BOROUGH OF WEST WILDWOOD VS. HERBERT C. FREDERICK,ET AL. VS. MUNICIPAL EXCESS LIABILITY JOINT INSURANCE FUND (C-0057-13, 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NOT FOR PUBLICATION WITHOUT THE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-4195-14T2

ROBERT A. D'ANGELO,

Plaintiff-Appellant,

v.

OCWEN LOAN SERVICING, LLC,
A Wholly Owned Subsidiary of
OCWEN MORTGAGE SERVICING, LLC,
and U.S. BANK NATIONAL ASSOCIATION
as Trustee for the Certificate
Holders of the Mortgage Pass
Through Certificates 1997-R2,

Defendants-Respondents.
_________________________________________

Submitted October 11, 2016 – Decided February 23, 2017

Before Judges Leone and Vernoia.

On appeal from the Superior Court of New
Jersey, Law Division, Union County, Docket No.
L-1934-14.

Meyer L. Rosenthal, attorney for appellant.

Houser & Allison, APC, attorneys for
respondents (Danielle P. Light, of counsel and
on the brief).

PER CURIAM
 Plaintiff Robert A. D'Angelo appeals an order dismissing his

eleven-count amended complaint for failure to state a claim under

Rule 4:6-2(e). Based on a review of the record and the applicable

law, we uphold the dismissal of all of the counts except counts

seven and nine. We affirm in part, reverse in part, and remand for

further proceedings in accordance with this opinion.

I.

Plaintiff filed an eleven-count complaint on May 22, 2014,

which was amended on September 25, 2014, against defendants Ocwen

Loan Servicing LLC, a wholly owned subsidiary of Ocwen Mortgage

Servicing LLC (Ocwen), and U.S. Bank National Association as

Trustee (Trustee) for the Certificate Holders of the Mortgage Pass

Through Certificates 1997-R2, (Trust). The complaint alleged that

over the course of twenty-two years, defendants1 engaged in a

pattern of misconduct by refusing to accept plaintiff's mortgage

payments in order to claim default and file frivolous foreclosure

actions against him. Because this appeal is from a dismissal of

the complaint due to a failure to state a claim upon which relief

may be granted, the following facts are largely derived from

plaintiff's amended complaint.

1
Plaintiff's complaint varies in addressing the defendants
individually and collectively, without necessarily attributing any
of the particular allegations to a particular party.

2 A-4195-14T2
 Count one of plaintiff's complaint alleges that on or about

March 11, 1985, plaintiff executed a promissory note to Citibank,

N.A. (Citibank) that was secured by a mortgage on a residential

property. Plaintiff began making mortgage payments under the note

and sought an accounting of the balance due. In 1993, "without

explanation and accounting," Citibank filed a foreclosure action

against plaintiff, which caused plaintiff to file a petition for

bankruptcy.

Plaintiff's complaint asserts that upon information and

belief, the note and mortgage were assigned to defendant Ocwen on

December 23, 1996.2 Plaintiff and Ocwen "and its predecessors"

subsequently executed a settlement agreement (1998 settlement

agreement)3 that resolved plaintiff's bankruptcy case and the

pending foreclosure action. The 1998 settlement agreement required

plaintiff to resume making mortgage payments and Ocwen to provide

plaintiff with an accounting of his loan balance and credit for

all payments.

2
Although not alleged in the complaint, defendants submit the
loan was transferred from Citibank to a trust that became
affiliated with various loan servicing entities including Ocwen
and the mortgage is presently owned by defendant U.S. Bank as
Trustee.
3
The date of the settlement agreement is not included in the
complaint, but based on the record, it appears to have been
executed on or about May 15, 1998, the date on which plaintiff
dismissed his first bankruptcy petition.

3 A-4195-14T2
 Count one asserts that even after the execution of the 1998

settlement agreement, Ocwen failed to provide any accounting or

proof that plaintiff's prior payments had been properly credited,

and refused to accept plaintiff's continued payments or otherwise

communicate with plaintiff or plaintiff's counsel.

Count two alleges that in 1999, "[d]efendant" commenced a

second foreclosure action based on "the artificial default it

claimed [against plaintiff]." From 1999 through February 2001,

while the second foreclosure action was pending, Ocwen refused to

accept plaintiff's payments without explanation. Count two asserts

that during this time, Ocwen's representatives called plaintiff

to "harass" him for nonpayment despite plaintiff's alleged

submission of timely payments which Ocwen refused to accept.

