____________________________________________________________

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

njdnef_vazquez@njd.uscourts.gov

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)[1]’ 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/

and by the conviction of at least 15 individuals and entities in New Jersey, including Passaic County, by the U.S. Attorney’s Office (See https://www.fbi.gov/newark/press-releases/2014/former-new-york-tax-liens-investment-company-executive-pleads-guilty-to-role-in-bid-rigging-scheme-at-municipal-tax-lien-auctions

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 (3^rd 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.

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.

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

- The Sheriff will be liable to the tenant for any damages resulting from the execution of a writ that was given to the Sheriff beyond the 30 day period. The Sheriff will also be liable for any resulting damages if the Sheriff executes a writ beyond the 10 day period. Wolfe-Lille v. Kenosha County Sheriff, 699 F. 2d 864 (7th Cir. 1983).

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)[2]’ 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

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.

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[3]. 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[4] ; (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 (3^rd 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.

DEVIATION FROM SERVICE OF PROCESS RULES' TYPICALLY MAKES A JUDGMENT OR ORDER VOID.

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[5]. 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

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)).

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.

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:

N.J. Const., Art. I, par 20. Private property shall not be taken for public use without just compensation. Individuals or private corporations shall not be authorized to take private property for public use without just compensation first made to the owners.

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.

While the Statute is seemingly limited to tenancies brought under the Summary Dispossess Act, the matter of Wildwood v. Hayward.html 81 N.J. 311, 316 (1979), established that this section applies to all evictions.

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.[6] 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[7].

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[8], 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:

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.

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). [9]

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.

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).

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

(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.

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 (3^rd 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).

For the above reasons, we conclude 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. We remand for the Magistrate Judge or District Court to reassess the propriety of amendment under the proper framework.

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

DATE: November 27, 2018

Respectfully Submitted,

___________________________________

Basilis N. Stephanatos, PhD, PE, JD

Pro Se

[1] The ATF, LLC Defendants include but are not limited to: ATF, LLC, ATFH Real Property, LLC, Matthew Marini (the owner of these entities), all officers and directors of ATF, LLC and its subsidiaries, Harris Nesbitt Corporation (n/k/a BMO Capital Markets Corporation), Keith Bonchi, Esq., Robert Del Vecchio, Esq., Coldwell Banker Realtor, Donald Fanelli, and John Does 1-20.

[2] The ATF, LLC Defendants include but are not limited to: ATF, LLC, ATFH Real Property, LLC, Matthew Marini (the owner of these entities), all officers and directors of ATF, LLC and its subsidiaries, Harris Nesbitt Corporation (n/k/a BMO Capital Markets Corporation), Keith Bonchi, Esq., Robert Del Vecchio, Esq., Coldwell Banker Realtor, Donald Fanelli, and John Does 1-20.

[3] In addition to the ATF, LLC Defendants, this suit also includes as defendants the following: Ronald A. Lucas, Victor D’Agostino, Nick Mango, Fred Ernst, the Passaic County Sheriff, Robert Dewey, Peter Roby, Stephen Bollenbach, Passaic County, and John Does 21-40. These defendants are referred to as the Passaic County Defendants. Finally, the third group of defendants includes: Dorothy Kreitz, Carl Smith, Wayne Township, the lawyers for Wayne Township and John Does 41-60. These defendants are referred to herein as the Wayne Township Defendants.

[4] “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.

[5] 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

[6] 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.

[7] 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.

Source: http://www.lsnjlaw.org/english/placeilive/irentmyhome/tenantsrights/chapternine/index.cfm

[8] 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.”

[9] 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)

MEC&F Expert Engineers

Thursday, November 29, 2018

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)

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