BOROUGH OF WEST WILDWOOD VS. HERBERT C. FREDERICK,ET AL. VS. MUNICIPAL EXCESS LIABILITY JOINT INSURANCE FUND (C-0057-13, CAPE MAY COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4195-14T2
ROBERT A. D'ANGELO,
Plaintiff-Appellant,
v.
OCWEN LOAN SERVICING, LLC,
A Wholly Owned Subsidiary of
OCWEN MORTGAGE SERVICING, LLC,
and U.S. BANK NATIONAL ASSOCIATION
as Trustee for the Certificate
Holders of the Mortgage Pass
Through Certificates 1997-R2,
Defendants-Respondents.
_________________________________________
Submitted October 11, 2016 – Decided February 23, 2017
Before Judges Leone and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Docket No.
L-1934-14.
Meyer L. Rosenthal, attorney for appellant.
Houser & Allison, APC, attorneys for
respondents (Danielle P. Light, of counsel and
on the brief).
PER CURIAM
Plaintiff Robert A. D'Angelo appeals an order dismissing his
eleven-count amended complaint for failure to state a claim under
Rule 4:6-2(e). Based on a review of the record and the applicable
law, we uphold the dismissal of all of the counts except counts
seven and nine. We affirm in part, reverse in part, and remand for
further proceedings in accordance with this opinion.
I.
Plaintiff filed an eleven-count complaint on May 22, 2014,
which was amended on September 25, 2014, against defendants Ocwen
Loan Servicing LLC, a wholly owned subsidiary of Ocwen Mortgage
Servicing LLC (Ocwen), and U.S. Bank National Association as
Trustee (Trustee) for the Certificate Holders of the Mortgage Pass
Through Certificates 1997-R2, (Trust). The complaint alleged that
over the course of twenty-two years, defendants1 engaged in a
pattern of misconduct by refusing to accept plaintiff's mortgage
payments in order to claim default and file frivolous foreclosure
actions against him. Because this appeal is from a dismissal of
the complaint due to a failure to state a claim upon which relief
may be granted, the following facts are largely derived from
plaintiff's amended complaint.
1
Plaintiff's complaint varies in addressing the defendants
individually and collectively, without necessarily attributing any
of the particular allegations to a particular party.
2 A-4195-14T2
Count one of plaintiff's complaint alleges that on or about
March 11, 1985, plaintiff executed a promissory note to Citibank,
N.A. (Citibank) that was secured by a mortgage on a residential
property. Plaintiff began making mortgage payments under the note
and sought an accounting of the balance due. In 1993, "without
explanation and accounting," Citibank filed a foreclosure action
against plaintiff, which caused plaintiff to file a petition for
bankruptcy.
Plaintiff's complaint asserts that upon information and
belief, the note and mortgage were assigned to defendant Ocwen on
December 23, 1996.2 Plaintiff and Ocwen "and its predecessors"
subsequently executed a settlement agreement (1998 settlement
agreement)3 that resolved plaintiff's bankruptcy case and the
pending foreclosure action. The 1998 settlement agreement required
plaintiff to resume making mortgage payments and Ocwen to provide
plaintiff with an accounting of his loan balance and credit for
all payments.
2
Although not alleged in the complaint, defendants submit the
loan was transferred from Citibank to a trust that became
affiliated with various loan servicing entities including Ocwen
and the mortgage is presently owned by defendant U.S. Bank as
Trustee.
3
The date of the settlement agreement is not included in the
complaint, but based on the record, it appears to have been
executed on or about May 15, 1998, the date on which plaintiff
dismissed his first bankruptcy petition.
3 A-4195-14T2
Count one asserts that even after the execution of the 1998
settlement agreement, Ocwen failed to provide any accounting or
proof that plaintiff's prior payments had been properly credited,
and refused to accept plaintiff's continued payments or otherwise
communicate with plaintiff or plaintiff's counsel.
Count two alleges that in 1999, "[d]efendant" commenced a
second foreclosure action based on "the artificial default it
claimed [against plaintiff]." From 1999 through February 2001,
while the second foreclosure action was pending, Ocwen refused to
accept plaintiff's payments without explanation. Count two asserts
that during this time, Ocwen's representatives called plaintiff
to "harass" him for nonpayment despite plaintiff's alleged
submission of timely payments which Ocwen refused to accept.
