____________________________________________________________
December
6, 2018
William
T. Walsh
Clerk,
United States District Court
District
of New Jersey
M.L.
King, Jr. Federal Building & U.S. Court House
50
Walnut Street
Room
4015
Newark,
New Jersey 07101-0999
Tel.: 973-645-3730
THE HONORABLE JOHN MICHAEL VAZQUEZ
United States District Judge
Lautenberg U.S. Post Office &
Courthouse
2 Federal Square, Room 417
Newark, New Jersey 07102
Tel.: 973-297-4851/973-645-2157(Deputy Clerk)
njdnef_vazquez@njd.uscourts.gov
RE: PLAINTIFF’S
REPLY BRIEF TO PASSAIC COUNTY AND WAYNE TOWNSHIP DEFENDANTS’ OPPOSITION TO
PLAINTIFF’S MOTION TO ALLOW THE FILING OF AN AMENDED COMPLAINT
CIVIL ACTION COMPLAINT FOR COMPENSATORY AND PUNITIVE
DAMAGES
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 Passaic County and Wayne Township
Defendants’ opposition to Plaintiff’s Motion for Relief from the October 16,
2018 Order, pursuant to rules 60(b)(2), (3), (5) and (6) of the Federal Rules
of Civil Procedure. Herein, Plaintiff
also includes his First Amended Complaint.
BOMBSHELL
EVIDENCE DISCOVERED LAST WEEK: THE WRIT WAS VOID AB INITIO AND THE ATF, LLC AND
PASSAIC COUNTY DEFENDANTS LIED AND CONCEALED THIS EVIDENCE FROM THE COURT TO
STEPHANATOS’ DETRIMENT; IGNORANCE OR MISTAKE IS NOT A DEFENSE TO A WRONGFUL
EVICTION. THE STATUTE OF LIMITATIONS
START TO RUN FROM THE DATE THE INJURY WAS DISCOVERED
As Plaintiff provided in his November
27, 2018 submittal, the ex-parte writ of possession was void ab initio because the Clerk of the Superior Court had
no jurisdiction to enter the writ of possession the same day as the date of
judgment on May 13, 2011. This evidence was
discovered last week by the Plaintiff.
Thus, under the discovery rule, the statute of limitations started to
run upon the discovery that the writ was void and the actions of the Defendants
was unlawful, violating Stephanatos’ Fourth and Fourteenth amendment
constitutional rights. Soldal v. Cook County.
It is a fact that the Defendants and their lawyers
have been concealing, fraudulently, from this Court, from Judge Hochberg and
from the state courts that the writ was void ab initio for many years to
Stephanatos’ detriment. There are
consequences for lying to a judge and fraudulent concealing that the writ was
void ab initio. Thus, the discovery rule
and fraudulent concealment doctrines both toll the statute of limitations. See Williams,
et al., v. BASF Catalysts LLC, No. 13-1089 (3rd Cir. 2014)
”We conclude that the District Court erred when it
dismissed the fraud and fraudulent concealment claims. The Amended Class Action
Complaint properly alleges the elements of fraud and fraudulent
concealment—namely that BASF lied about and destroyed the asbestos evidence to
plaintiffs’ detriment. Neither the New Jersey litigation privilege nor pleading
requirements stand in the way of these claims.”
See also Chevron Corp. v. Donziger, No. 14-0826 (2d Cir. 2016),
upholding the RICO judgment against lawyers who filled fraudulent evidence with
the courts. The Donziger district court concluded that Donziger and the LAPs' team
of attorneys, investors, experts, and consultants constituted a RICO
enterprise, and that Donziger had conducted the affairs of that enterprise in a
pattern of racketeering activity. Having found that Donziger "and the
Ecuadorian lawyers he led," in representing the LAPs, "corrupted the
Lago Agrio case" by “submitting fraudulent evidence”, “coercing one
judge”, telling “half-truths or worse to U.S. Courts in attempts to prevent
exposure of wrongdoings”.
Plaintiff
alleges herein that similar to Donziger,
the Defendants have:
·
submitted fraudulent evidence,
·
they have coerced state and federal
judges and the Clerk of the Superior Court in New Jersey into issuing unlawful
or void orders,
·
telling half-truths,
·
misleading the courts regarding the
applicable law,
·
fraudulently concealing crucial facts
from the courts (such the void ab inito writ of possession issued without
jurisdiction by the Clerk of the Superior Court),
·
concealing the applicable law from the
courts, and so on.
The
number of illegal acts of the Defendants is so great that perhaps has made
Judge Vazquez’s head spinning.
The Clerk-issued ex-parte writ was in
violation of N.J.S.A.
2A:18-57 The New Jersey
Supreme Court has ruled under almost identical fact pattern (i.e., the issuance
of an ex-parte judgment for possession without any notice to quit and the
issuance of a writ of possession the same day the judgment was entered without
any notice), in HOUSING AUTHORITY OF CITY OF WILDWOOD v. Hayward, et al., 406 A.2d 1318, 81 N.J. 311 (1979) the following:
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 above statute and case
law has been available for more than 50 years in New Jersey. Thus, the ATF, LLC and Passaic County
Defendants were aware of the law prior to trespassing onto Stephanatos’
residence. A reasonable person in the
position of the Defendants should have known that they cannot execute a void
writ without violating Stephanatos’ constitutional rights (Fourth and
Fourteenth Amendment rights), as they were trespassers in the eyes of the law.
AN UNLAWFUL EVICTION
VIOLATES THE FOURTH AND FOURTEENTH AMENDMENT: SOLDAL V. COOK COUNTY, 506
U.S. 56, 61 (1992). CURRENTLY BOTH DR.
STEPHANATOS AND HIS PERSONAL PROPERTY HAVE BEEN SEIZED BY THE PASSAIC COUNTY
DEFENDANTS AND THIS CONSTITUTES A CONTINUED VIOLATION. THEREFORE, THE STATUTES OF LIMITATIONS HAVE
NOT RUN AND/OR HAVE BEEN TOLLED
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 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 the Plaintiff’s Fourteenth Amendment right to
be free from unreasonable seizures).
In
fact, Dr. Stephanatos’ many personal and business property items are currently
seized and retained by the Passaic County Sheriff in their headquarters in
Wayne, New Jersey. Dr. Stephanatos has
been also seized for the last 7.5 years and counting because the criminal
charges against him are still pending, he cannot find employment due to the
pending charges and the damage to his name and reputation, and his movements
are limited. Thus, based on that ground
as well (the continued seizure of his person and property that give rise to the
continued violation doctrine), the statutes of limitations have not run and/or
have been tolled.
