Lawsuit NJ Foreclosure Fraud

7/28/2019 Lawsuit NJ Foreclosure Fraud

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IN THE STATE OF NEW JERSEY

IN THE MATTER OF § IN THE SUPERIORCOURT

§§

Timothy Patrick Murray § CAPE MAY COUNTYCIVIL

§v §

§McCabe Law Firm, XXX, et al § COMPLAINT

ILLEGAL EJECTION, FAILURE TO GIVE NOTICE, FRAUD,CONSPIRACY TO DEFRAUD, MALPRACTICE, FRAUD UPON

THE COURT, MISTAKE BY THE COURT, DENIAL OF RIGHT TODUE PROCESS, ILLEGAL FORECLOSURE, ILLEGAL EVICTION

This suit is brought by Timothy Patrick Murray, pro se Plaintiff and bonafide lease holder of foreclosed property illegally conveyed to Buyer.

I.Petitioner has been a part-time domiciliary of the State of NJ for thepreceding six-month period and a resident of Cape May County for thepreceding ninety-day period.

II.CAUSE OF ACTION

IV.THE FACTS



V.Petitioner requests the Court to order a REVERSAL OF THEFORECLOSURE SALE, an order for reinstatement of the valid lease, there-occupancy of the home in question, damages for violation of law andinjury sustained thereto, return of all property and liability for anymissing, damaged and unaccounted for, and any other relief that the Courtdeems just and right, as provided by law.

VI.I hold legal lease to property which was owned by my brother Francis XMurray with whom I executed a lease agreement for the property in thesummer of 2010 for both a term and optional month to month basis, theexact terms of which will be furnished as evidence in a future hearing or

pleading or discovery as is per NJ civil procedure. This action is complex,involves many parties and is based on multiple counts that are connected inwhat I allege is a fraudulent foreclosure, fraudulent sheriff sale and afraudulent conspiracy between certain Defendants, but the mainfoundational injury and cause of action shall be defined:

I seek remedy to in the action and thus the main cause of action is againstthe ostensible “new” owner of the property, XXX, and his amoral,unethical and quite illegal actions against me in the form of the illegal

ejection of me and my family, the lockout and the grand theft of allmaterial possessions within home WITHOUT ANY notice as required byNJ law germane to foreclosure, as well as all landlord/tenant right laws,namely NJ law protecting tenants who are living in a foreclosed home.

N.J. Stat. Ann. § 2A:50-70 (2009) provides that the new owner of foreclosed residential property must give written notice to tenants aboutthe change of ownership and the tenants’ right to remain in the propertyno later than 10 business days after the transfer of title. (Under pre-

existing New Jersey law, foreclosure is not a valid basis for eviction.) Thestatute also requires the new owner to give the same notice to tenantsagain when they communicate with the tenants, verbally or in writing, toinduce them to vacate. Effective February 16, 2010, N.J. Stat. Ann. §2A:50-71 (2009) provides that the new owner of foreclosed residentialproperty (or his agents) cannot induce tenants of the property to vacate



except with a bona fide monetary offer. The tenants shall have five business days to decide whether to accept or reject the offer. The statutespecifically prohibits the new owner from misrepresenting the tenants’rights, taking harassing action such as cutting off utilities, or unlawfullyincreasing the rent.Self-help eviction by the owner or landlord is illegal.

The State has made it a disorderly persons offense for any person, afterhaving been warned by a public official, to attempt to evict tenant in anyway except via the courts.

If a landlord performs an illegal lockout, the tenant may call the police.Under N.J.S.A 2C : 33 :11 if the landlord refuses to allow the tenant back

into the premises after the police have warned the landlord about theillegal procedure, the landlord may be charged with a disorderly person’soffense. “It shall be the duty of the (police) officer to prevent the landlordor any other person from obstructing or hindering the reentry and re-occupancy of the dwelling by displaced occupant.” The landlord must takea tenant to court before he can be evicted. Only a judge can order a legaleviction. Owners are not allowed to threaten tenants, remove theirpersonal property from their homes, lock them out, or shut off utilities inan effort to regain possession. New Jersey laws are protective of all tenantsand all tenants are protected whether or not there is a written lease. Weare therefore protected by the “Eviction for Just Cause Act,” also known asthe Anti-Eviction Act (N.J.S.A. 2A:18-61.1 to -61.16a). Under this law,owners are only allowed to evict tenants for “grounds” stated in the statute.