In February 2002, Ocwen's second foreclosure action was
dismissed because Ocwen allegedly failed to provide the requisite
notice of intention to foreclose. Count two asserts Ocwen's actions
and inactions in pursuing the second foreclosure suit while
refusing to deal in good faith and accept payments caused plaintiff
damages including "legal fees, costs and loss of time."
Following the second foreclosure action, plaintiff continued
making payments from February 2002 through November 16, 2002.
Count three of plaintiff's complaint asserts in 2002, defendants,
"in the name of U.S. Bank, [Trustee] through Ocwen," filed a third
4 A-4195-14T2
foreclosure action. From 2003 through January 2005, during the
pendency of the third foreclosure action, Ocwen allegedly accepted
plaintiff's monthly payments. In February 2005, however, Ocwen
again "arbitrarily refused to accept a payment . . . in order to
create a default." Upon plaintiff's information and belief, the
third foreclosure action was dismissed or not pursued.
Count four of plaintiff's complaint alleges defendants
engaged in a continuous pattern of filing foreclosure actions in
bad faith in an effort to "run[] up [p]laintiff's legal expenses."
Count four asserts that in 2008, "[d]efendants," in the name
"LaSalle Bank National Association as Trustee," filed a fourth
foreclosure action (2008 foreclosure action). After unsuccessful
mediation efforts, the 2008 foreclosure action, "like the three
previous actions before it, was not pursued and resulted in a
dismissal."
In 2012, prior to the dismissal of the 2008 foreclosure
action, "[d]efendant" in the name of "U.S. Bank, [Trustee] for the
[Trust]" filed a fifth foreclosure action. Count five alleges:
Defendants' actions, while negligent at best,
were reckless, deliberate and wanton in
attempting . . . to bury the [p]laintiff in
legal expense[s] and costs, not to mention
causing angst and damages by the continued
threat in taking [p]laintiff's home, knowing
that the physical and mental damages could
result
5 A-4195-14T2
. . . because of such reckless disregard of
[p]laintiff's rights.
Count five asserts that the fifth foreclosure action was
"unilaterally dismissed" without any notice to plaintiff.
The remainder of plaintiff's complaint (counts six through
eleven) asserts various theories of relief based on the foregoing
factual allegations. Counts six and ten assert damages related to
plaintiff's alleged emotional injuries. Count six asserts "Ocwen
and its representatives" willfully harassed and humiliated
plaintiff for mortgage payments "causing embarrassment," "mental
anguish, damage to [his] reputation, embarrassment, humiliation,"
and other damages.
Count ten asserts that defendants and their representatives
knowingly made "false promises" to provide plaintiff with an
accounting, thereby inducing plaintiff's reliance, while
simultaneously filing baseless foreclosure actions. Count ten
asserts such conduct was "deliberately done for the purpose of
causing" plaintiff "anguish" and unnecessary litigation costs.
Count seven asserts that the pattern of defendants'
misconduct alleged in the complaint caused damages including the
imposition of late charges for plaintiff's purported nonpayment,
charges for "forced insurance on the property," and interest and
6 A-4195-14T2
costs related to untimely property tax payments and property
inspections.
Count eight, similar to count four, directly accuses
defendants of filing meritless foreclosure actions, and
characterizes defendants' actions as "harassment." Count eight
asserts "[a]s a result of the improper filing and continuation of
five (5) separate foreclosure actions, [plaintiff] continues to
suffer additional damages by way of incurring additional legal
fees and costs aside from aggravation and emotional stress."
Count nine alleges violations of the New Jersey Consumer
Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -20. More specifically,
count nine asserts defendants' actions and representations
constituted "advertisements" as defined under the CFA, N.J.S.A.
56:8-1(a), and Ocwen failed to abide by its representations in
servicing plaintiff's mortgage. Accordingly, count nine seeks
treble damages pursuant to the CFA, N.J.S.A. 56:8-19, as well as
"counsel fees, costs and other damages."
Count eleven essentially recapitulates plaintiff's overall
theory that defendants and their representatives recklessly and
deliberately harassed plaintiff for payments despite plaintiff's
representations that payments were not being administered
properly. It asserts that defendants' representatives failed to
7 A-4195-14T2
act in good faith and made false promises to resolve the issues
while knowing plaintiff would rely upon such representations.
