedure. The order in question denied Plaintiff’s
request to reopen the case based on the recent discovery of clearly inculpatory
evidence against the Defendants. The
Court cited the statute of limitations and the Third Circuit Jurisdiction as
the basis of its order.
THE
STEPHANATOS’ CLAIMS
Stephanatos’ amended complaint
will include at least 23 counts and a number of state law claims (defamation,
infliction of emotional distress, fraud):
26.
A claim for malicious abuse of process and
abuse of process;
27.
A claim for conspiracy to prosecute
maliciously;
28.
A claim for violation of the right to access
to the courts;
29.
A claim in violation of the Fourth
Amendment’s guarantee against unreasonable search and seizure (against the
Individual Defendants) actionable under 42 USC §1983;
30.
A claim for illegal and false arrest in
violation of the Fourth Amendment inside Plaintiff’s home without possessing a
search warrant and without possessing an arrest warrant and lack of exigent
circumstances and by fabricating charges;
31.
A claim for violation of the Fourteenth
Amendment’s command that no person be deprived of liberty and property without
due process of law, actionable here under 42 U.S.C. § 1983;
32.
A § 1983 claim for failure to properly train,
supervise and control officers (against the Passaic County sheriff department);
33.
A state law tort claim for failure to
properly train, supervise and control officers (against the sheriff
department);
34.
An alleged conspiracy to violate federal
civil rights (against the Individual Defendants); claims of conspiracy, in violation of § 1983
and New Jersey law, respectively, to violate federal and state civil rights by
filing false and misleading police reports, by filing false certifications with
the courts, and by knowingly giving false and misleading grand jury testimony;
35.
An alleged conspiracy to violate state civil
rights (against the Individual Defendants);
36.
A Fourteenth Amendment stand-alone claim
under section 1983 for fabrication of evidence;
37.
A claim for retaliation in violation of his
First Amendment rights and for false imprisonment (against the Individual
Defendants).
38.
A claim for violation of his Due Process
rights under the Fifth and Sixth Amendment due to the 7.5 years in delaying the
adjudication of the criminal charges against him for allegedly assaulting the
sheriff employees and hindering apprehension;
39.
A claim for violation of his Procedural Due
Process rights under the Fourteenth Amendment regarding the pre-deprivation
notices and hearings;
40.
A claim for uncompensated taking of his
homestead property in violation of the Fifth Amendment
41. VIOLATION OF THE NEW JERSEY
ANTITRUST ACT N.J.S.A.
§ 56:9-3 AND SECTIONS 1 AND 2 OF THE
SHERMAN ACT 15 U.S.C. § 1
AND §2
42.
A CLAIM UNDER CIVIL
RICO FOR VIOLATING 18 USC SECTION §1962 [(A) (B) (C) (D)] OF RICO
The Defendants, both
individually and jointly, constituted a RICO “enterprise” and that the
confiscation and forceful taking of Stephanatos’ residence and the permanent
damage of his two businesses and the destruction of his personal and business
property involved the “collection of unlawful debt,” in violation of 18
U.S.C. § 1962(c), and gave rise to a RICO conspiracy, in violation
of 18
U.S.C. § 1962(d).
43.
A CLAIM THAT
DEFENDANTS INTERFERED WITH PLAINTIFF’S PROCEDURAL DUE PROCESS, SUBSTANTIVE DUE
PROCESS AND EQUAL PROTECTION RIGHTS UNDER THE FEDERAL AND NEW JERSEY
CONSTITUTIONS;
44. VIOLATION OF THE NEW
JERSEY TAX SALE LAW EXCESSIVE FEE OR CHARGE IN THE REDEMPTION OF A TAX SALE CERTIFICATE N.J.S.A. § 54:5-63.1
The Defendants violated
the Tax Sale Law, N.J.S.A. 54:5-1 to-137 (“TSL”) or the TSL (enacted in 1910)
was unconstitutional in its application to Stephanatos
45. A CLAIM FOR VIOLATION OF N.J.S.A. 2A:39-1 – UNLAWFUL
ENTRY PROHIBITED
The
ATF Defendants and the Passaic County Sheriff and its deputies committed a
prohibited self-help after they used a void ab initio writ of possession to
enter Stephanatos’ residence, and forcefully evict Stephanatos damaging his
personal and business property;
46.
violations
of the Consumer Fraud Act (cfa) (N.J.S.A. 56:8-1, ET SEQ) – UNCONSCIONABLE
COMMERCIAL PRACTICES AND DECEPTION and false promises and/or misrepresentations
Plaintiff presented "cognizable" CFA and common
law fraud claims that presented an equitable bar to ATF Defendant’s foreclosure
complaint.
Allegations of fraud must be pled with specificity and a
litigant's failure to do so should result in dismissal of the complaint. State, Dep't of Treasury v. Qwest Commc'ns
Int'l, Inc., 387 N.J. Super. 469, 484 (App. Div. 2006); see R. 4:5-8(a)
(requiring any complaint alleging fraud set forth the "particulars of the
wrong, with dates and items if necessary, . . . insofar as practicable").
Alleged violations of the CFA must also be pled with the same level of
specificity. Hoffman v. Hampshire Labs,
Inc., 405 N.J. Super. 105, 112 (App. Div. 2009).
ATF Defendants engaged in "knowing concealment,
suppression and omission of material facts," and made a false
representation of fact and law which the Chancery Court AND THE Mercer County
Clerk relied upon.
No motion and notice was
provided to Stephanatos for substituting the foreclosing plaintiff ATF, LLC to
ATFH Real Property, LLC. As a result, ATFH
Real Property, LLC lacked the standing to apply for final judgment and to apply
for a writ of possession from the office of foreclosure. Furthermore, as the New Jersey Supreme Court
has ruled, in HOUSING
AUTHORITY OF CITY OF WILDWOOD v. Hayward, et al., 406 A.2d 1318, 81 N.J. 311 (1979).
Even if the judgment had been entered lawfully (we hold it was
not), the clerk had no *316 jurisdiction to issue the warrant of removal the
same day the judgment was entered. N.J.S.A. 2A:18-57 provides that in summary
dispossess proceedings "[n]o warrant of removal shall issue until the
expiration of 3 days after entry of judgment for possession."
47.
ALTER EGO/PIERCING THE CORPORATE VEIL OF ATF, LLC
48.
Pre- and POST FORECLOSURE FRAUD AND civil CONSPIRACY
49.
VIOLATION OF THE
FEDERAL FAIR DEBT COLLECTION PRACTICES ACT (FDCPA), 15 U.S.C. § 1692 ET
SEQ., THE NEW JERSEY FAIR CREDIT COLLECTION PRACTICES ACT (NJFCEUA), AS
AMENDED BY PUBLIC LAW 104-208, 110 STAT. 3009 (SEPT. 30, 1996)
The
plaintiff alleges that the defendants have not complied with their obligations
under these laws and that he was being charged excessive collection fees and
costs and interest and penalties by defendants in their attempt to collect an unlawful
tax bill. Specifically, the plaintiff alleges that the defendants violated the
FDCPA by charging "an amount (including any interest, fee, penalty, charge,
or expense incidental to the principal obligation)," that was not
expressly authorized by the debt agreement or permitted by law. See 15
U.S.C. § 1692f(1). Furthermore,
Plaintiff alleges that the Defendants failed to validate the alleged debt and
committed false and misleading representations, harassment and abuse. In
addition, the plaintiff claims that the defendants' letters did not inform the
recipient that they were from a debt collector as required by 15 U.S.C. §
16926(H), nor did the letters include validation notices pursuant to 15 U.S.C.
§ 1692(g). Sixth Circuit Holds State Law Violations May Constitute FDCPA Violations
under 1692f and 1692e(5)
Currier v.
First Resolution Investment Corp., 2014 WL 3882745 (6th Cir. Aug.
8, 2014).
50.
STATE
LAW CLAIMS (UNJUST ENRICHMENT, DEFAMATION, FALSE LIGHT, NEGLIGENCE, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS,
PAIN AND SUFFERING, LOSS OF CONSORTIUM, CONVERSION, TORTIOUS AND INTENTIONAL
INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE)
Tortious and Intentional Interference Counts allege that
Defendant ATF, LLC, ATFH, LLC, Robert Del Vecchio, Keith Bonchi committed
tortious interference with Plaintiff’s prospective economic advantage (Count 9)
and intentional interference with Plaintiff’s prospective economic advantage
(Count 10). The New Jersey Supreme Court has stated that the claims are used
“interchangeably” and contain the same elements. Printing Mart-Morristown v. Sharp
Elec. Corp., 116 N.J. 739, 744 (1989). Those elements are, that a plaintiff was
in “pursuit” of business. Second, the complaint must allege facts claiming that
the interference was done intentionally and with “malice.” Third, the complaint
must allege facts leading to the conclusion that the interference caused the
loss of the prospective gain. . . . Fourth, the complaint must allege that the
injury caused damage. Id. at 751-52. The Third Circuit has interpreted Printing
Mart-Morristown to include a fifth element. Under New Jersey law, the five
elements of a claim of tortious interference with a prospective business
relationship are: (1) a plaintiff's reasonable expectation of economic benefit
or advantage, (2) the defendant's knowledge of that expectancy, (3) the
defendant's wrongful, intentional interference with that expectancy, (4) in the
absence of interference, the reasonable probability that the plaintiff would
have received the anticipated economic benefit, and (5) damages resulting from
the defendant's interference.
Fineman
v. Armstrong World Industries, Inc., 980 F.2d 171, 186 (3d Cir. 1992) (emphasis
added) (citing Printing Mart-Morristown, 116 N.J. at 751-52 and Restatement
(2d) of Torts § 766B).
In opposing Plaintiff’s Motion to Reopen the case to
allow the filing of an Amended Complaint, the ATF Defendants make a series of
arguments that are not supported by the evidence, are irrelevant, and/or
include intentional misstatements or omissions of facts and state and federal law. There are significant new facts and legal
authority discovered by the Plaintiff that prevent the dismissal of his timely
filed complaint in 2012 and should persuade this Court to allow the Plaintiff
to file an amended complaint to include new claims against the Defendants. The ATF Defendants argue
that the fraudulently-obtained decisions from Judge Hochberg and the New Jersey
Chancery Court and the illegal ex-parte writ of possession from the Clark of
Mercer County office of foreclosure that had neither personal nor subject
matter jurisdiction, must stand, without refuting any of the new facts and
state law upon which Plaintiff bases his motion to reopen the case to allow the
filing of an amended complaint.
Moreover, the ATF Defendants do not have the facts to
support their argument. First, the ATF Defendants
fail to dispute Plaintiff’s uncontroverted facts with specific, admissible
evidence; all we have are the unverified statements of Defendants and their
Defendants’ lawyers. Second, in stark contrast, Plaintiff has amassed
overwhelming, uncontroverted evidence in support of his Motion, which should
now be granted.
The
amended claims are the result of new information discovered in
investigation...or disclosure of facts and controlling legal authority previously
hidden by nonmovants. Facts included in
the amended complaint were not known to the plaintiff when the original
complaint was filed; therefore this
trial court may properly grand leave to amend based on the newly discovered
facts and New Jersey case law
DEFENDANTS
FAILED TO MEET THEIR BURDEN
Defendants have failed to put forth any specific,
admissible, and significantly probative evidence that disputes Stephanatos’
Uncontroverted Facts.
Defendants’ “object” to the reopening of the case to
allow Plaintiff to file an amended complaint, yet they provide no evidence to
support their objection other than fraudulently-obtained (and void) judgment or
order.
Importantly, ATF Defendants’
Opposition fails to dispute the Plaintiff’s uncontroverted facts. Plaintiff has
established that there are no triable issues as to the following: (1)
Defendants violated New Jersey Tax Sale
Law, N.J.S.A. 54.5-63.1 that prohibits the charging and/or collection
of excessive or unlawful charges or fees in connection with the redemption or assignment
of a tax sale certificate. NJSA 54:5-63.1. According to state law, supra, “The person aggrieved shall have a right of
action to recover back the full amount paid by him to such tax lien holder, by
an action at law in any court of competent jurisdiction.” (2) that the ATF
Defendants have been engaging in a pattern or practice of misrepresenting that they
could obtain Plaintiff’s homestead property in fee simple and receiving a
massive windfall despite the facts that state law, legislative intent and NJ
Supreme Court decisions all require that no such real estate transfer is
permissible under the tax sale law ; (3) that the ATF
Defendants are jointly and severally liable as a common enterprise; (4) that each
individual Defendant participated in, had the authority to control, and had
knowledge of the deceptive activities, subjecting each of them to liability for
damages, injunctive and monetary relief.
Because none of these facts are disputed by Defendants’
Oppositions, as more fully discussed below, Plaintiff is entitled, after the
re-opening of the case, to summary judgment as a matter of law on several
counts of its Complaint, and it is entitled to the requested monetary relief
which exceeds $100 million dollars in damages, including punitive damages.
THE COURT CAN INFER A
PATTERN OR PRACTICE OF RACKETEERING AND DECEPTIVE BEHAVIOR
The overwhelming evidence amassed by the Plaintiff
establishes the uncontroverted facts necessary to find violations of Stephanatos’
Due Process rights guaranteed by the Fourteenth Amendment.
Uncontroverted facts show that the ATF Defendants
represented that the assessment of Stephanatos’ homestead was lawful and also
represented to Judge Hochberg that the issue of the illegal overassessment of
Stephanatos’ property had been adjudicated by the state court(s). This was an intentional fraud on the court,
requiring the dismissal of the ATF Defendants’ suit and setting aside the
fraudulently obtained judgment. The ATF
Defendants are very sophisticated and in fact worked together with the Harris
Nesbitt Corporation (n/k/a BMO Capital Markets Corporation) to assess
Stephanatos’ residence prior to bidding for the certificate. So, they knew or should have known at the
time they purchased the tax certificate that the assessment was invalid,
unlawful and discriminatory. Then, when
they failed to foreclose on the tax sale certificate five years after they
obtained it, they forfeited their $27,100 premium paid to Wayne Township in
2005. In addition to greed, the
forfeiture of the premium was one of the motives for the ATF Defendants’ fraud
on the court and intentional violation of Stephanatos’ due process rights.
Uncontroverted facts also show that the ATF Defendants
representatives fraudulently represented to the Clark of Mercer County office
of Foreclosure that Stephanatos had no possessory rights in his homestead
property protected by the state eviction laws.