I seek the remedy of repossession of the home as per my lease agreementpursuant to N.J.S.A.2A:18-61.1(j) as well as tripled damages under RICOfor the failure of XXX to obey the law germane to tenant rights as well asreverse the entire foreclosure transaction as it was done with uncleanhands and involved, I allege, a conspiracy between Defendants I willprovide evidence for at trial. Beyond conspiracy there is also the fraud of the transaction, as the home, as of 1/4/2011, was conveyed to a buyerwho DID NOT SATISFY THE FIRST MORTGAGE and to furtherelucidate the inadequacy of the oversight, there A SALE PENDING ONTHE HOME, contingent upon the result of a hearing for “CitiMortgage”.



In short, the remedy sought is an outright restoration of my rights astenant, which I allege would not be infringed IF THE RIGHTS OF THEFORMER OWNER, my brother, WERE NOT SO EGREGIOUSLYVIOLATED by illegal fraudulent foreclosure for reasons to be evidenced.

A federal law passed in May 2009, “Protecting Tenants at Foreclosure Actof 2009” (P.L. 111-22). Because it is less protective than NJ, New Jerseylaws continue to be followed.

The Protecting Tenants at Foreclosure Act of 2009 (PTFA)The PTFA provides new federal rights to tenants, including theaforementioned right to receive at least 90 days’ advance notice from thenew owner of a property after foreclosure before the tenant(s) can be

required to vacate the property. Under the new law, in mostcircumstances new owners of foreclosed properties, including banks orother lenders, must permit bona fide tenants to remain in their homes forthe full length of their lease under the existing lease terms, unless the newowner plans to live in the property as his or her primary residence.

A landlord must have grounds under N.J.S.A. 2A:18 - 61.1 to evict atenant. Tenants retain their rights under tenant laws even in properties thatare or have been foreclosed.

The law also requires landlords to provide tenants with noticeof reason for eviction before bringing them to court.

Tenants may call the police if the landlord or any other person enters thepremises and attempts to evict them by these means. The police then havea duty to assist tenants re-occupying their homes. (N.J.S.A. 2C : 33-11.1).Tenants can only be evicted through a court process. This applies to alltenants, including those who are not covered by the Eviction for JustCause Act.

The New Jersey Supreme Court has made clear that foreclosure alone isNOT grounds for eviction.In Chase Manhattan Bank v. Josephson (135 N.J.209 (1994)), the Court stated that when a lender or other buyer takes aproperty through foreclosure, the tenants come with it. The new owner becomes landlord and must abide by all laws related to owning property.



The New Jersey Supreme Court amended the state court rules to requirethat, before entry of judgment in a foreclosure matter, the plaintiff mustserve on all tenants a notice of tenants’ rights during foreclosure, and alsothat a notice of sale posted on the property must be accompanied by thenotice of tenants’ rights during foreclosure.Self-help evictions occur when the landlord or someone acting on thelandlord’s behalf enters into the dwelling unit without the permission of the tenant and without a judgment from the Court and forces the tenant tomove, by removing the tenant’s personal property from the premises orshutting off utilities in an attempt to force the tenant to move. A lockoutoccurs when the landlord padlocks the door or changes the locks whiletenants are not home and then refuses to allow them back into thepremises'Self-help eviction lockouts are illegal in New Jersey .In November 2009, NJ adopted a rule that requires a foreclosing lender togive residential tenants written notice of their rights or else theforeclosure cannot be completed. The sheriff must also post the notice onthe property. The notice provides similar information to the court notice but has some additional information, including where and to whomtenants should pay their rent. In buildings with 10 or fewer units, newowners must provide the notice to each tenant; in buildings with morethan 10 units, they must post the notice in a common area. New ownersmust also provide tenants with the notice when and if they or their agentstry to persuade tenants to move out voluntarily (such as offering them acash-for-keys agreement). The law allows tenants to sue new owners ortheir agents for either triple damages or $2000 per violation of the law(plus attorney’s fees and costs) if they (1) fail to provide the requirednotice or (2) use illegal means to pressure tenants to leave, such asmisrepresenting tenants’ rights, harassing tenants (shutting off utilities,

failing to maintain the property), implying that tenants have to acceptoffers to leave, or increasing rents beyond what is legally allowed. TheForeclosure Fairness Act (P.L. 2009, c. 296) requires buyers of foreclosedproperties to provide written notice in English and Spanish within 10 daysafter taking ownership. The form of the notice is specified in Appendix XII-K... the notice must inform tenants of their right to stay in the property:



