CITIBANK, NA VS. SHERRY DEMETRO VS. SLATER, TENAGLIA, FRITZ & HUNT, PA (DC-000268-15, CAPE MAY COUNTY AND STATEWIDE)
A-1317-15T1
| N.J. Super. Ct. App. Div. | Oct 2, 2017Background
- Citibank sued Sherry Demetro in Special Civil Part for debt collection; Demetro filed a third-party FDCPA claim against law firm Slater Tenaglia alleging unlawful continued collection.
- Slater Tenaglia sent an initial collection letter Dec 29, 2014; Demetro disputed the debt Jan 12, 2015 and demanded verification under 15 U.S.C. § 1692(g).
- Slater Tenaglia received documents purporting to verify the debt on Jan 20, 2015 but did not mail verification to Demetro until either March 2 or March 3, 2015; Slater Tenaglia filed the collection complaint electronically at 4:26 p.m. on March 3, 2015.
- Demetro alleges Slater Tenaglia drafted the complaint Feb 27, 2015 and that verification was mailed after the complaint was filed, which would violate the FDCPA.
- Demetro sought Slater Tenaglia’s collection file and other discovery to prove mailing date; Slater Tenaglia did not respond to discovery.
- The motion judge dismissed Demetro’s third-party complaint with prejudice, relying on a certification (filed after the complaint) concerning the firm’s mailing practices, and denied Demetro’s pending motion to amend as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the third-party FDCPA claim should be dismissed under Rule 4:6-2(e) for failure to state a claim | Demetro: factual dispute over when verification was mailed; complaint alleges facts that, if proven, state an FDCPA violation and discovery is needed | Slater Tenaglia: verification mailed before complaint filing (thus no FDCPA violation); dismissal appropriate | Reversed: dismissal under Rule 4:6-2(e) improper because factual disputes and lack of discovery made dismissal premature |
| Whether the trial court could rely on the Garcia certification (documents outside the pleading) without converting to summary judgment | Demetro: certification was filed after the complaint and not referenced in pleadings; reliance on it required conversion to summary judgment and opportunity to present materials | Slater Tenaglia: certification supports mailing occurred before filing; court may consider it | Held for Demetro: court improperly relied on matters outside the pleadings without treating motion as summary judgment and without giving Demetro an opportunity to present evidence |
| Whether dismissal should have been with prejudice and before completion of discovery | Demetro: denial of discovery deprived her of means to prove mailing date; dismissal with prejudice unjust | Slater Tenaglia: factual record supported dismissal | Held for Demetro: discovery should have been permitted before dismissal; dismissal with prejudice was erroneous |
| Whether leave to amend should have been allowed | Demetro: sought to amend based on defendants’ inconsistent positions about mailing date; Rule 4:9-1 favors liberal granting of leave to amend | Slater Tenaglia: dismissal mooted amendment or amendment improper | Held for Demetro: court erred in denying leave to amend as moot after improperly dismissing the complaint |
Key Cases Cited
- Stop & Shop Supermarket Co. v. County of Bergen, 450 N.J. Super. 286 (App. Div. 2017) (de novo review of Rule 4:6-2(e) dismissals)
- Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739 (1989) (inquiry limited to legal sufficiency of facts on the face of the complaint)
- Seidenberg v. Summit Bank, 348 N.J. Super. 243 (App. Div. 2002) (pleadings construed liberally and all reasonable inferences afforded)
- Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103 (App. Div. 2011) (dismissal appropriate only if discovery would not supply a basis for relief)
- Wang v. Allstate Ins. Co., 125 N.J. 2 (1991) (reliance on materials outside the pleadings converts a Rule 4:6-2(e) motion into summary judgment)
- Notte v. Merchants Mut. Ins. Co., 185 N.J. 490 (2006) (motions for leave to amend should be granted liberally)