The uncontroverted facts show that the ATF Defendants applied for a writ
of possession at the same day the final judgment of possession was issued on
May 13, 2011. State law mandates that
writs shall be issued 3 days after the entering of a judgment for
possession. N.J.S.A. 2A:18-57 provides that in summary
dispossess proceedings "[n]o warrant of removal shall issue until the
expiration of 3 days after entry of judgment for possession." Even more important, state law
mandates that a notice to quit and a notice for a hearing are required prior to
the issuance of a writ of possession.
The ATF Defendants have fraudulently represented that they complied with
the state-mandated procedures when they did not. A
Notice to Quit is still required before the eviction action may be filed and
the ATF Defendants failed to do that because in their greed and haste they
applied for a writ at the same day as the final judgment on May 13, 2011.
Uncontroverted facts show that these factual and legal representations
were intentionally false with the intent to coerce the court(s) and clerks of
the court to issue default judgments and ex-parte writs against Stephanatos.
These uncontroverted facts establish that ATF Defendants, engaged in a
widespread pattern of making material misrepresentations of facts and law in
violation of the New Jersey
ANTITRUST ACT N.J.S.A. § 56:9-3
and SECTIONS 1 AND 2 OF THE
SHERMAN ACT 15 U.S.C. § 1
AND §2.
DEFENDANTS
ARE JOINTLY AND SEVERALLY LIABLE
Defendants’
Oppositions claim that the Plaintiff’s Motion improperly refers to all ATF
Defendants collectively, and that Defendants Keith Bonchi and Robert Del
Vecchio are only an outside lawyer. However,
the Plaintiff’s Uncontroverted Facts establish that all Defendants meet the requisite
standards for joint and several liability, as discussed below.
A.
Uncontroverted Facts Establish that the ATF Defendants Are Jointly and Severally
Liable as a Common Enterprise
Defendants do not dispute the legal standards cited by
the Plaintiff for holding the ATF defendants jointly and severally liable as a
common enterprise. The ATF Defendants provide no evidence to dispute the uncontroverted
facts establishing that the ATF Defendants acted as a common enterprise.
B.
Uncontroverted Facts Establish that Each Individual Defendant Is Liable for Damages
and Monetary Relief
The ATF Defendants also do not dispute the legal
standards cited by the Plaintiff for holding individual defendants liable for damages
and monetary relief. The ATF Defendants
provide no evidence to dispute the uncontroverted facts establishing that
Defendants Bonchi, Marini, Del Vecchio and others participated in, had the authority
to control, and had sufficient knowledge of the deceptive and illegal
activities. ATF Defendants also provide no authority, or evidentiary support,
for their contention that they are not liable for the deceptive activities. On
the contrary, the uncontroverted facts establish that he participated in, had
the authority to control, and had sufficient knowledge of the deceptive and
illegal activities.
These deceptive and unlawful practices by these convicted
criminals have been criticized by the state of New Jersey and the Public
Advocate Division. See for example the
following excerpt from the “Toolkit for Tenants Living in Foreclosed
Properties”, published by the Department of the Public Advocate, Trenton,
NJ 08625, dated March 2010:
Courts and Sheriffs.
In addition to owners and those who
work for them, the courts and sheriff officers sometimes mistakenly target
protected tenants during the foreclosure process. The writs of execution and
final foreclosure judgments are drafted by the attorneys for the lenders. The
attorneys sometimes use language in court papers that cause problems because it
seems to cover tenants (for example, “and any and all persons occupying said
premises”). Other times attorneys specifically name tenants and certify (swear
to the court) that those tenants are not covered by the Anti-Eviction Act. This is especially problematic because
tenants often do not have the opportunity to demonstrate that they are in fact
legitimate tenants until after the removal has already been ordered by the
court and scheduled by the sheriff. If a court order specifically names a
tenant to be removed, the sheriff must evict that person. Sometimes, however,
sheriffs read the language in the order and believe that they must evict
everyone. Also, some notices that sheriffs create and post on property include
language, such as “occupants” instead of “owners,” that appears to include
tenants. The Attorney General
distributed a memo to sheriffs regarding the rights of tenants living in
foreclosed properties.
THE
NEW JERSEY SUPREME COURT HAS RULED THAT EX-PARTE JUDGMENTS OF POSSESSION ISSUED
WITHOUT A STATE STATUTE-REQUIRED DEMAND TO QUIT AND NOTICE OF AN EVICTION
HEARING ARE ILLEGAL AND VOID. EVEN IF THE JUDGMENT HAD BEEN ENTERED LAWFULLY (IT WAS
NOT), THE CLERK HAD NO JURISDICTION TO ISSUE THE WARRANT OF REMOVAL THE SAME
DAY THE JUDGMENT WAS ENTERED.
On June
15 the Housing Authority's counsel wrote to the court clerk, ex parte, and
enclosed an affidavit which stated that the tenants had failed and neglected to
comply with the terms of the settlement. He requested that a judgment for
possession be entered and a warrant of removal issued. On June 16, without
notice to the tenants, a judgment for possession was entered and that same day
a warrant of removal issued.
It is
clear that the judgment for possession entered on June 16 was invalid. The
court's order dated April 28 which memorialized the terms of the settlement did
not fix a time within which the back rent had to be paid. Obviously a
reasonable time was intended. However, the Housing Authority, although it
concluded that there had been a failure to comply with the terms of the
settlement, should not have applied ex parte for entry of a judgment for
possession on that ground, and the clerk should not have entered judgment
without giving the tenants an opportunity to be heard. R. 6:6-3(b). Even if the
judgment had been entered lawfully (we hold it was not), the clerk had no *316
jurisdiction to issue the warrant of removal the same day the judgment was
entered. N.J.S.A. 2A:18-57 provides that in summary dispossess proceedings
"[n]o warrant of removal shall issue until the expiration of 3 days after
entry of judgment for possession."
Since the June 16 judgment was illegal and void, the tenants'
motion to vacate that judgment and quash the warrant of removal, heard on
October 6, should have been granted on jurisdictional grounds. Mrs. Hayward's
appeal from that ruling was timely and should not have been dismissed by the
Appellate Division.
*317 Accordingly, we set aside the dismissal, reinstate the appeal
and, having considered the merits, reverse the October 6 ruling of the trial
court and direct that court to vacate the judgment for possession and warrant
of removal, and dismiss the complaint.
HOUSING
AUTHORITY OF CITY OF WILDWOOD v. Hayward, et al., 406
A.2d 1318, 81 N.J. 311 (1979)
Stephanatos had a superior equitable and possessory interest
in the property that could only be taken by providing a notice and a hearing as
is also mandated by state law, especially for residential properties. It is undisputed that Stephanatos had two
businesses in the premises providing income for him and his family. Yet these businesses were evicted without any
notice to quit or notice for an eviction hearing. See In re Atlantic Business &
Community Corporation 901 F.2d at 328 (3rd Cir. 1990) where the
Third Circuit stated that a tenancy at sufferance creates a property interest
that is protected by federal law and the U.S. Constitution. The
Court went on to say that willful violation of the procedural due process
entitles the plaintiff to recover actual damages including costs and attorneys'
fees, and, in appropriate circumstances, may recover punitive damages:
We join with the Court of Appeals for the Second Circuit
in holding that a possessory interest in real property is within the ambit of
the estate in bankruptcy under Section 541, and thus the protection of the
automatic stay of Section 362. See In re 48th St. Steakhouse, 61 B.R. 182, 187
(S.D.N.Y. 1986), aff'd, 835 F.2d 427 (2d Cir. 1987), cert. denied, 485 U.S.
1035, 108 S. Ct. 1596, 99 L. Ed. 2d 910 (1988). Accord In Re Turbowind, Inc.,
42 B.R. 579, 585 (Bankr.S.D. Cal. 1984); Matter of Marcott, 30 B.R. 633, 636
(Bankr.W.D. Wis. 1983).
Applying the above principles to the facts of this case,
we hold that a debtor's possession of a tenancy at sufferance creates a
property interest as defined under Section 541, and is protected by Section 362
of the Bankruptcy Code. The language of Section 362 makes clear that mere
possession of property at the time of filing is sufficient to invoke the
protections of the automatic stay. The record reveals that at the time of
filing the Chapter 11 petition the debtor was effectively in possession of the
radio station and transmitter with Cuffee's permission, and therefore had an
interest in property protected by section 362(a) (3). Cuffee took measures to
evict ABCD from the premises by locking its employees out. Because ABCD's
possession of property, even under a tenancy at sufferance, is an interest
protected by Section 362(a) (3), we agree with the district court that the
actions taken by Cuffee violated the automatic stay provisions of Section
362(a) (3) of the Bankruptcy Code.
Section
362(h) of the Bankruptcy Code provides that " [a]n individual injured by
any willful violation of a stay provided by this section shall recover actual
damages, including costs and attorneys' fees, and, in appropriate
circumstances, may recover punitive damages." 11 U.S.C. § 362(h) (1988)
(emphasis added).
Cuffee's actions
clearly satisfy our definition of willful. Notwithstanding Cuffee's claim that
he acted in good faith, there is ample evidence to support the conclusion that
he acted intentionally and with knowledge of the automatic stay as a result of
the pending bankruptcy proceedings. Cuffee took affirmative action to prevent
ABCD from gaining access to the studio property, causing a cessation in
operations and a loss of advertising revenue. Even after the bankruptcy court
entered an order restraining Cuffee from further interference with the
operations of the radio station, he continued efforts to take possession of the
radio station and transmitter. The finding of fact that Cuffee willfully
violated the automatic stay so as to warrant the imposition of punitive
damages, attorney's fees and costs was not clearly erroneous.
The order of the district court will be affirmed in all
respects. Costs taxed against appellant
Plaintiff has demonstrated that he had several cognizable
property interests under New Jersey law of which he could not have been
deprived without due process.
It is well-established that "[w]here former owners
of real property remain in possession after a foreclosure sale, they become tenants at sufferance. [Cits.]"
Bellamy v. Fed. Deposit Ins. Corp., 236 Ga. App. 747, 750 (1) (512 SE2d 671)
(1999). To be removed from their
property, a dispossessory action must be filed in Superior Court, Law Division,
Special Civil Part, after proper demand to the tenant-at-sufferance to vacate
the premises and a notice of eviction hearings.
The Defendants failed to give notice and decided instead to obtain an
ex-parte writ of possession from the Mercer Court without any hearing; the office of foreclosure has jurisdiction
only for uncontested cases (see letter from Judge Jacobson to Stephanatos
stating that she only had jurisdiction over uncontested case, while this one
was a contested case). This writ was
obtained in violation of state laws and as a result the Defendants violated the
procedural due process rights of Stephanatos.
At a minimum, Stephanatos was a tenant-at-sufferance in
accordance with New Jersey law. See the
definition of tenant in the New Jersey statutes: "Tenant" includes, but is not limited to, a lessee or tenant
at will or at sufferance or for any duration, or any subtenants, assigns, or
legal representatives of the lessee or tenant. Title 46A – Landlord and tenant
law. Article 5, eviction, chapter 14, eviction generally. 46A:14-1: Tenant, landlord, residential
rental premises; what is included.
These New Jersey statutes prescribe a very specific
procedure for removing a tenant at sufferance from the property he occupies:
2A:18-53. Removal of
tenant in certain cases; jurisdiction
Except for
residential lessees and tenants included in section 2 of this act, any lessee
or tenant at will or at sufferance, or for a part of a year, or for one or more
years, of any houses, buildings, lands or tenements, and the assigns, under
tenants or legal representatives of such tenant or lessee, may be removed from
such premises by the Superior Court, Law Division, Special Civil Part in an
action in the following cases:
a. Where such person
holds over and continues in possession of all or any part of the demised
premises after the expiration of his term, and after demand made and written
notice given by the landlord or his agent, for delivery of possession thereof.
The notice shall be served either personally upon the tenant or such person in
possession by giving him a copy thereof or by leaving a copy of the same at his
usual place of abode with a member of his family above the age of 14 years.
The statutes continue to enumerate cases where the
Defendants could have removed him from his residential property, none of which
was applicable here. Since Stephanatos
was a residential tenant at sufferance (a hold over tenant), even more
strict procedures prescribed by the legislature should have been followed, but
they were not: demand to vacate the premises, notice of a suit for ejectment,
court hearing, etc. Here are the New
Jersey statutes that mandate that no judgment of possession shall be entered
for residential premises:
2A:18-61.2 Removal of
residential tenants; required notice; contents; service.
No judgment of
possession shall be entered for any premises covered by section 2 of this act,
except in the nonpayment of rent under subsection a. or f. of section 2, unless
the landlord has made written demand and given written notice for delivery of
possession of the premises. The following notice shall be required:
DEVIATION FROM
SERVICE OF PROCESS RULES' TYPICALLY MAKES A JUDGMENT OR ORDER VOID.
The requirements
of the Rules with respect to service of process go to the jurisdiction of the
court and must be strictly complied with." Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200, 204, 581
A.2d 1344 (App. Div. 1990) (quoting
Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 493, 86 A.2d 201
(1952)). "'[S]ubstantial deviation from service of process rules'
typically makes a judgment void." M & D Associates v. Mandara, 366
N.J. Super. 341, 353, 841 A.2d 441 (App. Div. 2004) (quoting Jameson v. Great
Atl. and Pac. Tea Co., 363 N.J. Super. 419, 425, 833 A.2d 626 (App. Div.
2003)).
No such clearly prescribed procedure was followed by the
Defendants, although they knew that state law prevents the issuance of a
judgment of possession for residential premises unless there is a demand first
and notice for delivery of the premises;
these omissions were intentional and deliberate and were made through
the fraud-on-the-court committed by the lawyer for the ATF Defendants, Robert
Del Vecchio, Esq. He made the fraudulent
self-certification to the Office of Foreclosure in Mercer County that
Stephanatos was not protected by the anti-eviction act where he intentionally
concealed the fact that Stephanatos was, at a minimum, a
tenant-at-sufferance. That tenancy could
only have been extinguished through the New Jersey’s statutory due process that
has been detailed above. Del Vecchio
intentionally failed to disclose to the Clerk that this is a residential
property and no judgment of possession shall be issued without prior demand and
notice of a hearing. Equally important,
state case law prevents an LLC (here, ATFH Real Property, LLC) to take
possession of residential properties.
See the Plaintiff’s brief to the New Jersey Supreme Court detailing the
relevant case law. Thus, the Defendants intentionally violated
Stephanatos’ due process rights guaranteed by the Fourteenth Amendment.
