By Milton Allimadi
Caption: Superior Court in Monmouth County. Photo source: Wikipedia
Second Photo: Facebook
Ajay Kajla wanted the judge to answer one question in particular and he kept repeating it over and over.
“Does January 31st, 2008 come before December 7th, 2007 your honor? I would like you to answer that question and for it to be on the record,” Kajla said, standing before Superior Court Judge Marc C. Lemieux in Monmouth County, New Jersey, during a Feb. 8, 2024 hearing.
Among other issues, Judge Lemieux was to rule on whether the court even had jurisdiction to hear the case. Kajla is the defendant in a foreclosure case filed against him by US Bank/CSFB on Dec. 7, 2007.
Kajla claims the lawsuit should have been tossed from the get-go since the plaintiff was not the holder of both the promissory note and the mortgage prior to filing the lawsuit as required by the Uniform Commercial Code (UCC) the governing law in New Jersey and other states. “So your honor tell me, does January 31st, 2008 come before December 7, 2007?” Kajla repeated.
Judge Lemieux had opened the hearing by informing Kajla that he was denying his motion challenging the court’s jurisdiction. In other words, the court did have jurisdiction, the judge ruled, adding that he would hand down his written opinion.
Judge Lemieux told Kajla, who is representing himself, that he’d read all the papers he’d submitted on the case. However, the judge added, he was allowing Kajla to speak in case he wanted to offer supplemental information by his verbal presentation.
Well, in that case, there wasn’t much use in saying more on the matter if the judge had already come to a decision about the issue of jurisdiction, Kajla said—therefore, he’d have nothing to add.
However, Kajla did have much to say about the case.
Kajla told the judge that the court was wrong to have granted the motion by US Bank/CSFB’s lawyer Aaron Bender, with the firm of Reed Smith LLP, to find him a “vexatious litigant” and fine him $500. Kajla claimed he was exercising his constitutionally guaranteed right, by repeatedly filing documents to demonstrate that the plaintiff had no standing to file the foreclosure action in 2007. At the time of the original lawsuit, US Bank/CSFB was represented by a firm—now defunct—named Phelan Hallinan & Schmieg LLP.
During the hearing, Bender told Judge Lemieux that since the fine hadn’t deterred Kajla, he should be barred from filing any more papers without the judge’s review and approval and that he should also be ordered to pay his legal fees.
Before the Feb. 8 hearing, on March 29, 2024, Black Star News sent an e-mail message to Judge Lemieux, via his clerk Alexander Korintus, seeking comment on: Kajla’s contention that US Bank/CSFB was never the holder of both his promissory note and mortgage prior to filing the foreclosure action on December 7, 2007 and therefore had no right to foreclose on his property; Kajla’s claim that as a result the court had no standing; and, Kajla’s claim that the only evidence presented by attorneys representing the bank was a “fraudulent” and “forged” mortgage filed on Jan. 31, 2008 after the lawsuit had already been filed.
Additionally, Black Star News inquired about Kajla’s claim that he wasn’t a “vexatious litigant” who deserved to be fined $500, as he’d been “standing up” for his constitutional rights.
Korintus’ e-mail message response in part read, “Mr. Kajla is currently proceeding as a self-represented individual. Accordingly, the court will not respond to your earlier message…”
Kajla has argued that the UCC is very strict in order to preclude fraudulent foreclosures. The UCC require that a plaintiff seeking to foreclose be the holder of both the note and mortgage, but that it’s complaint also attach authenticating documentation—in the form of a notarized affidavit by a relevant officer representing the assigning entity attesting to personal knowledge of the transaction.
Since filing the lawsuit 17 years ago, US Bank/CSFB has never once claimed that it was ever a holder of the promissory note. In other words, the lawsuit was fatally flawed from the very beginning when filed by the Phelan law firm attorney Christine Pinto in 2007 on behalf of the bank and should have been dismissed, Kajla has argued. The two subsequent amended complaints filed by the bank were similarly flawed since they didn’t include both the promissory note and mortgage and the required authenticating affidavits and documentation, Kajla alleges.
At the Feb. 8 hearing, Bender, the Smith Reed attorney, insisted that all the issues raised by Kajla had previously been adjudicated and that the rulings had been against him.
Kajla wants Judge Lemieux to void all previous orders related to the case since—he alleges—the plaintiff lacked standing and therefore the court lacked jurisdiction over the subject matter and the opposing parties.
In fact, the only evidence ever presented by the US Bank/CSFB through its attorneys was what Kajla insists was a “fraudulent” and “forged” assignment of mortgage. In court papers Kajla has alleged that Rosemarie Diamond, who was then a partner at the Phelan firm created the mortgage on Jan. 31, 2008, which was 55 days after the foreclosure lawsuit was filed. Kajla has alleged that this was a “criminal violation.”
That was why Kajla kept asking Judge Lemieux whether Jan. 31, 2008 came before Dec. 7, 2007 during the Feb. 8, 2024 hearing before Judge Lemieux.
Even if the mortgage had been properly assigned, absent the promissory note, US Bank/CSFB had no standing to file the lawsuit on Dec. 7, 2007 to foreclose on Kajla’s property.