In February 2002, Ocwen's second foreclosure action was

dismissed because Ocwen allegedly failed to provide the requisite

notice of intention to foreclose. Count two asserts Ocwen's actions

and inactions in pursuing the second foreclosure suit while

refusing to deal in good faith and accept payments caused plaintiff

damages including "legal fees, costs and loss of time."

Following the second foreclosure action, plaintiff continued

making payments from February 2002 through November 16, 2002.

Count three of plaintiff's complaint asserts in 2002, defendants,

"in the name of U.S. Bank, [Trustee] through Ocwen," filed a third

4 A-4195-14T2
foreclosure action. From 2003 through January 2005, during the

pendency of the third foreclosure action, Ocwen allegedly accepted

plaintiff's monthly payments. In February 2005, however, Ocwen

again "arbitrarily refused to accept a payment . . . in order to

create a default." Upon plaintiff's information and belief, the

third foreclosure action was dismissed or not pursued.

Count four of plaintiff's complaint alleges defendants

engaged in a continuous pattern of filing foreclosure actions in

bad faith in an effort to "run[] up [p]laintiff's legal expenses."

Count four asserts that in 2008, "[d]efendants," in the name

"LaSalle Bank National Association as Trustee," filed a fourth

foreclosure action (2008 foreclosure action). After unsuccessful

mediation efforts, the 2008 foreclosure action, "like the three

previous actions before it, was not pursued and resulted in a

dismissal."

In 2012, prior to the dismissal of the 2008 foreclosure

action, "[d]efendant" in the name of "U.S. Bank, [Trustee] for the

[Trust]" filed a fifth foreclosure action. Count five alleges:

Defendants' actions, while negligent at best,
were reckless, deliberate and wanton in
attempting . . . to bury the [p]laintiff in
legal expense[s] and costs, not to mention
causing angst and damages by the continued
threat in taking [p]laintiff's home, knowing
that the physical and mental damages could
result

5 A-4195-14T2
 . . . because of such reckless disregard of
[p]laintiff's rights.

Count five asserts that the fifth foreclosure action was

"unilaterally dismissed" without any notice to plaintiff.

The remainder of plaintiff's complaint (counts six through

eleven) asserts various theories of relief based on the foregoing

factual allegations. Counts six and ten assert damages related to

plaintiff's alleged emotional injuries. Count six asserts "Ocwen

and its representatives" willfully harassed and humiliated

plaintiff for mortgage payments "causing embarrassment," "mental

anguish, damage to [his] reputation, embarrassment, humiliation,"

and other damages.

Count ten asserts that defendants and their representatives

knowingly made "false promises" to provide plaintiff with an

accounting, thereby inducing plaintiff's reliance, while

simultaneously filing baseless foreclosure actions. Count ten

asserts such conduct was "deliberately done for the purpose of

causing" plaintiff "anguish" and unnecessary litigation costs.

Count seven asserts that the pattern of defendants'

misconduct alleged in the complaint caused damages including the

imposition of late charges for plaintiff's purported nonpayment,

charges for "forced insurance on the property," and interest and

6 A-4195-14T2
costs related to untimely property tax payments and property

inspections.

Count eight, similar to count four, directly accuses

defendants of filing meritless foreclosure actions, and

characterizes defendants' actions as "harassment." Count eight

asserts "[a]s a result of the improper filing and continuation of

five (5) separate foreclosure actions, [plaintiff] continues to

suffer additional damages by way of incurring additional legal

fees and costs aside from aggravation and emotional stress."

Count nine alleges violations of the New Jersey Consumer

Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -20. More specifically,

count nine asserts defendants' actions and representations

constituted "advertisements" as defined under the CFA, N.J.S.A.

56:8-1(a), and Ocwen failed to abide by its representations in

servicing plaintiff's mortgage. Accordingly, count nine seeks

treble damages pursuant to the CFA, N.J.S.A. 56:8-19, as well as

"counsel fees, costs and other damages."

Count eleven essentially recapitulates plaintiff's overall

theory that defendants and their representatives recklessly and

deliberately harassed plaintiff for payments despite plaintiff's

representations that payments were not being administered

properly. It asserts that defendants' representatives failed to

7 A-4195-14T2
act in good faith and made false promises to resolve the issues

while knowing plaintiff would rely upon such representations.