FRAUD ON THE COURT REQUIRES SETTING ASIDE THE 2012
DISMISSAL OF THE SUIT
Plaintiff
has alleged fraud on the court as an additional basis for reopening the case
and allowing Stephanatos to amend his timely filed 2012 Section 1983
complaint. The legal authority for this
request is also provided by the recent case In
re: Bressman, No. 16-3244 (3d Cir. 2017) where the federal courts dismissed
a final judgment with prejudice several years after the fraud on the court was
discovered. Here is what the Third
Circuit wrote regarding the intentional omission of a settlement agreement by a
plaintiff’s lawyer:
We
next address whether Folkenflik's [the plaintiff’s lawyer] failure to disclose
the Settlement Agreement rises to the level of intentional fraud. As officers
of the court, attorneys are required “to conduct themselves in a manner
compatible with the role of courts in the administration of justice.” This
responsibility is sometimes—albeit rarely—disregarded. When, however, counsel
has failed to act with candor, preservation of the integrity of the judicial
process may require courts to depart from their usual adherence to the
principle that final judgments should be left undisturbed. We confront one such situation here.
A
court may set aside a judgment based upon its finding of fraud on the court
when an officer of the court has engaged in “egregious misconduct.” We
have said that such a finding “ ‘must be supported by clear, unequivocal and
convincing evidence’ ” of “(1) an intentional fraud; (2) by an
officer of the court; (3) which is directed at the court itself․ ”In addition, fraud on the court may
be found only where the misconduct at issue has successfully deceived the
court. Folkenflik contests
the Bankruptcy Court's findings on two grounds: First, he claims that any fraud
was not intentional, and second, he argues that the alleged deceit
does not constitute the kind of egregious misconduct that the fraud on the
court doctrine aims to address. Both contentions are belied by the properly
found facts.
The Defendants’ lawyers
were required to disclose to the court opinions and decisions that constitute
legal authority. they were also required
to not make intentional false statements of material fact
RPC 3.3 addresses an attorney
s requirement of candor toward a tribunal. RPC 3.3(a)(3) requires a lawyer to
disclose court opinions and decisions that constitute legal authority in the
controlling jurisdiction, even if that authority is directly contrary to the
interest of the client being represented by the attorney.
RPC 3.3 Candor Toward
the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false
statement of material fact or law to a tribunal;
(2) fail to disclose a
material fact to a tribunal
when disclosure is necessary to avoid assisting an
illegal, criminal or fraudulent
act by the client;
(3) fail to disclose to
the tribunal
legal authority in the controlling jurisdiction known
to the lawyer to be directly adverse to the position of the client and not
disclosed by opposing counsel;
(4) offer evidence that
the lawyer knows
to be false. If a lawyer has offered material evidence and comes to know of its
falsity, the lawyer shall take reasonable
remedial measures; or
(5) fail to disclose to
the tribunal
a material fact knowing
that the omission is reasonably
certain to mislead the tribunal, except that it shall not be a breach of this
rule if the disclosure is protected by a recognized privilege or is otherwise
prohibited by law.
(b) The duties stated in
paragraph (a) continue to the conclusion of the proceeding, and apply even if
compliance requires disclosure of information otherwise protected by RPC
1.6.
(c) A lawyer may refuse
to offer evidence that the lawyer reasonably
believes is false.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all relevant facts known to the lawyer that
should be disclosed to permit the tribunal to make an informed decision,
whether or not the facts are adverse.
In IN RE: Jack L. SEELIG, An Attorney at Law (2004) the New Jersey
Supreme Court stated that
“The
New Jersey Rules place the public interest before the interests of both clients
and lawyers․
[In this way, the] New Jersey Supreme Court has given a different
interpretation to the idea that in an adversarial system of justice, a lawyer's
duty of loyalty to his client is the same as his duty to the legal system.
Although traditional adversarial ethics (reflected in former rules) provide a
legal and, perhaps, a moral justification to ignore the public interest when
pursuing the interests of a client, the New Jersey Rules clearly do not.”
“[Michael
P. Ambrosio, The “New” New Jersey Rules of Professional Conduct: Reordered
Priorities for Public Accountability, 11 Seton Hall Legis. J. 121, 130
(1987).]”
In
other words, the New Jersey Rules shift the focus, in certain circumstances,
from the client's interest to the legal system and the public interest. Rule
of Professional Conduct 3.3(a)(5) is a paradigm for that shift. Id. at 138.
Thus,
although RPC 3.3(a)(5) is not a new rule of law, it does represent an
alteration of the balance in respect of lawyers' responsibilities. Both the
ABA Model Rules and the New Jersey Rules dismiss misrepresentation as a
permissible litigation tactic, even when carried out in the name of zealous
representation. ABA Model Rule 3.3(a)(1) prohibits a lawyer from making
“false statements of fact or law to a tribunal,” as does our rule. Moreover,
the comments to the ABA Model Rule expressly state that “[t]here are
circumstances where failure to make a disclosure is the equivalent of an
affirmative misrepresentation.” Model Rules of Prof'l Conduct R. 3.3 cmt. 3
(2003). Our RPC 3.3(a)(5) codifies the ABA comment, thereby establishing a
“more stringent requirement of disclosure than the standard set forth by the
Model Rules,” In re Forrest, 158 N.J. 428, 434, 730 A.2d 340 (1999), with the
result that attorneys in New Jersey have been found to violate RPC 3.3(a)(5)
when a failure to disclose material information misleads the court. See,
e.g., Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 464-66, 713
A.2d 411 (1998) (Pollock, J., concurring) (stating that defense counsel in tort
action violated RPC 3.3(a)(5) by failing to reveal that his client filed for
bankruptcy); In re Norton, 128 N.J. 520, 537-41, 608 A.2d 328 (1992)
(disciplining both defense attorney and prosecutor in drunk driving action for
not disclosing that charges were dropped without good cause); In re Whitmore,
117 N.J. 472, 475-80, 569 A.2d 252 (1990) (finding municipal prosecutor in
violation of RPC 3.3(a)(5) when he failed to inform court that police officer
was intentionally unavailable due to “corrupt agreement” and court dismissed
drunk driving charge). See also Marvin E. Frankel, The Search for Truth: An
Umpireal View, 123 U. Pa. L.Rev. 1031, 1057 (1975) (suggesting that our legal
system undervalues truth and recommending modification of ethics rules to
“compel disclosures of material facts and forbid material omissions rather than
merely [to] proscribe positive frauds.”).
Here, there have been a
multitude of intentionally fraudulent certifications (fraudulent statements of
both material fact and the law) made by ATF, LLC and ATFH Real Property, LLC
lawyer(s) to the courts, fabrication of “facts” and omission of exculpatory
evidence by Walter Dewey, Peter Roby and Stephen Bollenbach. These fraudulent certifications of fake
“facts” and failures to disclose the controlling law were made with the intend
of misleading the courts and have successfully deceived the courts and the
Clerk of the court and coerced them into issuing judgments and ex-parte writs
against Stephanatos or dismissing his 2012 Section 1983 claims without any
discovery or hearing or trial.
From 1995 to 2011, Defendant
Dorothy Kreitz, the Wayne Township Assessor, has been fraudulently and or
negligently certifying on a yearly basis that Stephanatos’ property had been
assessed with the uniformity
and equality required by law. However,
since Kreitz knew as early as 1994 that Stephanatos had bought the property for
$240,000 while she had assessed it for $475,000, the action taken by Defendant
Kreitz was not in compliance with any statute or statutory method that requires
assessment at the true value, but rather in direct violation thereof, and the
increase of Plaintiff’s assessment was intentional and violative of the
principle of practical uniformity in assessment, and was discriminatory,
arbitrary and capricious.
The
1947 Constitution, Article VIII, Section I, paragraph 1,
provides that property shall be "assessed for taxation under general laws
and by uniform rules," and "All real property assessed and taxed
locally or by the State for allotment and payment to taxing districts shall be
assessed according to the same standard of value." The cited enforcement
statutes remain unaltered in terms. Yet the dominant principle of the constitutional
mandate is equality of treatment and burden. And this was of the essence and
spirit of the 1844 State Constitution as well.
Vacating the discriminatory
assessments, the New Jersey Supreme Court stated:
“And were the constitutional provision of a radically
different tenor and import, the equal protection clause of the Fourteenth
Amendment would prevail, for the right of equal treatment thereby secured
"protects the individual from state action which selects him out for
discriminatory treatment by subjecting him to taxes not imposed on others of
the same class"; he may not complain "if equality is achieved by
increasing the same taxes of other members of *341 the class to the level of
his own"; the constitutional requirement "is not satisfied if a State
does not itself remove the discrimination, but imposes on him against whom the
discrimination has been directed the burden of seeking an upward revision of
the taxes of other members of the class." Baldwin Const. Co. v. ESSEX COUNTY BD. OF TAXATION AND CITY OF EAST
ORANGE, 108 A.2d 598 (N.J. 1954) (citing Hillsborough Township v. Cromwell,
326 U.S. 620, 66 S.Ct. 445, 90 L.Ed. 358 (1946)).
The New Jersey Court In
Village of Ridgefield Park et al., v. Bergen County Board of Taxation et al., 62 N.J.Super. 133, 162 A.2d 132 said
that any assessment levied in violation of the constitutional mandate of
uniformity is absolutely void Ab initio. Thus, the taxes were void, as a matter
of New Jersey law. Therefore, all
subsequent acts of the municipal, antitrust and county personnel were illegal,
as a matter of law.
Dorothy Kreitz sent an email to concerned citizens where
she stated the following:
·
we
have not done a full revaluation since 1992.
·
it
is the responsibility of the homeowner each year to review his/her assessment
to determine if it is correct.
The constitutional requirement of
equal protection "is not satisfied if a State does not itself remove the
discrimination, but imposes on him against whom the discrimination has been
directed the burden
Starting at the local level,
N.J.S.A. 54:4-1 provides that "All property * * * shall be subject
to taxation * * * at its true value, and shall be valued by the
assessors of the respective taxing districts. * * *" N.J.S.A.
54:4-23 defines the true value of real estate; it requires the assessor to
"determine the full and fair value of each parcel of real property
situated in the taxing district at such price as, in his judgment, it would
sell for at a fair and bona fide sale by private contract on October
first next preceding the date on which the assessor shall complete his
assessments." By N.J.S.A. 54:4-36 each assessor is required to
annex to his assessment list an affidavit stating among other things:
"I, * * * do swear (or affirm) that the foregoing
list contains the valuations made by me to the best of my ability, of all the
property liable to taxation in the taxing district in which I am the assessor,
and that I have valued it, without favor or partiality, at its full and fair value, at such price as in my judgment it
would sell for at a fair and bona fide
sale by private contract on October first last, * * *."
The case law states that realty tax assessors like Dorothy Kreitz
has the statutory duty to assess local real properties at true value and that
duty is mandatory and specific, and not “discretionary” within principle that
mandamus will not issue to require performance of discretionary act. Switz v. Middletown Tp., 40 N.J.Super.
217, 122 A.2d 649 (A.D.1956), certification granted 22 N.J. 222, 125 A.2d 234,
modified on other grounds 23 N.J. 580, 130 A.2d 15.
In performance of their function, realty tax assessors are
required to determine the full and fair value of each piece of property based
upon what it would sell for at a fair and bona fide sale. Frater Corp. v. State Division of Tax
Appeals, 80 N.J.Super. 427, 194 A.2d 11 (A.D.1963). In placing a valuation on real estate for
assessment purposes, true value is still recognized as the foundation. City of Passaic v. Gera Mills, 55
N.J.Super. 73, 150 A.2d 67 (A.D.1959), certification denied 30
N.J. 153, 152 A.2d 171. In determining proper valuation of land for
tax purposes, ultimate fact sought is that which the statute describes as a
full and fair value based on what the property would sell for at a fair and
bona fide sale by private contract. City
of Passaic v. Gera Mills, 55 N.J.Super. 73, 150 A.2d 67 (A.D.1959),
certification denied 30 N.J. 153, 152 A.2d 171. Based on the statements made by Kreitz, she
believes that it is the homeowner’s burden to determine the correctness of the
assessment and not her responsibility.
Nevertheless, the Plaintiff did send to Kreitz several letter indicating
that the assessment is incorrect, to no avail.
The assessor refused or failed to correct the discriminatory
assessment. As Plaintiff presented
above, the constitutional requirement "is not satisfied if a
State does not itself remove the discrimination, but imposes on him against
whom the discrimination has been directed the burden of seeking an upward
revision of the taxes of other members of the class." Baldwin Const. Co. v. ESSEX COUNTY BD. OF
TAXATION AND CITY OF EAST ORANGE, 108 A.2d 598 (N.J. 1954).
Same as the Kreitz statement above, the lawyers for the
Defendants (Christine Vanek, Keith Bonchi, Robert Del Vecchio) have been
representing to the Chancery Court(s) and to Judge Hochberg that it was the
responsibility of the Plaintiff to make sure his homestead assessment was
correct. Their statements to the courts
are plainly wrong as is evidenced by the above-referenced statutes and the
decisions of the New Jersey Supreme Court.
Even worse, the lawyers for the Defendants certified (i.e., provided
sworn statements) to the state judges and to Judge Hochberg that the issue of
overassessment of Plaintiff’s property had been already adjudicated without
providing any factual evidence to the courts.
This way, they prevented Plaintiff from properly adjudicating his claims
of discriminatory assessment and managed to coerce the Chancery Judge in not
trying the issues. To that effect, the
Chancery Court never determined the facts and never issued an application of
the law to the facts in violation of NJ
Court Rule 1:7-4(a).
Furthermore, Court Rule R. 4:64-6 states that in
foreclosure of tax sale certificates, if the defendant's answer sets up the
defense of the invalidity of the tax or other lien, or the invalidity of the
proceedings to sell, or the invalidity of the sale, those questions shall be
tried in the action. However, here there is neither fact finding nor a trial on
any of the issues raised by Dr. Stephanatos. This is yet another procedural due process
violation.
Plaintiff asserts that the
lawyers for the Defendants (Christine Vanek, Keith Bonchi, Robert Del Vecchio)
knowingly made false statements of material fact and law to the courts in an
attempt to interfere with Plaintiff’s civil rights. They knew that assessments made in violation
of the Uniformity Clause provision are void ab initio. The New Jersey Court In Village of
Ridgefield Park et al., v. Bergen County Board of Taxation et al., 62 N.J.Super. 133, 162 A.2d 132 said
that any assessment levied in violation of the constitutional mandate of
uniformity is absolutely void Ab initio. Thus, the taxes were void, as a matter
of New Jersey law. Therefore, all
subsequent acts of the municipal, antitrust (the ATF Defendants) and Passaic County
personnel were illegal, as a matter of law.
