FAROOQ ALI & SHAZIA MEHR

36-38 WASHINGTON AVENUE

NORTH PLAINFIELD, NJ 07060
TEL: 917 584-7173
EMAIL: [email protected]

FAROOQ ALI & SOMERSET COUNTY SUPERIOR

SHAZIA MEHR COURT OF NEW JERSEY
APPELLATE DIVISION
Plaintiff / Appellant DOCKET NO. A-002411-17T1

- Vs - LOWER COURT
DOCKET NO. F-015414-14
WILMINGTON SAVINGS FUND
SOCIETY, FSB

EMERGENCY MOTION FOR STAY OF

WRIT PENDING APPEAL AND FOR
HUMANITARIAN REASONS

Return Date:
New Jersey Rule 4:50
Defendants / Appellees.

Appellants, FAROOQ ALI & SHAZIA MEHR, moves the Court for an

emergency motion for stay of any action, including the enforcement of the

existing writ, or issuance of a new writ or enforcement of a writ of possession,

pending the outcome of the appeal and pending the physical recovery of the

Defendants pro se.

Ali Farooq is requesting an emergency stay of any writ given his severe

medical condition. Ali Farooq is suffering with a serious heart and medical

condition. He is in no physical condition to relocate his family if he is disposed

of their homestead home before the wrongful foreclosure can be undone. The

case is very simple. Bank of America had no interest that they could convey

because the property was sold at tax sale prior to the foreclosure action even
being filed. On that basis, there exists a legitimate grounds for the appeal as

there never was any standing upon which to foreclose as the interest sought to

be foreclosed upon had already been sold. Since that time, the property which

was sold by tax sale to US Bank, was REDEEMED by the Defendant Ali Farooq

and Defendant Ali Farooq has in his possession a quitclaim deed from the prior

purchasers, reconveying the property back from US Bank. Said quitclaim deed

was executed and recorded AFTER the wrongful foreclosure judgment, cutting

off any right that Bank of America or Bank of America had to foreclose.

This underlying foreclosure judgment is VOID as Bank of America, the

plaintiff in the underlying case, Docket No. F 015414-14 FAILED TO SERVE THE

REAL PARTY IN INTEREST, US BANK CUST / TLCF 2012A, LLC, WHO

ACQUIRED THE title BEFORE the foreclosure was ever filed and

CONVENIENTLY CONCEALS THAT INFORMATION FROM THIS COURT,

REFUSING TO EVEN PUT THE TAX DEED IN ITS LIST OF EXHIBITS IN THEIR

MOTION TO DISMISS, PERPETRATING YET ANOTHER FRAUD, THIS TIME, ON

THIS COURT.

ARGUMENT

STANDARD ON GROUNDS FOR EMERGENCY STAY OF WRIT

Under State law, a trial judge, guided by principles of equity, has

the sound discretion to grant a motion to vacate a judgment. Housing Auth. of

Town of Morristown v. Little, 135 N.J. 274, 283 (1994). A final judgment can be

set aside if it was void or has been discharged. R. 4:50-1(d) and (e). A motion

seeking relief under Rule 4:50-1(d) or (e) generally must be filed "within a
reasonable time." R. 4:50-2. The real culprit and original sinner in this matter

is BANK OF AMERICA who concealed from the State Court the tax deed. That

deed made the entire foreclosure action void ab initio. Bascom Corp. v. CHASE

MANHATTEN BANK, 832 A. 2d 956 - NJ: Appellate Div. 2003. That Tax deed is

an exhibit attached to the complaint. That tax deed, however, is MISSING FROM

THE FORECLOSURE CASE AND MISSING FROM THE DEFENDANTS MOTION

HERE. That, in order to perpetrate the fraud fully, not only did Bank of America

conceal from this court and the lower court the tax deed that was issued prior

to recording the lis pendens, Bank of America used a series of fraudulently

executed assignments in order to fabricate standing to sue. The only thing they

could not do was fix the tax deed, so they simply did not disclose it either to this

court or the lower court.

The procedures that govern tax foreclosure are set down in the Tax Sale

Law, N.J.S.A. 54:5-1 et seq. “Also, we conclude the request to eliminate the

judgment from the public records is not subject to the reasonable-time requisites

of Rule 4:50-2, because the defect in the judgment's entry is non-waivable.”

