CAROLYN BAILEY v. ZUCKER, GOLDBERG & ACKERMAN, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CAROLYN BAILEY,

Plaintiff-Appellant,

v.

ZUCKER, GOLDBERG & ACKERMAN, LLC

and MICHAEL S. ACKERMAN, ESQ.,

Defendants-Respondents.

______________________________________

August 26, 2016

Argued January 21, 2016 Decided

Before Judges Fuentes, Koblitz and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8231-13.

Carolyn Bailey, appellant, argued the cause pro se.

Steven A. Kroll argued the cause for respondents (Connell Foley LLP, attorneys; Andrew C. Sayles, of counsel and on the brief; Mr. Kroll, on the brief).

PER CURIAM

At all times relevant to this appeal, plaintiff Carolyn Bailey resided in the home her husband purchased in 1987 for $88,000. He paid an initial $7000 down payment and financed the balance. The record does not disclose the terms of this purchase-money loan. Plaintiff's husband passed in 2005.

In August 2005, Bailey decided to refinance her home. By that time, she had retired from her position as a teacher. Despite her limited financial resources, Columbia Home Loans, L.L.C. (Columbia), approved Bailey's application to refinance the debt secured by her residence. Columbia lent plaintiff $207,000 secured by a mortgage on her property and a promissory note payable over fifteen years, with the last payment due on September 1, 2020. Columbia thereafter assigned the note and mortgage to Wells Fargo Bank.

Plaintiff stopped making payments and defaulted under the terms of the loan documents in 2006. She does not dispute that she has not made any payments on the loan or paid municipal property taxes for the past eight years.1 Wells Fargo retained the law firm Zucker, Goldberg & Ackerman, L.L.C. to prosecute the foreclosure action. Bailey filed an answer challenging Wells Fargo's right to foreclose. On October 27, 2006, the Essex County Chancery Division, General Equity Part granted Wells Fargo's motion for summary judgment, striking Bailey's answer, and transferring the case to the foreclosure unit in Trenton. Bailey's attempt to appeal the General Equity Part's order as of right was rejected as interlocutory by this Court and the Supreme Court.

Undaunted, Bailey filed an action in the United States District Court for the District of New Jersey seeking to remove the case to the federal court. By order August 5, 2008, Judge Katharine S. Hayden denied Bailey's removal motion. Bailey's subsequent efforts to appeal Judge Hayden's order were denied by the Third Circuit Court of Appeals. The foreclosure action was remanded to the State court where it was administratively dismissed for lack of prosecution on July 5, 2013.

On October 21, 2013, plaintiff filed a five count complaint in the Law Division against Zucker, Goldberg & Ackerman, L.L.C., and its managing partner Michael S. Ackerman, alleging common law fraud, consumer fraud under N.J.S.A. 56:8-1 to -20, "aiding and abetting," equitable fraud, negligent misrepresentation, and violation of the New Jersey Racketeer Influenced and Corrupt Organizations Act (RICO), N.J.S.A. 2C:41-1 to -6.2. After joinder of issue, defendants filed a motion on May 23, 2014, seeking to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted pursuant to Rule 4:6-2(e).2

On June 20, 2014, Judge James S. Rothschild, Jr., heard argument on the motion. After considering the history of the foreclosure action, Judge Rothschild granted defendants' motion finding no legal grounds to hold defendants liable for any alleged fraud the original lender or its assignee may have committed against plaintiff. Judge Rothschild found no legal grounds to hold the law firm liable to plaintiff based only on having represented the assignee/mortgagee in the foreclosure action. Judge Rothschild also rejected plaintiff's argument that her suit was not based on professional malpractice because defendants functioned as "debt collectors" in the course of prosecuting the foreclosure action. Plaintiff advanced this argument as a means of avoiding her obligation to serve defendants with the affidavit of merit required under N.J.S.A. 2A:53A-27. Judge Rothschild thereafter denied plaintiff's motion for reconsideration.

Plaintiff now appeals raising a number of arguments unrelated to the legal basis relied on by Judge Rothschild to grant defendants' motion under Rule 4:6-2(e). We affirm.

Although the Law Division granted defendants' motion pursuant to Rule 4:6-2(e), it is well-settled that if a court considers evidence presented by the parties outside the four corners of the pleadings, it must decide the motion under the standards applicable to summary judgment motions codified in Rule 4:46-2(c). R.K. v. D.L., 434 N.J. Super. 113, 121 (App. Div. 2014). We review the grant of a motion for summary judgment de novo. Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012). We also review all facts "in the light most favorable" to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).

With these standards in mind, we discern no legal basis to disagree with Judge Rothschild's decision. Although plaintiff identified five separate theories of liability in her complaint, the alleged underlying facts attempt to assign liability to defendants based on their role in preparing and filing a "fraudulently recorded sham transfer of Plaintiff's real estate property from Wells Fargo Bank to 'US Bank National Association.'" Such alleged misconduct falls within the requirements of the Affidavit of Merit statute. As the Supreme Court recently reaffirmed: "[W]hen asserting a claim against a professional covered by the affidavit of merit statute . . . a claimant should determine if the underlying factual allegations of the claim require proof of a deviation from the professional standard of care for that specific profession." Mortg. Grader, Inc. v. Ward & Olivo, L.L.P., 225 N.J. 423, 443 (2016) (alteration in original) (quoting Couri v. Gardner, 173 N.J. 328, 341 (2002)).

Finally, plaintiff has also failed to allege any facts that would constitute a basis to impose liability upon defendants as a non-client. See Banco Popular N. Am. v. Gandi, 184 N.J. 161, 179-180 (2005). Plaintiff's remaining argument attacking the manner in which Judge Rothschild decided this motion lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 According to defendants, plaintiff continued to reside in the property after default and was residing there as of February 3, 2015.

2 Defendants also filed a motion seeking to dismiss plaintiff's complaint without prejudice pursuant to Rule 4:23-5(a)(1) for failure to respond to interrogatories. After granting defendants' dispositive motion, the trial court declined to decide the discovery motion as moot.