NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3318-24
PAMELA HERBERT, on behalf of herself and all others similarly situated,
Plaintiff-Respondent,
v.
OCEANFIRST BANK,
Defendant-Appellant. ___________________________
Argued December 16, 2025 – Decided January 28, 2026
Before Judges Gooden Brown and Torregrossa- O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1571-24.
Eric T. Werlinger (Kattan Muchin Rosenman LLP) of the District of Columbia, Commonwealth of Virginia, and Texas bars, admitted pro hac vice, argued the cause for appellant (Brown & Connery, LLP and Eric T. Werlinger, attorneys; Joseph M. Garemore, Stuart M. Richter (Kattan Muchin Rosenman LLP) of the California, Montana and Wyoming bars, admitted pro hac vice, and Eric T. Werlinger, on the briefs). Vess A. Miller (CohenMalad, LLP) of the Indiana and California bars, admitted pro hac vice, argued the cause for respondent (Weitz & Luxenberg, PC and Vess A. Miller, attorneys; James K. Bilsborrow and Vess A. Miller, on the brief).
PER CURIAM
Defendant OceanFirst Bank appeals from a May 13, 2025 Law Division
order denying its motion to compel arbitration of the class action claims brought
against it by plaintiff, Pamela Herbert, defendant's banking customer.
OceanFirst contends the trial court erred in finding unenforceable an arbitration
provision OceanFirst added to the parties' previously jointly-executed account
agreement without express acceptance by plaintiff. The court found the parties'
initial account agreement required any changes be made by "written agreement
properly executed" by both parties, which OceanFirst failed to secure when it
shifted the onus to plaintiff to actively decline the new arbitration provision or
assent by her silence after providing notice solely by an insert in her monthly
account statement. Accordingly, the court deemed the arbitration provision
unenforceable as OceanFirst violated the initial agreement by imposing an
arbitration requirement without proof of mutual assent. After review of the
record under applicable legal principles, we affirm.
A-3318-24 2 I.
A. The Initial Agreement and the Subsequent Arbitration Provision
On May 18, 2013, plaintiff opened a checking account with OceanFirst
subject to the parties' written account agreement. The first two paragraphs of
the section entitled "account agreement" provided:
GENERAL - . . . This Agreement and the documents to which it refers constitute our entire agreement and understanding and supersede all prior agreements and understandings. This Agreement may only be changed by written agreement properly executed by you and us and may not be changed orally. TERMS - When you open a deposit account with us by signing a Signature Card, you are agreeing to the terms of this Agreement, the General Terms and Conditions Savings and the Fee Schedule as amended from time to time. The terms in this Agreement and the General Terms and Conditions constitute a legally binding contract. Please note that the contract can only be modified as provided in the Agreement. Furthermore, the account(s) will be subject to the laws, rules and regulations of the State of New Jersey and of the United States. Any changes in any of the foregoing that may become effective in the future will also govern the account.
[(Emphasis added).]
Several paragraphs later, the agreement provided: "AMENDMENTS -
We may amend the terms of this Agreement at any time by sending you written
A-3318-24 3 notice at the most current address listed in our records before the change in terms
is to take place." (Emphasis added).
In 2014, OceanFirst attempted to add an arbitration provision to its
agreements by a written insert in its customers' February or March monthly
account statements, via mail through "a third-party vendor." OceanFirst
maintained plaintiff's notice would have been included in her March 2014
statement.
The notice contained an agreement to arbitrate claims related to the
account and a waiver of any right to bring individual or class action claims in
court. Specifically, the arbitration provision read:
ARBITRATION AGREEMENT
This document contains important information concerning your account(s). Please read it carefully. Your Account Agreement(s) are being amended to include the following Arbitration Agreement. This amendment applies to all Account Agreements. If you do not want this Arbitration Agreement to apply, you have the right to reject it under the section called, "Right to Reject," below.
....