There are two ways that a promissory note and mortgage can be assigned from one holder to the next. The first is by an “endorsement in blank,” which merely means there is no specific designated beneficiary. The second process is by “special endorsement,” in which case the designated beneficiary is clearly identified on the promissory note.
Kajla and his wife Pamela executed a contract with their creditor Metrocities Mortgage LLC (MML) on April 29, 2005.
This means the first possible assignment of the mortgage and promissory note to another entity would have started with Metrocities, Kajla’s lender. However, Metrocities went out of business on June 7, 2007, without having assigned the promissory note or the mortgage to any entity, Kajla has argued.
However, Diamond, the former partner at the Phelan firm claimed in the 2007 lawsuit that Mortgage Electronic Registry (MERS), the mortgage tracking company, assigned Kajla’s mortgage to America Servicing Company (ACS), which is US Bank/CSFB’s servicer.
To begin with, MERS isn’t in the business of assigning mortgages. Even if MERS was in the business of assigning mortgages, it would mean that Metrocities, Kajla’s lender, would have had to have assigned the mortgage to MERS.
In order to create the impression that Metrocities had assigned the mortgage to MERS—which then assigned it to ACS—Diamond, the former Phelan partner, allegedly made a false statement in the Dec. 7, 2007 complaint.
The statement read, “To secure the payment of the aforesaid obligation, Ajay Kajla and Pamela Kajla, executed to Mortgage Electronic Systems, Inc., as nominee for Metrocities Mortgage LLC, a non purchase money mortgage of even date with said note, and thereby conveyed to it, in fee the land hereinafter described, on the express condition that such conveyance should be void if payment should be made at the time and times, and in the manner described in said obligation. Said mortgage was duly recorded in the office of the clerk of Monmouth county, in book OR-8466 of mortgages, page 211. Said mortgage was recorded June 1, 2005.”
However, Kajla and his wife, Pamela Kajla, executed their mortgage with MML for $1.4 million. The alleged false statement by Diamond was to support her “false claim” that MERS had been in a position to assign the mortgage to ACS, the servicer for US Bank/CSFB.
At the time Diamond represented U.S. Bank/CSFB in the 2007 lawsuit she was also listed as a Vice President and Assistant Secretary at MERS.
Diamond, who is now partner at Brock & Scott, PLLC didn’t respond to an e-mail message from Black Star News seeking comment on Kajla’s allegations that: when her now defunct law firm filed the foreclosure lawsuit on behalf of U.S. Bank/CSFB on Dec. 7, 2007 her client didn’t have both Kajla’s note and mortgage as required by law; that she filed a “forged” and “fabricated” assignment of mortgage on Jan. 31, 2008; and that at the same time she represented U.S. Bank/CSFB she was also listed as a Vice President and Assistant Secretary at MERS.
Aaron Bender, the Reed Smith LLP lawyer now representing U.S. Bank/CSFB, also didn’t respond to an e-mail message seeking comment regarding Kajla’s allegations that: his client U.S. Bank/CSFB was never the holder of both his note and mortgage prior to filing the foreclosure action on December 7, 2007 when the bank was represented by Phelan Hallinan & Schmieg LLP; that his client therefore never had standing meaning the court also lacked jurisdiction over the subject matter and the parties; and that his client filed a “forged and fabricated” mortgage.
In recent years the federal government as well states have introduced measures to try and combat the rampant abuses and victimization of homeowners in the foreclosure industry.
On Nov. 16, 2010, a U.S. Congressional Oversight Panel released an in-depth report analyzing the rampant allegations of robo-signing. The Panel’s report “emphasizes that mortgage lenders and securitization servicers should not undertake to foreclose on any homeowner unless they are able to do so in full compliance with applicable laws and their contractual agreements.” Additional legislation at the federal level to protect consumers include the 2010 Dodd-Frank Wall Street Reform Act and Consumer Protection Act.
In New Jersey, on Nov. 4, 2010 the Supreme Court of New Jersey received a report by Legal Services of New Jersey detailing abuses in foreclosure filings including in the accuracy of documents. The report in part stated, “In state court proceedings, Thomas Strain, an employee of a servicing company associated with the New Jersey and Pennsylvania law firm of Phelan, Hallinan & Schmieg, LLP (Phelan), admitted in a deposition to notarizing approximately fifty foreclosure-related documents per day, often outside the signer’s presence. After New Jersey Chancery Division judges expressed concerns related to Phelan’s mortgage assignment practices, Phelan spent $175,000 to redo approximately 3,000 assignments that Strain had notarized.”
Additionally, Judge Glenn A. Grant issued an Administrative Order on Dec. 20, 2010, that was intended to prevent abuses such as document “irregularities” including robo-signings by lenders and servicers.
Also, on Dec. 20, 2010, Judge Mary C. Jacobson Presiding Judge of the General Equity Division, Mercer County, issued an Order to Show Cause to the servicers to protect the integrity of the judicial foreclosure process in New Jersey and assure the public that the process going forward would be reliable.
Kajla’s property was wrongfully sold at a sheriff’s sale on Oct. 30, 2017 for $1,000.
Kajla has asked Judge Lemieux to refer U.S. Bank/CSFB and the bank’s attorneys to the U.S. Attorney for civil and criminal investigation in connection to the filing of the alleged forged mortgage.
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