Bascom Corp., supra, 363 N.J. Super. at 342-43. NATIONAL COMMUNITY BANK

OF NEW JERSEY v. VALOR FOODS, INC., NJ: Appellate Div. 2009

DEFENDANT ALI FAROOQ HAS SOUGHT AND OBTAINED FROM US

BANK SUPERIOR TITLE TO THAT OF THE APPELLEE AND THUS THE

STAY SHOULD BE GRANTED.

The power of our courts at the instance of a party to open a final judgment

in a civil action upon good cause shown has long been settled beyond
controversy. Assets Development Co. v. Wall, 97 N.J.L. 468 (E. & A. 1922). Rule

3:60-2 merely declares the previously existing law in that regard. It reads:

"On motion and upon such terms as are just, the court may relieve a party or

his legal representative from a final judgment, order or proceeding for the

following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2)

newly discovered evidence which would probably alter the judgment, order or

proceeding and which by due diligence could not have been discovered in time

to move for a new trial under Rule 3:59-2; (3) fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresentation, or other misconduct of

an adverse party; (4) the judgment or order is void; (5) the judgment or order

has been satisfied, released, or discharged, or a prior judgment or order upon

which it is based has been reversed or otherwise vacated, or it is no longer

equitable that the judgment or order should have prospective application; or (6)

any other reason justifying relief from the operation of the judgment or order.

The motion shall be made within a reasonable time, and for reasons (1), (2) and

(3) not more than one year after the judgment, order or proceeding was entered

or taken. A motion under Rule 3:60-2 does not suspend the operation of any

judgment, order or proceeding or affect the finality of a final judgment. This rule

does not limit the power of a court to entertain an independent action to

relieve a party from a judgment, order or proceeding; nor does it limit the

court's power to set aside a judgment, order or proceeding for fraud upon

the court. Writs of coram nobis, coram vobis, audita querela, venire facias de

novo, motions to award a repleader, to arrest a judgment or, to give judgment

notwithstanding a verdict, bills of review, bills in the nature of a bill of review

and petitions for rehearing are superseded, and the procedure for obtaining a

new trial or any relief from a judgment or order shall be by motion as prescribed

in these rules or, where such relief is sought, by an independent action."

The rule simplifies the procedure and permits the exercise of the power to open

a final judgment, for the reasons specified in subdivisions (1), (2) and (3), upon

motion made within a reasonable time not more than one year after the entry of

the final judgment [see, however, as to this time limit, Klapprott v. U.S., 335 U.S.

601, 69 S.Ct. 384, 93 L.Ed. 266 (1949), remand modified in 336 U.S. 942, 69

S.Ct. 384, 93 L.Ed. 1099 (1949), and Wilford v. Sigmund Eisner Company, 13

N.J. Super. 27 (App. Div. 1951)], and, for the reasons specified in subdivisions

(4), (5) and (6) and for fraud upon the court, without limitation as to time.

The proceeding by motion in the cause, although not limiting the power of the

court to entertain an independent action in a proper case, supersedes the largely

obsolete ancillary common law and equitable procedures listed in the rule and

is declaratory of the long standing policy of our law to require that relief from a

final judgment of a court of this State be sought in the action in which the

judgment was rendered when that remedy is adequate. Kearns v. Kearns, 70 N.J.

Eq. 483 (Ch. 1905). The motion procedure applies to relief sought upon the

ground of fraud upon the court, differing from the requirement under the

comparable amended Federal Rule 60(b) that relief on that ground must be the

subject of an independent action. Tentative Draft, Rules Governing all of the

Courts of New Jersey, Comment on fourth sentence of Rule 3:60-2, p. 224.

However, relief for any reason allowed by Rule 3:60-2 rests in the sound

discretion of the trial court, controlled by established principles. Equitable

principles are the guide in administering relief to determine whether in the

particular circumstances justice and equity require that relief be granted or

denied. La Bell v. Quasdorf, 116 N.J.L. 368 (Sup. Ct. 1936).