NOTICE TO RESIDENTIAL TENANTS OF RIGHTS DURINGFORECLOSURE

A FORECLOSURE ACTION HAS BEEN FILED CONCERNING1306OCEAN AND THE OWNERSHIP OF THE PROPERTY MAY CHANGEAS A RESULT. UNTIL OWNERSHIP OF THE PROPERTY CHANGESOR YOU ARE OTHERWISE INFORMED BY THE COURT OR THE

MORTGAGE HOLDER, YOU SHOULD CONTINUE TO PAY RENT TOLANDLORD.

YOU SHOULD KEEP RECEIPTS OR CANCELED CHECKS OF YOURRENT PAYMENTS. IF YOU ARE NOT SURE HOW OR WHERE TO PAY

RENT, SAVE YOUR RENT MONEY SO THAT YOU WILL HAVE ITWHEN THE OWNER DEMANDS IT. NONPAYMENT OF RENT IS

GROUNDS FOR EVICTION. FORECLOSURE ALONE IS GENERALLYNOT GROUNDS TO REMOVE A BONA FIDE RESIDENTIAL TENANT.

TENANTS WHO WANT TO STAY IN THEIR HOMES CAN BEREMOVED ONLY THROUGH A COURT PROCESS. WITH LIMITED

EXCEPTIONS, THE NEW JERSEY “ANTI-EVICTION ACT” PROTECTSRESIDENTIAL TENANTS’ RIGHTS TO REMAIN IN THEIR HOME.

THIS LAW INCLUDES PROTECTION FOR TENANTS WHO DO NOTHAVE WRITTEN LEASES. IT IS UNLAWFUL FOR ANYONE TO TRYTO FORCE YOU TO LEAVE YOUR HOME OUTSIDE THE COURT

PROCESS, INCLUDING BY SHUTTING OFF UTILITIES OR FAILINGTO MAINTAIN THE PREMISES.

NO SUCH NOTICE WAS GIVEN TO ME

Notified or not New Jersey’s tenants have the right to remain intheir homes during and after a foreclosure, whether or not theyhave a written lease. The new owner takes the property with the

tenants in it, and tenants cannot be removed simply because the propertyhas changed hands. If a property changes hands, the new owner (not theold owner) is responsible for refunding the tenant’s security deposit whenthe tenant leaves the property. Many tenants are told that they have to gettheir security deposit from the old owner; this is not true. (N.J.S.A. 46:8-20 and -21).



Tenants must receive written notices about their rights and responsibilities before and after the foreclosure. The new owner cannot harass or misleadtenants to get them to leave. Tenants cannot be evicted or removed simply because the property where they live has been foreclosed.

New Jersey generally permits evictions of tenants only for good cause, andforeclosure does not qualify as good cause. Therefore, New Jersey state lawtypically provides equivalent or more protection than PTFA with respectto tenants right to remain in the property following foreclosure.

New Jersey state law also requires that tenants be notified of their rights inforeclosure, which goes beyond the scope of the PTFA. Tenants inforeclosed properties will be protected by the Eviction for Just Cause Act because a bank or other business is not considered to be an owner-occupant for purposes of this exception. Aquino v. Pittari, 245 N.J. Super 585(1991); 3519-3513 Realty, LLC v. Law, 406 N.J. Super 423 (2009).

Where a judge orders eviction, only court officers with a warrant of removal signed by a judge can lawfully evict tenants. (N.J.S.A. 2A: 39-1 and -2; N.J.S.A. 2A: 18-57; N.J.S.A. 2A:42-10.16; and related statutes). At the endof a lease term the landlord cannot evict a tenant covered under Evictionfor Just Cause Act except for one of the so identified reasons. If landlordand tenant do not sign another lease, lease continues on month-to-month basis. (N.J.S.A. 46:8-10).Prior to asking for the final judgment, the lender mustsend tenants living in the property the notice required under the new court rule. Thesheriff must also post a notice of tenants’ rights on the property under the new courrule.If the court issues a final judgment of foreclosure, it will also issue awrit of execution. The writ will order the county sheriff to sell the houseand remove the owner is living in house- yet after notifying Defendants of lease and the law that tenants cannot be removed, I was.

