CITIBANK, NA VS. SHERRY DEMETRO VS. SLATER, TENAGLIA, FRITZ & HUNT, PA (DC-000268-15, CAPE MAY COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-001317-15T1

CITIBANK, NA,

Plaintiff,

v.

SHERRY DEMETRO,

Defendant/Third-Party
Plaintiff-Appellant,

v.

SLATER, TENAGLIA, FRITZ & HUNT, PA,

Third-Party Defendant-
Respondent.

_____________________________________

Argued September 12, 2017 — Decided October 2, 2017

Before Judges Hoffman and Mayer.

On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Cape May
County, Docket No. DC-000268-15.

Christopher Bruschi argued the cause for
appellant.

Robert B. Hille argued the cause for
respondent (McElroy, Deutsch, Mulvaney &
Carpenter, LLP, attorneys; Mr. Hille, of
 counsel; John W. Kaveney and Brooks E. Doyne,
on the brief).

PER CURIAM

Defendant/third-party plaintiff Sherry Demetro appeals from

orders entered by the Special Civil Part judge on September 17,

2015, and September 18, 2015, dismissing with prejudice her claims

against respondent/third-party defendant the Law Firm of Slater,

Tenaglia, Fritz & Hunt, P.A. (Slater Tenaglia). Demetro contends

dismissal of her third-party complaint against Slater Tenaglia was

erroneous for the following reasons: there were genuinely disputed

material facts; Slater Tenaglia failed to provide discovery

responses; the motion judge relied on matters outside the pleading;

and leave to amend her pleading should have been granted prior to

dismissal. We agree and, therefore, reverse and remand this case

to the trial court.

On March 3, 2015, Citibank, N.A. filed a debt collection case

against Demetro in the Special Civil Part.1 Demetro filed a third-

party complaint against Slater Tenaglia alleging it failed to

cease collection efforts in violation of the Fair Debt Collection

Practices Act, 15 U.S.C.A. § 1692 (FDCPA).

On December 29, 2014, Slater Tenaglia sent a debt collection

letter to Demetro on behalf of Citibank, N.A. On January 12,

1
Demetro resolved the collection matter with Citibank, N.A.

2 A-1317-15T1
2015, Demetro contested the debt, demanded verification of the

debt and instructed Slater Tenaglia to cease collection efforts

until it mailed the debt verification in accordance with 15

U.S.C.A. § 1692(g). On January 20, 2015, Slater Tenaglia received

documents purporting to verify Demetro's debt.2 However, Slater

Tenaglia did not mail the debt verification to Demetro until March

3, 2015, or later. Slater Tenaglia electronically filed the

collection complaint against Demetro at 4:26 p.m. on March 3,

2015.

Demetro alleges that the collection complaint was drafted by

an employee of Slater Tenaglia on February 27, 2015. She argues

that preparation of the draft complaint by Slater Tenaglia

constituted continuing efforts to collect the debt in violation

of the FDCPA. Demetro also disputes the mailing date of the

verification.

Demetro sought discovery to prove her allegation that Slater

Tenaglia filed the collection action prior to mailing the debt

verification in violation of the FDCPA. Through discovery

2
Counsel for Slater Tenaglia provided this information at oral
argument in response to a question from the panel.

3 A-1317-15T1
requests, Demetro sought Slater Tenaglia's collection file.3

Slater Tenaglia did not respond to Demetro's discovery requests.

The parties disputed the date that Slater Tenaglia mailed the

debt verification to Demetro. Slater Tenaglia claimed it mailed

the debt verification to Demetro on March 2, 2015. Slater

Tenaglia's answer to the third-party complaint stated the debt

verification was mailed on March 2, 2015. However, Jasmine Garcia,

a legal assistant with Slater Tenaglia, submitted a certification

dated June 15, 2015, stating March 3, 2015 as the date Slater

Tenaglia mailed the debt verification to Demetro. Garcia's

certification explained the procedure for handling outgoing mail

at Slater Tenaglia and indicated that she deposited the envelope,

with postage, in the firm's mail room on March 3, 2015. According

to Garcia, outgoing mail from Slater Tenaglia "is collected in

bins located in the office mail room. A staff member transports

the mail once or twice a day to a mail drop box located in the

Mack Cali Centre Complex." Garcia never confirmed her deposit

of the envelope into a United States Post Office mail receptacle

prior to 4:26 p.m. on March 3 (the time/date the collection

3
We recognize that discovery is limited in Special Civil Part
actions due to the expedited nature of the cases. See R. 6:4.
However, Rule 6:4-3 permits service of interrogatories, admissions
and requests for production of documents in Special Civil Part
actions. Depositions in the Special Civil Part are allowed but
require a court order. See R. 6:4-4.

4 A-1317-15T1
complaint was electronically filed with the Special Civil Part).

Nor did any other Slater Tenaglia employee personally certify that

the debt verification was deposited into a United States Post

Office mailbox prior to the filing of the collection action.

