RISIKATV OLAJIDE VS. ONEMAIN FINANCIAL (DC-001626-15, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-1171-15T3

RISIKATV OLAJIDE,

Plaintiff-Appellant,

v.

ONEMAIN FINANCIAL,

Defendant-Respondent.

______________________________

Submitted March 1, 2017 – Decided June 23, 2017

Before Judges Simonelli and Gooden Brown.

On appeal from the Superior Court of New
Jersey, Law Division, Somerset County, Docket
No. DC-001626-15.

Risikatv Olajide, appellant pro se.

Zeichner Ellman & Krause, LLP, attorneys for
respondent (William T. Marshall, Jr., on the
brief).

PER CURIAM

Proceeding pro se, plaintiff Risikatv Olajide appeals from

the September 30, 2015 Law Division order dismissing her complaint

against OneMain Financial for failure to state a claim pursuant

to Rule 4:6-2(e). The trial court dismissed without prejudice
plaintiff's fraud and breach of contract claims, but dismissed

with prejudice plaintiff's claim implicating the Fair Credit

Reporting Act (FCRA), 15 U.S.C.A. §§ 1681 to 1681x. Having

considered the arguments and applicable law, we affirm.

I.

Because the complaint was dismissed for failure to state a

claim upon which relief can be granted, we "review plaintiff['s]

factual allegations indulgently[.]" Cornett v. Johnson & Johnson,

211 N.J. 362, 388 (2012). "'[P]laintiffs are entitled to every

reasonable inference of fact,'" and "'[t]he 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.'" Green v. Morgan Props.,

215 N.J. 431, 452 (2013) (alterations in original) (quoting

Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746

(1989)). "[O]ur inquiry is limited to examining the legal

sufficiency of the facts alleged on the face of the complaint[,]"

to determine "whether a cause of action is suggested by the

facts[,]" Printing Mart-Morristown, supra, 116 N.J. at 746

(citations omitted). Thus, our analysis is conducted de novo,

following the same standard employed by the motion court. Scheidt

v. DRS Techs., Inc., 424 N.J. Super. 188, 193 (App. Div. 2012).

2 A-1171-15T3
 The dispute arises out of an unsecured personal loan plaintiff

obtained from defendant on July 23, 2009, for the principal sum

of $12,870.99, with an annual percentage rate (APR) of 21.99%, for

a total payment of $21,425.40 over the expected five-year life of

the loan. After the first monthly payment of $456.21, plaintiff

was obligated to make fifty-nine monthly payments of $355.41 and

the loan terms specified that interest would accrue on all unpaid

principal. Thereafter, to ease the financial burden in meeting

her monthly payments, plaintiff executed four loan modification

agreements, each known as an Adjustment of Term Agreement (AOT),

resulting in reduced interest rates, lower monthly payments and

an extended loan term.

The first AOT executed on March 18, 2010, temporarily reduced

the interest rate to 14.76% and the monthly payments to $200 until

August 6, 2010. The March 2010 AOT reflected an unpaid principal

balance of $12,513.26 as of March 18, 2010 plus deferred charges

of $497.65, for a total balance of $13,010.91 and a revised

maturity date of April 5, 2015.

The second AOT executed on October 20, 2010, temporarily

reduced the interest rate to 16.06% and the monthly payments to

$210 until March 6, 2011. The October 2010 AOT reflected an unpaid

principal balance of $12,513.26 as of October 20, 2010 plus

3 A-1171-15T3
deferred charges of $879.03, for a total balance of $13,392.29 and

a revised maturity date of November 5, 2015.

The third AOT executed on April 28, 2011, temporarily reduced

the interest rate to 16.38% and the monthly payments to $210 until

March 6, 2012. The April 2011 AOT reflected an unpaid principal

balance of $12,362.39 as of April 28, 2011 plus deferred charges

of $1,229.33, for a total balance of $13,591.72 and a revised

maturity date of August 5, 2016.

The fourth and final AOT executed on April 16, 2012,

permanently reduced the interest rate to 12.49% and the monthly

payments to $180 for the balance of the loan term. The April 2012

AOT reflected an unpaid principal balance of $12,300.44 as of

April 16, 2012 plus deferred charges of $1,575.50, for a total

balance of $13,875.94 and a revised maturity date of May 5, 2022.