On October 27, 2014, defendants moved to dismiss plaintiff's
complaint under the doctrine of res judicata, arguing the claims
asserted were identical to those alleged in plaintiff's answer and
counterclaims in the 2008 foreclosure action that were dismissed
on a motion for summary judgment. Alternatively, defendants argued
counts one and two of plaintiff's complaint were claims for breach
of the 1998 settlement agreement and were barred by the six-year
statute of limitations. N.J.S.A. 2A:14-1. Defendants argued the
remaining counts failed to state claims upon which relief may be
granted and should be dismissed pursuant to Rule 4:6-2(e).
Following oral argument on defendants' motion, the trial
court issued a written decision rejecting defendants' contention
that plaintiff's claims were barred under the doctrine of res
judicata4 but finding each of the eleven counts in the complaint
failed to state a claim upon which relief may be granted under
Rule 4:6-2(e). The court entered an order dismissing the complaint.
This appeal followed.
4
Defendants did not file a cross-appeal challenging the court's
rejection of their argument plaintiff's complaint is barred under
the doctrine of res judicata. We therefore do not address that
part of the court's order.
8 A-4195-14T2
II.
Rule 4:6-2(e) authorizes dismissal of a complaint for
"failure to state a claim upon which relief can be granted[.]"
When considering an application for relief under this rule, a
court is required to "search[] the complaint in depth and with
liberality to ascertain whether the fundament of a cause of action
may be gleaned even from an obscure statement of claim, opportunity
being given to amend if necessary." Major v. Maguire, 224 N.J. 1,
26 (2016) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp.,
116 N.J. 739, 746 (1989)).
We review an order of dismissal under Rule 4:6-2(e) de novo
and "apply the same test as the Law Division." Smerling v. Harrah's
Entm't, Inc., 389 N.J. Super. 181, 186 (App. Div. 2006). In other
words, "our inquiry is limited to examining the legal sufficiency
of the facts alleged on the face of the complaint," and determining
if "a cause of action is 'suggested' by the facts." Green v. Morgan
Props., 215 N.J. 431, 451-52 (2013) (quoting Printing Mart, supra,116 N.J. at 746). "The examination of a complaint's allegations
of fact required by the aforestated principles should be one that
is at once painstaking and undertaken with a generous and
hospitable approach." Printing Mart, supra, 116 N.J. at 746. We
apply that standard here.
9 A-4195-14T2
To be sure, the task of discerning if the separate counts of
the complaint here allege cognizable causes of action is made
difficult by the numerous, vague, and overlapping allegations
detailing the lengthy history underlying plaintiff's claims. The
complaint lacks clarity and precision, and includes an express
statement of the asserted legal claim in only one count.5 Before
the trial court, and again here, plaintiff failed to define the
legal claims asserted in the various counts to permit a precise
evaluation of whether the intended causes of action are
sufficiently pled to state claims upon which relief may be granted.
The motion court reviewed the complaint, attempted to discern
the putative legal claims asserted, and assessed whether the facts
alleged were sufficient to support the eleven putative claims the
court determined were asserted. Based on its determination of the
causes of action asserted in each count, the court found plaintiff
failed to state any claims upon which relief could be granted and
dismissed the complaint in its entirety.6
5
As discussed infra, count nine alleged a cause of action under
the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20.
6
The court's order did not state whether the dismissal of the
complaint was with prejudice or whether plaintiff could amend the
complaint.
10 A-4195-14T2
The complaint's shortcomings notwithstanding, it remained the
role of the courts to undertake a painstaking review of plaintiff's
complicated allegations to determine whether they suggest the
fundament of a cause of action. Major, supra, 224 N.J. at 26.
Based on our review of the complaint, we find that some of
plaintiff's counts "suggested" a cause of action, and that two of
those counts should not have been dismissed.
A liberal and fair reading of the complaint reveals that
plaintiff claims defendants breached various legal duties in the
performance of their obligations under the 1998 settlement
agreement, in connection with the servicing of plaintiff's
mortgage, and in defendants' prosecution of five separate
foreclosure actions. Plaintiff alleges those breaches caused him
damages. It is within the context of those broad factual
allegations that each of plaintiff's asserted eleven causes of
action must be assessed to determine if they suggest cognizable
causes of action.
