MASSIVE CONSPIRACY UNCOVERED IN PASSAIC COUNTY, NEW JERSEY: Passaic County prosecutor(s) have been fraudulently concealing the Wayne Dispatch audiotapes for more than 7.5 years to Stephanatos’ detriment, because these tapes prove that Stephanatos never pointed a gun at the officers and that they formed a conspiracy to frame him

VIA FAX AND FIRST CLASS MAIL                                                          December 26, 2018

Hon. Bonnie J. Mizdol

Assignment Judge

Bergen County Justice Center

Suite 425

10 Main Street

Hackensack, NJ 07601

Phone: (201) 221-0700, ext. 25227

Fax: (201) 221-0596

Leslie Darcy

Criminal Division Manager

Bergen County Courthouse

10 Main Street

Room 124

Hackensack, NJ 07601

Phone: 201-221-0700, ext. 25020

Margaret M. Foti, PJcr

Presiding Judge, Criminal Division

Bergen County Courthouse

10 Main Street, 4^th Floor, Room 412

Hackensack, NJ 07601

Phone: (201) 221-0700, ext. 25495

Fax: (201) 221-0640

Re:        State v. Basilis Stephanatos

               Passaic County Ind. No. 11-09-0810-I

               REQUEST FOR EMERGENCY HEARING (ORDER TO SHOW CAUSE) BASED ON THE DISCOVERY OF BOMBSHELL EVIDENCE THAT THE WRIT WAS VOID AB INITIO

Dear Honorable Assignment Judge Mizdol/Hon. Margaret Foti, PJcr/Criminal Division Manager:

Based on the discovery of the extraordinary evidence that the ex-parte writ entered on May 13, 2011 (See Exhibit A), was void ab initio, and pursuant to Rule 4:42-2, the undersigned moves for an order to show cause as to why the Court would not modify or vacate the order entered on June 22, 2018 by Judge Guida in this case, preventing Stephanatos from filing any motions other than in limine motions.  The Appellate Division intake attorney indicated that Stephanatos must first obtain an order from the Bergen County Court, prior to filing an emergent application with the Appellate Division to consider the void writ evidence.   

Furthermore, Stephanatos has discovered that the sheriff entered his property at 8:50 am, before the scheduled 9:00 am unlawful and unconstitutional eviction.   All evidence obtained prior to the 9:00 am event should be excluded pursuant to State v. Atwood, 232 N.J. 433 (2018). 

I am alleging that the Passaic County Prosecutor and the Passaic County Sheriff should have known that the writ was void ab initio and that they have been fraudulently concealing for more than 7.5 years this extraordinary evidence of the void writ from the courts to Stephanatos’ detriment.  I am also alleging that the Passaic County prosecutor(s) have been fraudulently concealing the Wayne Dispatch audiotapes for more than 7.5 years to Stephanatos’ detriment, because these tapes prove that Stephanatos never pointed a gun at the officers and that they formed a conspiracy to frame him.

Stephanatos is concerned that Judge Guida may find him in contempt of court and that is why is filing this emergent relief from the emergency hearing judge of the Bergen Vicinage.

RESPECTFULLY REQUEST THE FOLLOWING

A proposed order is attached.  I am asking the Court that the orders entered by Judge Guida on June 22, 2018 are withdrawn or vacated or modified to show that the May 13, 2011 ex-parte writ was void ab initio pursuant to N.J.S.A. 2A:18-57 and/or the May 13, 2011 ex-parte judgment for possession was also void ab initio, pursuant to N.J.S.A. 2A:18-56. (Proof of notice to quit prerequisite to judgment).  The legal authority for this request is Housing Authority of City of Wildwood v. Hayward, et al., 406 A.2d 1318, 81 N.J. 311 (1979)) where the Supreme Court, in an identical fact pattern stated that the Clerk had no jurisdiction to enter the ex-parte writ the same day as the judgment for possession.  The Supreme Court also ruled that the ex-parte judgment for possession was also void ab initio for failure to give to the Clerk proof of notice to quit in violation of N.J.S.A. 2A:18-56.

I am also requesting that an evidentiary hearing be performed pursuant to State v. Atwood, 232 N.J. 433 (2018).  Here is what the Supreme Court stated in that case:

Rule “3:5–7 contemplate[s] pre-trial hearings on Fourth Amendment issues which are collateral to guilt or innocence.  In addition, evidence relating to the propriety of a stop or seizure is generally separate from issues of guilt or innocence.  Usually, judicial economy is best served by resolving these issues pre-trial.” State v. McLendon, 331 N.J. Super. 104, 109, 751 A.2d 148 (App. Div. 2000).

The proper mechanism through which to explore the constitutionality of warrantless police conduct is an evidentiary hearing. See N.J.R.E. 104; see also, e.g., State v. Gamble, 218 N.J. 412, 419, 95 A.3d 188 (2014) (noting that Court derived facts of case from “evidentiary hearing held in response to defendant's motion to suppress” evidence seized after investigatory stop).

AN INDIVIDUAL "IS NOT REQUIRED TO SURRENDER [HER] FOURTH AMENDMENT PROTECTION ON THE SAY SO OF THE [INSPECTOR]. THE AMENDMENT GIVES [HER] A CONSTITUTIONAL RIGHT TO REFUSE TO CONSENT. . . . [HER] ASSERTING IT CANNOT BE A CRIME

Here is a case where the application of statute to a defendant was unconstitutional. In State v. Heine, 35 A.3d 691 N.J. Super. Ct. (App. Div. 2012) (Heine I), we held that the application of 181-3 of the City of Garfield Code to defendant Ellen Heine was unconstitutional.

In Heine I, a case involving multiple inspection refusals, we held that "Garfield's criminalization of Heine's refusal to allow the inspections is not in accordance with long-established law." Id. at slip op. 21. "By exercising her constitutional right to refuse to participate in an unwarranted inspection, Heine could not be deemed to have created the circumstances that would criminalize her conduct and cause the forfeiture of the very rights she sought to exercise." Id. at slip op. 20. The same is true in this case.

Convictions Reversed. State of New Jersey v. Ellen Heine, February 6, 2012.