On October 27, 2014, defendants moved to dismiss plaintiff's

complaint under the doctrine of res judicata, arguing the claims

asserted were identical to those alleged in plaintiff's answer and

counterclaims in the 2008 foreclosure action that were dismissed

on a motion for summary judgment. Alternatively, defendants argued

counts one and two of plaintiff's complaint were claims for breach

of the 1998 settlement agreement and were barred by the six-year

statute of limitations. N.J.S.A. 2A:14-1. Defendants argued the

remaining counts failed to state claims upon which relief may be

granted and should be dismissed pursuant to Rule 4:6-2(e).

Following oral argument on defendants' motion, the trial

court issued a written decision rejecting defendants' contention

that plaintiff's claims were barred under the doctrine of res

judicata4 but finding each of the eleven counts in the complaint

failed to state a claim upon which relief may be granted under

Rule 4:6-2(e). The court entered an order dismissing the complaint.

This appeal followed.

4
Defendants did not file a cross-appeal challenging the court's
rejection of their argument plaintiff's complaint is barred under
the doctrine of res judicata. We therefore do not address that
part of the court's order.

8 A-4195-14T2
 II.

Rule 4:6-2(e) authorizes dismissal of a complaint for

"failure to state a claim upon which relief can be granted[.]"

When considering an application for relief under this rule, a

court is required to "search[] the complaint in depth and with

liberality to ascertain whether the fundament of a cause of action

may be gleaned even from an obscure statement of claim, opportunity

being given to amend if necessary." Major v. Maguire, 224 N.J. 1,

26 (2016) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp.,

116 N.J. 739, 746 (1989)).

We review an order of dismissal under Rule 4:6-2(e) de novo

and "apply the same test as the Law Division." Smerling v. Harrah's

Entm't, Inc., 389 N.J. Super. 181, 186 (App. Div. 2006). In other

words, "our inquiry is limited to examining the legal sufficiency

of the facts alleged on the face of the complaint," and determining

if "a cause of action is 'suggested' by the facts." Green v. Morgan

Props., 215 N.J. 431, 451-52 (2013) (quoting Printing Mart, supra,

116 N.J. at 746). "The 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." Printing Mart, supra, 116 N.J. at 746. We

apply that standard here.

9 A-4195-14T2
 To be sure, the task of discerning if the separate counts of

the complaint here allege cognizable causes of action is made

difficult by the numerous, vague, and overlapping allegations

detailing the lengthy history underlying plaintiff's claims. The

complaint lacks clarity and precision, and includes an express

statement of the asserted legal claim in only one count.5 Before

the trial court, and again here, plaintiff failed to define the

legal claims asserted in the various counts to permit a precise

evaluation of whether the intended causes of action are

sufficiently pled to state claims upon which relief may be granted.

The motion court reviewed the complaint, attempted to discern

the putative legal claims asserted, and assessed whether the facts

alleged were sufficient to support the eleven putative claims the

court determined were asserted. Based on its determination of the

causes of action asserted in each count, the court found plaintiff

failed to state any claims upon which relief could be granted and

dismissed the complaint in its entirety.6

5
As discussed infra, count nine alleged a cause of action under
the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20.
6
The court's order did not state whether the dismissal of the
complaint was with prejudice or whether plaintiff could amend the
complaint.

10 A-4195-14T2
 The complaint's shortcomings notwithstanding, it remained the

role of the courts to undertake a painstaking review of plaintiff's

complicated allegations to determine whether they suggest the

fundament of a cause of action. Major, supra, 224 N.J. at 26.

Based on our review of the complaint, we find that some of

plaintiff's counts "suggested" a cause of action, and that two of

those counts should not have been dismissed.

A liberal and fair reading of the complaint reveals that

plaintiff claims defendants breached various legal duties in the

performance of their obligations under the 1998 settlement

agreement, in connection with the servicing of plaintiff's

mortgage, and in defendants' prosecution of five separate

foreclosure actions. Plaintiff alleges those breaches caused him

damages. It is within the context of those broad factual

allegations that each of plaintiff's asserted eleven causes of

action must be assessed to determine if they suggest cognizable

causes of action.