Perjurious testimony alone and not accompanied or concealed by other

and collateral acts of fraud may be a ground for relief as a fraud upon the court

in a proper case. The contrary view expressed in U.S. v. Throckmorton, 98 U.S.

61, 25 L.Ed. 93 (1878), and recently repeated in Dowdy v. Hawfield, 189 F.2d

637 (Ct. App., D.C. 1951), cert. den. 342 U.S. 830, 72 S.Ct. 54, 96 L.Ed. ___

(1951), when interpreting Federal Rule 60(b) is not favored by us. That view holds

that perjurious testimony standing alone is intrinsic fraud and that relief for a

fraud upon the court is limited to "frauds, extrinsic or collateral, to the matter

tried by the court." A public policy that there be an end to litigation is given for

the distinction: "* * * the mischief of retrying every case in which the judgment

or decree rendered on false testimony, given by perjured witnesses, would be

greater, by reason of the endless nature of the strife, than any compensation

arising from doing justice in individual cases." U.S. v. Throckmorton, supra, 98

U.S. pp. 68-69, 25 L.Ed. p. 96. Whether the Throckmorton principle is still

controlling law in the federal courts is not clear. It has been suggested that the

case may have been overruled by the subsequent decision in Marshall v. Holmes,

141 U.S. 589, 12 S.Ct. 62, 35 L.Ed. 870 (1891). Publicker v. Shallcross, 3 Cir.,

106 F.2d 949 (C.C.A. 3 1939), cert. den. 308 U.S. 624, 84 L.Ed. 521 (1940).
However, both decisions were cited in Hazel-Atlas Glass Co. v. Hartford-Empire

Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944), without giving a clear

answer to the question. And see Josserand v. Taylor, 159 F.2d 249, 34 C.C.P.A.,

Patents, 824 (Ct. Cust. & Pat. App. 1946); Annotations, 126 A.L.R. 390; 88 A.L.R.

1201. Both Rule 3:60-2 and Federal Rule 60(b) expressly abandon the distinction

for the purposes of a motion by a party, or his legal representative, made within

one year of the final judgment by providing that "the court may relieve a party or

his legal representative, from a final judgment * * * for * * * (3) fraud (whether

heretofore denominated intrinsic or extrinsic) * * * of an adverse party." Balip

Automotive Repairs, Inc., v. Atlantic Casualty Ins. Co., 7 N.J. 152 (1951), affirming

8 N.J. Super. 238 (App. Div. 1950) which reversed on the merits 6 N.J. Super.

511 (Law Div. 1949). However, the fourth sentence of the two rules allowing relief

without time limitation for "fraud upon the court" is not similarly specific.

Nevertheless, upon principle, we hold that relief for fraud upon the court may be

allowed under our rule whether the fraud charged is denominated intrinsic or

extrinsic. The notion that repeated retrials of cases may be expected to follow the

setting aside of judgments rendered on false testimony will not withstand critical

analysis. Rather it is more logical to anticipate that the guilty litigant committing

or suborning testimony will not risk pursuing the cause further. And, in any

event, a court may not set aside a final judgment merely because some testimony

is perjured. All perjury is an affront to the dignity of the court and to the integrity

of the judicial process, but the law is not without other effective means to punish

the perpetrator of the crime. Cf. Swanson v. Swanson, 8 N.J. 169 (1951).
Perjured testimony that warrants disturbance of a final judgment must be shown

by clear, convincing and satisfactory evidence to have been, not false merely, but

to have been willfully and purposely falsely given, and to have been material to

the issue tried and not merely cumulative but probably to have controlled the

result. Further, a party seeking to be relieved from the judgment must show that

the fact of the falsity of the testimony could not have been discovered by

reasonable diligence in time to offset it at the trial or that for other good reason

the failure to use diligence is in all the circumstances not a bar to relief. Balip

Automotive Repairs, Inc., v. Atlantic Casualty Ins. Co., supra. Clearly, the

necessity to satisfy these tests before the judgment may be disturbed is itself a

deterrent to repeated litigation of the same factual issues. See 22 Harvard Law

Review, 600. For these reasons we agree that it is "a journey into futility to

attempt a distinction between extrinsic and intrinsic matter." Moore & Rogers,

Federal Relief from Civil Judgments, 55 Yale Law Journal, 623, at 658 (June

1946). "* * * the spectacle of the machinery of the law bearing down mercilessly,

and perhaps ruinously, to collect and deliver over the fruits of undoubted fraud

(is) peculiarly odious." 126 A.L.R. 393. Plainly, the encouragement of vexatious

litigation is the lesser evil. We prefer to follow the equity of the matter and to take

away an unjust judgment obtained by vital perjury when the injustice and

inequity of allowing it to stand are made evident.”