See also State v. Berlow, 284 N.J.Super. 356, 358, 362-64, 665 A.2d 404 (Law Div.1995) (refusing to find a defendant guilty of obstructing the administration of law, N.J.S.A. 2C:29-1(a), for closing and locking the door to his room in a boarding house when police, wanting "to see if there was a woman shot and bleeding and injured," requested entry without a warrant). We adhere to the sentiments that an individual "is not required to surrender [her] Fourth Amendment protection on the say so of the [inspector]. The Amendment gives [her] a constitutional right to refuse to consent. . . . [Her] asserting it cannot be a crime." United States v. Prescott, 581 F.2d 1343, 1350 (9th Cir.1978).

PURSUANT TO THE AUTHORITY OF STATE IN THE INTEREST OF T.L.O., 94 N. J. 331, 463 A. 2D 934 (1983), STATE V. ATWOOD, 232 NJ 433 (2018), COLLINS V. VIRGINIA, 584 U.S. _ (2018), FLORIDA V. JARDINES, 569 U. S. 1, (2013), STEPHANATOS SEEKS THE EXCLUSION OF EVIDENCE OBTAINED IN VIOLATION OF HIS FOURTH AMENDMENT RIGHTS NOT TO BE SUBJECTED TO UNREASONABLE SEARCHES AND SEIZURES

Stephanatos has discovered that the sheriff entered his property at 8:50 am, before the scheduled 9:00 am unlawful and unconstitutional eviction.   Since the writ was void ab initio and the sheriff should not have entered the property before 9:00 am, all evidence obtained prior to the 9:00 am event should be excluded pursuant to State v. Atwood, 232 N.J. 433 (2018). 

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 sheriff committed a criminal offense in violation of that statute by entering Defendant’s property without a warrant for removal, before the scheduled 9:00 am time and having in his possession a void writ, and removing Stephanatos from his residential premises by force.

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

See also 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.A. 2A:18-53 et seq., as amended and supplemented

The New Jersey Supreme Court in the 1983 case of State In the Interest of T.L.O., 94 N. J. 331, 463 A. 2d 934 (1983), reasoned that the Supreme Court of the United States has made it quite clear that the exclusionary rule is equally applicable "whether the public official who illegally obtained the evidence was a municipal inspector, a firefighter, or school administrator or law enforcement official." The New Jersey Court concluded, "that if an official search violates constitutional rights, the evidence is not admissible in criminal proceedings."  Since the ex-parte writ was void ab initio, any and all evidence obtained by the sheriff, who was trespassing onto Stephanatos property with the intent to remove him from his home, must be excluded because they it was obtained in violation of Stephanatos’ Fourth Amendment Constitutional rights.  Furthermore, Stephanatos has discovered that the sheriff entered his property at 8:50 am, before the scheduled 9:00 am unlawful and unconstitutional eviction.   All evidence obtained prior to the 9:00 am event should be excluded pursuant to State v. Atwood, 232 N.J. 433 (2018).  The court must suppress all evidence seized—including the evidence seized pursuant to the search warrant under the “fruit of the poisonous tree” doctrine.

 

CERTIFICATION OF BASILIS N. STEPHANATOS

I hereby certify under penalty of perjury that the foregoing facts and statements made by me are true and correct to my own knowledge, except as to those matters set forth therein upon information and belief, and as to those matters, he believes them to be true.  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:  December 26, 2018

Respectfully Submitted,

___________________________________

Basilis N. Stephanatos, PhD, PE, JD

Pro Se

 ===================================================

LETTER BRIEF IN SUPPORT OF THE EMERGENCY MOTION (ORDER TO SHOW CAUSE) FOR RECONSIDERATION PURSUANT TO COURT RULE 1:7-4 AND RULE 4:42-2 BASED ON THE DISCOVERY OF NEW EVIDENCE OR IN THE ALTERNATIVE, MOTION FOR MODIFICATION OF ORDER(S) NOW IN EFFECT IN THIS ACTION

Based on the discovery of the extraordinary evidence that the ex-parte writ entered on May 13, 2011 (See Exhibit A), was void ab initio[1] due to lack of authority of the Clerk to enter the writ the same day as the judgment for possession (see N.J.S.A. 2A:18-57 and Housing Authority of City of Wildwood v. Hayward, et al., 406 A.2d 1318, 81 N.J. 311 (1979)). 

I am alleging that the Passaic County Prosecutor and the Passaic County Sheriff should have known that the writ was void ab initio and that they have been fraudulently concealing for more than 7.5 years this extraordinary evidence of the void writ from the courts to Stephanatos’ detriment.

A judgment or order is considered 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." James v. Francesco, 61 N.J. 480, 485 (1972) (citing Restatement of Judgments, 8, comment b, pp. 46-47 (1942)). A "voidable" judgment, on the other hand, is one that, "although seemingly valid, is defective in some material way; esp., a judgment that, although rendered by a court having jurisdiction, is irregular or erroneous." Black's Law Dictionary 848 (7th ed. 1999).  Golf Lucky Partners v. PGG, LLC, Appellate Division, October 2, 2014.

Pursuant to Rule 4:42-2, the undersigned moves that the Court modify or vacate the order entered on June 22, 2018 by Judge Guida in this case, preventing Stephanatos from filing any motions other than in limine motions.  The Appellate Division intake attorney indicated that Stephanatos must first obtain an order from the Bergen County Court, prior to filing an emergent application with the Appellate Division to consider the void writ evidence.  

Furthermore, Stephanatos has discovered that the sheriff entered his property at 8:50 am, before the scheduled 9:00 am unlawful and unconstitutional eviction.   All evidence obtained prior to the 9:00 am event should be excluded pursuant to State v. Atwood, 232 N.J. 433 (2018). 

I am alleging that the Passaic County Prosecutor and the Passaic County Sheriff should have known that the writ was void ab initio and that they have been fraudulently concealing for more than 7.5 years this extraordinary evidence of the void writ from the courts to Stephanatos’ detriment.  I am also alleging that the Passaic County prosecutor(s) have been fraudulently concealing the Wayne Dispatch audiotapes for more than 7.5 years to Stephanatos’ detriment, because these tapes prove that Stephanatos never pointed a gun at the officers and that they formed a conspiracy to frame him.