UNDER NEW JERSEY LAW,
THE SHERIFF HAD NO LEGAL AUTHORITY TO FORCIBLY REMOVE STEPHANATOS FROM HIS
RESIDENCE WITHOUT VIOLATING THE CONSTITUTION AND LAWS
Because the writ was void ab initio,
any person or entity executing that writ was no more than a trespasser in the
eyes of the New Jersey law (“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” Mushback v. Ryerson, 11 N.J.L. 346, 351
(Sup.Ct.1830)), (“The proceeding is not
simply void for some irregularity, but was void ab initio, for the want of
jurisdiction, so the Plaintiff get into possession by an abuse of the
process of the law. Can the Court countenance an abuse of the process of the
law, by permitting the Plaintiff to retain the fruit of their wrongful act? The
only mode to prevent such abuses of judicial process is to put the parties in
statu quo. Perry v. Tupper, 70 N.C. 537 (N.C. 1874).)”). Consistent with these court commands,
Stephanatos is asking this Court to put him in the statu quo prior to the
forceful taking of his property. As the
Court can see, these laws have been in existence for almost 200 years. The New Jersey law also allows this Court to
award punitive damages and triple damages as well.
A recent New Jersey Court
decision that is also on point: 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.
Because
the Somerset County Sheriff had no authority when he posted the defective writ,
the defective execution cannot be remedied by the Sheriff's receipt of an
amended writ. If the writ is void, the levy is void. A new writ must
issue, and the process must begin anew.
No
one disputes the initial writ was defective. The question for our
consideration is what effect results from misdirecting the writ to the Mercer
County Sheriff. We locate no authority determining to the precise issue of
whether a misdirection in a writ of execution renders the writ void or merely
voidable. In answering this question, our review must begin with an
examination of the language of the applicable statute.
In
pertinent part, N.J.S.A. 2A:17-1 states:
In
every writ of execution which shall be issued against real estate, the sheriff
or other officer to whom such writ may be directed shall be commanded that he
cause to be made, ․
the whole or the residue, ․
of such debt, damages and costs or sum of money to be made of the real estate
whereof such party was seized on the day when such real estate became liable to
such debt[.]
[Emphasis
added.]
Considering
the plain language of the statute, Kimmelman v. Henkels & McCoy, Inc., 108
N.J. 123, 128, 527 A.2d 1368 (1987), a sheriff's authority to sell property
located in the county to satisfy a judgment lien is granted solely by a valid writ of execution. Mushback
v. Ryerson, 11 N.J.L. 346, 351 (Sup.Ct.1830); Stability Bldg. & Loan Ass'n
v. Liebowitz, 132 N.J. Eq. 477, 479, 28 A.2d 653 (Ch.1942). The writ is the
equivalent of a court order, which grants a sheriff authority he otherwise does
not possess, to enter the land of another. Ibid.
“[A]t
common law, no lien was acquired by a judgment.” Sisco v. N.J. Bank, N.A., 158
N.J.Super. 111, 117, 385 A.2d 890 (App.Div.1978). Thus, the statute that
allows a sheriff's sale of real estate to satisfy a debt markedly departs from
common law. Vanderveere v. Gaston, 24 N.J.L. 818, 820 (E. & A. 1854);
Warwick v. Hunt, 11 N.J.L. 1, 7 (Sup.Ct.1829). With this in mind, courts
construing the legislative intent have required strict compliance with the
statutory requirements. See Chaffers, supra, 24 N.J.L. at 511 (“The only safe
course is to pursue the directions, and to obey the command of the statute.”);
Gaston, supra, 24 N.J.L. at 821 (“recording of an execution against lands [is]
an essential element in giving validity to the writ, as an authority for the
officer to levy and make sale.”). “[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. Examining this matter, we do not
agree with Migliaccio that the error presented-directing the writ to the
Sheriff of one county (Mercer) for execution and process of realty purportedly
located in that county, but actually delivering the writ to the Sheriff of
another county (Somerset) for execution and process of realty located
therein-falls within the category of “clerical error.” The misdirection is
more than a purely technical mistake. We
conclude the error is substantive and deprives the sheriff of all authority to
take any action.
Clerical
errors include misspellings, Black v. Seabrook Assocs., Ltd., 298 N.J.Super.
630, 637, 690 A.2d 142 (App.Div.1997), certif. denied, 149 N.J. 409, 694 A.2d
194 (1997); administrative mistakes, Playmates Toys v. Dir., Div. of Tax., 162
N.J. 186, 187, 742 A.2d 968 (1999); typographical errors and errors in
transposing, H.G.K.W. Corp. v. East Brunswick Tp., 8 N.J. Tax 454, 462 (Tax
1986); or mathematical miscalculations, McNair v. McNair, 332 N.J.Super. 195,
199, 753 A.2d 147 (App.Div.2000); Lockwood v. Walsh, 137 N.J. Eq. 445, 450, 45
A.2d 305 (Prerog.Ct.1946); see also R. 1:13 (“Clerical mistakes in judgments,
orders or other parts of the record and errors therein arising from oversight
and omission may at any time be corrected by the court[.]”).
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 proper procedures required by state
law were used in the issuance of the ex-parte possession judgment, in the
issuance of the ex-parte writ of possession, the entering into a residential
property occupied by the person in possession as a residence, and the forceful
taking of Stephanatos’ home on June 28, 2011 using a void writ. Justice has not and cannot be served under
these circumstances. These Defendants
have been lying to the courts for years.
Their arguments in opposition are nothing more than frivolous gibberish
as New Jersey courts require no hyper-technical compliance with the statutes of
limitations.
THE
ANTITRUST AND CIVIL RICO CONSPIRATORS CONTINUE TO CONCEAL THEIR CONSPIRACY AND
RACKETEERING ACTIVITIES TO THIS DATE, AS THEY HAVE BEEN DENYING THAT
THEY BROKE ANY FEDERAL AND STATE LAWS.
THEREFORE, THE STATUTE OF LIMITATIONS HAS NOT RUN.
The ATF Defendants willfully and corruptly intended
to enter into a criminal and fraudulent transaction through the anti-trust and
RICO conspiracies using the USPS mail (sending letters and briefs to the courts
and the Plaintiff, mailing checks) and the wires (wire transfers of ill-gotten
gains, telephone calls, email, internet, faxes) to commit their fraud against
Stephanatos.
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 judgment for possession and 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,
and Metropolitan Engineering Services, PC were tenants in the premises. Del Vecchio also fraudulently certified to
the Chancery 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 that 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, using an illegal in rem tax
foreclosure procedure (a private entity cannot perform an in rem procedure in
New Jersey for occupied properties, only the municipality is authorized to
perform in rem procedures for occupied properties) camouflaged as an in
personam tax foreclosure.