Demetro contends that the factual dispute as to the mailing of the

debt verification was central to her claim against Slater Tenaglia,

and therefore, dismissal of the third-party complaint prior to the

exchange of discovery was improper.

We apply a de novo standard of review to a trial court's

order dismissing a complaint under Rule 4:6-2(e). See Stop & Shop

Supermarket Co. v. County of Bergen, 450 N.J. Super. 286, 290

(App. Div. 2017). Under the rule, we owe no deference to the

motion judge's conclusions. Rezem Family Assocs., LP v. Borough

of Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied,

208 N.J. 368 (2011). "[O]ur inquiry is limited to examining the

legal sufficiency of the facts alleged on the face of the

complaint." Printing Mart-Morristown v. Sharp Elecs. Corp., 116

N.J. 739, 746 (1989). "A pleading should be dismissed if it states

no basis for relief and discovery would not provide one." Rezem

Family Assocs., LP, supra, 423 N.J. Super. at 113 (citing Camden

Cty. Energy Recovery Assoc., L.P. v. N.J. Dep't of Envtl. Prot.,

320 N.J. Super. 59, 64 (App. Div. 1999)).

5 A-1317-15T1
 The standard "requires an assumption that the allegations of

the pleading are true and affords the pleader all reasonable

factual inferences." Seidenberg v. Summit Bank, 348 N.J. Super.

243, 249-50 (App. Div. 2002). The court must search the pleading

"in depth and with liberality to determine whether a cause of

action can be gleaned even from an obscure statement." Id. at

250. To avoid a dismissal for failure to state a claim, a plaintiff

is not required "to prove the case but only to make allegations,

which, if proven, would constitute a valid cause of action."

Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.)

(quoting Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App.

Div. 2001)), certif. denied, 185 N.J. 297 (2005). Ordinarily,

dismissal for failure to state a claim is without prejudice, and

the court has discretion to permit a party to amend the pleading

to allege additional facts in an effort to state a claim. See

Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 116 (App.

Div. 2009).

In this case, Demetro was deprived of discovery responsive

to her inquiry as to the date that Slater Tenaglia mailed the debt

verification. Demetro specifically requested information

concerning debt verification mailing procedures at Slater

Tenaglia. Demetro correctly noted that Garcia's certification

raised more questions than provided answers and lacked the

6 A-1317-15T1
requisite personal knowledge, in accordance with Rule 1:6-6, as

to the actual mailing of the verification in this case. Absent

production of Slater Tenaglia's collection file, Demetro had no

way to refute the mailing date. If she had discovery responses,

Demetro argues she would substantiate her claim that the debt

verification was mailed after the filing of the collection

complaint in violation of the FDCPA. Giving Demetro every

favorable inference, discovery should have been completed prior

to the judge's dismissal with prejudice of the third-party

complaint.

Demetro also filed a motion to amend her third-party complaint

based upon Slater Tenaglia's inconsistent positions identifying

the date it purportedly mailed the verification. While Demetro's

motion seeking leave to file an amended pleading was pending before

the court, Slater Tenaglia moved for dismissal of the third-party

complaint. The motion judge granted Slater Tenaglia's dismissal

motion and denied as moot Demetro's motion to amend.

Rule 4:9-1 requires that motions for leave to amend to be

granted liberally and without consideration of the ultimate merits

of the amendment. See Notte v. Merchants Mut. Ins. Co., 185 N.J.

490, 500-01 (2006). An opposed motion to amend a pleading to add

a new cause of action should be determined under the same standard

applicable to a motion to dismiss under Rule 4:6-2(e). See Maxim

7 A-1317-15T1
Sewerage Corp. v. Monmouth Ridings, 273 N.J. Super. 84, 90 (Law

Div. 1993). Because we find that the motion judge erred in

dismissing Demetro's third-party complaint pursuant to Rule 4:6-

2(e), the motion judge erred in denying as moot Demetro's motion

for leave to amend her pleading to include a claim based upon

Slater Tenaglia's inconsistencies regarding the date it mailed the

debt verification.

Lastly, Demetro contends that the motion judge improperly

relied on matters outside the pleadings in dismissing her third-

party complaint. Demetro's pleading did not reference Garcia's

certification.4 Yet, the motion judge relied on the certification

to conclude that Slater Tenaglia mailed the verification prior to

filing the complaint. Because the Garcia certification was not

referenced in Demetro's third-party complaint, the trial court was

required to treat the motion as one for summary judgment, and

Demetro should have been accorded an "opportunity to present all

material pertinent to such a motion." R. 4:6-2; see also Wang v.

Allstate Ins. Co., 125 N.J. 2, 9 (1991) (trial court properly

converted motion pursuant to Rule 4:6-2(e) into a motion for

summary judgment due to submission of documents outside the

pleadings).

4
Demetro's third-party complaint was filed in April 2015.
Garcia's certification was filed two months later.

8 A-1317-15T1
 Reversed as to the dismissal for failure to state a claim and

remanded as to leave to amend. We do not retain jurisdiction.

9 A-1317-15T1