The Defendants / Appellees and their predecessors, Bank of America,

COMMITTED PERJURY in the foreclosure action by stating that they had

standing to bring this action and that no other interested party existed. The
True facts were, that they did not have standing to sue. The Extrinsic fraud,

however, is the concealment by the Bank of America of the existence of the tax

deed. They did not name a real party in interest. They did not file suit prior to

the tax sale. No one notified the Plaintiff herein of the existence of the tax sale

and he did not receive actual notice from the city.

CONCLUSION

WHEREFORE, Ali Farooq and his spouse Shazia Mehr respectfully pray that the

court stay the issuance of any writ of possession until such time as the Court of

Appeals rules on the appeal currently being prepared by the Ali Farooq and

Shazia Mehr on the above-cited grounds.

Respectfully submitted:
By: ______________________
FAROOQ ALI & SHAZIA MEHR, Pro Se
36-38 WASHINGTON AVENUE
NORTH PLAINFIELD, NJ 07060
PLAINTIFF PRO SE
TEL: 917 584-7173
FAROOQ ALI & SHAZIA MEHR
36-38 WASHINGTON AVENUE
NORTH PLAINFIELD, NJ 07060
TEL: 917 584-7173
EMAIL: [email protected]

FAROOQ ALI & SOMERSET COUNTY SUPERIOR

SHAZIA MEHR COURT OF NEW JERSEY
APPELLATE DIVISION
Plaintiff / Appellant DOCKET NO. A-002411-17T1

- Vs - LOWER COURT
DOCKET NO. F-015414-14
WILMINGTON SAVINGS FUND
SOCIETY, FSB AFFIDAVIT OF APPELLANT
IN SUPPORT OF HIS
EMERGENCY MOTION FOR STAY OF
WRIT PENDING APPEAL AND FOR
HUMANITARIAN REASONS

Return Date:
New Jersey Rule 4:50
Defendants / Appellees.

The undersigned, Pro Se for the Plaintiff / Appellant, after duly being

sworn on oath states:

Prior to the Defendant instituting the foreclosure action, the Bank of

America did NOT inform either myself or the court of the tax deed. They did not

name the US BANK CUST / TLCF 2012A, LLC and did not inform the Court of

their existence or interest in the case. Since that time, I have made personal

arrangements to redeem the tax deed, have redeemed the tax deed, and acquired

title which is superior to the Defendant / Appellant on the grounds that US Bank

acquired title as evidenced by the actual deed in favor of US Bank, and after

redemption fees were paid, Plaintiff / Appellant acquired a quit claim deed in his

favor which is superior to that of the Defendant Appellee.

 That Plaintiff / Appellant has suffered severe and life threatening heart

issues and on humanitarian grounds alone, the Court of Appeals should stay

the execution or issuance of any writ of possession until the appeal can be fully

heard.

The Plaintiff’s / Appellant’s acquisition of the quit claim deed occurred

after the notice of appeal was filed and is good cause, in and of itself, to grant

the emergency relief sought, as the Defendant / Appellee is seeking an order

permitting the execution of the writ of possession as we speak and has obtained

relief from the bankruptcy’s automatic stay in order to effectuate that writ.

That there is ample equity in the property that a bond should not be

required as the property itself is worth more than that amount claimed, AND,

according to the quit claim deed from US Bank, the prior purchaser, the

Defendant has no interest in the property that should be bonded.

That unless restrained the Plaintiff / Appellant will suffer irreparable harm

because property is unique and cannot be valued. A stay would be the best

remedy in this situation until the appeal can fully be heard.