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 where there were legal tenants present. 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; the conspirators also charged
Stephanatos with 6-7 percent penalty per year on top of the unlawful assessment
amount. 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." They also failed to provide any evidence that they gave the
requisite notice to quit as is required by statute prior to entering an
ex-parte judgment for possession, also in violation of state law. The fraud on the court of these individuals
continues to this date. It is critical
to note that these two have not refuted the bombshell evidence found last week
that the writ was void ab initio. These
two “officers of the court” concealed this extraordinary evidence from this
Court, from Judge Hochberg and from the New Jersey state courts. This Court cannot possibly allow this fraud,
this fraudulent concealment, on the court to continue and remain
unpunished. Under New Jersey Law,
fraudulent concealment is one of the basis for tolling the statute of
limitations. This is the case here.
THE
SHERIFF IS LIABLE 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. Neither
the Clerk nor the Mercer County court had any subject matter jurisdiction
because the Stephanatos’ residence was located in Passaic County. The Clerk also entered the Writ the same day
as the final judgment on May 13, 2011 (See Exhibit A of Plaintiff’s Reply Brief
to ATF, LLC Defendants Opposition, filed December 27, 2018). This was in violation of the mandatory state
law: 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."
Therefore, the judgment and the
subsequent fraudulently-obtained writ were void for reasons of lack of personal
and subject matter jurisdiction, and 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 Plaintiff’s Exhibit
P-3 that shows a letter from Judge Jacobson stating that her office only had
jurisdiction over uncontested cases, while here the Plaintiff had contested the
proceedings and had challenged the validity of the assessment or the taxes or
the proceedings where the certificate was acquired or the standing of the tax
lien holder to perform an in rem foreclosure or the standing of an LLC entity
to take possession of residential properties.
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 mandated by state
law 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. In fact, the RICO and antitrust
conspirators never applied for a judgment for possession; conspirator Del
Vecchio included the judgment for possession language into the final judgment
by providing such document for the Clerk to sign. No notice to quit was ever provided in
violation of state law prior to entering the judgment for possession
language. This was another major fraud
on the court by the antitrust and RICO conspirators, by fooling the overcrowded
Office of Foreclosure.
Thus, the judgment and/or Writ were
void ab initio for lack of subject matter jurisdiction by the Clerk or the
Mercer County judge to enter such judgments or orders, 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 into residential properties) and they also used the void
writ to trespass onto Stephanatos’ residence and assault him in his own home.
THE
EXECUTION OF A VOID WRIT BY THE SHERIFF MADE THE SHERIFF A TRESPASSER ON JUNE
28, 2011 AND LIABLE FOR DAMAGES
The arguments of the sheriff officers
and Passaic County are frivolous, to say the least. The sheriff had no authority to execute a
void writ. Ignorance of the law is not a
defense. In the seminal case Nathan v.
Virginia, the court said: “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”
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)
This law is as old as
our Republic and was derived from the English Law that was part of the law in
the colonies. Thus the liability of the
sheriff has been established for hundreds of years and ignorance or good faith
is not a defense for what the Passaic County Sheriff and his officers did by
trespassing onto Stephanatos’ property, seizing him and his property and then
filing fraudulent criminal charges that are still pending.
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. (Concluded 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).
THE ROOKER-FELDMAN DOCTRINE IS NOT APPLICABLE AS A DEFENSE TO
FRAUDULENT ACTIONS OF THE DEFENDANTS. SEE IN
RE PHILADELPHIA ENTM’T & DEV. PARTNERS, 17-1954, 2018 WL 358216 (3D CIR.
JAN. 11, 2018). FURTHERMORE, THE CIVIL
RICO AND ANTITRUST CLAIMS WERE NOT BEFORE THE STATE COURT. FINALLY, AN
UNLAWFUL EVICTION (THE CLAIM THAT STEPHANATOS IS MAKING) CAN VIOLATE BOTH THE
FOURTH AMENDMENT AND THE FOURTEENTH AMENDMENT TO THE CONSTITUTION. SOLDAL V.
COOK COUNTY, 506 U.S. 56, 61 (1992) AND IS NOT BARRED BY ROOKER-FELDMAN
Stephanatos
has alleged that the state court foreclosure judgment was obtained by fraud on
the court. Thus, the Rooker Feldman
doctrine does not apply here. Great Western Mining & Mineral Co. v. Fox
Rothschild LLP,
615 F.3d 159, 167 (3d Cir. 2010)
("[A] claim that a judgment was procured by fraud is independent of the
judgment and, therefore, does not fall within the Rooker-Feldman
doctrine"). Id.
On
January 11, 2018, the Third Circuit issued a decision in In re Philadelphia Entertainment & Development Partners[1]
that limited the reach of the Rooker-Feldman
doctrine as a defense to bankruptcy avoidance actions. The court’s reasoning,
however, has implications that go well beyond the particular facts of the case
and may limit the use of the Rooker-Feldman
doctrine as a threshold defense in federal court litigation more broadly,
whether in bankruptcy cases or otherwise, like the present suit that involves
RICO and Antitrust (Sherman Act) violation claims that were not part of the
state court proceedings.
Factual
Background
PEDP
was a company that had planned to operate a Foxwoods-branded casino in
Philadelphia. As part of PEDP’s casino plans, it applied for one of only two
available slot machine licenses and, in 2006, the Pennsylvania Gaming Control
Board awarded one of the licenses to PEDP. PEDP paid a $50 million fee to the
commonwealth for the license. However, as time went on, PEDP was unable to meet
the board’s requirements for maintaining the license, and the board revoked it.
PEDP unsuccessfully appealed the board’s revocation order to the Pennsylvania
Commonwealth Court, and then the Supreme Court of Pennsylvania denied PEDP’s
application to review that decision. PEDP, having exhausted its other options,
filed for bankruptcy protection.
Subsequently,
the fiduciary appointed to pursue claims for the benefit of PEDP’s creditors
(the “litigation trustee”) brought an adversary proceeding against the
commonwealth in an attempt to recover the $50 million license fee PEDP had paid
for the now-revoked license. The litigation trustee argued that the license
revocation should be avoided because it was a fraudulent transfer under
Sections 544 and 548 of the Bankruptcy Code, as well as under Pennsylvania law.