A.
We first address the court's dismissal of counts one and two.
The complaint does not expressly identify the purported causes of
action in these counts. At oral argument before the motion court,
it was conceded plaintiff was "not looking for any damages arising
out of [a] breach" of the 1998 settlement agreement referenced in
11 A-4195-14T2
each count. Plaintiff's counsel explained the counts were included
to "set[] up the facts" supporting the "gravamen" of the case
"based on over [twenty] years worth of frustration arising out of
the foreclosure action after foreclosure action," but never
identified the causes of action alleged.
The motion court read count one as a breach of contract claim
based on the 1998 settlement agreement and count two as a claim
for breach of the covenant of good faith and fair dealing under
the agreement.7 A liberal reading of the allegations in the counts
supports the court's determination. Count one asserts that even
though plaintiff made mortgage payments as required by the 1998
settlement agreement, Ocwen "failed to provide [plaintiff] any
proof as to the disputed payments as . . . required in the . . .
agreement." Similarly, count two asserts that "[d]espite Ocwen's
breach of its agreement to provide the accounting," defendants
initiated a second foreclosure action and remained in breach
through the pendency of the second foreclosure action, which was
dismissed in 2001.
7
It appears the court read counts one and two to allege breach of
contract and the covenant of good faith and fair dealing
respectively because defendants' brief in support of their motion
to dismiss the complaint argued those were the causes of action
asserted. In his opposition to the motion, plaintiff did not
dispute that the counts asserted those causes of action. On appeal,
plaintiff does not identify any other alleged cause of action in
the counts.
12 A-4195-14T2
The court dismissed the claims finding that, based on the
allegations in the complaint, they are barred by the six-year
statute of limitations applicable to contract claims. N.J.S.A.
2A:14-1. Count one alleges that defendants breached the 1998
settlement agreement after the passage of more than a year
following entry into the agreement. Count two alleged the breach
was in bad faith and continued until November 20, 2002, when
defendant wrongfully refused to accept plaintiff's mortgage
payment. Fairly read, counts one and two allege that the last
breach of the 1998 settlement agreement and covenant of good faith
and fair dealing occurred on November 20, 2002. The respective
causes of action therefore accrued on that date. Cty. of Morris
v. Fauver, 153 N.J. 80, 109-110 (1998). Any complaint alleging a
breach of the 1998 settlement agreement or covenant of good faith
and fair dealing under the agreement was required to be filed by
November 16, 2008.8 Plaintiff, however, did not file his complaint
until May 22, 2014.
8
We need not address the court's more indulgent reading of the
complaint as alleging the 1998 settlement agreement was breached
as late as October 27, 2006. Under that interpretation of the
allegations, defendant was required to file his claims for breach
of contract and the covenant of good faith and fair dealing by
October 27, 2012.
13 A-4195-14T2
Because the facts alleged in counts one and two establish
plaintiff filed his complaint well beyond the six-year limitations
period, N.J.S.A. 2A:14-1, those counts were properly dismissed by
the court for failing to state a claim upon which relief could be
granted under Rule 4:6-2(e).9 See CKC Condo. Ass'n, Inc. v. Summit
Bank, 335 N.J. Super. 385, 387 n. 1 (App. Div. 2000) (finding that
"a statute of limitations defense is sufficiently akin to failure
to state a claim as to permit its disposition by way of a motion
under [Rule] 4:6-2(e)" where the facts alleged in the complaint
are not in dispute); Rappeport v. Flitcroft, 90 N.J. Super. 578,
580 (App. Div. 1966) (holding that where a statute of limitations
bar is evident from the facts alleged in the complaint, it may be
asserted as a failure to state a claim upon which relief may be
granted).
9
The court also read count two to assert a claim for harassment.
We have treated claims alleging harassment as causes of action for
the intentional infliction of emotional distress, Juzwiak v. Doe,
415 N.J. Super. 442, 455 (2010), which are subject to a two-year
statute of limitations, Fraser v. Bovino, 317 N.J. Super. 23, 34
(App. Div. 1998), certif. denied, 160 N.J. 476 (1999). The last
act of harassment alleged in count two occurred on November 20,
2002. Accordingly, to the extent count two alleged an intentional
infliction of emotional distress claim, it was time-barred and
correctly dismissed.