Each of you and OceanFirst agree that any controversy or claim arising out of or relating to your account(s), this Agreement or any breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules . . . . Except as provided
A-3318-24 4 in the following sentence, to the fullest extent permitted by law, each of you and OceanFirst agree to waive its rights (1) to seek remedies in court, including any right to a jury trial; and/or (2) to participate in a class action or to join or consolidate claims with claims of any other person either in court or through arbitration. Nothing contained herein shall restrict either party from seeking temporary injunctive relief in a court of law or filing matters in Small Claims Court.
[(Emphasis omitted).]
The notice included the following "opt-out" language:
RIGHT TO REJECT - If you do not want this Arbitration Agreement to apply, you may notify us by contacting your local Branch calling Retail Customer Services at [(phone number and extension)] or by email to righttoreject@oceanfirst.com within [thirty] days of receipt of this document. The rejection notice must include your name and account number(s) and tell us that you are rejecting the Arbitration Agreement.
OceanFirst did not present proof of mailing specifically to plaintiff, and
confirmed plaintiff never contacted the Bank to object to the change. Plaintiff
certified she never saw the notice, had no reason to believe she ever received it,
and never agreed to arbitrate or forego her right to bring suit in court, nor would
she if properly advised of the proposed forum change. It was undisputed
OceanFirst's records reflected plaintiff's correct mailing address and account
notices, new debit cards, and other mailings were sent to plaintiff at that address
on many occasions.
A-3318-24 5 B. Motion to Compel Arbitration
In June 2024, plaintiff filed a Class Action Complaint with jury demand
alleging, on behalf of herself and the class, breach of contract, unjust
enrichment, and Consumer Fraud Act 1 violations. The substantive claims,
immaterial to our narrow procedural considerations here, arose from
overarching allegations OceanFirst improperly charged multiple fees to plaintiff
and "thousands of other[]" customers, making "substantial" unearned profit. In
the fall of 2024, OceanFirst moved to compel arbitration, seeking to enforce the
arbitration provision as a permissible unilateral amendment under the initial
agreement, made on written notice to plaintiff without objection. Plaintiff
contended the arbitration provision constituted a material change to the initial
agreement which could only be made by written agreement executed by the
parties.
Two months later, the court held oral argument and noted the tension
between the two provisions in the parties' initial account agreement, describing
it "[wa]s clearly weird that in one sentence, [OceanFirst] sa[id] that any
amendment has to be executed by the parties and then in a sentence later, [it]
sa[id], 'That's not true, we can amend anything by simply sending you notice.'"
1 N.J.S.A. 56:8-1 et seq. A-3318-24 6 The court then denied the motion without prejudice to allow for limited
discovery to further explore "some issues of fact" regarding the enforceability
of the arbitration provision.
Discovery was exchanged, and plaintiff was deposed on the narrow issue
of the arbitration provision. She reiterated she never saw, nor to her knowledge
received, any notice regarding the arbitration provision, and would have
objected if she had. She confirmed receiving written monthly statements and
items such as debit cards in the mail from OceanFirst over the course of the
banking relationship. She described what she considered to be "[a]dvertising
offers" often included with her monthly statements. She also indicated she
received written notices about overdrafts in the mail from OceanFirst.
OceanFirst offered a certification from an operations manager, explaining,
only generally, the Bank's regular business practice of sending notices and
statements through a third-party mailer to "the mailing address on file with the
Bank." The manager attached proof of two notices from the Bank appearing to
have been sent to plaintiff's mailing address in 2021 and 2022, but provided no
specific information related to mailing any notice to plaintiff of the 2014
arbitration provision.
A-3318-24 7 The manager's certification provided only that the notice of arbitration
agreement "change was reflected in a standalone change of terms notice, which
was sent by OceanFirst's third-party vendor Fidelity Information Services (FIS)
with customers' February 2014 or March 2014 account statements, depending
upon the customer's statement cycle." The manager represented, without any
further detail, the notice was cut and inserted with the statement mailings, and
"[b]ased on OceanFirst's regular business practice," plaintiff's March 2014
statement was sent to her home. The manager clarified OceanFirst's practice
when a customer "opted out" of the arbitration provision was to "place[] an
indicator on the customer's account reflecting the customer had rejected the
[a]rbitration [p]rovision." Records of plaintiff's account reflected no opt-out
indication.