The bankruptcy court rebuffed the litigation trustee, holding that it did not
have subject matter jurisdiction to consider the trustee’s claims because they
were barred by the Rooker-Feldman
doctrine.[2]
The
Rooker-Feldman doctrine deprives
federal district and bankruptcy courts of jurisdiction over suits that are
essentially appeals from state court judgments. The policy is based on the idea
that a litigant should not be able to challenge state court orders in federal
court as a means of relitigating matters that already have been considered and
decided. The Rooker-Feldman doctrine
applies when four requirements are met: (1) the federal plaintiff lost in state
court, (2) the plaintiff complains of injuries caused by the state court
judgment, (3) that judgment issued before the federal suit was filed, and (4)
the plaintiff invites the district court to review and reject the state court
judgment.
The
bankruptcy court explained that it believed the Rooker-Feldman doctrine divested subject matter jurisdiction from
the court because undoing the revocation and obtaining compensation for the
revocation were “opposite sides of the same coin”; that is, the right to be
compensated for the value of the license is the “functional equivalent” of the
right to retain the license.[3]
And because the state courts
had already ruled that PEDP had no right to retain the license, the bankruptcy
court held it could no longer consider the litigation trustee’s lawsuit.
Unsatisfied
with the bankruptcy court’s ruling, the trustee appealed to the district court,
which affirmed the bankruptcy court’s analysis of the Rooker-Feldman doctrine. The trustee then appealed the district
court’s decision to the Third Circuit.
The
Third Circuit’s Reversal
On
appeal, the Third Circuit reversed the bankruptcy and district courts,
concluding that the bankruptcy court erred when it held that the Rooker-Feldman doctrine barred its
review of the fraudulent transfer claims.
The
appeal primarily focused on the counts of the litigation trustee’s claims to
recover alleged constructive fraudulent transfers under Sections 544 and 548 of
the Bankruptcy Code. However, the Third Circuit expressly declined to rule on
the merits of these claims. Instead, the opinion only addressed whether the Rooker-Feldman doctrine was properly
applied to bar the action from proceeding.
The
Third Circuit’s analysis focused on the fourth prong of the Rooker-Feldman test, which asks whether
the plaintiff has invited the federal court to review and reject the state
court judgment. As the Third Circuit noted, there is some tension between the
application of the Rooker-Feldman
doctrine and the prosecution of avoidance claims under the Bankruptcy Code.
This is because the avoidance of a judgment seems to authorize what the Rooker-Feldman doctrine prohibits —
appellate review of state court judgments by federal courts other than the
Supreme Court. However, the tension may be more apparent than real: The U.S.
Supreme Court has cautioned against applying the Rooker-Feldman doctrine too broadly. Rather, the doctrine is
supposed to be confined to “limited circumstances” where “state-court losers
complain[ ] of injuries caused by state-court judgments rendered before the
district court proceedings commenced and invit[e] district court review and
rejection of those judgments.”[4] Thus,
as understood by the Third Circuit in PEDP, a federal court has jurisdiction
“as long as the ‘federal plaintiff present[s] some independent claim,’ even if
that claim denies a legal conclusion reached by the state court.”[5]
The
Third Circuit disagreed with the bankruptcy court’s analysis that because
payment for the value of the license was the functional equivalent to
invalidating the state court decision, the Rooker-Feldman
doctrine applied. The Third Circuit explained instead that because the
fraudulent transfer claim stood independently of the Gaming Act and due process
claims previously advanced in the state court, it did not matter for Rooker-Feldman purposes that the relief
that the trustee sought, if granted, would frustrate the Pennsylvania court’s
order. The important thing was that the trustee’s fraudulent transfer claims
did not ask the bankruptcy court to conduct an appellate review of the
revocation order.
The
Commonwealth Court considered whether the board had authority under the Gaming
Act to revoke the slot machine license due to PEDP’s noncompliance with the
board’s orders, and whether the requirements were sufficiently clear and
afforded due process to the licensee during the revocation proceedings. On the
other hand, a constructive fraudulent transfer claim in bankruptcy asks an
entirely different question: whether a transfer, which may have been otherwise
lawful, can nonetheless be avoided for the benefit of creditors where there was
not a reasonably equivalent exchange of value. For that reason, the Third
Circuit explained that the constructive fraudulent transfer analysis could be
conducted without deciding the same question as the Commonwealth Court or the
Pennsylvania Supreme Court had already decided, and the Rooker-Feldman doctrine was therefore not implicated.
Analysis
PEDP is an important decision, both from the perspective of
federal civil procedure generally as well as specifically in the Chapter 11
context. In the context of federal civil procedure generally, the decision
confirms the limits of the Rooker-Feldman
doctrine which, when stretched beyond its natural limits, begins to read like a
de facto exception to the supremacy clause of the Constitution.
PEDP confirms that fraudulent transfers and other unlawful acts
of the Defendants may independently operate to affect transactions that, under
state law, could not otherwise be challenged.
Similar analysis and reasoning applies to Stephanatos’ claims of civil RICO,
conspiracy to violate the RICO statutes and the Sherman Act violations.
The
same logic is applicable in this case.
Although this Court may conclude that the foreclosure judgment was
erroneously entered, Stephanatos is not asking this Court to rule as such. Stephanatos does not claim that Judge McVeigh
or Judge Hochberg need to be found that they issued incorrect orders or judgments. Stephanatos is only presenting his Antitrust
(Sherman Act violations) and RICO law violations, along with a myriad of other
claims (including fraud-on-the court claims) for violation of his
constitutional rights that are independent of the foreclosure judgement. Stephanatos is also complaining for an
illegal eviction that was made pursuant to a void order (ex-parte writ of
possession) issued by the Clerk of the Superior Court who had no jurisdiction
entering writs the same day as the final judgment. 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."
An
unlawful eviction can violate both the Fourth Amendment and the Fourteenth
Amendment to the 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 the
Plaintiff’s Fourteenth Amendment right to be free from seizures). The illegal eviction is the heart of the
matter here and the violations of the RICO/Antitrust laws by the Defendants. Stephanatos is not asking this Court to void
any state court judgments.
Stephanatos is not asking this Court
to rule on the foreclosure judgment issued by the state court, no matter that
it was in violation of the state constitution and the court’s own rules: The
Chancery Court never issued an application of the law to the facts in violation of Rule 1:7-4(a).
Furthermore, 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. Finally, 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.
Therefore, many state statutes and court rules have been violated,
giving rise to procedural due process claims against the defendants.
In
addition, retaliation may be shown without a finding that the seizure was
unlawful, and, thus, without what would in essence be a reversal of the state
court’s order; for example, Plaintiff will present evidence that other property
owners were not subject to the same treatment as evidence of retaliation or may
point to defendants’ course of conduct as a whole, including preventing the
conduct of a trial at the state court level, to show retaliation. See Ernst, 108 F.3d at 491-92 (“The Rooker-Feldman doctrine did not preclude
the district court from deciding those claims because a ruling that the
defendants violated [Plaintiff’s] right to substantive due process by making
recommendations to the state court out of malice or personal bias would not
have required the court to find that the state court judgments made on the
basis of those recommendations were erroneous.”).