 

Stephanatos is extremely concerned with the high prejudice caused by the ruling of Judge Guida that the ex-parte writ was valid and that had to be obeyed by Stephanatos.  Now that the ex-parte writ is proven to be void ab initio, that order by Judge Guida must be modified or vacated.  See United States v. Mahasin, 442 F.3d 687 (8th Cir. 2006) “The trial court erroneously permitted the government to introduce the “face sheet” of a search warrant in order to establish why the police were at a particular house (where they found a gun).  Even with a limiting instruction, the unfair prejudice occasioned by admitting the search warrant face sheet outweighed the probative value of the evidence.”

Stephanatos is concerned that Judge Guida may find him in contempt of court in violation of his June 22, 2018 order, and that is why is filing this emergent relief from the emergency hearing judge of the Bergen Vicinage pursuant to an Order to Show Cause (Emergency Motion).

BACKGROUND

In mid-December, 2018, as his was preparing for trial, Stephanatos discovered bombshell evidence (See Exhibit A) that proves beyond any doubt that the ex-parte writ of possession issued by the Clerk of the Superior Court on May 13, 2011 was void ab initio because it was entered the same day as the judgment for possession in violation of N.J.S.A. 2A:18-57.  Furthermore, the May 13, 2011 ex-parte judgment for possession was also void ab initio, pursuant to N.J.S.A. 2A:18-56. (Proof of notice to quit prerequisite to judgment).

Based on New Jersey Supreme Court decisions and state statutes, the Clerk had no jurisdiction to issue the writ:

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." HOUSING AUTHORITY OF CITY OF WILDWOOD v. Hayward, et al., 406 A.2d 1318, 81 N.J. 311 (1979).

Equally important, the Supreme Court in an identical fact pattern as in the Stephanatos case (i.e., the ex-parte issuance of judgment for possession and ex-parte writ the same day as the judgment) has ruled that the judgment for possession was also void for lack of jurisdiction because it was entered in violation of state law.  Here are the facts and the Supreme Court Decision:

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)

A recent New Jersey Appellate Division decision is also on point regarding the lack of authority of the sheriff to execute a void writ: Borromeo v. DIFLORIO, 976 A.2d 388 (N.J. Super. Ct. App. Div. 2009)

First, if the initial writ were void, any execution relying upon its apparent authority was not justified and cannot be sustained.   See Ryerson, supra, 11 N.J.L. at 352 (if the sheriff had no authority under procedurally defective writ of execution, he could not, of his own volition, assume the authority to post and sell the subject realty).   Issuance of the writ to the Mercer County Sheriff placed in the hands of the Somerset County Sheriff was as if there were no writ at all.   In posting the misdirected writ, the Somerset County Sheriff was no more than a trespasser on Migliaccio's property.

This Court has already been briefed on the naked power of the sheriff to execute void writs:

“[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).

In June 2018, this Court denied all motions of Stephanatos (including the motions to suppress evidence based on illegal search and seizure) and denied all Stephanatos’ defenses, including the Castle Doctrine Defense.  Furthermore, this Court ruled that Stephanatos did not have any expectation of privacy.  Because this Court had believed the assertions of the state that the writ was lawful, all these rulings must be reconsidered based on the discovery that the writ and/or the judgment for possession were procedurally defective and void ab initio.

Stephanatos is asking the Court to allow this new evidence to complete the record and to revise its rulings regarding Stephanatos’ privacy rights, Castle Doctrine Defense, other applicable defenses and suppression of evidence motions.  Stephanatos is also asking this Court to rule that the sheriff officers were no more than trespassers on Stephanatos’ property on June 28, 2011.

Federal lawsuit has been reopened

It is important to note that, based on the discovery of this evidence the federal district court has reopened the civil action against the sheriff and the antitrust conspirators (American Tax Funding, LLC, ATF Real Property, LLC, Robert Del Vecchio, et al) and is currently considering Stephanatos’ Amended Complaint.  Since this Court included in the record damaging excerpts from Judge Hochberg’s 2013 decision to dismiss the civil case (that decision was also based on the fraudulent assertions of the sheriff and the antitrust conspirators that the writ was lawful), it is only fair and equitable for the Court to also include into the record the re-opening of the federal civil case based on the discovery of the new bombshell evidence and the fraudulent concealment of the sheriff and the state that both the writ and the judgment for possession were void ab initio due to lack of jurisdiction by the Clerk to enter such writs or judgments in contravention of state statutes and in violation of the tenancy laws of this state.

LEGAL ARGUMENTS

1.    THE LAW REGARDING MOTIONS FOR RECONSIDERATION OF INTERLOCUTORY (PENDENTE LITE) ORDERS

This motion allows Stephanatos to bring previously unavailable material evidence to the court’s attention.  This new evidence is not cumulative and is not contradictory.  The evidence will not be used solely for impeachment.  This evidence was not discoverable by reasonable diligence beforehand due to the complex nature of the tenancy laws of this state and the fraudulent concealment by the antitrust conspirators and the sheriff and the state employees. Finally, the evidence would have resulted in a different decision by this Court regarding the Castle Doctrine defense, the reasonable expectation of privacy of Stephanatos, the exclusion of evidence obtained by illegal search and seizure, the exclusion of evidence based on the execution of a fraudulent search warrant[2], as well as the availability of other defenses.  Finally, this new evidence will complete the record by stating that new evidence exists.  If nothing else, this evidence could be crucial in granting a new trial or reversing a jury’s verdict on appeal and must be allowed into the record.

 Reconsideration “is a matter within the sound discretion of the Court, to be exercised in the interest of justice”. D’Atria v. D’Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). 

Court Rule 4:42-2 provides as follows: “[A]ny order or form of decision which adjudicates fewer than all the claims as to all the parties shall not terminate the action as to any of the claims, and it shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice.” Under the 1988 Appellate Division case of Johnson v. Cyklop Strapping Corp., the Court’s discretion should be exercised “only for good cause shown and in the service of the ultimate goal of substantial justice[.]” See also. Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002); Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997); Cummmings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996.

The New Jersey Rules of Court allow litigants an opportunity to rectify orders. Motions for reconsideration of interlocutory decisions are to be made under Rule 1:7-4, which in turn refers to Rule 4:42-2, rather than under Rule 4:49-2.  See Nead v. Union Cty. Educ. Servs. Comm’n, 2011 WL 166205 (App. Div. Jan. 20, 2011).  Nead makes clear that such motions are appropriate in proper circumstances.  The Appellate Division observed that a motion for reconsideration is “after all, an inherent– as well as a rule-based– adjunct to the decisional process of dispute resolution,” and that courts “should not begrudge parties the right” to seek reconsideration. 