Ultimately, in December 2013, plaintiff defaulted on the loan

by deliberately discontinuing all loan payments. According to

plaintiff, after paying $11,286.00 on the loan, she still had a

remaining balance of $13,226.90. Plaintiff believed she was being

defrauded and sued defendant for breach of contract and fraud. In

her complaint, filed on April 20, 2015, plaintiff alleged breach

of contract by defendant misrepresenting the amount financed as

$19,086.39, rather than $12,870.99. Plaintiff claimed that in

2012, the amount financed was fraudulently reported as $19,086.39

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on defendant's website, confirmed by defendant's representative,

and reported to Experian, a credit reporting agency. Plaintiff

appended to her complaint the 2009 loan disclosure statement, two

monthly statements, and an Experian printout.

On May 29, 2015, defendant filed a motion to dismiss the

complaint pursuant to Rule 4:6-2(e) and supplied the court with

copies of the AOTs as well as a chart containing a comprehensive

analysis of payments plaintiff made on the loan. Initially, the

court acknowledged that its consideration of those materials did

not convert the motion to one for summary judgment. R. 4:6-2(e).

See Myska v. New Jersey Mfrs. Ins., 440 N.J. Super. 458, 482 (App.

Div.) (holding that a motion to dismiss pursuant to Rule 4:6-2(e)

is not converted to a motion for summary judgment where the movant

or another party files with the court a document referenced in the

pleadings), appeal dismissed, 224 N.J. 523 (2016). Over

plaintiff's objection, the court granted defendant's motion,

concluding that plaintiff "failed to state a claim upon which

relief may be granted."

Regarding plaintiff's breach of contract claim, the court

determined that "[p]laintiff voluntarily signed the [l]oan note

and agreed to be bound by the terms of the instrument." The court

noted "[i]t appears . . . [p]laintiff did not realize that by

signing the loan note for $12,870.99 of credit provided by

5 A-1171-15T3
[d]efendant, [p]laintiff agreed to pay $8,554.41 for that

extension of credit, making her liable for $21,425.40." The court

explained, however, that ignorance about how interest accrued on

unpaid principal was "not a valid defense to a motion to dismiss."

Regarding plaintiff's fraud claim, the court determined that

plaintiff's complaint failed "to allege a misrepresentation of a

material fact upon which [p]laintiff reasonably relied, which

resulted in damages." The court explained:

[T]he [n]ote clearly outlines the total amount
due on the loan. The [n]ote clearly states
that interest is to accrue on all unpaid
principal. The [n]ote states clearly at the
top of the page that the annual percentage
rate (APR) on the loan is 21.99%. There is
no ambiguity on the face of the instrument.
Plaintiff affixed her signature to the
original loan [n]ote, thereby agreeing to the
terms of the [n]ote. Plaintiff also included
statements of the balance on the [n]ote to her
[c]omplaint, which indicates that [d]efendant
regularly disclosed the outstanding balance to
[p]laintiff.

In addressing plaintiff's claim that defendant misrepresented

the amount financed to Experian, the court determined that such a

claim "based on the allegation that [d]efendant furnished credit

information improperly to a credit reporting agency" was preempted

by the FCRA, 15 U.S.C.A. § 1681t(b)(1)(F). Accordingly, the court

dismissed that claim with prejudice. This appeal followed.

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 II.

On appeal, plaintiff argues that the court "abused its

discretion and committed an error of law in granting [defendant's]

[m]otion to [d]ismiss the [c]omplaint pursuant to [Rule] 4:6-

2(e)." Plaintiff asserts that since she was "representing herself

pro se," she "should have been given a liberal standard at the

dismissal stage" and allowed "to amend the complaint" "[i]f there

was further explanation needed[.]" We respond by underscoring

that plaintiff's fraud and breach of contract claims were dismissed

without prejudice.