14 A-4195-14T2
B.
Counts three, four, five, and eight concern defendants'
filing and dismissal of earlier foreclosure actions. Count three
alleges defendants filed a third foreclosure action in 2002 that
was dismissed in 2005. Count four alleges defendants filed a fourth
foreclosure action in 2008 that was subsequently dismissed. Count
five alleges defendants filed a fifth foreclosure action in 2012
that was dismissed. Count eight alleges that defendants' filing
of the five foreclosure actions constituted harassment and caused
plaintiff damages.
We first address the court's dismissal of counts four and
eight. The court reviewed counts four and eight and determined
they insufficiently alleged a violation of the Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C.A. § 1692 to § 1692(p),10 because
they failed to allege any conduct the FDCPA prohibits. See 15
U.S.C.A. § 1692(d). On appeal, plaintiff does not challenge the
court's finding that the counts do not state a claim upon which
10
The court apparently determined that counts four and eight
asserted claims under the FDCPA because defendants asserted in
their motion to dismiss the complaint that the counts appeared to
assert claims under the statute. In his opposition to defendants'
motion, plaintiff did not challenge defendants' contention that
counts four and eight alleged violations of the FDCPA. On appeal,
plaintiff argues the court erred in finding that the counts alleged
a violation of the FDCPA but does not identify a cognizable cause
of action supporting the claims in those counts.
15 A-4195-14T2
relief may be granted under the FDCPA. As a result, to the extent
the counts allege a violation of the FDCPA, we affirm the court's
dismissal of counts four and eight.
Based on our painstaking review of the complaint, however,
we are convinced the allegations in counts four and eight also
suggest other causes of action. As noted, counts four and eight,
like counts three and five, concern defendants' filing of the
foreclosure actions. The counts are shrouded in allegations of
harassment but actually allege the foreclosure actions were
improperly initiated and prosecuted. We find the allegations
therefore suggest causes of action for malicious use of process
and malicious abuse of process but we are nevertheless satisfied
they were properly dismissed under Rule 4:6-2(e).
"The tort of malicious use of process is disfavored out of
fear that its use could chill free access to the courts" and
because its elements "place severe restrictions on a plaintiff's
ability to recover, thus recognizing the counter-policy of free
access to the courts." Baglini v. Lauletta, 338 N.J. Super. 282,
299 (App. Div.), certif. denied, 169 N.J. 607, appeal dismissed,
169 N.J. 608 (2001). To state a claim for malicious use of process,
plaintiff was required to allege that: (1) defendants instituted
a civil action against him; (2) the action was actuated by malice;
(3) the action was brought without probable cause; (4) the action
16 A-4195-14T2
was terminated in plaintiff's favor; and (5) plaintiff suffered
"a special grievance caused by the institution of the underlying
civil claims." LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009).
A special grievance has been defined as consisting of
"interference with one's liberty or property." Penwag Prop. Co.,
Inc. v. Landau, 76 N.J. 595, 598 (1978). Actions sufficient to
establish a special grievance include "the appointment of a
receiver, filing of a petition in bankruptcy, granting of an
injunction, issuance of a writ of attachment or writ of replevin,
filing of a lis pendens, issuance of an order of arrest, wrongful
interference with possession or enjoyment of property, etc."
Penwag Prop. Co., Inc. v. Landau, 148 N.J. Super. 493, 501 (App.
Div. 1977), aff'd, 76 N.J. 595 (1978). If the "plaintiff['s] only
damages consist of costs of defending the original suit, then the
special grievance requirement is not met." Baglini, supra, 338
N.J. Super. at 300.
Counts three, four, five, and eight do not allege facts
sufficient to state a claim upon which relief may be granted for
malicious use of process. Plaintiff does not allege that any of
the foreclosure actions were filed without probable cause.
LoBiondo, supra, 199 N.J. at 90. That is, plaintiff does not claim
the foreclosure actions were prosecuted without any basis
supporting defendants' claims he was in default of his obligations
17 A-4195-14T2
under note and mortgage. Moreover, to the extent the counts allege
damages, they are limited to the cost, expense, and aggravation
of defending the foreclosure actions and do not allege the special
grievance required to state a claim for malicious abuse of process.