The Nead court emphasized that “in order to maintain a consistent methodology for all motions seeking reconsideration, we believe that the same modes of thought and methods of analysis should apply to applications for reconsideration of both interlocutory (Rule 4:42-2) and final (Rule 4:49-2) orders.  At its core, the guiding principle for all such reviews will always be the furtherance of the interests of justice.”  This “uniform approach will also enhance predictability and serve to fortify our observance of precedent.”  Thus, as a practical matter, it may not matter under which Rule reconsideration is sought.

The distinction between reconsideration of interlocutory and final orders, although sometimes overlooked, has been recognized and endorsed by the New Jersey Supreme Court in the 2011 case of Lombardi v. Masso, which recognized and spoke at length on the difference between Court Rule 4:42-2 (reconsideration of interlocutory orders) and Court Rule 4:49-2 (reconsideration of final orders). For example, Courts have held that the twenty-day time limit imposed under Court Rule 4:49-2 is clearly inapplicable to reconsideration of interlocutory orders. Interlocutory orders may be reviewed “at any time” under Court Rule 4:42-2.

Another critical distinction is that the Court is not constrained by the original record when addressing motion for reconsideration of interlocutory orders. So, while a motion for reconsideration of a final order may be properly denied if the evidence upon which you are relying was not given to the Court the first time around, a motion for reconsideration of an interlocutory order should consider all the evidence, regardless of when it was presented to the Court. The New Jersey Supreme Court in Lombardi v. Masso stated, “Plaintiff argues that the judge, in fact, confined himself to the original record; defendants say he did not. Although we are not sure whether the judge cabined off the original record, we need not resolve that conflict because there is nothing in our law that would require him to do so. … We presume that judges ordinarily will not be required to second guess themselves because most attorneys will advance the best case possible the first time around, thus obviating later theoretical or evidential surprises. But where that does not occur, for whatever reason, and the judge later sees or hears something that convinces him that a prior ruling is not consonant with the interests of justice, he is not required to sit idly by and permit injustice to prevail.”

The key consideration is what is shall always be a in a Court of Law: justice. Although Court Rule 4:42-2 is expansive, the Appellate Division in Johnson v. Cyklop Strapping Corp. held that the power to reconsider an interlocutory order should be exercised “only for good cause shown and in the service of the ultimate goal of substantial justice.” Nevertheless, as stated by the Appellate Division in the 1983 case of Ford v. Weisman, “has complete power over its interlocutory orders and may revise them when it would be consonant with the interests of justice to do so.”

Stephanatos respectfully submits that this legal brief shows very clearly that the writ and/or the judgment for possession were void ab initio as they were entered by the Clerk without any jurisdiction and in direct violation of state tenancy laws, including the tenancy at sufferance of Stephanatos and his two businesses residing at 687 Indian Road in Wayne, New Jersey. 

2.    A COURT ORDER OR JUDGMENT BASED ON LACK OF JURISDICTION OR IN CONTRADICTION OF STATE STATUTES OR DEFECTIVE SERVICE OF PROCESS OR NO SERVICE AT ALL IS DEEMED VOID AB INITIO

The Office of Foreclosure, the Mercer County Judge and/or its clerk had no personal or subject matter jurisdiction over Stephanatos 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 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, N.J.S.A. 2A:18-61.1 et seq., when in fact Stephanatos and his businesses were tenants-at-sufferance protected by the Summary Dispossess Act, N.J.S. 2A:18-53 et seq.  See Exhibit A for the fraudulent self-certification of Robert Del Vecchio to the Clerk.

The State’s own law revision commission states the following:

Since enactment of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq., the Summary Dispossess Act, N.J.S. 2A:18-53 et seq has been understood to cover the eviction of nonresidential tenants and residential tenants not covered by the Anti-Eviction Act. (emphasis added) Source: STATE OF NEW JERSEY, NEW JERSEY LAW REVISION COMMISSION, Final Report Relating to Landlord and Tenant Law, February 10, 2012.

This tenancy at sufferance is included in 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.

Therefore, a tenant-at-sufferance, such as Stephanatos and his two businesses residing at 687 Indian Road, Wayne, NJ (Metropolitan Engineering Services, PC and Metropolitan Environmental Services), are protected by the Landlord-Tenant Law and their property interests could have only been decided in compliance with the Summary Dispossess Act, N.J.S. 2A:18-53 et seq.

Here is some of the case law of New Jersey:

Under New Jersey law, "[a] purchaser at a mortgage foreclosure sale obtains the legal right to possession of land purchased as soon as he obtains a deed from the selling officer." 30 New Jersey Practice, Law of Mortgages § 373. The mortgagor's continued possession of the property after such time is that of a tenant at sufferance. See Caruso v. Hunt, 69 N.J.Super. 447, 452, 174 A.2d 381 (Ch.Div. 1961) (quoting 2 C.J.S. Adverse Possession § 105, page 659) ("The owner's continued possession after sale of the property at execution, judicial, or like sale is that of a tenant at sufferance of the purchaser”). In Re St. Clair, 251 B.R. 660 (D.N.J. 2000).

Therefore, in accordance with this well-settled law, Stephanatos became a tenant-at-sufferance and this property interest, along with his equitable and business possessory 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 pursuant to the Summary Dispossess Act, N.J.S. 2A:18-53 et seq..  The entry of the writ on May 13, 2011 was also erroneous because it was entered the same day as the final judgment; this error deprived the Clerk of jurisdiction.  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 (See Exhibit A).  This is prohibited by the court rules of New Jersey and state law.  These facts also 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 required by law: 2A:18-56. Proof of notice to quit prerequisite to judgment.  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). 

Here, Stephanatos was not served with process required by law: 2A:18-56. Proof of notice to quit prerequisite to judgment.  Therefore the judgment for possession entered on May 13, 2011 was void ab initio.

3.    DUE PROCESS REQUIRES A DEMAND TO QUIT AND A NOTICE OF THE EVICTION PURSUANT TO THE SUMMARY DISPOSSESS ACT, N.J.S. 2A:18-53 ET SEQ.