A.

We first address the court's dismissal of counts one and two.

The complaint does not expressly identify the purported causes of

action in these counts. At oral argument before the motion court,

it was conceded plaintiff was "not looking for any damages arising

out of [a] breach" of the 1998 settlement agreement referenced in

11 A-4195-14T2
each count. Plaintiff's counsel explained the counts were included

to "set[] up the facts" supporting the "gravamen" of the case

"based on over [twenty] years worth of frustration arising out of

the foreclosure action after foreclosure action," but never

identified the causes of action alleged.

The motion court read count one as a breach of contract claim

based on the 1998 settlement agreement and count two as a claim

for breach of the covenant of good faith and fair dealing under

the agreement.7 A liberal reading of the allegations in the counts

supports the court's determination. Count one asserts that even

though plaintiff made mortgage payments as required by the 1998

settlement agreement, Ocwen "failed to provide [plaintiff] any

proof as to the disputed payments as . . . required in the . . .

agreement." Similarly, count two asserts that "[d]espite Ocwen's

breach of its agreement to provide the accounting," defendants

initiated a second foreclosure action and remained in breach

through the pendency of the second foreclosure action, which was

dismissed in 2001.

7
It appears the court read counts one and two to allege breach of
contract and the covenant of good faith and fair dealing
respectively because defendants' brief in support of their motion
to dismiss the complaint argued those were the causes of action
asserted. In his opposition to the motion, plaintiff did not
dispute that the counts asserted those causes of action. On appeal,
plaintiff does not identify any other alleged cause of action in
the counts.

12 A-4195-14T2
 The court dismissed the claims finding that, based on the

allegations in the complaint, they are barred by the six-year

statute of limitations applicable to contract claims. N.J.S.A.

2A:14-1. Count one alleges that defendants breached the 1998

settlement agreement after the passage of more than a year

following entry into the agreement. Count two alleged the breach

was in bad faith and continued until November 20, 2002, when

defendant wrongfully refused to accept plaintiff's mortgage

payment. Fairly read, counts one and two allege that the last

breach of the 1998 settlement agreement and covenant of good faith

and fair dealing occurred on November 20, 2002. The respective

causes of action therefore accrued on that date. Cty. of Morris

v. Fauver, 153 N.J. 80, 109-110 (1998). Any complaint alleging a

breach of the 1998 settlement agreement or covenant of good faith

and fair dealing under the agreement was required to be filed by

November 16, 2008.8 Plaintiff, however, did not file his complaint

until May 22, 2014.

8
We need not address the court's more indulgent reading of the
complaint as alleging the 1998 settlement agreement was breached
as late as October 27, 2006. Under that interpretation of the
allegations, defendant was required to file his claims for breach
of contract and the covenant of good faith and fair dealing by
October 27, 2012.

13 A-4195-14T2
 Because the facts alleged in counts one and two establish

plaintiff filed his complaint well beyond the six-year limitations

period, N.J.S.A. 2A:14-1, those counts were properly dismissed by

the court for failing to state a claim upon which relief could be

granted under Rule 4:6-2(e).9 See CKC Condo. Ass'n, Inc. v. Summit

Bank, 335 N.J. Super. 385, 387 n. 1 (App. Div. 2000) (finding that

"a statute of limitations defense is sufficiently akin to failure

to state a claim as to permit its disposition by way of a motion

under [Rule] 4:6-2(e)" where the facts alleged in the complaint

are not in dispute); Rappeport v. Flitcroft, 90 N.J. Super. 578,

580 (App. Div. 1966) (holding that where a statute of limitations

bar is evident from the facts alleged in the complaint, it may be

asserted as a failure to state a claim upon which relief may be

granted).

9
The court also read count two to assert a claim for harassment.
We have treated claims alleging harassment as causes of action for
the intentional infliction of emotional distress, Juzwiak v. Doe,
415 N.J. Super. 442, 455 (2010), which are subject to a two-year
statute of limitations, Fraser v. Bovino, 317 N.J. Super. 23, 34
(App. Div. 1998), certif. denied, 160 N.J. 476 (1999). The last
act of harassment alleged in count two occurred on November 20,
2002. Accordingly, to the extent count two alleged an intentional
infliction of emotional distress claim, it was time-barred and
correctly dismissed.

