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)
A-4915-14T2
| N.J. Super. Ct. App. Div. | Jul 14, 2017Background
- D'Angelo sued Ocwen and U.S. Bank (Trustee) alleging a 20+ year pattern: servicer refused/failed to credit mortgage payments, pursued multiple foreclosure actions, and charged improper fees; he sought damages across eleven counts.
- Key historical events: original note (1985 to Citibank), foreclosure in 1993 and bankruptcy, a 1998 settlement agreement requiring payments and an accounting, then multiple foreclosures in 1999, 2002, 2008, and 2012 with alleged refusals to accept payments and dismissals.
- Plaintiff's amended complaint (11 counts) pleaded breach-related theories, emotional distress, malicious use/abuse of process, an accounting claim, and a Consumer Fraud Act (CFA) claim.
- Defendants moved to dismiss under Rule 4:6-2(e) (failure to state a claim) and raised statute-of-limitations/res judicata defenses; the trial court dismissed all counts for failure to state a claim.
- On appeal the Appellate Division affirmed dismissal of nine counts but reversed dismissal of counts 7 (accounting) and 9 (CFA), remanding those for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counts alleging breach of the 1998 settlement agreement and related covenant are timely | D'Angelo alleged ongoing breaches from the settlement through 2002 and seeks relief now | Ocwen argued contract claims are time-barred by the 6-year statute of limitations | Held: Breach claims (counts 1 & 2) are barred; dismissal affirmed as claims accrued by Nov. 2002 and suit filed in 2014 was untimely |
| Whether allegations about repeated foreclosures state malicious use/abuse of process or FDCPA claims | D'Angelo alleged foreclosures were frivolous, used to harass and run up legal fees | Defendants argued foreclosure actions had basis and counts failed to plead elements of malicious process or FDCPA violations | Held: Dismissal affirmed as to malicious use/abuse of process and FDCPA theories — complaint lacked allegations of lack of probable cause, required "special grievance," or post-process abuse |
| Whether alleged calls, harassment, payment refusals and filings support emotional-distress claims | D'Angelo asserted intentional and negligent infliction of emotional distress from defendants’ conduct | Defendants argued conduct was not extreme/outrageous and alleged distress was not severe or sufficiently pleaded | Held: Dismissal affirmed for counts 6 and 10 — conduct not extreme and alleged emotional harm insufficient to meet the severe-distress standard |
| Whether alleged misconduct in loan servicing (payment refusals, improper charges) states a CFA claim and accounting | D'Angelo alleged unconscionable loan-collection practices, failure to credit payments, improper charges — seeking treble damages under the CFA and an accounting | Defendants argued assignees of loans do not fall within CFA or that allegations failed to show "advertisement" or unlawful practice | Held: Dismissal reversed as to counts 7 (accounting) and 9 (CFA). Court held CFA covers assignees' loan-collection activities and allegations were sufficient to state an unconscionable-practice claim; accounting claim also sufficiently pleaded |
Key Cases Cited
- Major v. Maguire, 224 N.J. 1 (explains liberal, searching standard for pleading review under Rule 4:6-2(e))
- Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739 (articulates generous approach to discerning causes of action from complaints)
- Green v. Morgan Props., 215 N.J. 431 (limits inquiry on dismissal to legal sufficiency of facts alleged)
- LoBiondo v. Schwartz, 199 N.J. 62 (elements required for malicious use of process)
- Baglini v. Lauletta, 338 N.J. Super. 282 (discusses malicious process and restraints on such torts)
- Penwag Prop. Co. v. Landau, 76 N.J. 595 (defines "special grievance" for malicious process claims)
- Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355 (standard for severe emotional distress and intentional infliction claims)
- Gonzalez v. Wilshire Credit Corp., 207 N.J. 557 (Holds CFA applies to loan collection and assignees' subsequent performance)
- Onderdonk v. Presbyterian Homes of N.J., 85 N.J. 171 (grounds supporting an accounting)