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 ATF, LLC, Robert Del Vecchio and the sheriff 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.  ("The owner's continued possession after sale of the property at execution, judicial, or like sale is that of a tenant at sufferance of the purchaser”). In Re St. Clair, 251 B.R. 660 (D.N.J. 2000).

To remove a tenant at sufferance, the statutory procedures provided under the Summary Dispossess Act, N.J.S. 2A:18-53 et seq. must be followed[3].  However, the ATF, LLC conspirators failed to follow these procedures by obtaining ex-parte judgments and writs without providing the requisite notice to quit and therefore, Stephanatos’ due process rights established by the above state laws were violated by the ATF, LLC and Passaic County sheriff.

The Summary Dispossess Act, N.J.S. 2A:18-53 et seq. requires proof of notice to quit prior to entering a judgment for possession.

N.J.S.A. 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:

a.            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

b.            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

c.            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

d.            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, N.J.S.A. 2A:18-61.1 et seq., or the Summary Dispossess Act, N.J.S. 2A:18-53 et seq., 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, the Stephanatos’ businesses were not provided with the requisite notice to quit and they were as a result illegally evicted.

See also chapter 17 of the Landlord-Tenant Law Title 46A, requiring notice to vacate and demand for possession prior to entering a judgment:

CHAPTER 17. JUDGMENTS FOR POSSESSION AND WARRANT OF EVICTION; EXECUTION; JURISDICTION; REQUIREMENTS

     46A:17‑1.  Notice to vacate and demand for possession; due proof of sufficiency required before judgment entered.  Unless a court is satisfied by due proof that any notice required by this article or any notice required by federal, State, or local law is sufficient and has been served in accordance with chapter 16 of this Title and, in the case of any other notice, in accordance with any other applicable law, the court may not enter a judgment for possession even if a ground for eviction has been proved.

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 sheriff committed a criminal offense in violation of that statute by entering Defendant’s property without a warrant for removal, having in his possession a void writ, and removing Stephanatos from his residential premises by force.

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

See also 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.A. 2A:18-53 et seq., as amended and supplemented

All other jurisdictions in the United States have almost identical laws to the ones in New Jersey, requiring summary dispossess proceedings prior to removing tenants-at-sufferance.  Here, no such notice was provided to Stephanatos and his businesses in violation the Summary Dispossess Act, N.J.S. 2A:18-53 et seq.  Therefore, the writ and/or judgment for possession were void for lack of jurisdiction by the Clerk.

Eviction Actions After Foreclosure in New York State

As a comparison, Stephanatos also provides the procedures followed by other jurisdictions.  Neighboring state laws also parallel the ones in New Jersey, requiring a notice to quit, followed by a summary proceeding.

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).

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

In addition to the New Jersey and other state law that Stephanatos has cited, we also cite the law of the State of Virginia. 

Evictions and Unlawful Detainers under Virginia Law is Identical to New Jersey Law

Virginia’s House Bill 311 codifies certain roles and procedures during unlawful detainer matters:

1.            A former owner of a single-family residential dwelling unit who remains in the property after foreclosure is now defined as a tenant at sufferance.

2.            A successor owner has the right to file an unlawful detainer action three days after giving the tenant written termination notice.

The Virginia law is identical to the one New Jersey has.  ATF, LLC, Robert Del Vecchio and the sheriff failed to use the applicable New Jersey statutes because they certified that Stephanatos had no possessory rights (i.e., that he was not a tenant at sufferance) and they obtained ex-parte judgment for possessions and ex-parte writs.  To make matters worse, the entry of the writ was made the same day as the entry of the judgment for possession which is in violation of state law, N.J.S.A. 2A:18-57  .

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." HOUSING AUTHORITY OF CITY OF WILDWOOD v. Hayward, et al., 406 A.2d 1318, 81 N.J. 311 (1979)

See also In re Atlantic Bus. & Community Corp., 901 F.2d 325, 327 (3d Cir. 1990) (determining that interest of debtor in radio station and transmitter under a tenancy at sufferance constitutes a protected property interest under section 362).

See also the Idaho laws:

The purchaser is entitled to possession of the property on the tenth day following the sale, and a tenant remaining on the property becomes a “tenant[] at sufferance,” who may be subjected to expedited eviction proceedings. Idaho Code Ann. § 45-1506(11).

Eviction Process

The purchaser of the property must bring an action against the tenant for possession. Idaho Code Ann. § 6-310. The court must schedule a trial within 12 days from the filing of the complaint, and the tenant must be served with the summons, complaint, and trial setting at least 5 days before the date of the trial. Id. § 6-310(5).

Here are the Michigan laws:

Terminate Tenancy (Y/N)

No - foreclosure does not result in immediate termination of tenancy. The lease is valid until the redemption period (6 months) has ended. After the end of the redemption period, the lease is no longer valid and the tenancy relationship changes to a “tenancy at sufferance” or “holdover tenancy” which means that the tenant is in possession of the property legally, but the legal right of possession has ended as a result of the completed foreclosure. The website for the Michigan Tenant Counseling Program (see below) states that the law in this area is still unsettled, but many believe that holdover tenants have the right to receive a 30-day notice before eviction proceedings can begin. If a tenant is served with an eviction notice, he has a month to find a new place to live before the new owner begins court proceedings to evict. Should a tenant decide not to move after the end of the 30-day notice and the new owner files for an eviction; the tenant will receive a “Summons” and “Complaint” ordering him to court. Because of the tenant’s legal status as a “holdover tenant” it is likely that the new owner will receive a default judgment for possession in their favor.

Eviction Process

Notice must be provided, “Notice to Quit / Termination of Tenancy”, giving tenant 30 days to vacate. Tenant is then entitled to a hearing; if tenant does not vacate at end of 30 days, tenant must be served with summons and complaint. If the landlord prevails at the hearing, then the tenant must move within 10 days. If the tenant does not move, a writ of restitution can be issued, which provides for immediate physical eviction (no notice).

Here are the laws of Oregon:

Terminate Tenancy (Y/N)

Yes - In both judicial and non-judicial foreclosures, any person occupying the dwelling after the foreclosure sale is treated as a tenant at sufferance and subject to eviction after a 30-day written notice through the normal summary eviction process (notice and right to a hearing, usually within 14 days depending on the county). The notice must be served no earlier than 30 days before the date first set for the foreclosure sale.

Eviction Process

Eviction is generally for cause, except where there is a month-to-month lease in which case the landlord may give a 30-day notice for eviction without cause.