Respectfully submitted:

By: ______________________
FAROOQ ALI & SHAZIA MEHR, Pro Se
36-38 WASHINGTON AVENUE
NORTH PLAINFIELD, NJ 07060
PLAINTIFF PRO SE
TEL: 917 584-7173
FAROOQ ALI & SHAZIA MEHR
36-38 WASHINGTON AVENUE
NORTH PLAINFIELD, NJ 07060
TEL: 917 584-7173
EMAIL: [email protected]

FAROOQ ALI & SOMERSET COUNTY SUPERIOR

SHAZIA MEHR COURT OF NEW JERSEY
APPELLATE DIVISION
Plaintiff / Appellant DOCKET NO. A-002411-17T1

- Vs - LOWER COURT
DOCKET NO. F-015414-14
WILMINGTON SAVINGS FUND
SOCIETY, FSB EXHIBITS
IN SUPPORT OF HIS
EMERGENCY MOTION FOR STAY OF
WRIT PENDING APPEAL AND FOR
HUMANITARIAN REASONS

Return Date:
New Jersey Rule 4:50
Defendants / Appellees.

EXHIBITS
1. PRIMARY CASE - BASCOM CORPORATION, Plaintiff-Respondent, v.
CHASE MANHATTAN BANK
2. QUIT CLAIM DEED FROM US BANK
3. TAX DEED GRANTING TITLE TO US BANK FROM COUNTY
4. WRIT OF POSSESSION
EXHIBIT 1 - PRIMARY CASE - BASCOM CORPORATION, Plaintiff-
Respondent, v. CHASE MANHATTAN BANK
 BASCOM CORPORATION, Plaintiff-Respondent, v. CHASE MANHATTAN
BANK

832 A.2d 956 (2003)

363 N.J. Super. 334

BASCOM CORPORATION, Plaintiff-Respondent,

v.
CHASE MANHATTAN BANK, as Trustee of IMC Home Equity Loan Trust
1997-5 under the Pooling and Servicing Agreement dated as of September
1, 1997, Defendant-Appellant, and
Fannie Askew, Mr. Askew, husband of Fannie Askew, and Delta Funding
Corporation, Defendants.
Chase Manhattan Bank, As Trustee, Plaintiff-Appellant,
v.
Fannie Askew, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Submitted September 23, 2003.

Decided October 14, 2003.

Stern, Lavinthal, Frankenberg & Norgaard, Livingston, attorneys for appellant

Chase Manhattan Bank (Robert A. Pinel, of counsel and on the brief).

Robert A. Del Vecchio, attorney for respondent Bascom Corporation (Susan B.

Fagan-Limpert, of counsel and on the brief).

Before Judges PRESSLER, CIANCIA and COLEMAN.

The opinion of the court was delivered by PRESSLER, P.J.A.D.

These appeals, which arise out of the same series of transactions and which we
consolidate for purposes of this opinion, have their genesis in a mortgage
foreclosure 958*958 proceeding brought by Chase Manhattan Bank (Chase) to
foreclose the mortgage it had granted Fannie Askew on property owned by her
in Paterson and in a tax foreclosure proceeding brought by Bascom Corporation
to foreclose a tax sale certificate it held on the same property. The appeal under
Docket No. A-2485-02T5 arises out of the tax foreclosure proceeding. Chase, a
defendant in that action, appeals from an order of the Chancery Division denying
its motion pursuant to R. 4:50-1 whereby it sought to have the tax foreclosure
judgment set aside on the ground of voidness by reason of asserted violation of
the bankruptcy automatic stay. The appeal under Docket No. A-3332-02T5
arises out of the mortgage foreclosure proceeding. Chase, the plaintiff in that
action, appeals from an order of the Chancery Division entered on Askew's
motion enjoining it from proceeding to sheriff's sale of the property because its
interest therein had already been foreclosed. We affirm both orders appealed
from.

The complaint in the tax foreclosure action was filed in May 2001 after Askew's
failure to respond to Bascom's pre-action notice served and filed in compliance
with N.J.S.A. 54:5-97. Chase was joined as the first mortgagee.[1] Both Chase
and Askew were properly served. Neither answered, and the action proceeded
entirely uncontested. Bascom obtained an order entered on September 4, 2001,
duly served upon both Askew and Chase, fixing the amount, time and place of
redemption. See N.J.S.A. 54:5-98. Neither responded or made any attempt to
redeem. The final judgment foreclosing Askew and Chase from all right and
equity of redemption and vesting title in fee simple in Bascom was entered on
October 24, 2001. Thereafter the property was sold to Bascom at a sheriff's sale.
It appears that at least as of the date of the entry of the orders under appeal
Bascom had not yet resold the property.

