NOT GUILTY!
ON
FEBRUARY 4, 2019, DR. BASILIS N. STEPHANATOS, PHD, PE, JD WAS FOUND NOT
GUILTY BY A JURY OF HIS PEERS IN BERGEN COUNTY, NEW JERSEY
RE: STATE V. BASILIS STEPHANATOS
DOCKET NUMBER 17-1723
INDICTMENT NUMBER 11-09-810-2
JURY FOUND DR. STEPHANATOS NOT-GUILTY OF FOUR VERY SERIOUS CHARGES
This was a not-guilty verdict on all four (4)
very serious charges on the indictment obtained in September 2011.
Importantly, the sheriff officers
testified under oath that they failed to “knock and announce” prior to
performing a search of Stephanatos' home.
The
numerous contradicting statements
of the sheriff officers provided further proof that they fabricated
their
charges against Dr. Stephanatos. The events occurred during an eviction
where they used a void ab initio writ of possession obtained by the
antitrust conspirators Robert Del Vecchio, Jr., Esq., American Tax
Funding, LLC, Matthew Marini, Keith Bonchi, et al on June 28, 2011.
THE PASSAIC COUNTY
PROSECUTOR PROVIDED “SMOKING GUN” EVIDENCE AGAINST ROBERT DEL VECCHIO
On January 23, 2019, as part of the
pre-trial discovery, the Passaic County prosecutor, Mr. Stephen Bollenbach,
provided Dr. Stephanatos with several handwritten pages prepared by Defendant Robert Del
Vecchio, Jr., Esq. in May 2011. The newly
discovered pages show that Defendant Del Vecchio faxed letters to the Passaic
County Sheriff stating that Stephanatos was a “dangerous Deft” and that Stephanatos had threatened him on May 24,
2011. All these written statements by
Defendant Del Vecchio were fabricated by him to prejudice the Passaic County
Sheriff against Stephanatos and to force Stephanatos out of his home using the
void ab initio ex-parte writ of possession.
A MALICIOUS
PROSECUTION CLAIM WILL BE SUBMITTED TO THIS COURT
Dr. Stephanatos will be filing a claim of malicious
prosecution claim.
This claim is timely, as the criminal proceedings ended in Dr. Stephanatos' favor on
February 4, 2019. The malicious
prosecution claim is a tort action brought in civil court to recover money
damages for the harm suffered from the malicious claim. Dr. Stephanatos will seek to recover money from the
Defendants for the various costs associated with having to defend against the
baseless and vexatious charges. The
damages will include the cost of making a $300,000 cash bond, attorney
fees,
and economic harm from being wrongfully incarcerated and not being able
to find
employment or pursue his law license as a result of the pending charges
for the
last 8 years. Dr. Stephanatos will also seek to recover money for the
emotional distress
associated with being jailed and wrongfully prosecuted for the last 8
years and for the malicious
statements made by Defendant Robert Del Vecchio to the sheriff, damaging
his good standing and reputation in the community for the last 8 years.
==========================================
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, 4th 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.
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 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,
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:
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.
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.
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.
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.
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 driveway 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.
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
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.