Here are the laws of Rhode Island

Terminate Tenancy (Y/N)

No; however, the tenancy relationship changes to a tenancy at sufferance.

Eviction Process

The landlord may file an eviction action on the first day following the foreclosure. The summons shall specify that the tenant has 20 days from the date of service in which to answer the complaint.

Relevant Authorities

RI Gen. Laws Sec. 34-27-1 (mortgagee may file lawsuit to foreclose); RI Gen. Laws Sec. 34-27-4 (foreclosure notice requirements); RI Gen. Laws Sec. 34-18-38 (eviction process); RI Gen. Laws Sec. 34-18.1-2 (notice for tenants at sufferance under commercial leases); Noorigan v. Greenfield, 52 R.I. 33 (RI 1931) (foreclosure creates tenancy at sufferance).

New Jersey Laws

Terminate Tenancy (Y/N)

No

Eviction Process

Under the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq., a tenant may not be evicted by the landlord’s successor under an order for possession except upon a court order establishing good cause or other limited exceptions. N.J. Stat. § 2A:18-61.3(b); Chase Manhattan Bank v. Josephson, 638 A.2d 1301, 1314 (N.J. 1994) (finding that the Anti-Eviction Act applies to foreclosing mortgagees). The grounds for good cause, which are statutorily defined, include, but are not limited to, failure to pay rent, willful destruction of the premises, and breach of the lease agreement. N.J. Stat. § 2A:18-61.1. Unless the eviction is for nonpayment of rent, the landlord must deliver a written notice to quit either personally to the tenant, to the tenant’s usual place of abode, or by certified mail prior to instituting the eviction action. N.J. Stat. § 2A:18-61.2. The notice must include the cause of the eviction. Id.

Relevant Authorities

• Evictions: N.J. Stat. § 2A:18-61.1-.12; N.J. Stat. § 2A:42-10.16; Chase Manhattan Bank v. Josephson, 638 A.2d 1301 (N.J. 1994) • Foreclosures: N.J. Stat. § 2A:50-2; N.J. Stat. § 2A:50-36-37; N.J. Stat. § 2A:50-56-58; N.J. Stat. § 2A:50-64; N.J. Ct. R. 4:65; American-Italian Bldg. & Loan Ass’n of Elizabeth, N.J. v. Liotta, 189 A. 118 (N.J. 1937).

All these state laws, including New Jersey’s, require a notice to quit prior to obtaining a judgment for possession.  A tenancy, including a tenancy at sufferance in this instance, cannot be terminated without a judge’s decision who has jurisdiction over the person (Stephanatos) and property and without prior demand to quit.  The ATF, LLC conspirators and the sheriff failed to do so and therefore violated the due process rights of Stephanatos.  In fact, the judgment of possession entered on May 13, 2011 was void ab initio for failing to comply with the statutory requirement of a notice to quit:  2A:18-56. Proof of notice to quit prerequisite to judgment 

Therefore, the Clerk had no jurisdiction to enter the judgment for possession because the proof of the notice to quit was not provided to the Clerk.  The antitrust and RICO conspirators made the fraudulent certification that all the possessory rights of Stephanatos had been extinguished and that they did not have to comply with the statutory law of New Jersey applicable to tenants at sufferance.  See Exhibit A for the fraudulent ex-parte self-certification of the conspirator Robert Del Vecchio.

The same notice is required prior to entering a writ.  And the writ cannot be entered the same day as the judgment for possession.  Therefore, the writ was void ab initio for violation of these two additional statutory requirements. The controlling authority is  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."

4.    AN UNLAWFUL EVICTION VIOLATES THE FOURTH AND FOURTEENTH AMENDMENT: SOLDAL V. COOK COUNTY, 506 U.S. 56, 61 (1992). 

An unlawful eviction (as the one performed here using the void ex-parte writ and the void ex-parte judgment for possession) can violate both the Fourth Amendment and the Fourteenth Amendment to the U.S. Constitution. Soldal v. Cook County, 506 U.S. 56, 61 (1992) (holding the seizure of property violates the Fourth Amendment); United States v. James Daniel Good Real Prop., 510 U.S. 43, 62 (1993) (holding, absent exigent circumstances, due process entitles a homeowner to notice and an opportunity to be heard before seizure of real property); Thomas v. Cohen, 304 F.3d 563, 576 (2002) (finding an illegal eviction clearly violated [home resident’s] Fourteenth Amendment right to be free from unreasonable seizures). 

These deceptive and unlawful practices by these Anti-Trust Conspirators 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.

Thus, the sheriff should have had advance notice of the illegal practices of lawyers for the antitrust conspirators such as Robert Del Vecchio, Keith Bonchi, et al.

The sheriff brought M16 assault rifles to the illegal eviction, proving their aggressive behavior towards the Defendant

Capt. Frederick Ernst #852 wrote in his report that he checked the NJ State Police firearms database and found out that Stephanatos owned several guns.  Capt. Frederick Ernst #852, writes in his June 30, 2011 report the following:  “Since both Lt. Mango and I are qualified with assault rifles I decided we would utilize M-16 rifles currently assigned to this division”.  In addition, Ernst reiterated in his report the false allegations that Robert Del Vecchio has stated to Lucas that “if I see you I will fuck you in the ass with a rhinoceros horn”.  As we have already submitted to this Court in the April 2018, Supplemental Motions to Dismiss, these allegations of Del Vecchio were fraudulent and Defendant provided proofs that he never made such statements to anybody.  Also, the purpose of these four officers was to “secure the house”. Lt. Nicholas Mango’s report, dated June 29, 2011.  Mango wrote that “we told the ATF, LLC property manager to stand by at the entrance to Manitou Estates”, “until we secured the house”.  However, during the grand jury testimony, Lucas said that they went at Stephanatos’ residence to deliver eviction papers – this was yet another lie that Lucas made.

Because Stephanatos would not open the door to let the sheriff in, the officers fabricated assault charges and forcefully and illegally removed Stephanatos from his residence using the void judgment for possession and the void writ.