A short certification from a representative of the Bank's third-party mailer
confirmed in 2014 OceanFirst "contracted [with FIS] to mail account statements,
inserts to those statements, and certain other documents to OceanFirst
customers." The FIS representative further certified the company "regularly
mailed inserts on [defendant's] behalf" and attached to the certification general
internal instructions for "fulfilling" any mailing services for OceanFirst. No
corresponding addresses, mailing lists, or proof of notification to specific
A-3318-24 8 customers were provided regarding any OceanFirst mailings; nor was there any
mention of the 2014 arbitration mailing specifically to plaintiff, or even
generally to customers.
Thereafter, OceanFirst again moved to compel arbitration, reprising its
earlier arguments. OceanFirst argued: (1) arbitration agreements must be
treated as any other contract amendment which may be amended on notice by
one party and failure to "opt out" by the other; (2) "banks make changes to their
agreements constantly [because] [t]hey're required by law" to do so, and "[i]f
they have to get a signature every time an account is changed, it 's just not
workable"; (3) the initial account agreement's "specific" amendment-by-notice
provision controls over the "general" paragraph requiring changes be made in
writing and executed by the parties; and (4) plaintiff manifested her assent by
continuing to utilize her account for years after the notice.
OceanFirst's counsel emphasized plaintiff admitted to receiving her
monthly bank statements in the mail. In response, the court noted, "99.99999[%]
of people only look at the statement where it relates to the numbers, the money
in their account itself[.] . . . In fact, if I brought it, they even have notices of how
much charitable work they do and stuff like that. Nobody reads that." The court
A-3318-24 9 added OceanFirst could have sent the arbitration provision "outside of th[e]
statement saying, 'We're changing your agreement. We need you to sign this.'"
Plaintiff argued: (1) OceanFirst presented no "firsthand" proof of specific
mailing of the arbitration provision to her and plaintiff never saw it and believed
she "never received it"; (2) regardless, the notice by "bill[-]stuffer" was
insufficient and easily disregarded as "junk at the end of the statement"; (3) the
arbitration provision is unenforceable because the account agreement required
any change be made in writing and executed by the parties; and (4) any
conflicting provisions in the initial agreement must be construed against
OceanFirst as the drafter.
The court denied the motion to compel arbitration, finding the arbitration
provision unenforceable for lack of assent. The trial court gave force to the
initial account agreement's language requiring any change be made in writing
and executed by the parties. The court viewed the contract language, applying
"rules of common sense," and stated:
When I read . . . where it says change by . . . written agreement properly executed, common sense leads me to believe that you have to execute a document, not – it's not talking about performance. It's talking about signing an agreement. To me, it's so clear and it's for the court to interpret documents. That's on me. That wouldn't go to a [j]ury.
A-3318-24 10 The trial court then reconciled the first paragraph with the subsequent
"amendments" language. Rejecting OceanFirst's claim the amendments
provision was more specific and controlled the analysis, the court found the two
provisions could be "read consistently." Specifically, the court explained:
One paragraph talks about changes. One paragraph talks about amendments. How do we make sense of that? Well, this agreement, original agreement, had a lot of terms in it. Those terms can be amended. You have an interest rate. I want to amend that interest rate. I send you notice of that. Adding a term that wasn't in there to begin with is a change, not an amendment. That's what the [c]ourt finds.
Consequently, to add -- an arbitration agreement that wasn't in there to begin with, you had to have her sign for that change.
Thus, in these circumstances, the court found "no enforceable arbitration
agreement." Deciding the motion on that basis, the court declined to address the
sufficiency of notice or receipt by plaintiff.
II.
On appeal, OceanFirst argues the court erred in finding the arbitration
provision unenforceable because (1) the added arbitration agreement was a
proper "amendment" under the initial account agreement effectuated through
notice and an "opportunity to opt out," and the initial agreement's "no oral
modification clause is just a general contract term . . . [and] does not create a
A-3318-24 11 second pathway for revising the contract separate and apart from the amendment
provision"; (2) "execute" does not mean "sign," and plaintiff "executed" the
arbitration agreement by continuing to do business and not "opting out"; and (3)
requiring signatures to banking account amendments would result in "chaos."