Again,
Stephanatos is asking this Court to address the violations of the Fourth Amendment and
the Fourteenth Amendment to the Constitution (the illegal eviction based on a
void writ and/or void judgment for possession and the illegal search and
seizure, the First Amendment violations, the abuse of process, and so on),
along with his RICO and Sherman Act violations and the fraudulent conveyance
claims. Stephanatos is not asking this
Court to conclude that the state judgment was erroneous.
THE CIVIL
RICO AND SHERMAN ANTI-TRUST CLAIMS ARE NOT IMPLICATED UNDER THE TAX INJUNCTION
ACT, 28 U.S.C. §1341, OR THE
ANTI-INJUNCTION ACT, 28 U.S.C. §2283, BECAUSE PLAINTIFF IS NOT ASKING THIS
COURT TO SET ASIDE THE JUDGMENT OF FORECLOSURE OR TO ENJOIN ANY STATE TAX AND
THERE ARE NO PENDING STATE COURT PROCEEDINGS.
The Anti-Injunction Act
The Anti-Injunction Act limits the power of federal courts to
interfere with state court proceedings:
A court
of the United States may not grant an injunction to stay proceedings in a State
court except as expressly authorized by Act of Congress, or where necessary in
aid of its jurisdiction, or to protect or effectuate its judgments.
28 U.S.C. § 2283. “The statute . . . ‘is a necessary concomitant
of the Framers’ decision to authorize, and Congress’ decision to implement, a
dual system of federal and state courts.’” Smith v. Bayer Corp., 131 S.
Ct. 2368, 2375 (2011) (quoting Chick Kam Choo v. Exxon Corp., 486 U.S.
140, 146 (1988)). As such, the statute is designed to “forestall the inevitable
friction between the state and federal courts that ensues from the injunction
of state judicial proceedings by a federal court.” Vendo Co. v. Lektro-Vend
Corp., 433 U.S. 623, 630 (1977).
The
Anti-Injunction Act does not bar Stephanatos’ requested relief. The Act applies
to a narrow set of circumstances:
“[W]hen
(1) a court of the United States (2) grants an injunction (3) to stay
proceedings (4) in a state court.” U.S. Steel Corp. Plan for Emp. Ins.
Benefits v. Musisko, 885 F.2d 1170, 1175 (3d Cir. 1989). Those
circumstances do not exist here because there are no ongoing proceedings in a
state court with which the District Court’s judgment would interfere.
Accordingly, § 2283 “has no application.”
Thus, while the Supreme Court has admonished that “[p]roceedings in state
courts should normally be allowed to continue unimpaired by intervention of the
lower federal courts,” the named plaintiffs in this case have no other
proceedings pending anywhere. See Atl. Coast Line R.R. v. Brotherhood of
Locomotive Eng’rs, 398 U.S. 281, 287 (1970). Perhaps in the future the
parties to this case will return to state court in an effort to reactivate
their concluded proceedings. But they have not yet done so, and the Act aims to
avoid “needless friction between state and federal courts” not to prevent a
district court from deciding issues that may affect future state court
litigation. See Okla. Packing Co. v. Okla., Gas & Elec. Co., 309
U.S. 4, 9 (1940).
Acknowledging that no state court proceedings are currently
pending, The Passaic County and the Wayne County Defendants assert that the
Anti-Injunction Act further prohibits the District Court from acting to deprive
[past] state-court judgments of legal significance. None of the decisional law
cited by The Passaic County and the Wayne County Defendants supports this
argument.
First, in Hill v. Martin, cited by the Defendants, a
pre-New Deal Supreme Court opined that the Anti-Injunction Act “applies not
only to an execution issued on a judgment, but to any proceeding supplemental
or ancillary taken with a view to making the suit or judgment effective.” 296
U.S. 393, 403 (1935) (footnote omitted). That comment appears to address which
types of state court proceedings may not be enjoined. (The answer: any type.)
But Hill does not constrain the District Court because this case does
not feature ongoing state court proceedings of any type.
Second, The Passaic County and the Wayne County Defendants
reference Atlantic Coast Line for the idea that the district courts may
not sidestep the Anti-Injunction Act by preventing the parties from using “the
results of a completed state proceeding.” 398 U.S. at 287. Atlantic Coast
Line did not, however, expand the Act to circumstances, like this one,
where the named plaintiffs have no ongoing state court cases. Rather, Atlantic
Coast Line focused on the impropriety of a federal court nullifying an
active and continuing state-court order. Id. Neither Defendant has
identified any active orders from the concluded foreclosure judgment suit. To
the contrary, it appears that those cases simply ended with the enforcement by
the Defendants of the void writ and the incurring constitutional violations
from the seizure of Stephanatos’ person and property and the continued criminal
proceedings. Accordingly, Atlantic Coast Line does not constrain the
District Court because there are no continuing state court orders with which
the District Court could interfere.
Third, in U.S. Steel,
also cited by The Passaic County and the Wayne County Defendants, this Court
disapproved of a district court’s declaratory judgment that conflicted with a
state appellate court’s ruling on the same issue between the same parties. See
885 F.2d at 1176. The panel reasoned that “[t]he practical result of the
district judge’s order . . . was to cast doubt on the effectiveness of the [state
appellate court’s] ruling and on any judgment that might result from it.” Id.
at 1175. Unlike this case, however, U.S. Steel involved ongoing
state litigation. The case there had traveled from the state trial court to the
appellate court and back again, and the federal court intervened in the midst
of the remand. Thus, “[t]he district court’s order could [have] effectively
prevent[ed] the state trial judge from proceeding in accordance with the
Superior Court’s direction.” Id. The District Court’s orders in this
case could not have such an effect because the state court litigation ended
long ago.
At
bottom, The Passaic County and the Wayne County Defendants appear to construe §
2283 to forbid federal courts from criticizing completed state proceedings. The
statute enshrines no such rule. Of course, as defendants themselves note, a
state-court loser may not appeal his judgment to a federal district court. See
Lance v. Dennis, 546 U.S. 459, 464 (2006) (discussing Rooker-Feldman
doctrine). But § 2283 does not purport to displace doctrines, such as res
judicata, that might guide a federal court’s analysis of the effect to be given
a past ruling of a state court. It cannot be, as The Passaic County and the
Wayne County Defendants imply that when a federal court decides that the claim
before it has not been precluded by a prior state court judgment, it has
thereby violated the Anti-Injunction Act by limiting the effect of the prior
state court judgment. Nor can it be that when a new federal suit seeks redress
for harms suffered during old state proceedings, but not because of them, the
Anti-Injunction Act stands in a federal court’s way. To use the Anti-Injunction
Act in this way would be new, burdensome, and incorrect. Williams, et al., v. BASF Catalysts LLC,
No. 13-1089 (3rd Cir. 2014).