14 A-4195-14T2
 B.

Counts three, four, five, and eight concern defendants'

filing and dismissal of earlier foreclosure actions. Count three

alleges defendants filed a third foreclosure action in 2002 that

was dismissed in 2005. Count four alleges defendants filed a fourth

foreclosure action in 2008 that was subsequently dismissed. Count

five alleges defendants filed a fifth foreclosure action in 2012

that was dismissed. Count eight alleges that defendants' filing

of the five foreclosure actions constituted harassment and caused

plaintiff damages.

We first address the court's dismissal of counts four and

eight. The court reviewed counts four and eight and determined

they insufficiently alleged a violation of the Fair Debt Collection

Practices Act (FDCPA), 15 U.S.C.A. § 1692 to § 1692(p),10 because

they failed to allege any conduct the FDCPA prohibits. See 15

U.S.C.A. § 1692(d). On appeal, plaintiff does not challenge the

court's finding that the counts do not state a claim upon which

10
The court apparently determined that counts four and eight
asserted claims under the FDCPA because defendants asserted in
their motion to dismiss the complaint that the counts appeared to
assert claims under the statute. In his opposition to defendants'
motion, plaintiff did not challenge defendants' contention that
counts four and eight alleged violations of the FDCPA. On appeal,
plaintiff argues the court erred in finding that the counts alleged
a violation of the FDCPA but does not identify a cognizable cause
of action supporting the claims in those counts.

15 A-4195-14T2
relief may be granted under the FDCPA. As a result, to the extent

the counts allege a violation of the FDCPA, we affirm the court's

dismissal of counts four and eight.

Based on our painstaking review of the complaint, however,

we are convinced the allegations in counts four and eight also

suggest other causes of action. As noted, counts four and eight,

like counts three and five, concern defendants' filing of the

foreclosure actions. The counts are shrouded in allegations of

harassment but actually allege the foreclosure actions were

improperly initiated and prosecuted. We find the allegations

therefore suggest causes of action for malicious use of process

and malicious abuse of process but we are nevertheless satisfied

they were properly dismissed under Rule 4:6-2(e).

"The tort of malicious use of process is disfavored out of

fear that its use could chill free access to the courts" and

because its elements "place severe restrictions on a plaintiff's

ability to recover, thus recognizing the counter-policy of free

access to the courts." Baglini v. Lauletta, 338 N.J. Super. 282,

299 (App. Div.), certif. denied, 169 N.J. 607, appeal dismissed,

169 N.J. 608 (2001). To state a claim for malicious use of process,

plaintiff was required to allege that: (1) defendants instituted

a civil action against him; (2) the action was actuated by malice;

(3) the action was brought without probable cause; (4) the action

16 A-4195-14T2
was terminated in plaintiff's favor; and (5) plaintiff suffered

"a special grievance caused by the institution of the underlying

civil claims." LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009).

A special grievance has been defined as consisting of

"interference with one's liberty or property." Penwag Prop. Co.,

Inc. v. Landau, 76 N.J. 595, 598 (1978). Actions sufficient to

establish a special grievance include "the appointment of a

receiver, filing of a petition in bankruptcy, granting of an

injunction, issuance of a writ of attachment or writ of replevin,

filing of a lis pendens, issuance of an order of arrest, wrongful

interference with possession or enjoyment of property, etc."

Penwag Prop. Co., Inc. v. Landau, 148 N.J. Super. 493, 501 (App.

Div. 1977), aff'd, 76 N.J. 595 (1978). If the "plaintiff['s] only

damages consist of costs of defending the original suit, then the

special grievance requirement is not met." Baglini, supra, 338

N.J. Super. at 300.

Counts three, four, five, and eight do not allege facts

sufficient to state a claim upon which relief may be granted for

malicious use of process. Plaintiff does not allege that any of

the foreclosure actions were filed without probable cause.

LoBiondo, supra, 199 N.J. at 90. That is, plaintiff does not claim

the foreclosure actions were prosecuted without any basis

supporting defendants' claims he was in default of his obligations

17 A-4195-14T2
under note and mortgage. Moreover, to the extent the counts allege

damages, they are limited to the cost, expense, and aggravation

of defending the foreclosure actions and do not allege the special

grievance required to state a claim for malicious abuse of process.