Penwag, supra, 148 N.J. Super. at 502; Baglini, supra, 338 N.J.
Super. at 300.
Counts three, four, five, and eight also do not state claims
upon which relief may be granted for malicious abuse of process.
"The gist of the tort of malicious abuse of process is not
commencing an action without justification . . . it is the misuse,
or 'misapplying process justified in itself for an end other than
that which it was designed to accomplish. The purpose for which
process is used, once it is issued, is the only thing of
importance.'" Baglini, supra, 338 N.J. Super. at 293 (quoting
Prosser & Keeton on Torts § 121 at 897 (5th ed. 1984)). "Basic to
[a cause of action for] malicious abuse of process is the
requirement that the [party] perform 'further acts' after the
issuance of process 'which represent the perversion or abuse of
the legitimate purposes of that process.'" Id. at 294 (quoting
Penwag, supra, 148 N.J. Super. at 499). Further acts which may
constitute malicious abuse of process may include "attachment,
execution, garnishment, sequestration proceedings, arrest of the
person and criminal prosecution and even such infrequent cases as
18 A-4195-14T2
the use of a subpoena for the collection of a debt." Ibid. (quoting
Prosser & Keeton on Torts, supra, § 121 at 899).
Counts three, four, five, and eight are devoid of any
allegations of further acts of alleged misuse of process beyond
the institution of the foreclosure actions. They do not allege
facts sufficient to state claims for malicious abuse of process
and were properly dismissed.
C.
We next address the court's dismissal of counts six and ten.
The court determined count six asserted a claim for intentional
infliction of emotional distress and count ten alleged negligent
infliction of emotional distress.11 The court dismissed the claims,
finding plaintiff failed to allege the conduct necessary to state
a claim upon which relief could be granted for intentional
infliction of emotional distress, and failed to allege he sustained
the injuries necessary to state a claim for negligent infliction
of emotional distress.
In order to prevail on a claim for intentional infliction of
emotional distress as alleged in count six here, "the plaintiff
must establish intentional and outrageous conduct by the
defendant, proximate cause, and distress that is severe." Leang
11
Plaintiff does not challenge the court's determination on
appeal.
19 A-4195-14T2
v. Jersey City Bd. of Educ., 198 N.J. 557, 587 (2009) (quoting
Tarr v. Ciasulli, 181 N.J. 70, 76 (2004)). The conduct must be "so
outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community." Buckley v.
Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988) (quoting
Restatement (Second) of Torts, § 46, comment d (1965)).
In addition, "the emotional distress suffered . . . must be
'so severe that no reasonable [person] could be expected to endure
it.'" Ibid. (quoting Restatement, supra, § 46 comment j). "[T]o
be actionable, the claimed emotional distress must be sufficiently
substantial to result in physical illness or serious psychological
sequelae." Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 237
(App. Div. 2014) (quoting Aly v. Garcia, 333 N.J. Super. 195, 204
(App. Div. 2000)), aff'd in part and modified in part, 224 N.J.
584 (2016). "Complaints such as lack of sleep, aggravation,
headaches and depression have been frequently deemed insufficient
as a matter of law." Ibid.; see also Buckley, supra, 111 N.J. at
368 (finding evidence showing plaintiff was aggravated,
embarrassed, had developed headaches, and suffered nervous tension
was "insufficient as a matter of law to support a finding that the
mental distress was so severe that no reasonable [person] could
be expected to endure it").
20 A-4195-14T2
In Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15(App. Div. 2011), we recalled conduct that has been found
sufficiently outrageous to support a claim for intentional
infliction of emotional distress:
when a landlord failed to provide central
heating, running water and reasonable security
in a rent controlled building in an effort to
induce the tenants to vacate, 49 Prospect St.
Tenants Ass'n v. Sheva Gardens, Inc., 227 N.J.
Super. 449, 455-57 (App. Div. 1988); when a
doctor allegedly told a child's parents that
he was "suffering from a rare disease which
may be cancerous knowing that the child has
nothing more than a mildly infected appendix,"
Hume v. Bayer, 178 N.J. Super. 310, 319 (Law
Div. 1981); and when an employer referred to
an African American employee as a "jungle
bunny," Taylor v. Metzger, 152 N.J. 490, 512
(1998).