This constitutes fraud on the court and denial of
Plaintiff’s right of access to the courts as is guaranteed by the Constitution
of the United States.
Following the false
statements of material fact and law made by Christine Vanek, circa late 2010,
Defendant Robert Del Vecchio, Esq. (an officer of the court) filed a
certification with the Chancery Court stating that “all issues have been
adjudicated” and that “no legal or factual issues remain”. This fraudulent certification, that Del
Vecchio knew that it was not true as the illegal overassessment of Stephanatos’
property had not been adjudicated, was the basis of his motion to strike
Stephanatos’ answer to the foreclosure complaint. Defendant Del Vecchio also told Chancery
Judge Margaret McVeigh that Stephanatos had not paid taxes since 1993 (another
fraudulent statement to the court) and that Stephanatos had threatened him with
physical violence (the rhinoceros horn statement, that has been proven to be
fraudulent and fabricated by the Defendants as a pretext to remove Stephanatos
from his home and place of business).
Defendant Robert Del Vecchio also intentionally omitted important
controlling case law that requires that the Chancery Court scrutinizes the
equity that a homeowner has in his home to avoid a windfall to the tax lien
purchasers. Similar or identical certifications were made to the state courts
by Defendant Keith Bonchi, i.e., he has been certifying that the overassessment
issue had been adjudicated and that state law allows the confiscation of
Stephanatos’ property. The Chancery
Judge was deceived and coerced by these certified statements of Defendant Del
Vecchio and Defendant Bonchi.
STATE
LAW PROHIBITS THE CHARGING AND/OR COLLECTION OF EXCESSIVE OR UNLAWFUL CHARGES
OR FEES
State statutory and case law
prohibits the charging and/or collection of excessive or unlawful charges or
fees in connection with the redemption or assignment of a tax sale certificate.
NJSA 54:5-63.1. According to state law, supra, “The person aggrieved shall have a right of
action to recover back the full amount paid by him to such tax lien holder, by
an action at law in any court of competent jurisdiction.” See In
re Princeton Office Park, L.P., No. 15-1514, 2016 WL 2587974
(3d Cir. May 5, 2016).
DUE TO THE UNCONSTITUTIONAL OVERASSESSMENT OF
DR. STEPHANATOS’ REAL ESTATE PROPERTY, ATF, LLC WAS NOT ENTITLED AN EIGHTEEN
PERCENT INTEREST RATE. Tontodonati v. City of Paterson, cert.
denied. 1989.
Plaintiff wants to emphasize
that he is relying on the authority of Tontodonati v. City of Paterson,
229 N.J.Super. 475, 551 A.2d 1046 (App.Div. 1989), cert. denied. If a tax sale certificate is set aside as
void ab initio, as it was here, it is very likely because the taxing
municipality made some type of clerical error or an error in interpreting the
tax laws. When such an error occurs, one frequently finds that no taxes
were ever due and owing on the property in question. If this is the case, then
neither Wayne Township nor ATF, LLC/ATFH Real Property, LLC would be entitled
to collect 18% interest and 6-7 percent in penalties per annum. By doing so, the Defendants not only did they
unconstitutionally overassessed Stephanatos’ residence by 40 percent or more,
by they then charged Stephanatos with an additional 24-25 percent in interest
and penalties and sued Stephanatos to collect these unlawful or excessive
amounts.
The
Court in BRINKLEY v. WESTERN WORLD, INC. 281 N.J. Super. 124 (1995), 656 A.2d 872,
said the following:
It is this
court's determination that plaintiff is not entitled to eighteen percent
interest. See Tontodonati
v. City of Paterson, 229 N.J.Super. 475,
551 A.2d 1046 (App.Div. 1989). The Tontodonati
case specifically denied that assertion. Plaintiff suggests that the Appellate
Division's reasoning in Tontodonati
is somehow flawed. However, until such time as it is overruled by the Supreme
Court, the case is binding precedent on this court. In any event, the court
disagrees with and rejects plaintiff's argument that the Tontodonati decision is
misguided. If a tax sale certificate is
set aside as void ab initio, as
it was here, it is very likely because the taxing municipality made some type
of clerical error or an error in interpreting the tax laws. When such an error occurs, one frequently
finds that no taxes were ever due and owing on the property in question, and
that the municipality had no attendant authority to sell a tax sale certificate
thereon. If there were never any
delinquent taxes on the property, then neither the municipality nor the
purchaser of the certificate would be entitled to collect eighteen percent
interest. Thus, it would be counter-intuitive to award the purchaser eighteen
percent on the refund. BRINKLEY v. WESTERN WORLD, INC. 281
N.J. Super. 124 (1995), 656 A.2d 872.
Because the assessment was
constitutionally invalid, no taxes were ever due. And most certainly neither Wayne Township nor
ATF/ATFH would be entitled to collect 18% interest and 6-7 percent in penalties
per annum on top of these unconstitutional taxes. State statutory and case law prohibits the
charging and/or collection of excessive or unlawful charges or fees in connection
with the redemption or assignment of a tax sale certificate. NJSA 54:5-63.1.
Yet Stephanatos has been
paying the unlawful taxes in full from 1994 until 2004 and paying between 60
and 40 percent afterwards while communicating with Wayne Township his
grievances with the excessive and illegal taxes and filing refund suits. Thus, the statements of the Defendants that
Stephanatos was refusing to pay taxes were plainly wrong and they were intended
in portraying Stephanatos as a tax protestor to the judges and the media. Stephanatos only was not paying the
discriminatory taxes that were in excess of the constitutional guarantee of
uniformity in treatment and equal protection and due process. The Defendants not only did they collect the
unlawful taxes of about $20K and the unlawful or excessive charges of $30K, but
they also received an additional $340K- $50K = $190K in profit from the sale of
Stephanatos’ residence, which is a massive windfall for the ATF
Defendants. The Defendants have been
refusing to return this $190K in profit upon demand by the Plaintiff. Plaintiff submits that the actions of the
Defendants constituted an uncompensated taking in violation of the Takings
Clause of the Federal and State Constitution.
Such massive windfall for the Defendants is also prohibited by the
legislative intend and by the court decisions interpreting such legislative
intend. Thus, Plaintiff’s claims that
the lawyers for the Defendants (Christine Vanek, Keith Bonchi, Robert Del
Vecchio) intentionally and knowingly made false statements of fact and law to
the courts are valid. Bonchi and Del
Vecchio have been working for many years with the tax lien industry and know
the controlling law (both statutory and case law) in New Jersey. They also knew that Stephanatos’ residence
was over-assessed. Yet they outright
lied to the Chancery Court and signed false and/or fraudulent certifications as
stated herein.
IN
ACCORDANCE WITH DUE PROCESS MANDATED BY STATE STATUTES, TO TERMINATE THE
TENANCY-AT-SUFFERANCE OR HOLD-OVER TENANCY THERE MUST BE PROOF OF DEMAND TO
QUIT, FOLLOWED BY NOTICE OF AN EVICTION HEARING. NO SUCH REQUIRED NOTICES WERE EVER PROVIDED
IN VIOLATION OF STEPHANATOS’ DUE PROCESS RIGHTS AS MANDATED BY STATE LAW
According to New Jersey Statutory
Law, even if we assume that the judgment for foreclosure was not void as a
matter of law, Stephanatos became a holdover tenant (a tenant at sufferance) on
May 13, 2011, the date of the final foreclosure judgment. Because Stephanatos also fully owned his home
valued at $475K by Wayne Township, and because the alleged tax debt was less
than $20K (not including the excessive charges of 18% interest and 6-7 percent
penalty per annum placed on the illegal overassessment), he also had a
significant equitable interest that could only be extinguished by due process
of law.
State law requires that
prior to the issuance of a judgment for possession, the owner must provide
proof of notice to quit, followed by an eviction proceeding before a judge who
has jurisdiction over the property and the person. Here are the state statutes:
2A:18-56. Proof of notice to quit prerequisite to judgment
No judgment for possession in cases specified in paragraph
"a." of section 2A:18-53 of this Title
shall be ordered unless:
- The
tenancy, if a tenancy at will or from year to year, has been terminated by
the giving of 3 months' notice to quit, which notice shall be deemed to be
sufficient; or
- The
tenancy, if a tenancy from month to month, has been terminated by the
giving of 1 month's notice to quit, which notice shall be deemed to be
sufficient; or
- The
tenancy, if for a term other than at will, from year to year, or from
month to month, has been terminated by the giving of one term's notice to
quit, which notice shall be deemed to be sufficient; and
- It
shall be shown to the satisfaction of the court by due proof that the
notice herein required has been given.
Counselor's Note: Unlike residential
tenants, who are mostly protected by the Anti-Eviction Act, commercial tenants
may be evicted at the end of their lease terms. However, a Notice to Quit is
still required before the eviction action may be filed.
Here, no notice to quit and
no eviction hearing ever took place. What
the conspirator Robert Del Vecchio did was to include language in the judgment
for foreclosure order that also included a judgment for possession, without any
notice for such possession hearing ever provided to Stephanatos, as is required
by state law: 2A:18-56. Proof of notice to quit
prerequisite to judgment.
Thus, this intentional violation of state law represents a violation of
Stephanatos’ procedural due process rights for both the judgment for possession
and the writ of possession.
Furthermore, the legislative
policy in New Jersey is to avoid a windfall for the holders of tax sale
certificates:
See M&D Assocs. v. Mandara, 366
N.J. Super. 341 (App. Div.) certif. denied, 180 N.J. 151 (2004) for its rationale that chancery courts
"in such foreclosure cases should be alerted . . . that a significant
windfall might result if adequate scrutiny . . . is not
undertaken[,]" See also the
following New Jersey Supreme Court decision:
“We are of the view that particularly
in situations like the one involved in this case, where there is substituted
service, as well as a tremendous disparity between the amount due on the tax
certificates and the value of the property subject to foreclosure (here
approximately $4,500 versus potentially $100,000 to $200,000 for the property),
careful scrutiny of the affidavit of inquiry requires the Chancery Judge to
demand more than cursory inquiries or recitals not only as a matter of due
process, but also of fundamental fairness. See Bron v. Weintraub, supra (42
N.J. at 93-96). The Chancery Judge in such foreclosure cases should be alerted
when the face of the documentation indicates that a significant windfall might
result if adequate scrutiny of the affidavit of inquiry is not undertaken.
In view of our decision, the operation
of the tax sale law requires that the entire judgment must be vacated as void
based upon equitable considerations.
United
States v. Scurry, 193 N.J. 492, 502 (2008)
These decisions by the appellate
division and the Supreme Court represent the controlling law in the State of
New Jersey:
Here is the constitutional provision
that prohibits private takings without just compensation is provided first;
these constitutional provisions also imply that private takings for private
purpose are strictly prohibited by both the federal and state constitutions:
Plaintiff provides the
following two precedential New Jersey cases where the courts have ruled that an act of the legislature
cannot confer any right upon an individual to deprive persons of the ordinary
enjoyment of their property without just compensation.
Here are the two seminal cases:
An act of the legislature cannot confer any
right upon an individual to deprive persons of the ordinary enjoyment of their
property without just compensation. Oechsle v. Ruhl, 140 N.J.
Eq. 355, 54 A.2d 462 (Ch.1947). Constitutional
Law.
An act of the legislature cannot confer upon
individuals or private corporations, acting primarily for their own profit,
although for public benefit as well, any right to deprive persons of the
ordinary enjoyment of their property, except upon condition that just
compensation be first made to the owners. Pennsylvania R. Co. v.
Angel, 41 N.J. Eq. 316, 7 A. 432, 56 Am.Rep. 1 (1886).
Therefore, the arguments of
the Defendants that the Tax Sale Law conferred upon them the right to deprive
Stephanatos’ of his residential property without just compensation be first
made to the Plaintiff is simply absurd, reckless and provide further proof of
the conspiracy that these Defendants and their lawyers (Christine Vanek, Keith
Bonchi, Robert Del Vecchio) formed to confiscate Stephanatos’ residential
property and damage his business.
The lawyers for the
Defendants mislead the judges by failing to disclose the above state law
(legislative intent and Supreme Court decisions) and by “certifying” (i.e.
swearing under oath) to the court that “all issues have been adjudicated” and
they claimed to Judge McVeigh and to Judge Hochberg that they were entitled to
ownership of Stephanatos’ property so that they can receive a massive windfall. This lack of cantor to the tribunal is
evidence of fraud on the court, thus coercing the judges into issuing favorable
decisions for the Defendants. Defendant
Robert Del Vecchio intentionally failed to follow the statutorily-required
procedures for obtaining a judgment for possession and a warrant for removal
(demand to quit, notice of an eviction lawsuit, etc.) and instead applied at
the same time as the wrongly-entered final judgment (May 13, 2011) for an
ex-parte writ of possession simply providing his self-certification to the
Clark of Mercer County that Stephanatos had no possessory rights.
These actions of Defendant
Del Vecchio constitute self-help that is prohibited in New Jersey. To forcefully and illegally remove
Stephanatos from his residence, Defendant Del Vecchio then lied to the Passaic
County Sheriff and told them that Stephanatos had threatened him with violence
few days prior to the “eviction”. These
are the same lies that Defendant Del Vecchio told Judge McVeigh to prejudice
her against Stephanatos and to coerce the judge to strike Stephanatos’ answer
to the foreclosure complaint. All these
fraudulent statements by Defendant Del Vecchio (an officer of the court)
constitute fraud on the court. As a result
the judgment obtained by Del Vecchio was void and this Court should set aside
the order by Judge Hochberg and order the reopening of the case and allow the
Plaintiff to file an amended complaint.
The ATF Defendants willfully
and corruptly intended to enter into a criminal and fraudulent transaction
through the anti-trust conspiracy. Its existence against the Plaintiff and
thousands of New Jersey homeowners was determined and confirmed by the federal
judge Michael A. Shipp in the federal antitrust case IN RE NEW JERSEY TAX SALES
CERTIFICATES ANTITRUST LITIGATION, Master Docket No. 3:12-CV-01893-MAS-TJB (see http://www.njtaxliensettlements.com/
Based on our work with the federal and state suits
against the conspirators, we knew that these criminals were in fact writing the
judgments and the orders or were self-certifying to the judge or to the clerk
that there are no issues remaining or that the property owner had no possessory
rights.