Importantly, Plaintiff alleges that the ATF Defendants committed
mail fraud under 18 U.S.C. §1341. The
same Defendants are alleged to have committed wire fraud under 18 U.S.C.
§1343. The civil RICO claims are not
implicated under the Tax Injunction Act. 28 U.S.C. § 1341, because Plaintiff is not
asking this Court to set aside the judgment of foreclosure. “when a
lawsuit does not directly threaten the ‘ultimate . . . public benefit’ of
raising tax revenue, . . . the [Tax Injunction] Act does not apply.” BellSouth
Telecommunications, Inc. v. Farris, 542 F.3d 499, 502 (6th Cir. 2008).
The
Wayne Township Defendants and the ATF Defendants have already satisfied the tax
liens by foreclosing on Plaintiff’s property and collecting $340,000 from the
sale of Plaintiff’s residential property, massively enriching themselves by
collecting illegal taxes and with 26 percent in interest and penalties per
annum and an additional $190,000 in windfall profits from the unconstitutional
taking of Stephanatos’ residence.
Furthermore, Plaintiff in no way whatsoever is asking this Court to
enjoin the tax lien collection, or declare it illegal, or rescind it, or
perhaps obtain damages on the ground of its illegality.
Plaintiff
does not seek to “enjoin, suspend or restrain the assessment, levy or
collection of any tax under State law” despite the fact that there is no plain,
speedy, and efficient remedy in the state courts, based on the facts of this
case.
A
remedy is considered plain, speedy, and efficient if the state provides a “full
hearing and judicial determination” at which “any and all constitutional objections
to the tax” can be raised. Rosewell v. La Salle Nat’l Bank, 450 U.S.
503, 515 n.19 (1981). As Plaintiff has
alleged and the factual record is uncontroverted in that respect, the
unconstitutional overassessment (See Plaintiff’s Exhibit P-5) of Stephanatos’
property was not addressed by the state courts due to the fraudulent conduct of
the Wayne and ATF Defendants. In fact
the state’s own laws and case law clearly show that assessments made in
violation of the Uniformity Clause provisions are null and void ab initio and
that a tax lien holder shall be liable to the property owner for divulging the
tax sale certificate along with the ill-gotten gains and excessive fees and
charges. In addition, Plaintiff already
went back to Chancery Court in June 2018 to ask for a refund of his money
obtained through the windfall profits, but the court refused to do it, because,
relying on the fraudulent statements by Defendant Keith Bonchi, stated that
Plaintiff had assaulted the sheriff officers, and so on. Thus, the fraudulent and false statements of
the Defendants have prejudiced the state courts against the Plaintiff to the
point it has become a mockery of justice.
Plaintiff only trusts that the federal courts will be fair in
adjudicating his claims.
VIOLATION OF THE FEDERAL FAIR DEBT COLLECTION PRACTICES
ACT (FDCPA), 15 U.S.C. § 1692 ET SEQ. PROVIDES A FEDERAL CAUSE OF ACTION INDEPENDENT OF ANY STATE COURT
PROCEEDINGS
The
application of FDCPA to the instant case has been confirmed by the Third
Circuit decisions in Kaymark v. Bank of Am., N.A., 783 F.3d 168,
179 (3d Cir. 2015) and Piper v. Portnoff Law Assocs., Ltd., 396
F.3d 227, 235 (3d. Cir. 2005). See also
Wilson, 443 F.3d at 378-379[6].
The FDCPA broadly defines a debt collector as
"any person who uses any instrumentality of interstate commerce or the
mails in any business the principal purpose of which is the collection of any
debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. §1692a.
The FDCPA generally applies only to third party debt collectors, like
Defendant Del Vecchio, where he attempted to collect the money allegedly owed
ATF, LLC and the secured party, BMO Capital Markets Corp.
The
plaintiff alleges that the ATF Defendants and the Wayne Township 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 or unlawful
collection fees and costs and interest and penalties by the ATF and Wayne
Township Defendants in their attempt to collect an unlawful tax bill. Robert Del Vecchio also charged Stephanatos
with his legal fees and costs and he was attempting to collect on those legal
fees.
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 the tax sale law or the tax
laws of the State of New Jersey. See 15 U.S.C. § 1692f(1). Furthermore, Plaintiff alleges that the ATF
and municipal Defendants failed to validate the alleged debt and committed
false and misleading representations, harassment and abuse in attempting to
force Stephanatos to pay personally their unlawful and/or excessive fees and
interest and penalties. 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).
In
Kaymark, supra, the defendant law firm brought a judicial foreclosure
action under Pennsylvania law. See 783
F.3d at 172-173. It sought not only to liquidate the underlying property,
but also to collect fees for legal services not yet performed on behalf of the
creditor—a patent effort to obtain money from the debtor in the context of a
judicial foreclosure proceeding. See ibid. Given those facts, the Third
Circuit easily deemed the law firm a “debt collector” under the FDCPA; it
declined to “immuniz[e]” the firm’s efforts to collect money simply because
they occurred in the context of a foreclosure “litigation.” Id. At 176-177,
179. Kaymark is thus consistent with the decision below, which “left for
another day” whether additional activity that amounted to an “attempt to induce
[Stephanatos] to pay money” would have rendered Robert Del Vecchio a debt
collector.
The
other Third Circuit decision the Plaintiff cites, Piper, is even closer
on point. The defendant law firm in that case was retained by a municipality to
collect payment for overdue water and sewage obligations. See 396 F.3d at 229. The law firm sent
letters urging the debtors to make payment directly to it and threatening to
file a lien against the debtors’ property (just like Del Vecchio did here in
the Stephanatos case). See id. at 229-230. It then acted on that threat
and continued to “demand[] payment” in letters and phone calls, using the lien
as leverage (similar to what Del Vecchio did). Id. at 230. The law
firm’s communications sought “personal payment of money,” and the law firm
readily admitted it was “not looking to liquidate the real property” but rather
to cause the debtors to “pay the money.” Id. at 233 (citation omitted).
In light of those facts, it is unsurprising that the Third Circuit deemed the
law firm a “debt collector,” reasoning that enforcing the security did not
“immun[ize]” the defendant where its “activities fit the statutory definition
of a ‘debt collector.’ ” Id. at 234, 236.