Penwag, supra, 148 N.J. Super. at 502; Baglini, supra, 338 N.J.

Super. at 300.

Counts three, four, five, and eight also do not state claims

upon which relief may be granted for malicious abuse of process.

"The gist of the tort of malicious abuse of process is not

commencing an action without justification . . . it is the misuse,

or 'misapplying process justified in itself for an end other than

that which it was designed to accomplish. The purpose for which

process is used, once it is issued, is the only thing of

importance.'" Baglini, supra, 338 N.J. Super. at 293 (quoting

Prosser & Keeton on Torts § 121 at 897 (5th ed. 1984)). "Basic to

[a cause of action for] malicious abuse of process is the

requirement that the [party] perform 'further acts' after the

issuance of process 'which represent the perversion or abuse of

the legitimate purposes of that process.'" Id. at 294 (quoting

Penwag, supra, 148 N.J. Super. at 499). Further acts which may

constitute malicious abuse of process may include "attachment,

execution, garnishment, sequestration proceedings, arrest of the

person and criminal prosecution and even such infrequent cases as

18 A-4195-14T2
the use of a subpoena for the collection of a debt." Ibid. (quoting

Prosser & Keeton on Torts, supra, § 121 at 899).

Counts three, four, five, and eight are devoid of any

allegations of further acts of alleged misuse of process beyond

the institution of the foreclosure actions. They do not allege

facts sufficient to state claims for malicious abuse of process

and were properly dismissed.

C.

We next address the court's dismissal of counts six and ten.

The court determined count six asserted a claim for intentional

infliction of emotional distress and count ten alleged negligent

infliction of emotional distress.11 The court dismissed the claims,

finding plaintiff failed to allege the conduct necessary to state

a claim upon which relief could be granted for intentional

infliction of emotional distress, and failed to allege he sustained

the injuries necessary to state a claim for negligent infliction

of emotional distress.

In order to prevail on a claim for intentional infliction of

emotional distress as alleged in count six here, "the plaintiff

must establish intentional and outrageous conduct by the

defendant, proximate cause, and distress that is severe." Leang

11
Plaintiff does not challenge the court's determination on
appeal.

19 A-4195-14T2
v. Jersey City Bd. of Educ., 198 N.J. 557, 587 (2009) (quoting

Tarr v. Ciasulli, 181 N.J. 70, 76 (2004)). The conduct must be "so

outrageous in character, and so extreme in degree, as to go beyond

all possible bounds of decency, and to be regarded as atrocious,

and utterly intolerable in a civilized community." Buckley v.

Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988) (quoting

Restatement (Second) of Torts, § 46, comment d (1965)).

In addition, "the emotional distress suffered . . . must be

'so severe that no reasonable [person] could be expected to endure

it.'" Ibid. (quoting Restatement, supra, § 46 comment j). "[T]o

be actionable, the claimed emotional distress must be sufficiently

substantial to result in physical illness or serious psychological

sequelae." Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 237

(App. Div. 2014) (quoting Aly v. Garcia, 333 N.J. Super. 195, 204

(App. Div. 2000)), aff'd in part and modified in part, 224 N.J.

584 (2016). "Complaints such as lack of sleep, aggravation,

headaches and depression have been frequently deemed insufficient

as a matter of law." Ibid.; see also Buckley, supra, 111 N.J. at

368 (finding evidence showing plaintiff was aggravated,

embarrassed, had developed headaches, and suffered nervous tension

was "insufficient as a matter of law to support a finding that the

mental distress was so severe that no reasonable [person] could

be expected to endure it").

20 A-4195-14T2
 In Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15

(App. Div. 2011), we recalled conduct that has been found

sufficiently outrageous to support a claim for intentional

infliction of emotional distress:

when a landlord failed to provide central
heating, running water and reasonable security
in a rent controlled building in an effort to
induce the tenants to vacate, 49 Prospect St.
Tenants Ass'n v. Sheva Gardens, Inc., 227 N.J.
Super. 449, 455-57 (App. Div. 1988); when a
doctor allegedly told a child's parents that
he was "suffering from a rare disease which
may be cancerous knowing that the child has
nothing more than a mildly infected appendix,"
Hume v. Bayer, 178 N.J. Super. 310, 319 (Law
Div. 1981); and when an employer referred to
an African American employee as a "jungle
bunny," Taylor v. Metzger, 152 N.J. 490, 512
(1998).