STATEMENT
OF FACTS REGARDING THE WRONGFUL REMOVAL OF METROPOLITAN ENVIRONMENTAL SERVICES,
PC AND METROPOLITAN ENVIRONMENTAL SERVICES FROM DR. STEPHANATOS’ PROPERTY
Below, Dr. Stephanatos will
provide to the Court his proofs regarding the intentional violation of New
Jersey’s Anti-Eviction Law (N.J.S.A.
2A:18-61.1 et seq.) by the defendants for removing Dr. Stephanatos’
business (Metropolitan Environmental Services, PC and Metropolitan
Environmental Services) from the premises.
First, it is extremely important to report to this Court
that the summary judgment issued on May 13, 2011 by the Mercer County Judge
Mary C. Jacobson, included the following clause:
“This
judgment shall not affect the rights of any person protected by the New Jersey
Tenant Anti-Eviction Act (N.J.S.A. 2A:18-61.1 et seq.)”. See
Exhibit A.
Dr. Stephanatos wants to inform the Court that New Jersey
Law (N.J.S.A. 2A:39-1) cited by Judge
Jacobson, prohibits the
unlawful entry in any real property occupied
solely as a residence by the party in possession, unless the entry and
detention is made pursuant to legal process as set out in N.J.S.A. 2A:18-53 et seq., as amended and supplemented, including
in accordance with a host of other laws. The above law specifically applies to the
Plaintiff, because Plaintiff was in possession of this home continuously since
1995 and it was being used as his residence.
In other words, Plaintiff’s rights were protected by the New Jersey Tenant Anti-Eviction Act
(N.J.S.A. 2A:18-61.1 et seq.) and
Judge Jacobson specifically ordered the defendants that they shall not violate
Plaintiff’s Anti-Eviction Act rights.
However, the defendants willfully violated Plaintiff’s legal rights
protected by the Anti-Eviction Act.
I also bring to the Court’s
attention of NJ Rev Stat § 2C:33-11.1 (2013)
- Certain actions relevant to evictions, disorderly persons offense that
deal specifically with residential real properties. That statute also states that a Warrant is
required for residential properties. The
Passaic County Sheriff committed a criminal offense in violation of that
statute by entering Defendant’s property without a warrant for removal and
removing him from his residential premises.
A person commits a disorderly persons offense if, after
being warned by a law enforcement or other public official of the illegality of
that action, the person (1) takes possession of residential real property or
effectuates a forcible entry or detainer of residential real property without
lawful execution of a warrant for possession in accordance with the provisions
of section 2 of P.L.1974, c.47 (C.2A:42-10.16) or without the consent of the
occupant solely in possession of the residential real property. NJ Rev
Stat § 2C:33-11.1
Therefore, Dr. Stephanatos’ possessory interest in his
home could not have been violated by the defendants without the very specific
legal process of N.J.S.A. 2A:18-53 et
seq.
Specifically, section N.J.S.A.
2A:18-53- Removal of tenant in
certain cases; jurisdiction, provides the cases under which a party in
possession can be removed from the residential property. All the cases include situations where the
party in possession either failed to pay rent or destroyed the peace and quiet
of the landlord. None of these
situations was present here. Even if any
of the cases was present, the owner must petition to the Superior Court, Law
Division, Special Civil Part for removal.
Anti-trust conspirators Del Vecchio and American Tax
Funding, LLC (ATF) willfully failed
to follow these law-mandated procedures and they lied in their application for a Writ of Possession to the
Clerk of Mercer County that there was
no party in possession of the premises (see Exhibit A, showing the
Certification of co-conspirator Robert Del Vecchio to the Clerk of Mercer
County on April 15, 2011 (even prior to the issuance of a Final Judgment on May
13, 2011) that there are no tenants in the homestead property of Dr.
Stephanatos protected by the eviction laws of New Jersey). On May 27, 2011, Dr. Stephanatos and his
agents or assigns did in fact send a letter to the Passaic County Sheriff
informing him that there are tenants in the premises. On May 31, 2011, the sheriff responded to the
May 27, 2011 letter from Dr. Stephanatos and ensured him that the sheriff will
not remove any tenants from the premises.
See Exhibit A. For the Court’s
information, the New Jersey Anti-Eviction Law, N.J.S.A. 2A:18-61.1 et seq., says that a residential tenant
includes a person in possession of the premises and that there is no
requirement that a lease exists. Even if
the anti-eviction law does not apply, Stephanatos’ due process rights were
protected via the procedures listed in the Summary Dispossess Act.
As was indicated above, Judge Jacobson had specifically
ordered the Plaintiff not to violate the “rights
of any person protected by the New Jersey Tenant Anti-Eviction Act (N.J.S.A.
2A:18-61.1 et seq.)”. The Plaintiff
and their agents (i.e., the Passaic County Sheriff and Coldwell Banker)
willfully and intentionally violated the court order issued by Judge Jacobson
on May 13, 2011 by removing from the premises the Defendant and Metropolitan
Environmental Services, without a Warrant for Removal or Writ for Removal as is
required by N.J.S.A. 2A:42-10.1. Therefore, they are subject to liability, and
this Court should award Stephanatos damages, court costs and attorney
fees. In addition, the Court should
order the forfeiture of all the foreclosure money obtained by the anti-trust
conspirators from the sale of Dr. Stephanatos’ property, including damages and
court costs. Should the Plaintiff cannot
restore Defendant into his residence, then they are liable for treble damages,
as mandated by New Jersey Law. See N.J.S.A.
2A:39-8.
It is also particularly important to note that N.J.S.A. 2C:33-11.1 entitled “Certain
actions relevant to evictions, disorderly person’s offense”, specifically
requires of the sheriff and its deputies to allow the legal occupants of a
residential property to reenter and reoccupy the premises:
“Legal
occupants unlawfully displaced shall be entitled without delay to reenter and
reoccupy the premises, and shall not be considered trespassers or chargeable
with any offense, provided that a law enforcement officer is present at the
time of reentry. It shall be the duty of such officer to prevent the
landlord or any other persons from obstructing or hindering the reentry and
reoccupancy of the dwelling by the displaced occupant”.
The above state law requires
that the sheriff does not obstruct or hinder the occupancy of the residential
property by the Plaintiff. However, the
Passaic County Sheriff did in fact obstructed and hindered the occupancy of the
residential property by the Plaintiff, causing also the loss of his business
and the destruction, loss or damage of numerous business equipment, chemical
supplies, hoses, fittings, etc. Urged by
the fraudulent claims of Robert Del Vecchio, the sheriff also filed wrongful
criminal charges against Plaintiff for attempting to lawfully protect his
business and residential property from the criminal activities of defendants
Del Vecchio and ATF and to prevent the illegal and unwarranted eviction for
which the sheriff was not allowed to do.
Dr. Stephanatos repeatedly informed the sheriff
that he is a lawful occupant of his home and he has legal rights protected by
the New Jersey Anti-Eviction Act and that what he (the sheriff) is doing is
illegal and that the sheriff has no Writ of Removal and that the Writ of
Possession he had was only applicable to possessions of property where no
tenant occupies the premises.
Dr.
Stephanatos also informed the sheriff that there is a business tenant in the
premises, Metropolitan Environmental Services (see letter to/from the Passaic
County sheriff). However, the sheriff,
under direction from Robert Del Vecchio,
refused to obey the New Jersey Anti-Eviction Law, including numerous
other state statutes (see N.J.S.A.
2C:33-11.1) and forcibly
removed Dr. Stephanatos from the premises, using excessive force, without
having a properly-obtained New Jersey law-mandated Warrant of Removal and without
having the legal authority to do so and without following the strict procedural
requirements of the New Jersey Anti Eviction Act (N.J.S.A. 2A:18-61.1 et seq.). Then, the sheriff filed wrongful charges
against Plaintiff that somehow Plaintiff violated court orders and that somehow
Plaintiff was barricaded in his own legally-occupied residence. There was no court order issued by a Superior
Court, Law Division Judge that ordered the removal of the Plaintiff from his
residential property in compliance with the Ejectment Statutes pursuant to N.J.S.A. 2A:35-1 et seq.
AN
ORDER FROM A LAW DIVISION JUDGE FOLLOWING AN EJECTMENT ACTION WAS REQUIRED TO
REMOVE DR. STEPHANATOS FROM HIS RESIDENCE
New Jersey law required that
American Tax Funding, LLC (ATF) and their lawyer, Robert Del Vecchio, Esq.
obtain an order of removal from a Law Division judge. The lawyers (Wilentz, Goldman, et al and
Greenbaum, Rowe, et al) provided Plaintiff with the following document,
entitled “Practice Manual, 2017 Edition,
Middlesex County Chancery Division, General Equity Part.” They said that the Practice Manual has been
co-authored by the Hon. Arnold L. Natali, Jr., P.J.Ch. the presiding judge in
that county and the Hon. Arthur Bergan, JSC.
Page 28, of that manual says
the following regarding actions commonly misfiled in the Chancery Division,
like what ATF and Robert Del Vecchio did in Plaintiff’s case:
Actions
Commonly Misfiled in the Chancery Division
1.
Ejectment
Ejectment
actions, though similar to eviction actions, are intended to remove an occupant
from your property when that occupant is not technically a
"tenant." An example is where
a property owner has a live-in significant other or family member who refuses
to move out of the property when asked to do so. In these cases, there was never a true
landlord-tenant relationship, so to remove the occupant, the plaintiff must
file an ejectment action pursuant to N.J.S.A. 2A:35-1 et seq. These are usually heard by the sitting landlord-tenant
division judge; however, they are technically a Special Civil Division matter
under R. 6:1-2 because monetary damages can be awarded against the
occupant.
TAX LIEN FORECLOSURES IN NEW JERSEY
ARE NOT PROTECTED FROM CLAW BACK ACTIONS UNDER STANDARD FRAUDULENT CONVEYANCE
THEORIES
Tax
lien foreclosures in New Jersey are not protected from claw back actions under
standard fraudulent conveyance theories – that according to three different New
Jersey bankruptcy judges who have recently considered the matter. The most
recent of these rulings was made in the case of Oyster Creek Inn, Inc.,
D.N.J. Bkr. Case No. 13-22624 (GMB). In the other Oyster Creek ruling,
Chief Bankruptcy Judge Gloria Burns followed the rationale laid out in two
earlier decisions of her court mates Bankruptcy Judge Judith Wizmur in In re
Varquez, 502 B.R. 186 (Bankr. D.N.J 2013) and Judge Michael Kaplan in In
re Berley Associates, 323 B.R. 433, 434 (Bankr. D.N.J. 2013). All three
judges have now concluded that under the New Jersey tax lien foreclosure
procedure that does not require a judicial sale of the property at public
auction, the transfer of the real estate does not carry with it the protections
given to title transfers by mortgage foreclosure as articulated by the 1994
ruling of the U.S. Supreme Court in BFP v. Resolution Trust Corp., 511
U.S. 531, 545 (1994).
In
BFP, the Supreme Court held that “a fair and proper price, or a
‘reasonably equivalent value,’ for foreclosed property is the price in fact
received at the foreclosure sale, so long as all of the requirements of the State’s
foreclosure law have been complied with.” In New Jersey, there is one major
difference between a title transfer by foreclosure of a mortgage and a title
transfer by foreclosure of a real estate tax lien. Under the state’s mortgage
foreclosure procedure, the final step in the foreclosure process is a judicial
sale by a county sheriff who first advertises and then conducts a sale with
competitive bidding where anyone with a 20 percent deposit can participate.
According to the judicial analysis, this establishes a “price” for the real
estate that satisfies the reasonably equivalent value test for most claw back
actions. The state’s procedure for tax lien foreclosure is different. In tax
lien foreclosures, there is a two-step process with the taxing authority first
auctioning the tax lien for a fixed amount equal to the outstanding tax. At
this “tax sale” auction, the bidders compete by bidding down the interest rate
on the lien. They do not establish a price for the real estate. The foreclosure
process is completed when at the end of a subsequent lawsuit, the foreclosing
lien holder obtains a final judgment and gives notice to the property owner and
other interested parties that they have a set number of days to redeem by
paying in full the amount of the tax liability plus interest, penalties and
certain costs of the foreclosure. In the absence of redemption, the judgment of
the court completes the conveyance and can be recorded in the same manner that
one would record a deed. There is no judicial sale as in a mortgage foreclosure
case, and therefore no action to set a “price” for the real estate.
To
paraphrase Judge Wizmur (whose words were repeated this week by Chief Judge
Burns), in New Jersey, tax sale foreclosures are a two-step process, neither of
which involves a “price” or a “foreclosure sale,” and without a “price” and a
“foreclosure sale,” BFP [the U.S. Supreme Court case] cannot apply.
Thus, New Jersey’s tax lien foreclose procedure does not carry with it the
protections of the mortgage foreclosure process to shield the transferee from
fraudulent conveyance claims by the prior owner to claw back and regain
ownership of the real estate.
“the Court determines that
the transfer of title to the Defendant in a pre-petition tax sale and
foreclosure context, where there was no competitive bidding, may constitute a
fraudulent conveyance under 11 U.S.C. § 548(a)(1)(B), and is not barred by the
United States Supreme Court's holding in BFP v. Resolution Trust Corp.,
511 U.S. 531, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994). Likewise, the Court
further concludes that the transfer at issue may constitute an avoidable
preference under 11 U.S.C. § 547(b).”
See also IN RE HACKLER 571 B.R. 662 (2017) ”In this motion the Court is tasked with
determining whether a transfer of real property through a tax sale foreclosure
constitutes a fraudulent conveyance or preference where the amount of the
underlying tax sale certificate being foreclosed upon is significantly lower
than the value of the property. The Court finds that the transfer herein may be
avoided as a preference. As a result, the Court need not decide whether it can
also be avoided as a fraudulent conveyance.”
In In Re Hackler, the amount of lien was $45,000 and additional
$89,000 in additional judgment liens while the value of the property was
$335,000. Here, the liens (that include
the 18 percent interest and 6-7 percent in penalties were less than $50K. Thus, this transfer can be avoided as a
preference. It was also a fraudulent
conveyance because Stephanatos did not owe any taxes due to the illegal
overassessment of Plaintiff’s property.