PURSUANT TO THE AUTHORITY OF STATE IN THE INTEREST OF T.L.O., 94 N. J. 331, 463 A. 2D 934 (1983), STATE V. ATWOOD, 232 NJ 433 (2018), COLLINS V. VIRGINIA, 584 U.S. _ (2018), FLORIDA V. JARDINES, 569 U. S. 1, (2013), STEPHANATOS SEEKS THE EXCLUSION OF EVIDENCE OBTAINED IN VIOLATION OF HIS FOURTH AMENDMENT RIGHTS NOT TO BE SUBJECTED TO UNREASONABLE SEARCHES AND SEIZURES

The New Jersey Supreme Court in the 1983 case of State In the Interest of T.L.O., 94 N. J. 331, 463 A. 2d 934 (1983), reasoned that the Supreme Court of the United States has made it quite clear that the exclusionary rule is equally applicable "whether the public official who illegally obtained the evidence was a municipal inspector, a firefighter, or school administrator or law enforcement official." The New Jersey Court concluded, "that if an official search violates constitutional rights, the evidence is not admissible in criminal proceedings."  Since the ex-parte writ was void ab initio, any and all evidence obtained by the sheriff, who was trespassing onto Stephanatos property with the intent to remove him from his home, must be excluded because they it was obtained in violation of Stephanatos’ Fourth Amendment Constitutional rights.  The court must suppress all evidence seized—including the evidence seized pursuant to the search warrant under the “fruit of the poisonous tree” doctrine.

Later obtained search warrant does not correct prior illegal warrantless search. State v. Atwood, 232 N.J. 433 (2018).

In State v. Atwood, supra, the question presented, as phrased by the Supreme Court Clerk’s Office, is “Was the seized evidence properly suppressed based on defendant’s challenge to police conduct occurring prior to the issuance of the warrant?”

In this case, the State announced that it would not go forward with evidential proceedings. Instead of returning with an individual to assist in setting up the equipment for the MVR, the State waged another effort at challenging which party should carry the initial evidentiary burden and proposed orders ascribing the burden to the defense. The court admonished the State and ordered that it begin with the presentation of testimony. The State called no witnesses.

Finding that the State had failed to meet its burden, the court granted defendants' motion to suppress. The court suppressed all evidence seized—including the evidence seized pursuant to the search warrant under the “fruit of the poisonous tree” doctrine.

The court denied the State's request for leave to file an interlocutory appeal. The State filed a motion for leave to appeal to the Appellate Division, which promptly denied that motion. We granted the State leave to appeal. 229 N.J. 255, 161 A.3d 763 (2017).

Before trial, a defendant claiming to be aggrieved by an unreasonable search or seizure may apply to suppress the evidence seized, whether the search or seizure was executed with a warrant or constitutes a warrantless search.  R. 3:5–7(a). Subsection (b) of that rule allocates the evidentiary burden as to searches based on whether they are or are not supported by a warrant, and subsection (c) prescribes that “[i]f material facts are disputed [in suppression motions], testimony thereon shall be taken in open court.” R. 3:5–7(c). Rule “3:5–7 contemplate[s] pre-trial hearings on Fourth Amendment issues which are collateral to guilt or innocence.  In addition, evidence relating to the propriety of a stop or seizure is generally separate from issues of guilt or innocence.  Usually, judicial economy is best served by resolving these issues pre-trial.” State v. McLendon, 331 N.J. Super. 104, 109, 751 A.2d 148 (App. Div. 2000).

The proper mechanism through which to explore the constitutionality of warrantless police conduct is an evidentiary hearing. See N.J.R.E. 104; see also, e.g., State v. Gamble, 218 N.J. 412, 419, 95 A.3d 188 (2014) (noting that Court derived facts of case from “evidentiary hearing held in response to defendant's motion to suppress” evidence seized after investigatory stop).

“A warrantless entry into a home is presumptively invalid unless the State can 

show that it falls within one of the specific, delineated exceptions to the general 

warrant requirement.  Evidence found pursuant to a warrantless search not 

justified by an exception to the warrant requirement is subject to suppression 

under the exclusionary rule”.  State of New Jersey in the Interest of J.A. (A-38-16) (077383,

 decided June 6, 2018.  In the above case, 

 Police officers decided to secure the perimeter of the house. While performing an exterior 

security check, an officer peered through a first-floor window and noticed a pink glittery

 phone case matching the victim’s description on a nearby bed. At that point, the police 

thought that the young man who took the victim’s phone may have been inside the house. 

No one responded to the officers’ several knocks on the front door. 

One officer found an unlocked window on the first floor, 

through which he and another officer entered the house.

See also the recent case of the United States Supreme Court, Collins v. Virginia, 

No. 16-1027, decided May 29, 2018, 584 U.S. __ (2018).  

 In defining the protected areas of the home, the Supreme Court said: 

“As an initial matter, the part of the driveway where Collins’ motorcycle was 

parked and subsequently searched is curtilage. When Officer Rhodes searched 

the motorcycle, it was parked inside a partially enclosed top portion of the d

riveway that abuts the house. Just like the front porch, side garden, or area 

“outside the front window,” that enclosure constitutes “an area adjacent to 

the home and ‘to which the activity of home life extends.’ ”  

 Florida v. Jardines, 569 U. S., at 6, 7.”

The Fourth Amendment “indicates with some precision the places and things encompassed by its protections”: persons, houses, papers, and effects. Oliver v. United States, 466 U. S. 170, 176 (1984) . The Fourth Amendment does not, therefore, prevent all investigations conducted on private property; for example, an officer may (subject to Katz) gather information in what we have called “open fields”—even if those fields are privately owned—because such fields are not enumerated in the Amendment’s text. Hester v. United States, 265 U. S. 57 (1924) .

But when it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental in-trusion.” Silverman v. United States, 365 U. S. 505, 511 (1961) . This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.

We therefore regard the area “immediately surrounding and associated with the home”—what our cases call the curtilage—as “part of the home itself for Fourth Amendment purposes.” Oliver, supra, at 180. That principle has ancient and durable roots. Just as the distinction between the home and the open fields is “as old as the common law,” Hester, supra, at 59, so too is the identity of home and what Blackstone called the “curtilage or homestall,” for the “house protects and privileges all its branches and appurtenants.” 4 W. Blackstone, Commentaries on the Laws of England 223, 225 (1769). This area around the home is “intimately linked to the home, both physically and psychologically,” and is where “privacy expectations are most heightened.” California v. Ciraolo, 476 U. S. 207, 213 (1986) .