We turn now to the mortgage foreclosure action. Chase commenced its

foreclosure action in June 2000. Final judgment of foreclosure was entered in
December 2000. Chase did not immediately proceed to sheriff's sale because of
Askew's intervening petition in bankruptcy. In the meantime, Bascom, in
February 2001, purchased from the City of Paterson the tax sale certificate which
was the subject of its foreclosure action. It further appears that in preparation
for its mortgage foreclosure sale, Chase had ordered a title search and that its
searcher missed Bascom's purchase of the tax sale certificate. Accordingly
Chase's title company issued an indemnification to Chase in May 2001 which
made no reference to it. Chase made no attempt to enforce its foreclosure
judgment against Askew until October 2002, a year after Bascom's final
judgment of foreclosure. A sheriff's sale was held on October 22, 2002, at which
Chase was the highest bidder.

The proceedings now under review followed. Askew filed a pro se motion in the
mortgage foreclosure action seeking to set aside Chase's sheriff's sale on the
ground that the property had already been sold. Chase then filed a motion in the
tax foreclosure action seeking to set aside the tax foreclosure judgment under R.
4:50-1. The two motions were heard together by the Chancery Division, which
granted Askew's and denied Chase's. We point out that if Chase's motion was
properly denied, 959*959 then patently Askew's motion was properly granted
since the tax foreclosure judgment foreclosed Chase's interest in the property
and its effect, as the Chancery judge concluded, was to require vacation of the
mortgage foreclosure judgment.

The issue thus before us is whether the Chancery Division properly denied relief
to Chase pursuant to R. 4:50-1. The basis of Chase's assertion of a right to relief
is its claim that the tax foreclosure judgment was void because the order setting
the amount, time and place of redemption had been entered during the period of
a bankruptcy court automatic stay. 11 U.S.C.A. § 362(a). It is, indeed,
undisputed that Askew's response to the tax foreclosure proceeding was the
filing for protection under Chapter 13 of the Bankruptcy Code on July 16, 2001,
a month after she was served with the tax foreclosure complaint. Although she
noticed Chase, she did not notice Bascom who remained unaware of the
bankruptcy proceeding. In any event, the automatic stay was in effect from that
filing date until Askew's petition was dismissed on October 6, 2001, two days
after entry of the order fixing the terms of redemption. Askew had, in fact, filed
two subsequent petitions in bankruptcy, one on November 19, 2001, which was
dismissed on January 11, 2002, and the next on March 25, 2002, which was
dismissed on October 31, 2002. As noted, however, the final judgment of tax
foreclosure was entered on October 24, 2001, after dismissal of the first petition
and prior to filing of the second. There was consequently no impediment in terms
of the automatic stay to the entry of a valid final judgment of foreclosure.

Chase argues that because the order fixing the terms of redemption violated the
automatic stay, the final judgment was void, entitling it to relief pursuant to R.
4:50-1(d), which authorizes the court to grant relief from a void judgment. In
addressing Chase's argument, the court was of the view that it did not need to
consider the effect of a violation, if any, of the bankruptcy automatic stay but
rather that Chase should seek any remedy to which it might be entitled by reason
thereof in the bankruptcy court.[2] Rather, the court viewed the matter before it
as implicating questions of state law only and concluded that Chase was not
entitled to relief under the court rule because of its failure to seek relief within a
reasonable time. The court stated its reasons for so concluding as follows:

4:50-1 and 2 permits a motion to be filed for relief from a judgment but that
motion has to be filed within a reasonable time. I find that this motion was not
filed within a reasonable period of time. It was filed by a party that was properly
served with the complaint, that defaulted, that did absolutely nothing to defend
itself and did absolutely nothing to bring to Bascom's attention the pendency of
any bankruptcy action and did not file this motion until more than a year had
passed after Bascom received its final judgment in foreclosure.