Similarly,
the United States District Court for the Western District of New York recently
reversed a Bankruptcy Court’s dismissal of an action and held that sales
arising from tax foreclosures may be avoidable as fraudulent transfers. See Hampton v. Ontario Cty., New York, 2018
WL 3454688 (W.D.N.Y. July 18, 2018). The case involves two adversary
proceedings commenced by homeowners against the County of Ontario (the
“County”). In each matter, the County foreclosed on plaintiffs’ homes
after plaintiffs failed to pay property taxes. In one case the plaintiffs
owed about $1,200 in taxes and in the other they owed about $5,200. After
the County obtained a final judgment in each matter, the plaintiff homeowners
filed Chapter 13 bankruptcy petitions and then adversary proceedings against
the County, alleging that the taking of their homes were constructively
fraudulent transfers under 11 U.S.C. § 548(a)(1)(B) due to the disparity between
the value of the homes and the minimal taxes owed. The County proceeded
to sell the properties—one for $22,000 and one for $27,000—under a stipulation
that the sales were subject to the determination in the adversary
proceedings. The County moved to dismiss the actions, and the Bankruptcy
Court granted the motion. In doing so,
it cited BFP v. Resolution Trust Corp.,
511 U.S. 531 (1994), where the United States Supreme Court held that a
reasonably equivalent value for foreclosed property “is the price in fact received at the foreclosure sale, so long as all
the requirements of the State’s foreclosure law have been complied with[.]”.
On
appeal, the District Court reversed. First, it noted that the Supreme
Court in BFP expressly limited
its holding to mortgage foreclosures, stating that “considerations bearing upon
other foreclosures and forced sales (to satisfy tax liens, for example) may be
different.” Second, the Court found that the amount of the tax lien is not
evidence of the property value and that the sales would result in windfalls to
the County because it would receive all of the surplus funds to the detriment
of other creditors. “If this Court
affirmed the Bankruptcy Court’s decision, Ontario County would receive
surpluses of nearly $22,000 in one instance and more than $20,000 in another.
The Appellants, on the other hand, assert that they would be homeless and
unable to repay their other creditors through Chapter 13 bankruptcy.”
Thus, the Court reinstated the adversary proceedings against the County.
Although these cases pertain to federal bankruptcy
proceedings, the argument that Plaintiff makes is that under the circumstances
of this case, a federal judge can void the tax foreclosure sale and order the
return of the money to Stephanatos to avoid the windfall received by the ATF
Defendants. This logic is supported by
the legislative intend and the referenced case law that a windfall for the
Defendants must be prevented, otherwise it would constitute a taking and
violation of due process rights of Stephanatos. This is the legal and equitable
thing to do here. In view of our decision, the operation of the tax sale law requires
that the entire judgment must be vacated as void based upon equitable
considerations. United States v. Scurry, 193 N.J. 492, 502
(2008)
Plaintiff filed a timely
section 1983 suit in 2012, just few months after the forceful and unlawful
taking of his home by the antitrust conspirators Robert Del Vecchio, American
Tax Funding, LLC, ATFH Real Property, LLC, the owners/officers of
these entities, aided by the Passaic County Sheriff and several of its
officers. At that time, two Passaic
County officers, Lucas and D’Agostino claimed that they were assaulted by the
Plaintiff and initiated criminal proceedings against the Plaintiff in state
court. These criminal proceedings have
tolled the statute of limitations. These criminal charges have not been
adjudicated in violation of Stephanatos’ speedy trial and Due Process rights
under the Fourth, Fifth, Sixth and Fourteenth
Amendment. Despite the fraudulent
concealment of their conspiracy to frame Dr. Stephanatos, the Plaintiff was
able to obtain evidence against the officers that proves that they fabricated
their stories to force him out of him home while appeals were pending.
According to New Jersey Law,
even if we assume that the judgment for foreclosure was not void as a matter of
law, Stephanatos became a tenant at sufferance on May 13, 2011, the date of the
final foreclosure judgment. Because
Stephanatos also fully owned his home valued at $475K by Wayne Township, and
because the alleged tax debt was less than $20K (not including the excessive
charges of 18% interest and 6-7 percent penalty per annum placed on the illegal
overassessment), he also had a significant equitable interest that could only
be extinguished by due process of law.
Furthermore, the legislative policy in New Jersey is to avoid a windfall
for the holders of tax sale certificates:
See M&D Assocs. v. Mandara, 366
N.J. Super. 341 (App. Div.) certif. denied, 180 N.J. 151 (2004) for its rationale that chancery courts
"in such foreclosure cases should be alerted . . . that a significant
windfall might result if adequate scrutiny . . . is not
undertaken[,]" See also the
following New Jersey Supreme Court decision:
In view of our decision, the operation
of the tax sale law requires that the entire judgment must be vacated as void
based upon equitable considerations.
United
States v. Scurry, 193 N.J. 492, 502 (2008)
The lawyers for the
Defendants mislead the judges by failing to disclose the above state law
(legislative intent and Supreme Court decisions) and by “certifying” to the
court that “all issues have been adjudicated” and they claimed to Judge McVeigh
and to Judge Hochberg that they were entitled to ownership of Stephanatos’
property so that they can receive a massive windfall. This lack of cantor to the tribunal is
evidence of fraud on the court, thus coercing the judges into issuing favorable
decisions. Defendant Robert Del Vecchio
intentionally failed to follow the statutorily-required procedures for
obtaining a warrant for removal (demand to quit, notice of a lawsuit, etc.) and
instead applied at the same time as the final judgment (May 13, 2011) for an
ex-parte writ of possession simply providing his self-certification to the
Clark of Mercer County that Stephanatos had no possessory rights. The Clerk, having no jurisdiction, issued a
Writ the same day as the entering of the final judgment (See Exhibit A). Under the legal authority of HOUSING AUTHORITY OF CITY OF WILDWOOD v.
Hayward, et al., 406 A.2d 1318, 81 N.J.
311 (1979). Even if the judgment had
been entered lawfully (we hold it was not), the clerk had no *316 jurisdiction
to issue the warrant of removal the same day the judgment was entered. N.J.S.A.
2A:18-57 provides that in summary dispossess proceedings "[n]o warrant of
removal shall issue until the expiration of 3 days after entry of judgment for
possession", that writ was void, not voidable. Therefore, the ATF Defendants and their
agents, the sheriff officers, were trespassers on June 28, 2011.
These actions of Defendant
Del Vecchio constitute self-help that is prohibited in New Jersey. To forcefully and illegally remove
Stephanatos from his residence, Defendant Del Vecchio then lied to the Passaic
County Sheriff and told them that Stephanatos had threatened him with violence
few days prior to the “eviction”. These
are the same lies that Defendant Del Vecchio told Judge McVeigh to prejudice
her against Stephanatos and to coerce the judge to strike Stephanatos’ answer
to the foreclosure complaint.
The factual basis of the
conspiracy was made apparent to Stephanatos in March 2018, after he finally
received a number of police reports and other documents from the Passaic County
prosecutor. This newly obtained evidence
corroborated an informant’s tip that Lucas was never at Stephanatos’ front door
and he was never assaulted. Stephanatos
discovered that it was Nick Mango who was illegally peering through his side
door window on June 28, 2011.
Stephanatos also obtained
evidence in May 2018 that he was the target of government employees and their
agents (ATF, LLC, ATFH Real Property, LLC, Robert Del Vecchio, Wayne Township, etc.)
because he had filed tax refund suits in state and federal courts. The Defendants have been using these past tax
refund suits to portray Stephanatos as serial tax protestor and that he was
refusing to pay taxes that he allegedly owed and that he had threatened Robert
Del Vecchio with physical violence.
These were the pretexts used by the Defendants for the forceful and
illegal removal from his 687 Indian Road, Wayne, NJ property and the
confiscation of his $475,000 property for taxes that were less than $20K (not
including the 18 percent interest and 7 percent penalties charged by the
conspirators). Stephanatos did not
legally owed any property taxes because his property was over assessed by more
than 40 percent in violation of the state uniformity provisions found in the
state constitution (Article VIII, Section 1, paragraph 1(a)). Furthermore
private takings are prohibited by Article I, par. 20 of the State Constitution
and the Fifth Amendment to the Federal Constitution. There are also claims of
violation of Article I, par. 7 of the State Constitution and the Fourth Amendment
to the Federal Constitution as this was an unreasonable search and seizure as
well.
State statutory and case law
prohibits the charging and/or collection of excessive or unlawful charges or
fees in connection with the redemption or assignment of a tax sale certificate.
NJSA 54:5-63.1. According to state law, supra, “The person aggrieved shall have a right of
action to recover back the full amount paid by him to such tax lien holder, by
an action at law in any court of competent jurisdiction.” See In
re Princeton Office Park, L.P., No. 15-1514, 2016 WL 2587974
(3d Cir. May 5, 2016).
IF THE ASSESSMENT IS UNLAWFUL, THE MUNICIPALITY HAS NO POWER
TO SELL THE PROPERTY
New
Jersey law says that if the assessment is unlawful, the municipality has no
power to sell the property. “Here it is
self-evident that there exist no "unpaid taxes or other municipal
lien" against the real estate. The municipality, therefore, was without
power to make the sale, and it follows that the tax sale certificate was void.”
Nordell v. Mantua twp., 45 N.J. super. 253 (1957), 132 a.2d 39; Hudson
county park comm. v. Jacobson, 132 N.J.L. 287 (sup. ct. 1944).
Plaintiff
also relies upon R.S. 54:5-43, which reads as follows:
" 54:5-43. If sale set
aside; tax refunded to purchaser
If the assessment itself is valid and the tax, assessment or other municipal
charge, or any part thereof, is justly due, no sale shall be set aside, except
on condition that the amount due shall be paid to the municipality for the use
of the holder of the certificate of sale by the person applying to set it
aside. If the sale shall be set aside, the municipality shall refund to the
purchaser the price paid by him on the sale, with lawful interest, upon his
assigning to the municipality the certificate of sale and all his interest in
the tax, assessment or other charges and in the municipal lien therefor, and
the municipality may readvertise and sell if the municipal lien remains in
force..
The above statute plainly
requires that an assessment be valid for a tax sale certificate not to set
aside. Stephanatos alleges that the
Wayne Township Tax Assessor knew of the illegal property over-assessment but
she failed to correct it. That was her
duty and her job. Instead, the Municipal
Defendants claim that it was the responsibility of Stephanatos to correct the
unlawful overassessment. State statutes
beg to differ, however, as they only impose a duty on the assessor to certify
(swear) under oath that all assessments are valid on an annual basis. Kreitz failed to do so for many years. She is liable for the damages that Plaintiff
suffered.
The violation of
Stephanatos’ constitutional rights was made possible only through the fraud on
the court committed by the lawyers of the Defendants. This reply provides specific lies and
misrepresentations (both factual; and legal) made by these Defendants to the
courts so that they confiscate Stephanatos’ home and also dismiss the claims
against them.
In their opposition briefs,
the Defendants have failed to provide any provable evidence that refutes the
Stephanatos’ allegations of fraud and conspiracy to violate civil rights and
cover-up, and abuse of process, and so on.
The Defendants do not even dispute that Stephanatos’ home was overassessed
by 40 percent or more in violation of Uniformity Clause of the State
Constitution (Article VIII, Section 1, paragraph 1(a)).
54:5-63.1.
Excessive charges or fees charged by tax sale certificate holder on redemption;
forfeiture
Any holder of a tax sale certificate, excepting any municipal corporation, his
agent, servant, employee or representative, who knowingly charges or exacts any
fee or charge in connection with the redemption of any tax sale certificate
owned by him, in excess of the amounts permitted by chapter five of Title 54 of
the Revised Statutes, shall forfeit such tax sale certificate to the person who
was charged such excessive or unlawful fee and the person paying such unlawful
charge shall become vested with all the right, title and interest of such tax
sale certificate holder in and to such tax lien. In addition thereto the person
aggrieved shall have a right of action to recover back the full amount paid by
him to such tax lien holder, by an action at law in any court of competent
jurisdiction.
The collection of any excessive charge or fee in connection with the redemption
or assignment of a tax sale certificate shall be deemed prima facie evidence of
the fact that such tax sale certificate holder did knowingly charge and exact
such excessive fee or charge within the intent of this act.
Plaintiff
is requesting that the Court permits Plaintiff to amend the Complaint to assert
new factual allegations and several new claims, including a RICO claim.
A
COURT ORDER OR JUDGMENT BASED ON DEFECTIVE SERVICE OF PROCESS OR NO SERVICE AT
ALL IS DEEMED VOID
The
Office of Foreclosure, the Mercer County Judge and/or its clerk had no personal
or subject matter jurisdiction over the Plaintiff as this was a contested case,
while that court only rules on uncontested cases. So, all the orders or judgments issued by
that court were void. Dr. Stephanatos
had the right to refuse to obey such transparently void orders without
incurring liability.
Even if we assume that the
Office of Foreclosure had jurisdiction over the entry of a judgment of
foreclosure, that office certainly had no jurisdiction over the “eviction” as
Stephanatos never received a demand to quit and never received a notice of the
“eviction” hearings because Defendant and co-conspirator Robert Del Vecchio, an
officer of the court, made a self-certification to the Office of Foreclosure in
Mercer County (Stephanatos’ property was located in Passaic County) that
Stephanatos was not protected by the anti-eviction act. This is the biggest mistake in law that this
thug Del Vecchio, Esq. made because Stephanatos became a tenant-at-sufferance
and this property interest, along with his equitable interests could have been
lost only through Due Process of law that requires a Demand to Quit, followed
by a Notice of an eviction hearing. The
indisputable facts show that Del Vecchio applied and obtained a writ of
possession from the Office of Foreclosure at the same time the final judgment
was issued on May 13, 2011. This is
prohibited by the court rules of New Jersey. These facts prove that no demand and
notice were provided to Stephanatos by the conspirators. Therefore, the writ was void ab initio. HOUSING
AUTHORITY OF CITY OF WILDWOOD v. Hayward, et al., 406 A.2d 1318, 81 N.J. 311 (1979).
Even if the judgment had been entered lawfully (we hold it was
not), the clerk had no *316 jurisdiction to issue the warrant of removal the
same day the judgment was entered. N.J.S.A. 2A:18-57 provides that in summary
dispossess proceedings "[n]o warrant of removal shall issue until the
expiration of 3 days after entry of judgment for possession."
The
court lacks jurisdiction over a defendant and the authority to enter judgment
if the defendant was not properly served with process. City of Passaic v.