In
identical fashion to Piper and Kaymark, supra, Defendant Robert Del Vecchio did attempt to collect money
from Stephanatos, including unlawful and/or excessive interest, fee, penalty,
charge, or expense incidental to the principal obligation; as a result, he did qualify as a “debt
collector” under the FDCPA’s general definition.
Del
Vecchio also committed a number of other serious offences as are detailed in
Plaintiff’s briefs in association with the unlawful debt collection through the
use of the U.S. mail and wire systems (mail and wire fraud) and Plaintiff
alleges that his actions were part of racketeering and antitrust activities by
the ATF Defendants.
UNDER NEW JERSEY LAW,
A PROPERTY TAX IS NOT A PERSONAL DEBT OF THE OWNER. TAX LIENS CAN BE FORECLOSED BY MUNICIPALITIES UNDER THE IN
REM TAX FORECLOSURE ACT CODIFIED IN N.J.S.A. 54:5-104.29 ET SEQ. A
PRIVATE PARTY CANNOT PERFORM AN IN REM FORECLOSURE (LIKE IN THE STEPHANATOS
CASE) FOR RESIDENTIAL PROPERTIES
Normally, an in
personam foreclosure is a strict foreclosure. This means that there is no
judicial sale.
Dr.
Stephanatos was not personally liable for the property taxes and no personal
judgment could have been issued against him.
This New Jersey law has been clearly established for many years: "A
tax against real estate is not a debt of the owner; it is not founded
on a contract express or implied but is an imposition against the property and no personal liability attaches."
(emphasis added) Francis Realty Co. v.
Newark, 16 N.J. Misc. 328, 330 (Essex Co. Cir. Ct. 1938). Staub
v.Harris, 626 F.2d 275, 278 (3d Cir. 1980).
See also decisions from the Second Circuit: “There is no dispute that property owners are
not personally liable to pay the real property tax liens at issue in the
foreclosure actions because the personal liability of the property owners was
extinguished by the purchase of the tax liens”. City of Buffalo v.Cargill, Inc., 55 A.D.2d 61, 65, 389 N.Y.S.2d 932,
936 (4th Dep’t 1976), aff’d 44 N.Y.2d 7,403 N.Y.S.2d 473 (1978).
“Thus, although the foreclosure actions name
the property owners as the primary defendants, the actions are in rem in that they are brought
against the real property for which the plaintiffs have not paid property
taxes”. Bunting, et al v. Phillips Lytle LLP, et al, Case No. 5:11-CV-123,
USDC, Northern District of New York, 2011.
Based on the
above case law, Dr. Stephanatos was not personally liable for the property
taxes and no personal judgment could have been issued against him. However, the result here was to force
Stephanatos to lose between $190K and $475K in equity, i.e., the judgment end
up costing him his own personal savings and resulting in a massive windfall to
the conspirators, a windfall that the legislature did not intend.. This was illegal and implicates procedural
and substantive due process. The ATF
Defendants could have instituted a tax collection action to collect on the tax
liens on Stephanatos’ personal accounts, as is authorized by the Tax Sale Law.
In other words, the ATF and Municipal Defendants did not have to take
Plaintiff’s home to collect an unlawful debt.
The ATF Defendants have not presented any evidentiary support that they
searched for any personal assets that Stephanatos had prior to beginning the in personam
strict foreclosure (no judicial sale) tax lien foreclosure proceedings against
the Stephanatos’ residence. The only
reason they did that because of greed and because they wanted to relatiate
against Stephanatos for filing his tax refund suits..
But the ATF
Defendants are not authorized to bring in rem tax foreclosures for occupied
residential procedures. Only recently
(in 2015) did the state legislature allowed private parties to conduct in rem
foreclosures for UNOCCUPIED properties.
But, still, no state law allows a private party to conduct an in rem tax
foreclosure.
Only
an in rem proceeding could have been
legally instituted to take title from him and to force him out of his
residence. However, according to New
Jersey law only the municipality can institute an “in rem” proceeding. The municipally held liens can be foreclosed
by municipalities under the In Rem Tax Foreclosure Act codified in N.J.S.A.
54:5-104.29 et seq. However, a private entity, such as ATF and Del
Vecchio, is not allowed by New Jersey law to perform in rem foreclosures for
occupied residential properties. Only in
2015 did the state legislature authorize the in rem foreclosure by private
entities of properties that are unoccupied.
Residential properties in New Jersey cannot be occupied by LLCs.
In
Law, the plaintiff LLC served its tenant with a notice to quit based on
N.J.S.A. 2A:18-61.1(l)(3) which permits a landlord to remove a tenant if the
owner of the property seeks to personally occupy a unit. Id. at 425. The
plaintiff argued that it was entitled to avail itself of that provision because
its sole member intended to reside in the leased unit. Ibid.
We
disagreed and, in an opinion authored by our former colleague Judge Dorothea
Wefing, we examined the purpose of the anti-eviction statute, N.J.S.A.
2A:18-61.1(l)(3)), which we found was "to protect residential tenants from
the effects of what the Legislature has recognized to be a severe shortage of
rental housing in this state." Id. at 425 (citing Franklin Tower One,
L.L.C. v. N.M., 157 N.J. 602, 614 (1999)). Under those circumstances, we
concluded that an LLC could not personally occupy a residential property within
the intendment of the statute
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, v. CITY
OF ELIZABETH, December 13, 2016.
Therefore,
what Robert Del Vecchio, ATF, LLC and their agent, the Passaic County Sheriff
did was to terminate the Defendant’s residential tenancy without having the
right to do so. They also committed a
criminal offence, in violation of NJ Rev
Stat § 2C:33-11.1 for
failing to lawfully execute a warrant for possession for residential
properties. To make matters worse, they
used a void ab initio writ to do their wrongful acts. Again, all these illegalities raise
substantive and procedural due process issues.
What these defendants did, then, was to treat the real estate taxes as
a personal debt and they used the “in personam” foreclosure proceedings
that are applicable to debtor-creditor residential mortgage proceedings or in
situations where a person is personally liable for a debt; only here they
threatened to “either pay the unlawful tax or we take your property”. They used the so called “strict foreclosure”,
that does not involve a judicial sale of the property and distribution of the
sale assets. This was clear
unconstitutional taking. As Plaintiff
has alleged, the Defendants intentionally did that to remove Stephanatos from
Wayne Township because he had filed the tax refund suits and they refused to
properly assess his property and used the excessive and unlawful taxes and the
25-26 percent in interest and penalties per annum to promote their scheme
against Stephanatos.