Before sale, the sheriff will notify the owner of sale- a fact which is beingdisputed in appeal action by former owner.After sheriff sale andredemption period (10 days during which the owner must pay off all themoney and regain possession of the house), the buyer at the sheriff sale isnow the owner of the house, and also the landlord. The buyer must followall of the laws that apply to landlords.



Within 10 days of taking title to the property, the new owner must notify thetenants of their rights and where to send the rent, according to the new law,Foreclosure Fairness Act.But XXX did not notify me of anything- nor did heobtain title properly, as to THIS VERY DAY there is a hearing pendingregarding the FIRST MORTGAGE!RATHER THAN NOTIFY ME OR COORDINATE THE MOVE OUTWITH MY BROTHER FRANCIS- XXX, WITHIN MERE DAYS OFTAKING TITLE PROCEEDED TO ENTER THE PROPERTY ANDREMOVE AT LEAST $250,000 WORTH OF PROPERTY AS WELL ASCHANGE ALL THE LOCKS- ALL WITHOUT NOTICE.

Landlords who violate thelaw with respect to the tenant noticerequirements or treatment of tenants shall be subject to triple damages, orat discretion of the victimized tenant, damages in the amount of $2,000,plus attorney fees/costs.Pursuant to 12 USC § 5220, P.L. 111-22, Div A, Title VII sec. 702, 123Stat. 1660, before a tenant can be evicted due to foreclosure, landlordmust provide the tenant with a 90 day notice to quit.

However, if a tenant has a lease agreement that goes beyond the 90 daysthe landlord may not take action to evict the tenant until after the lease

expires and the 90 day notice to quit has been given. The 90-day noticemay be given 90 days before the lease expires. Month-to-month tenantsand two and three-family owner- occupied units are not exempt from the90 day notice requirements.

Attorneys are subject to the Rules of Professional Conduct, which may beviolated if attorneys “knowingly (1) make a false statement of material factor law to a third person; or (2) fail to disclose a material fact to a thirdperson when disclosure is necessary to avoid assisting a criminal or

fraudulent act by a client.” R.P.C. 4.1(a).Real estate licensees violate the regulations that govern them if they draftor send letters or notices that state or imply that a tenant is subject toeviction solely because of a foreclosure.

(N.J.A.C. 11:5-6.1(r).



In addition, attorneys are subject to the federal Fair Debt CollectionProtection Act. This law, which requires debt collectors to provide certaininformation to people who they are trying to collect money from, appliesto attorneys when they are trying to collect rent from tenants. Under thislaw, communication (either oral or written) must inform the tenant thatthe attorney is trying to collect a debt and that any information obtainedwill be used for that purpose (all communication must say that it is from adebt collector). Within 5 days of communication, the attorney must givethe tenant written notice outlining the tenant’s rights in the debtcollection process (that is, the right to verify and dispute the debt) andstate the amount of rent owed.

The attorney can’t misrepresent the amount of rent or collect rent notlegally due. There are exceptions to these requirements where thecommunication is in the form of a court document. (15 U.S.C. § 1692-1692p).

Attorneys as well as others could be liable under the Consumer Fraud Actif they try to remove tenants from properties because of a foreclosure.(N.J.S.A. 56:8-2). The writs of execution and final foreclosure judgmentsare drafted by the attorneys for the lenders and the attorneys sometimesuse language in court papers that cause problems because it seems to covertenants (for example, “and any and all persons occupying said premises”).This is especially problematic because tenants often do not have theopportunity to demonstrate that they are in fact legitimate tenants untilafter the removal has already been ordered by the court and scheduled bythe sheriff.

If a court order specifically names a tenant to be removed, the sheriff mustevict that person. Sometimes, however, sheriffs read the language in theorder and believe that they must evict everyone. Also, some notices thatsheriffs create and post on property include language, such as “occupants”instead of “owners,” that appears to include tenants. The Attorney Generaldistributed a memo to sheriffs regarding the rights of tenants living inforeclosed properties.