[Id. at 23.]
Cf. Ingraham v. Ortho-McNeil Pharma., 422 N.J. Super. 12, 16-19
(App. Div. 2011) (affirming the dismissal of plaintiff's
intentional infliction of emotional distress claim against her
former employer, finding directions to remove her dead child's
pictures from her cubicle and not talk about the child to co-
workers did not rise to the level of extreme and outrageous conduct
that was atrocious and utterly intolerable), certif. denied, 209
N.J. 100 (2012).
Count six alleges defendants engaged in intentional conduct
by utilizing bad business practices, making demands for disputed
21 A-4195-14T2
payments, calling plaintiff late in the evening, failing to accept
plaintiff's mortgage payments, contacting plaintiff directly while
knowing he was represented by counsel, and filing foreclosure
actions against him.12 It also alleges plaintiff suffered "mental
anguish, damage to [his] reputation, embarrassment, [and]
humiliation." The court correctly dismissed count six. By any
measure, plaintiff failed to aver defendants engaged in conduct
that can be properly characterized as beyond all possible bounds
of decency.13
Count six is also deficient because plaintiff fails to allege
he suffered sufficiently severe emotional distress to support an
intentional infliction of emotional distress claim. Plaintiff's
alleged anguish, embarrassment and humiliation are simply
insufficient to support a claim for intentional infliction of
emotional distress. Buckley, supra, 111 N.J. at 368; Innes, supra,
435 N.J. Super. at 237.
12
We note that plaintiff does not allege the foreclosure actions
were filed without probable cause that he was in default of the
note and mortgage held by defendants.
13
To the extent counts three, four, five, and eight may also be
read to assert claims for intentional infliction of emotional
distress, they were properly dismissed on the same basis. We are
convinced the filing of the foreclosure actions, as alleged in the
complaint, was not extreme or outrageous, and did not exceed all
possible bounds of human decency.
22 A-4195-14T2
Count ten, which alleges negligent infliction of emotional
distress, suffers from a similar fatal deficiency. "A claim of
direct, negligent infliction of emotional distress requires a
plaintiff to show that the defendant had a duty, the defendant
owed the duty toward the plaintiff, and that the defendant breached
that duty, proximately causing the plaintiff's injury of genuine
and substantial emotional distress." Lascurain v. City of Newark,
349 N.J. Super. 251, 277 (App. Div. 2002).
The same level of emotional distress required for an
intentional infliction of emotional distress claim is required to
sustain a claim for negligent infliction of emotional distress.
"[T]he emotional distress produced by the defendant's tortious
conduct [must be] 'severe.'" Innes, supra, 435 N.J. Super. at 235
(quoting Buckley, supra, 111 N.J. at 367); see also Lascurain,
supra, 349 N.J. Super. at 277 (finding that to establish requisite
emotional distress plaintiff must prove it had "a dramatic impact
on [plaintiff's] every-day activities or on [plaintiff's] ability
to function daily"). Count ten is devoid of any averment that
plaintiff suffered emotional distress and, for that reason, it was
correctly dismissed by the court.
D.
The court dismissed count seven, finding it alleged
defendants wrongfully initiated the foreclosure actions and, to
23 A-4195-14T2
the extent it sought an accounting, did not state a claim because
any dispute concerning the amount due under the mortgage could be
litigated in a foreclosure action under Rule 4:64-1(d). We
disagree.
Count seven alleges plaintiff made mortgage payments and paid
insurance premiums over a lengthy period of time without receiving
proper credit, defendants failed to pay real estate taxes funded
by plaintiff's mortgage payments, and defendants charged plaintiff
for insurance premiums that were improper and never credited.
Moreover, plaintiff could not challenge the alleged amount due
under the mortgage in a foreclosure action because, based on the
averments in the complaint, defendants dismissed the foreclosure
action filed in 2012. Based on our required liberal reading of
allegations, we are therefore satisfied count seven sufficiently
suggests a valid claim for an accounting and reverse the court's
order dismissing count seven. See Onderdonk v. Presbyterian Homes
of N.J., Inc., 85 N.J. 171, 181 n.4 (1981) (noting that the "three
traditional grounds" supporting an order for an accounting are the
"existence of a fiduciary or trust relation, complicated character
of the account, or need of discovery").