While the boundaries of the curtilage are generally “clearly marked,” the “conception defining the curtilage” is at any rate familiar enough that it is “easily understood from our daily experience.” Oliver, 466 U. S., at 182, n. 12. Here there is no doubt that the officers entered it: The front porch is the classic exemplar of an area adjacent to the home and “to which the activity of home life extends.” Ibid

“when it comes to the Fourth Amendment, the home is first among equals.” 

The amendment’s protections, the court had ruled, extend to a home’s 

“curtilage,” meaning the areas immediately surrounding it, 

including driveways.

Florida v.Jardines, 569 U. S., at 6, 7. (2013)

Here, the sheriff officers armed with M16 assault rifles and a void writ and with the specific intend to remove Stephanatos from his home (a criminal act in violation of NJ Rev Stat § 2C:33-11.1 (2013) - Certain actions relevant to evictions, disorderly persons offense), entered Stephanatos’ driveway illegally, they searched his garage illegally, they entered his porch area illegally and started looking inside his windows, also illegally, after Stephanatos did not answer the door bell.  The New Jersey law has criminalized the peering into dwelling places, a crime that has been committed by the sheriff.  See 2C:18-3. Unlicensed entry of structures; defiant trespasser; peering into dwelling places.

The sheriff already made statements in their reports that they saw a car inside the closed garage, implying that they were performing a search to “secure the home”.  The sheriff also stated that based on the parked cars, “they knew that there were people inside the home”.  Stephanatos submits that all evidence obtained by the sheriff was the result of an illegal search and warrantless arrest and warrantless seizure and also was fruit under the poison tree and must be excluded from the criminal proceedings following an evidentiary hearing.

MORE EVIDENCE OF FALSE CERTIFICATIONS, LIES AND FABRICATIONS SUBMITTED TO THE COURTS

In addition to the fraudulent concealment of the crucial evidence that the ex-parte writ was void ab initio, and the refusal to provide the requested discovery, Stephanatos provides more evidence of perjured testimony and false certifications provided by the new prosecutor Stephen Bollenbach to the Appellate Division and the New Jersey Supreme Court:

In his certification, the prosecutor wrote (he lied) that the “officers lunged to the ground and one of them injured his shoulder and bicep”.

Lucas never wrote in his June 28, 2011 report that he was injured or that he lunged to the ground. Lucas wrote in his report that “as I entered the woods, I stumbled”. 

Furthermore, D’Agostino never wrote that he lunged to the ground.  He also never testified that he lunged to the ground.  D’ Agostino never wrote or stated that any one was injured.  In addition, Lt. Nick Mango wrote in his June 29, 2011 report that “nobody was hurt”.  In addition, eye-witnesses have stated that they saw Lucas during the evening of June 28, 2011 inside the 687 Indian Road property moving around and showing no signs of any injury.

We have also discovered that Lucas was a football player and body builder and suffered these injuries over his many years of lifting heavy weights and hitting his opponents with his shoulder (he was a linebacker with the Pompton Lakes Cardinals at #41).  This guy then defrauded the Police and Firemen Retirement Fund by claiming disability and started the double dipping.  If he had suffered a “pretty severe injury” (see the GJT of Lucas), “requiring five pins”, he would have been in severe pain.  However, eye witnesses said that Lucas never showed any pain during the evening of June 28, 2011.

The Passaic County prosecutors and the sheriff know that the only way to win this case is through lies and lies and more lies. 

CONCLUSION

Stephanatos respectfully submits that all the above prove beyond any doubt that Stephanatos’ state-mandated procedural due process rights were violated by the ATF, LLC and Passaic County Sheriff.  And the worst part is that they have been concealing this law and these facts from the federal and state courts, including this Court, for the last 7.5 years.  This proves the fraud-on-the-court claim and the fraudulent concealment claim.

In light of the newly discovered evidence, this Court should vacate its ruling denying Stephanatos rights and privileges and immunities (the Castle Doctrine Defense, the right to reasonable expectation of privacy, the right not to be subjected to unreasonable searches and seizures, and so on).  At a suppression hearing, Stephanatos will prove to this Court that any and all evidence procured by the state was the result of unlawful search and seizure, including fraudulent information provided in the affidavit prior to obtaining a search warrant.  By failing to include in the Affidavit that the ex-parte writ was void ab initio and the ex-parte judgment for possession was also void, the Affidavit submitted in support of the issuance of the search warrant contained misrepresentations and fabrications with reckless disregard for the truth, and material omissions of essential facts; and the search was unreasonable.

CERTIFICATION OF BASILIS N. STEPHANATOS

I hereby certify under penalty of perjury that the foregoing facts and statements made by me are true and correct to my own knowledge, except as to those matters set forth therein upon information and belief, and as to those matters, he believes them to be true.  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:  December 26, 2018

Respectfully Submitted,

___________________________________

Basilis N. Stephanatos, PhD, PE, JD

Pro Se

---

[1] Void ab initio is defined as “[n]ull from the beginning.”   Black's Law Dictionary, 1604 (Deluxe 8th ed. 2004), while “voidable” is defined as “[v]alid until annulled ․ capable of being affirmed or rejected at the option of one of the parties.”  Id. at 1605.   As the terms are applied to a judgment [or order], a “void judgment” [or void order] is “[a] judgment [or order] that has no legal force or effect, the invalidity of which may be asserted by any party whose rights are affected․  From its inception, a void judgment continues to be absolutely null.”  Id. at 861.   Whereas, a “voidable judgment” is one “that although seemingly valid, is defective in some material way.”  Ibid.  Gobe Media Group, LLC, v. Cisneros, 403 N.J. Super. 574, 577, (App. Div. 2008).

[2] By failing to include in the Affidavit that the writ was void ab initio and the judgment for possession was also void, the Affidavit submitted in support of the issuance of the search warrant contained misrepresentations and fabrications with reckless disregard for the truth, and material omissions of essential facts; and the search was unreasonable

[3] Since enactment of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq., the Summary Dispossess Act, N.J.S. 2A:18-53 et seq has been understood to cover the eviction of nonresidential tenants and residential tenants not covered by the Anti-Eviction Act. (emphasis added) Source: STATE OF NEW JERSEY, NEW JERSEY LAW REVISION COMMISSION, Final Report Relating to Landlord and Tenant Law, February 10, 2012.