OceanFirst next contends, although the court made no findings regarding
actual notice to plaintiff, should we determine notice of the arbitration
agreement by mail did not alone render the arbitration provision unenforceable,
we must conclude plaintiff received sufficient notice of the arbitration provision.
It asserts the record presumptively establishes notice, and "plaintiff failed to
rebut a presumption of receipt." Finally, OceanFirst argues plaintiff's failure to
opt out on sufficient notice, coupled with her continued use of the account
constituted "acceptance" of the arbitration provision.
Plaintiff contends the trial court properly found compelling arbitration
would violate the initial account agreement, which, read in its entirety, required
such a change be made in writing signed by the plaintiff. She argues the court
properly reconciled the "execution" requirement with the notice and opt-out
provision to reach this conclusion, but contends, even assuming execution by
signature was not required, the arbitration agreement is nonetheless
unenforceable, as the record does not establish plaintiff received notice of the
A-3318-24 12 change. Alternatively, plaintiff contends even assuming proper notice, her
assent to arbitration cannot be properly derived from silence alone.
III.
Like our review of "the enforceability of [any] contract[]," Goffe v.
Foulke Mgmt. Corp., 238 N.J. 191, 207 (2019) (citing Hirsch v. Amper Fin.
Servs., LLC, 215 N.J. 174, 186 (2013)), "[w]e review a trial court's order
granting or denying a motion to compel arbitration de novo because the validity
of an arbitration agreement presents a question of law," Ogunyemi v. Garden
State Med. Ctr., 478 N.J. Super. 310, 315 (App. Div. 2024) (citing Skuse v.
Pfizer, Inc., 244 N.J. 30, 46 (2020)).
A motion to compel arbitration should be denied if no agreement to
arbitrate existed as "[a]n arbitration agreement is valid only if the parties
intended . . . to do so." Kernahan v. Home Warranty Adm'r of Fla., Inc., 236
N.J. 301, 317 (2019) (quoting Volt Info. Scis. v. Bd. of Trs., 489 U.S. 468, 478
(1989)) (internal quotation marks omitted). Fundamentally, arbitration is only
appropriate "when an agreement exists between the parties to arbitrate." Hirsch,
215 N.J. at 196.
When evaluating the enforceability of arbitration provisions, "courts
'apply ordinary state-law principles that govern the formation of contracts.'"
A-3318-24 13 Cottrell v. Holtzberg, 468 N.J. Super. 59, 69 (App. Div. 2021) (citing Kernahan,
236 N.J. at 307); see also Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430,
441 (2014). Further, "the proponent of arbitration . . . ha[s] the burden to
establish the existence of an agreement to arbitrate between" the parties. Merrill
Lynch, Pierce, Fenner & Smith, Inc. v. Cantone Rsch., Inc., 427 N.J. Super. 45,
59 (App. Div. 2012).
Critically, "[a]n arbitration agreement must be the result of the parties'
mutual assent, according to customary principles of state contract law." Skuse,
244 N.J. at 48 (citing Atalese, 219 N.J. at 442); see also Santana v.
SmileDirectClub, LLC, 475 N.J. Super. 279, 285-86 (App. Div. 2023). As such,
"there must be a meeting of the minds for an agreement to exist before
enforcement is considered." Skuse, 244 N.J. at 48 (quoting Kernahan, 236 N.J.
at 319).
Importantly, "[n]o 'talismanic recitations' are required" for mutual assent.
Cottrell, 468 N.J. Super. at 70 (quoting Kernahan, 236 N.J. at 320). "Mutual
assent requires that the parties have an understanding of the terms to which they
agreed." Knight v. Vivint Solar Dev., LLC, 465 N.J. Super. 416, 425 (App. Div.
2020) (quoting Atalese, 219 N.J. at 442). "Thus, [i]n the absence of a consensual
understanding, neither party is entitled to force the other to arbitrate."
