CHARLES WRIGHT VS. BANK OF AMERICA, N.A. (L-0433-15, GLOUCESTER COUNTY AND STATEWIDE)
194 A.3d 101
| N.J. Super. Ct. App. Div. | 2018Background
- In 2010 BAC Home Loans Servicing (BAC) sent plaintiff Charles Wright notices of intention to foreclose that allegedly failed to list the lender's name and address as required by the Fair Foreclosure Act (FFA).
- No foreclosure action followed the notices; Wright sued asserting TCCWNA claims based on the alleged FFA omissions and sought statutory penalties.
- The Law Division dismissed the complaint, applying the litigation privilege and concluding the FFA omission could not support a TCCWNA claim.
- On appeal, the Appellate Division rejected application of the litigation privilege and questioned whether Wright pleaded he was an "aggrieved consumer" under TCCWNA given Spade v. Select Comfort Corp.
- The court vacated the dismissal and remanded, allowing Wright to amend to plead the specific harm required to show he is an "aggrieved consumer."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an omission in a pre-foreclosure FFA notice can support a TCCWNA claim | Wright: omission of lender identity in the FFA notice violates TCCWNA because it departs from a clearly established legal requirement | BAC: such communications are privileged and/or not actionable under TCCWNA | Court: FFA notice omissions can fall within TCCWNA’s scope as part of the lender’s "practice," but claim must still meet TCCWNA harm requirements |
| Whether Wright is an "aggrieved consumer" entitled to statutory penalties under TCCWNA | Wright: seeks statutory penalties; alleges violation suffices | BAC: no actual harm; statutory remedy requires an "aggrieved consumer" showing under Spade | Court: under Spade, plaintiff must allege harm (not necessarily monetary) showing he was "aggrieved"; dismissal vacated to permit amendment to plead harm |
| Whether the litigation privilege bars Wright's claim | Wright: omission not an actionable defamatory statement; privilege inapplicable | BAC: pre-suit judicial/quasi-judicial communications are protected by litigation privilege | Court: litigation privilege inapplicable because it protects defamatory/uttered statements in judicial contexts, not omissions of required legal information in notices |
| Procedural remedy: dismissal vs. leave to amend | Wright: should be allowed to amend to plead harm | BAC: dismissal appropriate | Court: vacated dismissal and remanded for Wright to file an amended complaint to specify alleged harm |
Key Cases Cited
- Spade v. Select Comfort Corp., 232 N.J. 504 (2018) (defines "aggrieved consumer" and limits who may recover under TCCWNA)
- U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449 (2012) (servicer identification in foreclosure notices does not satisfy FFA lender-identification requirement)
- Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539 (1990) (explaining scope and purpose of litigation privilege)
- Hawkins v. Harris, 141 N.J. 207 (1995) (litigation privilege applies to statements in judicial or quasi-judicial proceedings)
- Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552 (1955) (litigation privilege may extend beyond defamation to similar torts)