Shennet, 390 N.J. Super. 475, 483 (App. Div. 2007). “Personal service is a
prerequisite to achieving in personam jurisdiction[.]” Berger, supra,
244 N.J. Super. at 204-05; R. 4:4-4(a). “The primary method of obtaining in
personam jurisdiction over a defendant in this State is by causing the summons
and complaint to be personally served[.]” R. 4:4-4(a). In cases where a
defendant asserts defects in service of process, due process may be implicated,
and further showings, such as that of a meritorious defense, may not be
required. Pressler & Verniero, Current N.J. Court Rules, comment
5.4.2 on R. 4:50-1(d) (2012) (citing Peralta v. Heights Med. Ctr., Inc., 485
U.S. 80, 108 S. Ct. 896, 99 L. Ed.2d 75 (1988)).
“‘The
requirements of the rules with respect to service of process go to the
jurisdiction of the court and must be strictly complied with. Any defects
. . . are fatal and leave the court without jurisdiction and its judgment
void.'” Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200, 204
(App. Div. 1990) (quoting Driscoll v. Burlington-Bristol Bridge Co., 8 N.J.
433, 493, cert. denied, 344 U.S. 838, 73 S. Ct. 25, 97 L. Ed. 652 (1952)).
Because
of the aforementioned due process requirements, when service of process is
defective or non-existent and a default judgment results, the judgment is
generally void. Jameson, supra, 363 N.J. Super. R
425; Sobel v Long Island Entm’t Prods., Inc., 329 N.J.
Super. 285, 293 (App. Div. 2000); Rosa v. Araujo, 260 N.J.
Super. 458, 462 (App. Div. 1992), certif. denied, 133 N.J. 434
(1993). “A default judgment will be considered void when a substantial
deviation from service of process rules has occurred, casting reasonable doubt
on proper notice . . . . Such a judgment will usually be set aside under R.
4:50-1(d).” Jameson, 363 N.J. Super. at 425 (citations
omitted). “If a judgment is void in this fashion, a meritorious defense
is not required to vacate under the rule.” M & D
Associates, supra, 366 N.J. Super. at 353 (citing Jameson,
363 N.J. Super. at 425).
Due Process Requires A Demand to Quit
and A Notice of the Eviction
Notice
is a basic procedural necessity to ensure that a party’s due process rights are
enforced. Mettinger v. Globe Slicing Mach. Co., 153 N.J. 371, 389 (1998)
(citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.
Ct. 652, 656-57, 94 L. Ed. 865, 873 (1950)). “‘An elementary and fundamental
requirement of due process in any proceeding which is to be accorded finality
is notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity
to present their objections.'” O’Connor v. Altus, 67 N.J. 106, 126 (1975)
(quoting Mullane, supra, 339 U.S. at 314, 70 S. Ct. at 657, 94 L. Ed. at 873);
Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div.
2003) (quoting Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 97 (App. Div.
1998), certif. denied sub nom, Davis v. Surrey Downs/Fidoreo, Inc., 158 N.J.
686 (1999).
Stephanatos
Alleges Wrongful Self-Help Eviction, implicating Due Process Violations
Stephanatos alleges that the
defendants wrongfully used self-help to evict him from the property after the
foreclosure sale, in direct violation of state law.
New Jersey law considers a
homeowner who remains in a home lost to foreclosure to be a tenant at sufferance. We have found that a tenant at sufferance is
"'one who comes into possession of
land by lawful title, usually by virtue of a lease for a definite period, and
after the expiration of the period of the lease holds over without any fresh
leave from the owner.'" Xerox Corp. v. Listmark Computer Sys., 142 N.J.
Super. 232, 240 (App. Div. 1976) (citing Standard Realty Co. v. Gates, 99 N.J.
Eq. 271, 275 (Ch. 1926)). WA GOLF
COMPANY, LLC v. ARMORED, INC, Appellate Division, August 6, 2014
2A:18-56. Proof of notice to quit prerequisite to judgment
No judgment for possession in cases specified in paragraph
"a." of section 2A:18-53 of this Title
shall be ordered unless:
- The
tenancy, if a tenancy at will or from year to year, has been terminated by
the giving of 3 months' notice to quit, which notice shall be deemed to be
sufficient; or
- The
tenancy, if a tenancy from month to month, has been terminated by the
giving of 1 month's notice to quit, which notice shall be deemed to be
sufficient; or
- The
tenancy, if for a term other than at will, from year to year, or from
month to month, has been terminated by the giving of one term's notice to
quit, which notice shall be deemed to be sufficient; and
- It
shall be shown to the satisfaction of the court by due proof that the
notice herein required has been given.
Counselor's Note: Unlike residential
tenants, who are mostly protected by the Anti-Eviction Act, commercial tenants
may be evicted at the end of their lease terms. However, a Notice to Quit is
still required before the eviction action may be filed.
All other jurisdictions in
the United States have almost identical laws to the ones in New Jersey.
Eviction Actions After Foreclosure in New York State
When
the original owner continues to live in the property after a lender has
obtained title by a Referee’s Deed in foreclosure, the new owner must take
legal action to evict the occupant. In New York State, such evictions can be
accomplished under New York Real Property Actions and Proceedings Law § 713.
This section provides grounds for eviction “where no landlord-tenant
relationship exists.” Subsection 5 provides that if the property has been sold
in foreclosure, then a certified copy of the deed in foreclosure must be
exhibited to the persons to be evicted from the premises.
If
such an action is brought, it must be brought as a separate action from the
original foreclosure, in a Court with appropriate jurisdiction. Even though no
landlord-tenant relationship may exist, the procedures for such an action are
similar to those in an ordinary landlord-tenant proceeding, with the end result
being a warrant of eviction, assuming the necessary procedural requirements
have been met.
Summary proceedings are a statutory creation, first
enacted by the New York State legislature in 1820. Laws of 1820, Ch. 194.
That goal was, and remains, to provide a “simple,
expeditious and inexpensive means of regaining possession of premises,” 201 NY
at 454. while providing necessary and appropriate defenses to protect
occupants’ rights.
New York Consolidated
Laws, Real Property Actions and Proceedings Law - RPA § 713. Grounds where no
landlord-tenant relationship exists
A
special proceeding may be maintained under this article after a ten-day notice
to quit has been served upon the respondent in the manner prescribed in section 735
, upon the following grounds:
1. The
property has been sold by virtue of an execution against him or a person under
whom he claims and a title under the sale has been perfected.
2. He
occupies or holds the property under an agreement with the owner to occupy and
cultivate it upon shares or for a share of the crops and the time fixed in the
agreement for his occupancy has expired.
3. He
or the person to whom he has succeeded has intruded into or squatted upon the
property without the permission of the person entitled to possession and the occupancy
has continued without permission or permission has been revoked and notice of
the revocation given to the person to be removed.
4. The property has been
sold for unpaid taxes and a tax deed has been executed and delivered to the
purchaser and he or any subsequent grantee, distributee or devisee claiming
title through such purchaser has complied with all provisions of law precedent
to the right to possession and the time of redemption by the former owner or
occupant has expired.
Here are the Nevada rules for evicting a former owner
after foreclosure
Q&A
- Evicting A Former Owner
Can I evict the
former owner after I buy the former owner's house at a foreclosure sale?
If
you bought a residential property at a trustee's sale after foreclosure, you
are the new owner. If the former owner is still living on the property and does
not leave voluntarily or enter into an agreement with you for additional time
on the property, you can evict the former owner through the "formal"
eviction process. (NRS 40.255(1).) (The "summary" eviction process
cannot be used to evict a former owner following a foreclosure, per NRS 40.253,
40.254.)
Furthermore, New Hampshire
law considers a homeowner who remains in a home lost to foreclosure to be a
tenant at sufferance, and the New Hampshire Supreme Court has held that “a purchaser at a foreclosure sale may not
use self-help to evict a tenant at sufferance.” Evans v. J Four Realty, LLC, 164 N.H. 570, 574, 576 (2013); see
also Greelish v. Wood, 154 N.H. 521, 527
(2006). Instead, a foreclosure sale purchaser must employ the summary
procedure prescribed by chapter 540 of the New Hampshire Revised Statutes to
evict a tenant at sufferance from foreclosed property. See N.H. Rev. Stat. Ann. § 540:12 (providing for “purchaser [of property]
at a mortgage foreclosure sale” to “recover possession” of property held by
tenant at sufferance); Evans, 164 N.H. at
756-77.
It is also true that under
Georgia law, “[w]here former owners of
real property remain in possession after a foreclosure sale, they become
tenants at sufferance.” Steed v. Fed. Nat’l Mortg. Corp., 689 S.E.2d 843, 848
(Ga. Ct. App. 2009). When this occurs, a landlord-tenant relationship
exists between the legal title holder and a tenant at sufferance, and
dispossessory procedures set forth in O.C.G.A. § 44-7-50 provide the exclusive
method by which a landlord may evict the tenant. Steed, 689 S.E.2d at 848. It is also very significant here that
Stephanatos never relinquished possession of his residential property and thus
he never ceased being a tenant at sufferance, along with his business
properties (Metropolitan Engineering Services, PC and Metropolitan
Environmental Services).
ALL DEFENDANTS HAD NOTICE OF PLAINTIFF’S LAWSUIT WITHIN
THE STATUTE OF LIMITATIONS. THE THIRD CIRCUIT HAS RULED THAT THERE IS A LIBERAL
AMENDMENT POLICY UNDERLYING FED.R.CIV.P. 15(A).
ALSO, PURSUANT TO NEW JERSEY RELATION BACK RULE 4:9-3, A PARTY MAY AMEND HIS PLEADING. PLAINTIFF SHOULD BE
ALLOWED TO AMEND HIS TIMELY FILED 2012 COMPLAINT AT LEAST ONCE.
Plaintiff asks the Court to permit the amendment of his
2012 timely filed complaint by the addition of newly discovered evidence and
case law and by the addition of new claims pursuant to Federal Rules of Civil
Procedure 15(c)(1)(A) and (C), New Jersey’s fictitious party Rule, N.J.R. 4:26-4, the general New Jersey
relation back rule, N.J.R. 4:9-3, the
doctrine of equitable estoppel, and the New Jersey discovery rule.
The answer to the relation back question involves the
interplay of Fed. R. Civ. P. 15(c)(1)(A) and (C), New Jersey Rules 4:26-4 and
4:9-3, and equitable concepts including equitable estoppel, the discovery rule,
and the doctrine of substantial compliance.
Amendments
in federal cases are governed by Rule 15 of the Federal Rules of Civil
Procedure, which provides in pertinent part as follows:
Rule 15. Amended and Supplemental Pleadings
(c) Relation Back
of Amendments.
(1) When an Amendment Relates Back. An
amendment to a pleading relates back to the date of the original pleading when:
(A) the law that
provides the applicable statute of limitations allows relation back;
(B) the amendment
asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set out–or attempted to be set out–in the original pleading; or
(C) the amendment
changes the party or the naming of the party against whom a claim is asserted,
if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule
4(m) for serving the summons and complaint, the party to be brought in by
amendment:
(i) received
such notice of the action that it will not be prejudiced in defending on the
merits; and
(ii) knew or
should have known that the action would have been brought against it, but for a
mistake concerning the proper party’s identity.
Amendments
to add allegations of fact, claims, and theories of recovery are the least
complex. Basically, if the new allegations or claims arise out of the same
operative facts as did the claims in the original complaint, they relate back.
If, for instance, an original complaint contains allegations of medical
malpractice, and a plaintiff later wishes to sue for medical battery based on
the same treatment, the new claims would relate back to the date of the filing
of the old claims, notwithstanding the fact that the statute of limitations
might have run in the interim.
Similarly, a new claim of fraud would likely relate back to the date of
an original claim for breach of contract, if the same actions on the part of
the defendant gave rise to both.
The
Third Circuit has also ruled that plaintiff’s should be given reasonable
opportunity to amend the complaint based on liberal amendment policy underlying Fed.R.Civ.P. 15(a). "[T]his
court has consistently held that when an individual has filed a complaint under
section 1983 which is dismissable for lack of specificity, he should be given a
reasonable opportunity to cure the defect, if he can, by amendment of the
complaint...." Darr v. Wolfe,
767
F.2d 79, 81 (3d Cir.1985). Although both Hill
and Rose already have amended their original complaints once, we do not believe
that they are thereby automatically precluded from seeking to amend their
complaints a second time in accordance with our analysis here, in light of the
liberal amendment policy underlying Fed.R.Civ.P. 15(a). Rose v. Bartle, 871
F.2d 331 (1989).
Also,
pursuant to New Jersey Rule 4:9-3, a
party may amend his pleading and it will relate back to the date of the
original pleading “whenever the claim or defense asserted in the amended
pleading arose out of the conduct, transaction or occurrence set forth or
attempted to be set forth in the original pleading.” All claims here relate back to the date of
original pleading. Furthermore, the
amendment does not change the party or parties against whom the claim is
made. All parties are the same as the in
the original complaint and the parties have received notice of the institution
of the action back in 2012 (as is required by the Court Rule) and will not be
prejudiced in maintaining a defense on the merits.
Finally,
Pursuant to Rule 4:26-4, a party is permitted to sue a defendant under a
fictitious name if the defendant’s true name is unknown to the plaintiff. He is
required to state it to be fictitious and add on an appropriate description
sufficient for identification.
UNDER NEW JERSEY LAW, COURTS INVOKE
THE DOCTRINE OF SUBSTANTIAL COMPLIANCE TO AVOID TECHNICAL DEFEATS OF VALID
CLAIMS
Under New Jersey law, substantial rather than
hypertechnical compliance with the Rule
4:9-3 court rule is sufficient for an
amended pleading to relate back. In
order to show substantial compliance with a statute of limitations under New
Jersey law, a plaintiff must demonstrate the following elements: (1) the lack
of prejudice to the defending party; (2) a series of steps taken to comply with
the statute involved; (3) general compliance with the purpose of the statute;
(4) reasonable notice of plaintiff's claim; and (5) a reasonable explanation
why there was not strict compliance with the statute. Fahey, 2009 WL 749856, at
*3 (citing Negron v. Llarena, 156 N.J. 296, 305 (1998)). “Courts invoke the
doctrine of substantial compliance to avoid technical defeats of valid claims.”
Negron v. Llarena, 156 N.J. 296, 305 (1998) (internal citation omitted).
All of the necessary elements to apply the
substantial compliance doctrine are met here. As discussed supra, none of the
Defendants are prejudiced by the amendment of the pleadings. Additionally,
plaintiff took substantial steps to comply with the applicable Rules, including
determining Defendant’s identity and serving them with the complaint in
2012. Plaintiff also got involved with
the antitrust proceedings of Judge Michael Shipp where he submitted information
regarding the antitrust activities of ATF, LLC, ATFH Real Property, LLC, the Robert Del Vecchios (father Del Vecchio plead
guilty to federal antitrust violations and end up losing his law and real
estate licenses in New Jersey) and their lawyers.