There has been absolutely no showing in this matter of any excusable neglect by
Chase. It has been admitted that Chase received the summons and complaint in
Bascom's tax foreclosure action and no evidence has been placed before me at
all to explain why Chase did not defend itself in the tax foreclosure action. I find,
therefore, that the conclusion is simply unavoidable, that Chase simply sat on
its rights during Bascom's 960*960 tax foreclosure action and withheld the
bankruptcy issue during the entire course of that tax foreclosure case.

I also find that in that connection, that Bascom properly served Chase with the
order setting amount, time and place of redemption and, therefore, they had
knowledge of that application. And if they wanted to raise the defense of the
bankruptcy stay at that time, they could have certainly raised that defense
during the course of Bascom's tax foreclosure action.

Rather, as I said, rather than doing any of that, for whatever reason, Chase sat
back and let Bascom obtain a judgment without alerting them to the bankruptcy
action of which Bascom had no notice but which Chase was fully knowledgeable
about. For those reasons, I conclude that Chase has unclean hands in this
matter and has not shown grounds for relief under 4:50-1.

Neglect and failure to act sooner are inexcusable on this record. Further, it has
failed to show any grounds why it meets the standards for moving to vacate the
tax foreclosure judgment under the applicable statute which is N.J.S.A. 54:5-87.

[11/22/02 Transcript, pgs. 15-17] The record amply supports the judge's
conclusions. We note that although a claim of voidness of the judgment under
section (d) of 4:50-1 is not subject to the one-year limitation applicable to
sections (a), (b), and (c) imposed by R. 4:50-2, that rule nevertheless requires all
motions under R. 4:50-1 to be brought within a reasonable time. Since our
decision in Garza v. Paone, 44 N.J.Super. 553, 556-560, 131 A.2d 32
(App.Div.1957), our courts have uniformly held that the reasonable-time
requirement applies to judgments alleged to be void because of a failure of in
personam jurisdiction. See, e.g., Citibank, N.A. v. Russo, 334 N.J.Super. 346, 352,
759 A.2d 865 (App.Div.2000); Wohlegmuth v. 560 Ocean Club, 302 N.J.Super.
306, 312, 695 A.2d 345 (App.Div.1997); Berger v. Paterson Veterans Taxi Serv.,
244 N.J.Super. 200, 204, 581 A.2d 1344 (App. Div.1990); Last v. Audubon Park
Assoc., 227 N.J.Super. 602, 606-607, 548 A.2d 236 (App.Div.1988), certif.
denied, 114 N.J. 491, 555 A.2d 613 (1989). We point out, however, that lack of
personal jurisdiction is a waivable defense. See, e.g., Hupp v. Accessory Distrib.,
Inc., 193 N.J.Super. 701, 711, 475 A.2d 679 (App.Div.1984). There is thus a
conceptual symmetry in a rule which limits a challenge to a judgment on that
ground to a reasonable time thereafter. That is to say, just as the defense to the
action itself may be waived, so may the right to attack an ensuing judgment on
that ground be deemed waived if not exercised within a reasonable time.

The difficulty here is that we are not dealing with a waivable defect, and hence
the trial court should not, in our view, have declined to consider the consequence
of the asserted defect. In our view, determination of the effect of the asserted
violation was necessary to the ultimate decision. We decide that issue now on
the basis of the undisputed record.

A state court judgment entered while the automatic stay is in place renders that
judgment void ab initio, see, e.g., Cho Hung Bank v. Ki Sung Kim, et al., 361
N.J.Super. 331, 339, 825 A.2d 566 (App.Div.2003), subject, however, to
retroactive annulment by the bankruptcy court under 11 U.S.C.A. § 362(d). See
In re Siciliano, 13 F.3d 748 (3d Cir.1994). Unless cured by annulment, the defect
in the judgment is not waivable because it goes to the authority of the court to
render the final judgment and is consequently more nearly akin to a non-
waivable lack of subject matter jurisdiction. See, e.g., Macysyn 961*961 v.
Hensler, 329 N.J.Super. 476, 481, 748 A.2d 591 (App.Div.2000). Our courts have
not yet spoken directly to a non-waivable defect in the context of time constraints
on a motion for relief brought pursuant to R. 4:50-1(d). It is, however, evident
that if the final tax foreclosure judgment here had been entered while the
automatic stay was in effect, the judgment would have been void ab initio and
the issue of reasonable-time prerequisite for the attack under R. 4:50-1(d) would
have been far from clear.

