NOT FOR PUBLICATION WITHOUT THE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
4 A-1171-15T3
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.
6 A-1171-15T3
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.
10 A-1171-15T3