E.
In count nine plaintiff alleges defendants' actions violated
the CFA. The court determined plaintiff could not sustain a claim
24 A-4195-14T2
under the CFA because defendants are the assignees of the note and
mortgage and did not sell or advertise any merchandise or real
estate, or otherwise engage in "unlawful conduct" as such terms
have been defined in the CFA. We disagree.
The CFA is remedial legislation intended to apply broadly to
accomplish its purpose in "root[ing] out consumer fraud."
Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 121 (2014)
(quoting Gonzalez v. Wilshire Credit Corp., 207 N.J. 557, 576
(2011)). "The [CFA] . . . provides a private cause of action to
consumers who are victimized by fraudulent practices in the
marketplace." Gonzalez, supra, 207 N.J. at 576. To state a cause
of action under the CFA, a plaintiff must prove three elements:
"(1) an unlawful practice, (2) an ascertainable loss, and (3) a
causal relationship between the unlawful conduct and the
ascertainable loss." Ibid. (quoting Lee v. Carter-Reed Co., 203
N.J. 496, 521 (2010)).
The CFA defines an "unlawful practice" as the "use or
employment by any person of any unconscionable commercial practice
. . . in connection with the sale or advertisement of any
merchandise or real estate, or with the subsequent performance of
such person . . . whether or not any person has been misled,
deceived or damaged thereby." N.J.S.A. 56:8-2 (emphasis added).
Actions taken in connection with "collecting or enforcing a loan,
25 A-4195-14T2
whether by the lender or its assignee, constitutes the 'subsequent
peformance' of a loan, an activity within the coverage of the
CFA." Gonzalez, supra, 207 N.J. at 577-78; see also Jefferson Loan
Co. v. Session, 397 N.J. Super. 520, 538 (App. Div. 2008) (finding
the CFA applies to unconscionable loan collection activities by
an assignee of a retail installment contract).
Count nine, which incorporates by reference the factual
allegations contained in counts one through eight, alleges
defendants engaged in a course of deceitful and unconscionable
conduct in their efforts to enforce and collect the sums due under
plaintiff's loan. The actions alleged include, but are not limited
to, failing to accept and credit plaintiff's mortgage payments in
order to falsely claim he was in default, and demanding payments
for premiums and other purported costs that were improper. Those
allegations were sufficient to state a claim even though plaintiff
failed to allege facts showing improper "advertisement," that is
an "attempt directly or indirectly by publication, dissemination,
solicitation, indorsement or circulation or in any other way to
induce directly or indirectly any person to enter or not enter
into any obligation or acquire any title or interest in any
merchandise or to increase the consumption thereof or to make any
loan." N.J.S.A. 56:8-1(a).
26 A-4195-14T2
We are therefore satisfied that count nine alleges sufficient
facts to state a claim under the CFA that defendants engaged in
unconscionable loan collection practices, Gonzalez, supra, 207
N.J. at 577-78, and reverse the court's dismissal of the claim.
We are further convinced the court erred in finding plaintiff
failed to state a claim against defendants because they were
assignees of the note and mortgage. As noted, loan collection
efforts undertaken by the "lender or its assignee" fall within the
protections of the CFA. Ibid.F.
We lastly address count eleven, which simply repeats the
allegations contained in all of the preceding counts but offers
no distinct cognizable cause of action. We need not weed through
the thicket presented in count eleven because we have separately
addressed each of its component allegations, affirmed the
dismissal of some, and reversed the dismissal of others. Because
we are satisfied based on our indulgent reading of count eleven
that its combined allegations do not state a separate and distinct
cause of action, we are convinced it was correctly dismissed by
the court.
In our consideration of the court's dismissal order, we have
accepted as true the complaint's factual allegations as required
in any determination of a motion made under Rule 4:6-2(e). Craig
27 A-4195-14T2
v. Suburban Cablevision, 140 N.J. 623, 625 (1995). We do not offer
any opinion on the merits of any the claims and on remand
defendants may assert any and all defenses.
Affirmed as to the dismissals of counts one, two, three,
four, five, six, eight, ten, and eleven. Reversed as to the
dismissals of counts seven and nine. Remanded for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
28 A-4195-14T2