Nonetheless, plaintiff continues that she "presented

overwhelming evidence" that defendant "changed the amount of the

principal and term of the [l]oan without notice and without

[plaintiff's] signature." While acknowledging that she "agreed

to modifications of a lower interest rate," she disputes agreeing

to any other changes "from the original 2009 [l]oan" and attributes

the fact that she "has solely been making payments towards interest

and nothing towards principal" to defendant's

"misrepresentations[.]" We disagree with plaintiff's contentions

and affirm substantially for the reasons articulated by Judge

Kevin M. Shanahan in his well-reasoned written statement of reasons

dated September 30, 2015. We add only the following brief

comments.

7 A-1171-15T3
 When a complaint fails to make "the necessary factual

allegations and claims for relief[,]" the pleading must be deemed

inadequate. Miltz v. Borroughs-Shelving, a Div. of Lear Siegler,

Inc., 203 N.J. Super. 451, 458 (App. Div. 1985). The resulting

motion to dismiss for failure to state a claim pursuant to Rule

4:6-2(e) "may not be denied based on the possibility that discovery

may establish the requisite claim; rather, the legal requisites

for plaintiff['s] claim must be apparent from the complaint

itself." Edwards v. Prudential Prop. & Cas. Co., 357 N.J. Super.

196, 202 (App. Div.) (citation omitted), certif. denied, 176 N.J.

278 (2003). Based on our indulgent reading of plaintiff's

complaint, we are satisfied that it was properly dismissed by the

court.

First, we agree with the court that plaintiff failed to make

a cognizable breach of contract claim. On that score, it is well-

settled that a "written contract is formed when there is a meeting

of the minds between the parties evidenced by a written offer and

an unconditional, written acceptance." Morton v. 4 Orchard Land

Trust, 180 N.J. 118, 129-30 (2004) (citation omitted). "Where the

terms of a contract are clear and unambiguous there is no room for

interpretation or construction and [courts] must enforce those

terms as written." Kutzin v. Pirnie, 124 N.J. 500, 507 (1991)

(citation omitted). Plaintiff does not dispute the validity of

8 A-1171-15T3
the underlying 2009 loan agreement, her receipt of the loan

proceeds from defendant, or her execution of the AOTs. By any

measure, plaintiff's complaint is devoid of any averment that can

be properly characterized as a breach of contract and, for that

reason, it was correctly dismissed by the court.

Likewise, to state a claim for common law fraud, plaintiff

was required to allege: "(1) a material misrepresentation of a

presently existing or past fact; (2) knowledge or belief by the

defendant of its falsity; (3) an intention that the other person

rely on it; (4) reasonable reliance thereon by the other person;

and (5) resulting damages." Gennari v. Weichert Co. Realtors, 148

N.J. 582, 610 (1997). Plaintiff's complaint fails to allege facts

sufficient to state a claim for common law fraud and was therefore

properly dismissed by the court.

The FCRA establishes a system of uniform requirements

regulating the use, collection and sharing of consumer credit

information, and preempts all state statutory or common law causes

of action relating to the obligations and responsibilities of

furnishers of credit to consumer reporting agencies. Macpherson

v. JP Morgan Chase Bank, N.A., 665 F.3d 45, 47-48 (2d Cir. 2011),

cert. denied, 566 U.S. 975, 132 S. Ct. 2113, 182 L. Ed. 2d 870

(2012); Purcell v. Bank of Am., 659 F.3d 622, 625 (7th Cir. 2011).

Therefore, plaintiff's complaint accusing defendant of

9 A-1171-15T3
misrepresenting the amount financed to Experian is clearly

preempted by the FCRA.

For the first time on appeal, plaintiff raises claims that

defendant's alleged fraudulent conduct breached its covenant of

good faith and fair dealing and violated federal and state laws,

specifically the Home Ownership Equity and Protection Act, 15

U.S.C.A. §§ 1601 to 1651, and the New Jersey Consumer Fraud Act,

N.J.S.A. 56:8-1 to -20. Plaintiff neither alleged these causes

of action in her complaint nor raised them before the trial judge.

This court "'will decline to consider questions or issues not

properly presented to the trial court when an opportunity for such

a presentation is available unless the questions so raised on

appeal go to the jurisdiction of the trial court or concern matters

of great public interest.'" Zaman v. Felton, 219 N.J. 199, 226-

27 (2014) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)).

Since these issues are neither jurisdictional in nature nor

implicate the public interest, we decline to consider them.

Affirmed.

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