Pursuant to N.J.S.A. 2A : 50-69, et seq. any person acquiring a foreclosedproperty containing one or more residential rental units must providenotices that must be addressed to tenants by name, unless the new owneris unable to identify the tenant by name, then the owner shall address thenotice to “Tenant.”The notice must also be placed on the door of tenant’s unitand sent to each tenant via certified and regular mail.

Any written or verbal communication, including a summons andcomplaint, an initial written or verbal communication by a foreclosingcreditor, or any communication written or verbal that requests a tenant tovacate the property before the foreclosure or sale of the property, requiresthe foreclosing creditor to give notice to the tenants as outlined in the NJCourt XXII-K (2010) entitled “Notice to Residential Tenants of RightsDuring Foreclosure.When making a bona fide monetary offer to induce tenants to move, thenew owner must provide a separate and different notice from noticerequired by foreclosing creditor. The new owner must provide a copy of the “NOTICE TO TENANTS” and give it with the initial and final writtenor verbal offer to tenant. A creditor serving a summons and complaint toforeclose on a residential property must, within 10 days of serving thesummons and complaint, notify the municipal clerk of the municipality inwhich the property is located with a copy of the notice at the same time itis served on the owner. The municipal clerk shall forward a copy of thenotice to the public officer, or other local officials responsible for enforcingproperty maintenance or public nuisance codes. (N.J.S.A. 46:10B-51). Theforeclosing agency, including a bank, creditor, or a new landlord may makea written bona fide (good faith) monetary offer requesting that the tenantvacate the property, without “good cause.” An acceptance of the offer bythe tenant must be in writing and include an acknowledgement of the date

of the receipt of the offer, and an understanding that the tenant had a five-day review period to accept or reject the offer presented. However, it isimportant to note that the acceptance of a bona fide monetary offer isvoluntary. The tenant shall not be pressured by anyone, including theperson making offer. Illegal pressure tactics include but are not limited to:



1) Mischaracterizing or misrepresenting the rights of the tenant under thelaw; 2) Implying the tenant is obligated to accept the offer; 3) Implyingthat there will be consequences against the tenant for failing to acceptoffer; 4) Harassment, including but not limited to discontinuance of utilities, failure to maintain common areas or facilities, or any other failureto maintain the premises in a habitable condition; and 5) An increase inrent in excess of any rent control or rent leveling ordinance, or if theproperty is not subject to rent control, an unreasonable or unconscionablerent increase. IF THESE ARE ILLEGAL, then what would breaking in,taking away to an undisclosed location over a quarter of a million dollars infragile and valuable property and changing the locks with NO NOTICE?

A landlord may not attempt a self-help eviction or lockout.

2A:39-1 No person shall enter upon or into any real property or estatetherein and detain and hold the same, except where entry is given by law,and then only in a peaceable manner. With regard to any real propertyoccupied solely as a residence by the party in possession, such entry shallnot be made in any manner without the consent of the party in possessionunless the entry and detention is made pursuant to legal process as set outin N.J.S.2A:18-53 et seq.(C.2A:18-61.1 et al.), A person violating thissection regarding entry of rental property occupied solely as a residence byparty in possession shall be a disorderly person.2A:39-2. If any personshall enter upon or into any real property and detain or hold the same withforce, whether or not any person be in it, by any kind of violencewhatsoever, or by threatening to kill, maim or beat the party in possession,or by such words, circumstances or action as have a natural tendency toexcite fear or apprehension of danger, or by putting out of doors, orcarrying away the goods of the party in possession, or by enteringpeaceably and then, by force or frightening by threats, or by other

circumstances of terror, turning the party out of possession, such personshall be guilty of a forcible entry and detainer within the meaning of thischapter.



With regard to any real property occupied solely as a residence by theparty in possession, if any person shall enter upon or into said propertyand detain or hold same in any manner without the consent of the party inpossession unless the entry is made pursuant to legal process as set out inN.J.S. 2A:18-53 et seq, such person shall be guilty of an unlawful entryand detainer within the meaning of this chapter.2A:39-3. No personlawfully or peaceably entering upon or into any real property shall hold orkeep the same with force; and whatever words or circumstances, conductor actions, as will make an entry forcible here shall make a detainerforcible.2A:39-4. If any tenant or other person in possession of any realproperty under a tenant, shall willfully and without force, hold over anysuch real property after demand and notice in writing given for the

delivery of the possession thereof by a lessor or the person to whom theremainder or reversion of such real estate shall belong, such tenant orother person, so holding over, shall be guilty of an unlawful detainer.