A-3318-24 14 Capparelli v. Lopatin, 459 N.J. Super. 584, 610 (App. Div. 2019) (alteration in
original) (quoting Quigley v. KPMG Peat Marwick, LLP, 330 N.J. Super. 252,
271 (App. Div. 2000)) (internal quotation marks omitted). Both parties must
have "clearly and unambiguously" agreed. Atalese, 219 N.J. at 443.
"[B]ecause arbitration involves a waiver of the right to pursue a case in a
judicial forum, 'courts take particular care in assuring the knowing assent of both
parties to arbitrate, and a clear mutual understanding of the ramifications of that
assent,'" with the specific purpose of "assur[ing] that the parties know that in
electing arbitration as the exclusive remedy, they are waiving their time-honored
right to sue." Wollen v. Gulf Stream Restoration & Cleaning, LLC, 468 N.J.
Super. 483, 498 (App. Div. 2021) (first quoting Atalese, 219 N.J. at 442-43; then
quoting Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282 (1993)). It is
crucial that the parties must "have full knowledge of [their] rights" and show an
"intent to surrender those rights." Atalese, 219 N.J. at 442-43.
A.
Against this backdrop, we first consider OceanFirst's argument the court
erred in finding enforcement of the arbitration provision would violate the terms
of the parties' initial account agreement. Analyzing the contracts "under the
familiar rules of contract interpretation," Serico v. Rothberg, 234 N.J. 168, 178
A-3318-24 15 (2018), we conclude, as did the trial court, the arbitration provision is
unenforceable.
"A basic tenet of contract interpretation is that contract terms should be
given their plain and ordinary meaning." Kernahan, 236 N.J. at 321. Courts
must "read the document as a whole" and "give a faithful and logical reading to
the words chosen by the parties to the agreement." Boyle v. Huff, 257 N.J. 468,
478 (2024) (first quoting Hardy ex rel. Dowdell v. Abdul-Matin, 198 N.J. 95,
103 (2009); then quoting GMAC Mortg., LLC v. Willoughby, 230 N.J. 172, 183
(2017)). Further, "a specific, defined term controls a general, undefined term[,]"
Gil v. Clara Maass Med. Ctr., 450 N.J. Super. 368, 378 (App. Div. 2017), and
any ambiguity "should be construed against the drafter because . . . the
drafter . . . chose the words," Roach v. BM Motoring, LLC, 228 N.J. 163, 174
(2017) (quoting Kieffer v. Best Buy, 205 N.J. 213, 224 (2011)).
Here, the express terms of the initial account agreement unambiguously
stated the agreement "may only be changed by written agreement properly
executed by [both parties] and may not be changed orally." (Emphasis added).
We are not persuaded the agreement's later provision stating OceanFirst "may
amend th[e] [a]greement . . . by sending you written notice at the most current
A-3318-24 16 address . . . before the change in terms is to take place" supplanted the contract's
earlier clear execution requirement governing any changes to the agreement.
Here, OceanFirst, the drafter of its agreements with its customers,
intentionally chose to mandate that changes could "only" be made in one
manner—by written, not oral agreement, properly executed. This specific
choice of unambiguously precise and restrictive language undermines
OceanFirst's claim the provision is "general" and broad, and consequently
subordinate to the later amendment-on-notice language in the agreement. We
are thus unable to conclude the amendment provision somehow negated or
rendered superfluous the agreement's deliberate and specific requirements for
changing the contract.
The trial court fairly reconciled the amendment provision as applicable to
only modification of certain existing terms, such as interest rates, not to the
addition of new terms of magnitude, such as mandating the forum for dispute
resolution and terminating a customer's constitutional right to access to courts.
We further note the amendment provision's plain language simply provided
OceanFirst "may amend" via advance written notice to the customer's "most
recent address," which could, as plaintiff suggests, be read to add a requirement,
not remove one.
A-3318-24 17 We can derive no fair interpretation of the "written" and "executed"
language, even taken together with the remaining agreement provisions, which
would allow lawful imposition of a wholly new arbitration term by means of
unilateral written notice by mail. See Discover Bank v. Shea, 362 N.J. Super.