However, according to New Jersey law "A
tax against real estate is not a debt of the owner; it is not founded on a contract express or
implied but is an imposition against the property and no personal liability attaches." (emphasis added) Francis Realty Co. v. Newark, 16 N.J.
Misc. 328, 330 (Essex Co. Cir. Ct. 1938). This position is supported by Rothman v.
River Edge, 149 N.J.Super. 435, 374 A.2d 36 (App.Div. 1977), certif. den.,
75 N.J. 19, 379 A.2d 250 (1977) in that court's statement that the unpaid taxes could not result in a judgment
against the taxpayers but shall be a lien against the premises. [149 N.J.
Super. at 442, 374 A.2d 36]. However, as Exhibit A of the November 11, 2018
brief to the Court shows, a final judgment was issued against Stephanatos
resulting in the loss of several hundred thousand dollars in equity. This was illegal, it was a robbery, as the
legislative intend was and still is that the tax lien purchasers shall not
receive a windfall like in this case.
Therefore, it was a private taking and an unreasonable seizure and
unjust enrichment to take the hundreds of thousands of equity that Stephanatos
had in his property. This was not just
unconscionable, but it was unconstitutional, as well, as private takings are
prohibited under the federal and state laws without compensation first provided
to the owner.
Thus,
because the real estate taxes were not a personal debt of the Plaintiff and no
personal liability attaches, these defendants could not have used the
residential mortgage foreclosure proceedings or the “in personam” tax lien foreclosure proceedings to determine
ownership and possession of the land and actual possession of the land. This could only have happened through an “in rem” proceeding and that proceeding
could have only been conducted by municipalities under the In Rem Tax
Foreclosure Act codified in N.J.S.A. 54:5-104.29
et seq. Thus, the actions of the defendants are thoroughly unlawful under state
law and also is prohibited by the Public Use Clause of the Federal and State
Constitutions. These
irregularities also raise issues of Taking of Private Property without Due
Process of Law, i.e., a Fourteenth Amendment Due Process violation.
The “private
taking” that was conducted (i.e., the stolen equity of Stephanatos that was
into the hundreds of thousands of dollars) by the defendants is prohibited by
the federal constitution as the Court has already been extensively briefed. The
Public Use Clause provides that “one
person's property may not be taken for the benefit of another private person
without a justifying public purpose, even though compensation is paid.” Hawaii Hous. Auth. v. Midkiff, 467 U.S.
229, 241 (1984) (quoting Thompson v.
Consol. Gas Corp., 300 U.S. 55, 80 (1937)). Because a private taking cannot
be constitutional even if compensated, “[a]
plaintiff that proves that a government entity has taken its property for a
private, not a public, use is entitled to an injunction against the
unconstitutional taking, not simply compensation.” Carole Media LLC v. N.J. Transit Corp., 550 F.3d 302, 308 (3d Cir.
2008). Here, there is no dispute that
Plaintiff’s property was taken for a private purpose and it is undisputed that
no compensation was ever provided.
The
defendants knew that the above law and other state statutes protect Plaintiff’s
right to remain in actual possession of his residence. Specifically, N.J.S.A. 2A:39-7 says that title shall not be an issue since
Plaintiff was in continuous possession of his residence for 16 years. N.J.S.A. 2A:39-7 Title not inquired into; defense of 3 years possession. Title shall not be an issue in any
action commenced under this chapter. 3 years peaceable possession by the
defendant shall be a defense to the action.
JURISDICTION
There are two sources of subject
matter jurisdiction in this Court:
·
A
substantial part of this action arises under the Constitution and the laws of
the United States. 28 U.S.C. §1331 and
§1337.
·
The
parties’ citizenship is completely diverse and the amount in controversy
exceeds $75,000, exclusive of interest and costs. 28
U.S.C. §1332.
VENUE
There is one source of venue in this
Court:
·
A
substantial part of the events or omissions giving rise to the action occurred
in this district. 28 U.S.C. §1391(a)(2).
A WELL-PLEAD COMPLAINT IS ATTACHED
Plaintiff is providing this instant
amended complaint that properly alleges the elements of fraud, fraudulent
concealment, fraud-on-the-court, civil RICO conspiracy, civil conspiracy,
unjust enrichment, anti-trust, and several other claims due to the actions of
all the Defendants that have resulted in injuries to Stephanatos’ person and
property.
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 alleging violation of the federal constitution (First,
Fourth, Fifth, Sixth and Fourteenth Amendments) and federal laws (Sherman Act
violations, civil RICO, conspiracy to violate RICO, Fraudulent Conveyance,
FDCPA and others).
Respectfully submitted,
________________________________ Dated December 5, 2018
Basilis N. Stephanatos, PhD, JD
- [1] In re Philadelphia Entm’t & Dev. Partners, 17-1954, 2018 WL 358216 (3d Cir. Jan. 11, 2018). Depending on the context, reference to PEDP may refer to either the Third Circuit opinion or the debtor-entity itself.
- [2]The Rooker-Feldman doctrine derives its name from two U.S. Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
- [3] Id. at *3.
- [4] In re Philadelphia Entm't & Dev. Partners, 17-1954, 2018 WL 358216, at *5 (3d Cir. Jan. 11, 2018) citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 1521, 161 L. Ed. 2d 454 (2005).
- [5] In re Philadelphia Entm't & Dev. Partners, 17-1954, 2018 WL 358216, at *6 (3d Cir. Jan. 11, 2018).
[6] In Wilson, the
defendant law firm sent the debtor a letter that “contained a specific request
for money to ‘reinstate the [mortgage] account.’ ” 443 F.3d at 376. The same
letter “instructed” the borrower to pay her debt, along with foreclosure fees,
“by cashiers check made payable to the [creditor] and to send it to [the
defendant].” Id. at 377. The Fourth Circuit explained that the FDCPA
“does not exclude those who enforce security interests but who also fall under
the general definition of ‘debt collector.’ ” Id. at 378. Similarly, in McCray,
839 F.3d at 357, the Fourth Circuit
addressed defendants retained by the creditor to “collect” on the defaulted
amount where the record demonstrated that the defendants “were seeking
repayment” of the debt. 839 F.3d at 360-361. Indeed, the defendants expressly
threatened foreclosure in an “attempt[] to collect on a debt” by stating, inter
alia, that “a foreclosure action may be filed in court” if “[the borrower]
did not bring the loan current.” Id. at 361 (internal quotation marks
omitted). Both cases thus involved demands for payment from the debtor, just
like here, where Defendant Del Vecchio demanded money from Stephanatos and
included unlawful and/or excessive interest, fee, penalty, charge, or expense
incidental to the principal obligation.