[Id. at 23.]

Cf. Ingraham v. Ortho-McNeil Pharma., 422 N.J. Super. 12, 16-19

(App. Div. 2011) (affirming the dismissal of plaintiff's

intentional infliction of emotional distress claim against her

former employer, finding directions to remove her dead child's

pictures from her cubicle and not talk about the child to co-

workers did not rise to the level of extreme and outrageous conduct

that was atrocious and utterly intolerable), certif. denied, 209

N.J. 100 (2012).

Count six alleges defendants engaged in intentional conduct

by utilizing bad business practices, making demands for disputed

21 A-4195-14T2
payments, calling plaintiff late in the evening, failing to accept

plaintiff's mortgage payments, contacting plaintiff directly while

knowing he was represented by counsel, and filing foreclosure

actions against him.12 It also alleges plaintiff suffered "mental

anguish, damage to [his] reputation, embarrassment, [and]

humiliation." The court correctly dismissed count six. By any

measure, plaintiff failed to aver defendants engaged in conduct

that can be properly characterized as beyond all possible bounds

of decency.13

Count six is also deficient because plaintiff fails to allege

he suffered sufficiently severe emotional distress to support an

intentional infliction of emotional distress claim. Plaintiff's

alleged anguish, embarrassment and humiliation are simply

insufficient to support a claim for intentional infliction of

emotional distress. Buckley, supra, 111 N.J. at 368; Innes, supra,

435 N.J. Super. at 237.

12
We note that plaintiff does not allege the foreclosure actions
were filed without probable cause that he was in default of the
note and mortgage held by defendants.
13
To the extent counts three, four, five, and eight may also be
read to assert claims for intentional infliction of emotional
distress, they were properly dismissed on the same basis. We are
convinced the filing of the foreclosure actions, as alleged in the
complaint, was not extreme or outrageous, and did not exceed all
possible bounds of human decency.

22 A-4195-14T2
 Count ten, which alleges negligent infliction of emotional

distress, suffers from a similar fatal deficiency. "A claim of

direct, negligent infliction of emotional distress requires a

plaintiff to show that the defendant had a duty, the defendant

owed the duty toward the plaintiff, and that the defendant breached

that duty, proximately causing the plaintiff's injury of genuine

and substantial emotional distress." Lascurain v. City of Newark,

349 N.J. Super. 251, 277 (App. Div. 2002).

The same level of emotional distress required for an

intentional infliction of emotional distress claim is required to

sustain a claim for negligent infliction of emotional distress.

"[T]he emotional distress produced by the defendant's tortious

conduct [must be] 'severe.'" Innes, supra, 435 N.J. Super. at 235

(quoting Buckley, supra, 111 N.J. at 367); see also Lascurain,

supra, 349 N.J. Super. at 277 (finding that to establish requisite

emotional distress plaintiff must prove it had "a dramatic impact

on [plaintiff's] every-day activities or on [plaintiff's] ability

to function daily"). Count ten is devoid of any averment that

plaintiff suffered emotional distress and, for that reason, it was

correctly dismissed by the court.

D.

The court dismissed count seven, finding it alleged

defendants wrongfully initiated the foreclosure actions and, to

23 A-4195-14T2
the extent it sought an accounting, did not state a claim because

any dispute concerning the amount due under the mortgage could be

litigated in a foreclosure action under Rule 4:64-1(d). We

disagree.

Count seven alleges plaintiff made mortgage payments and paid

insurance premiums over a lengthy period of time without receiving

proper credit, defendants failed to pay real estate taxes funded

by plaintiff's mortgage payments, and defendants charged plaintiff

for insurance premiums that were improper and never credited.

Moreover, plaintiff could not challenge the alleged amount due

under the mortgage in a foreclosure action because, based on the

averments in the complaint, defendants dismissed the foreclosure

action filed in 2012. Based on our required liberal reading of

allegations, we are therefore satisfied count seven sufficiently

suggests a valid claim for an accounting and reverse the court's

order dismissing count seven. See Onderdonk v. Presbyterian Homes

of N.J., Inc., 85 N.J. 171, 181 n.4 (1981) (noting that the "three

traditional grounds" supporting an order for an accounting are the

"existence of a fiduciary or trust relation, complicated character

of the account, or need of discovery").