2A:39-5. A person taking possession of real property, without the consentof the owner or without color of title, and willfully and without forceholding or detaining the same after demand and written notice given forthe delivery of the possession thereof, by the owner or person entitled topossession or right to possession shall be guilty of an unlawful detainer.

Actions cognizable before Superior Court2A:39-6. Any forcible unlawful entry and detainer, forcible detainer andunlawful detainer as defined in this chapter shall be cognizable before theSuperior Court, and determine an action therefor in a summary manner.

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. 3years peaceable possession by the defendant shall be a defense to action.

2A:39-8. Treble damages in lieu of possessionIn any action under this chapter, a plaintiff recovering judgment shall beentitled to possession of the real property and shall recover all damagesproximately caused by the unlawful entry and detainer including courtcosts and reasonable attorney's fees. When a return to possession would be inappropriate remedy, treble damages shall be awarded in lieu thereof.



The judgment may be enforced against either party in a summary manner by any process necessary to secure complete compliance therewithincluding payment of costs.

Uniform Procedures for Public SalesThe act sets forth uniform procedures for public sales of mortgagedproperty. N.J.s.a. 2a:50-64. A sheriff must schedule a sale date within 120days of the receipt of the writ of execution for such sale. at least 10 daysprior to the sale, the foreclosing mortgagee must provide notice of the saleto the record owner of the property when the action was commenced, andto all parties who have appeared in the foreclosure action. The mortgagorhas the statutory right to two adjournments (of 14 days each) of thesheriff’s sale date. The mortgagor has a period of 10 days following thedate of the foreclosure to redeem the property following the date of thesheriff’s sale. If the property is not redeemed within the time period, thesheriff will deliver a deed of conveyance for the foreclosed property to thesuccessful bidder at the sheriff ’s sale. New Jersey deficiency action statutehas a “foreclosure first” requirement, before an action on the bond or notefor any deficiency can be pursued. N.J.s.a. 2a:50-2. Once foreclosureproceedings have been completed and the sale conducted, the deficiencyaction must be commenced within three months of the foreclosure sale. If a deficiency action is pursued, the mortgagor has a statutory right toobtain a fair market value credit of mortgaged premises against amountdue on the mortgage note. N.J.s.a. 2a:50-3. Since the issuance of theWithout Just Causereport, it concludes that despite the PTFA law, manytenants across the country are still being ordered to vacate their homeswith little notice once the property enters foreclosure. For example, eventhough she had been paying her rent on time, Beverly, a resident of a rentalproperty in Ohio, came home one weekend to find her apartment had

been padlocked, and her belongings removed. She didn’t know the building was in foreclosure, and its new owners had illegally evicted her.Forced to stay with relatives, as even her bed had been taken, Beverly’srights under the Act were violated;

The facts are briefly summarized as:



FACTS

FX and Mom please

write up basic datesnames facts...



WHEREFORE Petitioner prays that citation and notice issue as required by law and that the Court grant a re-occupancy order, a property recoveryand restoration order, a treble damages order, an order remanding thecausative action (Wachovia) the 2nd mortgagee back to trial court or as perthe terms of the final judgment vacate and reverse both the final judgmentin the Wachovia foreclosure due to the fact that as Defendants in the THEOUTSTANDING ANDF UNRESOLVED action of the SENIOR lienholder- CitiMortgage.

That the Court simply reverse the sheriff sale as Wachovia is bound to theterms of aforementioned order which explicitly and quite typically in thesedefault matters included a clause that reads to paraphrase “that all

DEFENDANTS (Wachovia included) is herein and forever BARRED fromall rights to redemption and foreclosure” and decree DAMAGES,CRIMINAL SANCTIONS AND any and all such other relief as morespecifically requested in this Petition or deemed rightful by the Court.

Petitioner prays that Defendants be ordered to pay the fees and costs of this suit.

Petitioner prays for general and specific relief.

Respectfully submitted,

Timothy Patrick Murray, PRO SE

Documents

Lawsuit NJ Foreclosure Fraud