The point here, however, is that the final judgment of tax foreclosure was entered
after the Chapter 13 petition was dismissed, and there was then no stay in effect.
Consequently, it is not the final judgment that was void. What was void was the
order fixing the terms of redemption, the only action in the proceeding that
occurred while the stay was in effect. Hence, as we view the issue, the question
is not whether the final judgment is void ab initio but rather whether a void
interlocutory order, as a matter of federal bankruptcy law, automatically vitiates
the final judgment as well. We conclude that it does not.

We do not believe that federal law is offended when the final judgment itself is
free of the impediment of the automatic stay. Tax foreclosure law, affecting as it
does, the security of title to real estate involves "an essential state interest" and
"the power to ensure that security `inheres in the very nature of [state]
government.'" BFP v. Resolution Trust, 511 U.S. 531, 544, 114 S.Ct. 1757, 1764-
1765, 128 L.Ed.2d 556, 558 (1994). In our view, therefore, since foreclosure law
is a matter uniquely within the state's competence, the state is free to make its
own determination as to the effect of the entry of a void interlocutory order
irrespective of the reason it is void.

As a matter of state law, we recognize that the order fixing the terms of
redemption is a necessary step in the processing of a tax foreclosure action. But
we think it plain that the function of the order was entirely fulfilled. Both the
property owner and the mortgagee were appropriately, accurately, and fully
apprised of the amount, time and place for redemption. Both chose to ignore the
information. Neither has ever asserted that the reason for so choosing was a
belief in or reliance on the voidness of the order. Chase's decision to ignore the
order fixing the terms of redemption was, rather, in keeping with its overarching
decision to ignore the entire tax foreclosure proceeding for whatever reason it
may have had. In sum, we are persuaded that in the circumstances here the
validity of the final judgment was in no way impaired by the voidness, under
federal bankruptcy law, of the interlocutory order. Accordingly plaintiff's attack
under R. 4:50-1(d) fails. Beyond that and for the reasons expressed by the trial
judge, we are satisfied that plaintiff is not entitled to relief under any other
section of R. 4:50-1.

The order appealed from in each of the two appeals is affirmed.

[1] Chase was joined as Trustee of IMC Home Equity Loan Trust 1997-5 under
the Pooling and Servicing Agreement dated September 1, 1997. IMC Home Equity
was the assignee of the original Askew mortgage and assigned by it to Chase
under the Pooling Agreement. For convenience Chase is referred to as the
mortgagee.

[2] We note that it is not only Chase which might have a remedy in the
bankruptcy court. Bascom as well was free to seek from the bankruptcy court
an annulment of the automatic stay if such is deemed necessary. See 11 U.S.C.A.
§ 362(d).
EXHIBIT 2 – QUIT CLAIM DEED FROM US BANK
(ALI – INSERT THE QUITCLAIM DEED HERE AND TOSS THIS PAGE)
3. TAX DEED GRANTING TITLE TO US BANK FROM COUNTY
ALI – INSERT THE TAX DEED THAT US BANK HAS GIVING THEM TITLE TO
THE PROPERTY THEN TOSS THIS PAGE
EXHIBIT 4 - WRIT OF POSSESSION
PUT THE WRIT OF POSSESSION HERE AND TOSS THIS PAGE
 CERTIFICATE OF SERVICE

A true and correct copy of the foregoing was served by US Mail on:

POWERS KIRN LLC

728 MAME HIGHWAY
SUITE 200
MOORESTOWN, NJ 08057

Wilmington Savings Fund Society, Fsb,

500 Delaware Avenue,
Wilmington, Delaware 19801.

Submitted by
_____________________
FAROOQ ALI & SHAZIA MEHR
Advocate Pro Se
36-38 WASHINGTON AVENUE
NORTH PLAINFIELD, NJ 07060
PLAINTIFF PRO SE TE: (801) 259-9069