Plaintiff’s efforts were obviously effective
because the Defendants acknowledged and responded to the 2012 complaint before
the statute of limitations ran. This
demonstrates a general compliance with the purpose of the statute – notice
within the limitations period and an absence of prejudice to the Defendants.
The doctrine of equitable estoppel applies when an action
is commenced after the expiration of the statute of limitations but fairness
dictates that the plaintiff be permitted to pursue the action. Feldman v. Urban Commercial, Inc., 70 N.J.
Super. 463, 474 (Ch. Div. 1961) (citing 3 Pomeroy's Equity Jurisprudence,
(5th ed.), sec. 804, p. 189). The essential elements which must be present for
a court to equitably estop a defendant from the benefit of a statute of
limitations are: 1) that the defendant must have misrepresented or concealed a
material fact; 2) the misrepresentation or concealment of a material fact was
known to defendant but unknown to the plaintiff; 3) the misrepresentation or
concealment of material fact was made with the intention or expectation that it
would be acted upon by the plaintiff; and 4) the
plaintiff relied upon the misrepresentation or concealment of material facts by
the defendant and changed the plaintiff’s position in reliance thereon. Torcon, Inc. v. Alexian Bros. Hosp., 205
N.J. Super. 428 (Ch. Div. 1985), aff'd, 209 N.J. Super. 239 (App. Div. 1986).
“Specifically, New Jersey courts have found
the doctrine of equitable tolling to apply in the following situations: (1)
where the complainant has been induced or tricked by his adversary's misconduct
into allowing the filing deadline to pass; (2) where a plaintiff has in some
extraordinary way been prevented from asserting his rights; and (3) where a
plaintiff has timely asserted his rights mistakenly by either defective
pleading or in the wrong forum.” Fahey v.
Hollywood Bicycle Ctr., Inc., C.A. No. 08-3573 (RBK), 2009 WL 749856, at *4
(D.N.J. Mar. 18, 2009), aff'd, 386 Fed. Appx. 289 (3d Cir. 2010) (citing
Freeman v. State, 347 N.J. Super. 11 (N.J.Super.Ct.App.Div. 2002))
(internal quotation marks and citations omitted).
Here, there is no dispute that Plaintiff
timely asserted his rights in 2012 by the filing of the timely lawsuit against
the Defendants. Plaintiff’s pleadings
were defective due to the fraudulent concealment of the Defendants and because
they coerced the state courts through the filing of fraudulent certifications
and through intentional misstatement of the laws. Therefore, Plaintiff should be allowed to
amend his pleadings pursuant to R. 4:9-3.
Plaintiff also alleges that the delay in the
filing of the instant motion was caused by the Passaic County Defendants’
failure to timely produce the Brady-required discovery; the filing of
intentionally false statements or certifications to the courts; the continuing
violation of Stephanatos’ Fourteenth Amendment Due Process constitutional
rights by violating his speedy trial rights guaranteed under the Sixth
Amendment, the delaying of the criminal case against the Plaintiff in state
court for more than 7.5 years (and counting), the pre-textual false
imprisonment between March 21 and May 26, 2016.
In addition, the ATF Defendants (through their lawyer Keith Bonchi),
intentionally misrepresented the law to the state courts and to Judge Hochberg
and also concealed the actions of Robert Del Vecchio in coercing Judge McVeigh
and the Mercer County Superior Court Clark through lies and fabrications and
misrepresentations into issuing a default judgment against Plaintiff; Stephanatos has been vehemently objecting to
that default (uncontested) judgment and the evidence shows that it should have
never have been entered because the tax assessment was void ab initio or the
taxes were excessive or illegal and in accordance with the tax sale law, the
Defendants should have forfeited the tax sale certificate.
These allegations do constitute
misrepresentations or concealment or Due Process violations on the part of the
Passaic County Defendants and the ATF Defendants. Torcon, 205 N.J. Super. at 428.
Plaintiff was prevented from amending his complaint at an earlier time
due to these extraordinary events caused solely by the misconduct of the
Defendants. With all facts considered, there is evidence of trickery or
intentional inducement by the ATF Defendants. Fahey, 2009 WL 749856, at *4. Thus, the doctrine of equitable
estoppel is applicable here.
The discovery rule is an equitable principle
by which “the accrual of a cause of action is delayed until the injured party
discovers, or by the exercise of reasonable diligence and intelligence should
have discovered that he may have a basis for an actionable claim.” Vispisiano v. Ashland Chem. Co., 107 N.J.
416, 419 (1987) (citing Viviano v. CBS, Inc., 101 N.J. 538, 546 (1986))
(internal quotations omitted). In personal injury actions, the statute does not
begin to run until (1) the plaintiff knows he has been injured; and (2) the
plaintiff either knows or should know that his injury was caused by another
party’s conduct. Lopez v. Swyer, 62 N.J.
267, 274 (N.J. 1973). For purposes of the discovery rule, knowledge of
fault “requires only the awareness of facts that would alert a reasonable
person exercising ordinary diligence that a third party’s conduct
may have caused or contributed to the cause of the injury and that conduct
itself might possibly have been unreasonable or lacking in due care.” Savage v. Old Bridge–Sayreville Medical
Group, P.A., 134 N.J. 241, 248 (N.J. 1993).
The application of the discovery rule to this case is not
misplaced. Viviano v. CBS, Inc., 101 N.J.
538, 552 (1986) (“Although Rule 4:9-3
and Rule 4:26-4 permit an amended pleading to relate back to an earlier one,
one difference between the two Rules is that the fictitious-party practice
authorized by Rule 4:26-4 expressly contemplates the filing of an amended
complaint. By comparison, Rule 4:9-3 permits the addition of a new claim or a
new party when the original complaint did not contemplate the need for such an
amendment.”).
Finally, in a recent precedential case, Mullin v. Administrator Karen Black, et al.,
no. 16-2896 (3rd Circuit, 2017) the Third Circuit concluded that
the Magistrate Judge’s exercise of discretion was not within the boundaries
contemplated by Rule 15 or the Foman factors, in light of the liberal
pleading regime established by the Federal Rules. The Third Circuit remanded
for the Magistrate Judge or District Court to reassess the propriety of
amendment under the proper framework.
This is what the Court wrote:
As cast in this case, “judicial economy” sounds almost
like a sanction for prior perceived errors. As presented, it does not currently
support the Magistrate Judge’s decision to deny leave to amend.
Relation Back and Timeliness
The Magistrate Judge summarily addressed, and the parties
have briefed before us, the doctrine of “Relation Back.” This refers to the
operation of Rule 15(c), which allows certain new claims and new parties added
in an amended complaint to “relate back” to the date of filing of the original
complaint for statute of limitations purposes if certain conditions are met. See Singletary v. Pa. Dep’t of Corr.,
266 F.3d 186, 193 (3d Cir. 2001). While
courts are permitted to combine the question of whether amendment should be
granted with the issue of whether the proposed amendment relates back, See, e.g., Maersk, 434 F.3d at 204,
the two inquiries are analytically distinct; relation back is a test of
the legal viability of the proposed amendment, and not a discretionary factor
weighing in favor of or against amendment. See Garvin v. City of Phila., 354 F.3d 215, 222 (3d Cir.
2003). Thus, in certain cases, the
“better approach” is to treat leave to amend and relation back/timeliness
separately, determining first whether amendment should be allowed under the discretionary
factors, and only then passing on
whether the complaint relates back or is otherwise timely. Joseph
v. Elan Motorsports Techs. Racing Corp., 638 F.3d 555, 558–59 (7th Cir.
2011); see also Glover v. FDIC,
698 F.3d 139, 144–48 (3d Cir. 2012) (on dismissal posture, addressing relation
back and timeliness separately).
CONCLUSION
In response to the Plaintiff’s Motion, ATF Defendants
were required to come forward with specific, admissible, and significantly
probative evidence that would support a finding in their favor. Instead, ATF Defendants “rest on their pleadings”
and the fraudulently obtained judgment of foreclosure by making unsubstantiated
allegations that merely mirror the denials in their Answer and their Opposition
Brief, or otherwise do not relate to the Plaintiff’s Motion.
Failing to meet their burden, Defendants did not place
any of the Plaintiff’s uncontroverted facts into question. Therefore, the Plaintiff
is entitled to summary judgment as a matter of law on all counts of its
Complaint, and it is entitled to the requested monetary relief and damages.
WHEREFORE, Plaintiff respectfully requests the
Court to allow Stephanatos to brief this Court on the statutes of limitations
and to grant this Motion for Relief from the Court’s October 16, 2018 Order
pursuant to Fed.R.C.P. 60(b) (2), (3), (5), and (6).
Respectfully submitted,
________________________________ Dated November 27, 2018
Basilis N. Stephanatos, PhD, JD
CERTIFICATION
OF BASILIS N. STEPHANATOS
I hereby certify under penalty of
perjury that the foregoing statements made by me are true and correct. I am aware that if any of the foregoing
statements made by me are willfully false, I am subject to punishment. NJ Court Rule R. 1:4-4(b); 28 U.S.C.
§1746.
DATE: November
27, 2018
Respectfully Submitted,
___________________________________
Basilis
N. Stephanatos, PhD, PE, JD
Pro
Se
“We
are of the view that particularly in situations like the one involved in this
case, where there is substituted service, as well as a tremendous disparity
between the amount due on the tax certificates and the value of the property
subject to foreclosure (here approximately $4,500 versus potentially $100,000
to $200,000 for the property), careful scrutiny of the affidavit of inquiry
requires the Chancery Judge to demand more than cursory inquiries or recitals
not only as a matter of due process, but also of fundamental fairness. See Bron
v. Weintraub, supra (42 N.J. at 93-96). The Chancery Judge in such foreclosure
cases should be alerted when the face of the documentation indicates that a
significant windfall might result if adequate scrutiny of the affidavit of
inquiry is not undertaken.
In view of our decision, the operation
of the tax sale law requires that the entire judgment must be vacated as void
based upon equitable considerations.
United
States v. Scurry, 193 N.J. 492, 502 (2008)
There is no explicit provision in the
tax sale certificate asserting plaintiff's right to the residential premises,
because ATF, LLC and ATFH Real Property, LLC are business entities and not a
person (See 3519-3513 Realty
LLC v. Law, 406 N.J. Super. 423 (App. Div. 2009). “It is in accord with the appellate court's
reasoning in [Law], supra, that the court finds that an LLC is not eligible as
an owner-occupant of residential property.”
SUPERIOR COURT OF NEW JERSEY,
APPELLATE DIVISION, DOCKET NO. A-0 MARIA PADILLA and 32 4TH STREET, LLC,
Plaintiffs-Appellants, v. CITY OF ELIZABETH, Defendant-Respondent, December 13,
2016
N.J.S.A. 2A:39-1 Unlawful entry
prohibited.
No
person shall enter upon or into any real property or estate therein and detain
and hold the same, except where entry is given by law, and then only in a
peaceable manner. With regard to any
real property occupied solely as a residence by the party in possession,
such entry shall not be made in any manner without the consent of the party in
possession unless the entry and
detention is made pursuant to legal process as set out in
N.J.S.2A:18-53 et seq., as amended and supplemented; P.L.1974, c.49
(C.2A:18-61.1 et al.), as amended and supplemented; P.L.1975, c.311
(C.2A:18-61.6 et al.), as amended and supplemented; P.L.1978, c.139
(C.2A:18-61.6 et al.), as amended and supplemented; the "Tenant Protection
Act of 1992," P.L.1991, c.509 (C.2A:18-61.40 et al.); or N.J.S.2A:35-1 et
seq. and "The Fair Eviction Notice Act," P.L.1974, c.47
(C.2A:42-10.15 et al.). A person violating this section regarding entry of
rental property occupied solely as a residence by a party in possession shall
be a disorderly person.
What if you are not covered by
eviction for cause? It is important to remember that, even if
the Anti-Eviction Act does not apply to you, the landlord or property owner
still must take you to court before you can be removed from your home. As
explained in Chapter 8, a landlord or property owner cannot remove you without
court approval. Self-help removals or lockouts are illegal, even if you are not
covered by the Anti-Eviction Act.
ATFH Real Property, LLC, a private company, is the
subsidiary of the purchaser and servicer of property tax liens, American Tax
Funding, LLC. ATFH Real Property, LLC
obtains title to tax deed properties from its parent company. Here, Harris
Nesbitt Corporation (n/k/a BMO Capital Markets Corporation) was the Secured
Party (SP) as listed on the certificate of sale for the residual taxes of
$806.02 for tax year 2004. A premium of
$27,100.0 was paid to Wayne Township Tax Collector on September 27, 2005 by
these entities. Stephanatos’ residential
property was unlawfully over assessed by more than 40 percent. The interest rate on the certificate of sale
No. 2310 was zero (0%) percent per annum. Defendants then charged Stephanatos
with 18 percent interest rate and 6 percent penalties per annum on the unlawful
overassessment of his property at 687 Indian Road, Wayne, New Jersey. These unlawful charges and fees were in
violation of the New Jersey Tax Sale Law, N.J.S.A. 54.5-63.1 that prohibits
the charging and/or collection of excessive or unlawful charges or fees in
connection with the redemption or assignment of a tax sale certificate. NJSA 54:5-63.1. According
to state law, supra, “The person
aggrieved shall have a right of action to recover back the full amount paid by
him to such tax lien holder, by an action at law in any court of competent
jurisdiction.”
In this case, Plymouth
originally included the premium amount in its first proof of claim but later
filed an amended proof of claim which removed it. Despite curing its
mistake, Plymouth’s initial error caused its tax sale certificate to be
completely voided. Thus, Purchasers should be cautious in adding any
extra fees, whether intentionally or accidentally, to avoid completely losing
the ability to collect anything they are owed.
In footnote 2 in the In
re Princeton Office Park, L.P. opinion, the Third Circuit states
that the Bankruptcy Court “found as a fact…that Plymouth had a policy of
including these premiums in proofs of claims that it filed even though it knew
that the debtor property owner was never obligated to pay this money.” In
re Princeton Office Park, L.P., 423 B.R. 795, 797 (Bankr. D.N.J.
2010). Princeton Office
Park, LP, vs. Plymouth Park Tax Services, LLC, 218 N.J. 52, 55
(2014). In re Princeton
Office Park, L.P., No. 15-1514, 2016 WL 2587974 (3d Cir. May 5,
2016)
