In the Matter of Jennifer C.E. Ajah, admitted as Chinyere Akuezi Ekenna, an attorney and counselor- at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Jennifer C.E. Ajah, respondent. (Attorney Registration No. 2888733)
DISCIPLINARY PROCEEDING instituted by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on May 20, 1988, under the name Chinyere Akuezi Ekenna. By decision and order on application dated June 1, 2010, the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts was authorized to institute and prosecute a disciplinary proceeding in this Court, as the petitioner, Jennifer C.E. Ajah, as the respondent, based upon the acts of professional misconduct set forth in a verified petition dated February 9, 2010. The respondent was directed to serve an answer to the petition, and the issues raised by the petition and answer were referred to the Honorable James A. Gowan, as Special Referee, to hear and report.
Diana Maxfield Kearse, Brooklyn, N.Y. (Kathryn Donnelly Gur-Arie and Myron Martynetz of counsel), for petitioner.
Scalise and Hamilton, LLP, White Plains, N.Y. (Deborah A. Scalise of counsel), for respondent.
RANDALL T. ENG, P.J. WILLIAM F. MASTRO, REINALDO E. RIVERA PETER B. SKELOS RUTH C. BALKIN, JJ.
The Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts served the respondent with a verified petition, dated February 9, 2010, containing 16 charges of professional misconduct, and the respondent submitted an answer to the petition. The Special Referee sustained Charges 1 through 10 and 12 through 16. The Grievance Committee now moves to confirm the Special Referee's Report. By cross motion, the respondent asks the Court to set aside the Special Referee's findings with respect to Charge 5, as well as his decision barring the respondent from relitigating the factual allegations raised in charges 15 and 16 based on the doctrine of collateral estoppel. Charges 1 through 10, as amended, emanate from a common set of factual allegations, as follows:
In or about November 2003, Gregory Olive was the owner of real property located on Pacific Street in Brooklyn (hereinafter the subject property). At or about that time, Mr. Olive retained the respondent to represent him when the mortgage on the subject property was foreclosed.
In or about February 2004, the respondent obtained an order vacating the judgment of foreclosure and sale, and staying further proceedings for 90 days pending a refinance of the outstanding mortgage. The respondent referred Mr. Olive to Asnel Valcin for assistance in refinancing. Mr. Valcin advised Mr. Olive that, since his credit was poor, he could not obtain a new mortgage. However, Mr. Valcin advised Mr. Olive that he could, nonetheless, help him "save" the subject property. Mr. Valcin told Mr. Olive that he would procure someone to obtain a mortgage on the subject property and that, if Mr. Olive made the payments on that mortgage, the subject property would be deeded back to him.
The respondent thereafter prepared, or caused to be prepared, a contract of sale between Mr. Olive, as seller, and Ama Valcin (Mr. Valcin's sister-in-law), as purchaser. The respondent knew or should have known that the lender would rely upon that contract in issuing a mortgage.
The contract reflected a purchase price of $400, 000. Moreover, it provided, inter alia, that the respondent would receive, and hold in her attorney trust account, a down payment in the amount of $80, 000 until the closing of title. However, the respondent never received the $80, 000, or any other amount, as a down payment.
On June 30, 2004, the respondent represented Mr. Olive at the closing, pursuant to the aforementioned contract of sale. At or about that time, the respondent directed Mr. Olive to sign numerous documents, including a deed in which he transferred, to Ama Valcin, all of his rights, title, and interest in and to the subject property. She also directed him to sign an HUD-1 Settlement Statement (hereinafter the HUD-1 Statement), which falsely reflected that Ama Valcin made a down payment on the contract in the amount of $8, 000. The HUD-1 Statement also falsely reflected that Mr. Olive received $69, 956.46 in "cash" from Ama Valcin. In fact, Mr. Olive received no proceeds from the sale of the subject property. The respondent knew or should have known that it is a federal crime to knowingly make false statements on an HUD-1 Statement. She failed to explain to Mr. Olive any of the documents, which she directed him to sign.
At the closing, the respondent gave Mr. Olive a treasurer's check drawn on First Washington Bank, payable to Mr. Olive in the amount of $72, 000, remitted by "Dorcas S. Valcin" (Mr. Valcin's wife). The respondent directed Mr. Olive to endorse the $72, 000 check and return it to her. After he complied with this directive, the respondent, without Mr. Olive's knowledge or consent, tendered the $72, 000 check to a third party. Thereafter, the check was endorsed "Not used for purposes intended." It was deposited into an account in the name of "Dorcas S. Valcin" at First Washington Bank on or about July 29, 2004. The respondent knew that the $72, 000 check was just a "show check, " intended to induce the bank to disburse the mortgage proceeds.
At the closing, the respondent received a check on behalf of Mr. Olive, payable to her, as attorney, in the sum of $15, 690 from the proceeds of the sale. On or about July 2, 2004, the respondent, or someone on her behalf, deposited the $15, 690 check into the respondent's attorney trust account at North Fork Bank. The respondent issued a check in the sum of $13, 560, payable to "Professional Realty, " from the aforementioned $15, 690. That check cleared the respondent's attorney trust account on or about July 9, 2004. At or about that time, the respondent was the sole owner of "Professional Realty." Mr. Olive did not owe "Professional Realty" any sum of money and did not knowingly consent to the payment of any money to "Professional Realty."
After the closing, Mr. Olive and his family resided in the basement of the subject property, paying Ama Valcin's mortgage.
In or about April 2005, the respondent had an associate, Gabriel Amene, represent Ama Valcin in eviction proceedings against Mr. Olive and his family. In or about July 2005, the respondent had an associate represent Ama Valcin in the sale of the subject property to Curtis Duverney. At or about that time, the respondent had an associate, Biat Maderer, represent Mr. Duverney in eviction proceedings against Mr. Olive and his family. Ms. Valcin's and Mr. Duverney's interests were materially adverse to Mr. Olive's ...