E.

In count nine plaintiff alleges defendants' actions violated

the CFA. The court determined plaintiff could not sustain a claim

24 A-4195-14T2
under the CFA because defendants are the assignees of the note and

mortgage and did not sell or advertise any merchandise or real

estate, or otherwise engage in "unlawful conduct" as such terms

have been defined in the CFA. We disagree.

The CFA is remedial legislation intended to apply broadly to

accomplish its purpose in "root[ing] out consumer fraud."

Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 121 (2014)

(quoting Gonzalez v. Wilshire Credit Corp., 207 N.J. 557, 576

(2011)). "The [CFA] . . . provides a private cause of action to

consumers who are victimized by fraudulent practices in the

marketplace." Gonzalez, supra, 207 N.J. at 576. To state a cause

of action under the CFA, a plaintiff must prove three elements:

"(1) an unlawful practice, (2) an ascertainable loss, and (3) a

causal relationship between the unlawful conduct and the

ascertainable loss." Ibid. (quoting Lee v. Carter-Reed Co., 203

N.J. 496, 521 (2010)).

The CFA defines an "unlawful practice" as the "use or

employment by any person of any unconscionable commercial practice

. . . in connection with the sale or advertisement of any

merchandise or real estate, or with the subsequent performance of

such person . . . whether or not any person has been misled,

deceived or damaged thereby." N.J.S.A. 56:8-2 (emphasis added).

Actions taken in connection with "collecting or enforcing a loan,

25 A-4195-14T2
whether by the lender or its assignee, constitutes the 'subsequent

peformance' of a loan, an activity within the coverage of the

CFA." Gonzalez, supra, 207 N.J. at 577-78; see also Jefferson Loan

Co. v. Session, 397 N.J. Super. 520, 538 (App. Div. 2008) (finding

the CFA applies to unconscionable loan collection activities by

an assignee of a retail installment contract).

Count nine, which incorporates by reference the factual

allegations contained in counts one through eight, alleges

defendants engaged in a course of deceitful and unconscionable

conduct in their efforts to enforce and collect the sums due under

plaintiff's loan. The actions alleged include, but are not limited

to, failing to accept and credit plaintiff's mortgage payments in

order to falsely claim he was in default, and demanding payments

for premiums and other purported costs that were improper. Those

allegations were sufficient to state a claim even though plaintiff

failed to allege facts showing improper "advertisement," that is

an "attempt directly or indirectly by publication, dissemination,

solicitation, indorsement or circulation or in any other way to

induce directly or indirectly any person to enter or not enter

into any obligation or acquire any title or interest in any

merchandise or to increase the consumption thereof or to make any

loan." N.J.S.A. 56:8-1(a).

26 A-4195-14T2
 We are therefore satisfied that count nine alleges sufficient

facts to state a claim under the CFA that defendants engaged in

unconscionable loan collection practices, Gonzalez, supra, 207

N.J. at 577-78, and reverse the court's dismissal of the claim.

We are further convinced the court erred in finding plaintiff

failed to state a claim against defendants because they were

assignees of the note and mortgage. As noted, loan collection

efforts undertaken by the "lender or its assignee" fall within the

protections of the CFA. Ibid.

F.

We lastly address count eleven, which simply repeats the

allegations contained in all of the preceding counts but offers

no distinct cognizable cause of action. We need not weed through

the thicket presented in count eleven because we have separately

addressed each of its component allegations, affirmed the

dismissal of some, and reversed the dismissal of others. Because

we are satisfied based on our indulgent reading of count eleven

that its combined allegations do not state a separate and distinct

cause of action, we are convinced it was correctly dismissed by

the court.

In our consideration of the court's dismissal order, we have

accepted as true the complaint's factual allegations as required

in any determination of a motion made under Rule 4:6-2(e). Craig

27 A-4195-14T2
v. Suburban Cablevision, 140 N.J. 623, 625 (1995). We do not offer

any opinion on the merits of any the claims and on remand

defendants may assert any and all defenses.

Affirmed as to the dismissals of counts one, two, three,

four, five, six, eight, ten, and eleven. Reversed as to the

dismissals of counts seven and nine. Remanded for further

proceedings consistent with this opinion. We do not retain

jurisdiction.

28 A-4195-14T2