200, 209, 215 (Law Div. 2001) (finding unenforceable an arbitration agreement
a bank sought to unilaterally add to its account agreement by "bill stuffer" in
customer's monthly statement); Badie v. Bank of Am., 79 Cal. Rptr. 2d 273,
287-89 (Cal. Ct. App. 1998) (invalidating an arbitration agreement imposed via
"bill stuffer," reasoning, "permitting the Bank to exercise its unilateral rights
under the change of terms provision, without any limitation on the substantive
nature of the change permitted, would open the door to a claim that the
agreements are illusory").
Further, any claim by OceanFirst of "chaos" resulting from this
interpretation is speculative and any risk flows directly from OceanFirst's
unilaterally-chosen language. See GMAC Mortg., LLC, 230 N.J. at 185-86
(holding "[the drafter] cannot complain about the language it penned" and "[w]e
cannot 'rewrite a contract for the parties better than or different from the one
they wrote for themselves'" (quoting Kieffer, 205 N.J. at 223)).
A-3318-24 18 Moreover, even if the provisions cannot be harmonized, they create an
ambiguity, requiring, in these circumstances, construction in favor of plaintiff.
See Pacifico v. Pacifico, 190 N.J. 258, 267 (2007) (in situations of unequal
bargaining power, "[w]hen a contract term is ambiguous, th[e] rule[s] of contract
interpretation require[] a court to adopt the meaning that is most favorable to the
non-drafting party . . . after a court has examined the terms of the contract, in
light of the common usage and custom, and considered the circumstances
surrounding its execution" (citing 5 Corbin on Contracts § 24.27 (Perillo ed.,
rev. ed. 1998))). Plainly, plaintiff was not on equal footing in the creation of
the initial account agreement or any later arbitration agreement with OceanFirst.
Thus, the inexorable conclusion remains—the addition of an arbitration
agreement was required to be made "by written agreement" and "properly
executed" by the parties and could not be made by unilateral mailing and "opt-
out" notice inserted with a monthly statement.
B.
In applying the contract's requirements, we similarly reject OceanFirst's
claim its use of the term "executed" did not mean "signed." Although the word
"executed" is open in certain circumstances to an alternative meaning, such an
interpretation does not lend itself here.
A-3318-24 19 We have previously recognized "[a]n executed document is one that has
been signed." Wells Reit II-80 Park Plaza, LLC v. Dir., Div. of Tax'n, 414 N.J.
Super. 453, 465 (App. Div. 2010) (internal quotation marks omitted) . Indeed,
"signed" is a primary definition of the legal term "executed." See Black's Law
Dictionary 712 (12th ed. 2024) (defining the term "executed" first as a "a
document[] that has been signed"). A varying definition provides execution may
occur when something "has been done, given, or performed." Ibid.
Placed in clear context here, however, we can only conclude the initial
agreement's language mandating changes occur via "written agreement properly
executed" required a signature, as interpreting "executed" as meaning by
conduct or performance ignores the surrounding language and purpose of the
provision. Most significantly, it overlooks and negates the companion
requirement that any change be made by written, not oral, agreement by both
parties. OceanFirst's claims to the contrary lack merit upon a plain reading of
its agreement.
Nevertheless, even if we were to accept for purposes of argument that a
change to the initial agreement could be "executed" without a signature,
sufficient proof of notice and assent to the new provision would be required.
OceanFirst contends it established sufficient notice to plaintiff. For
A-3318-24 20 completeness, we have considered this, and OceanFirst's remaining arguments,
which likewise fail.
Significantly, assuming no signature requirement existed, the parties'
initial account agreement made no mention of an opt-out procedure for
unilaterally imposed changes, such as the one utilized by OceanFirst to notify
plaintiff it was imposing an arbitration requirement. Thus, the initial agreement
never advised or placed plaintiff on notice her failing to affirmatively object to
or decline OceanFirst's changes to her agreement would functionally suffice as
her affirmative assent to their imposition.
We recognize generally "mutual assent . . . can be prove[n] by an explicit
agreement to modify, or . . . by the actions and conduct of the parties, so long as
the intention to modify is mutual and clear." Elliott & Frantz, Inc. v. Ingersoll-
Rand Co., 457 F.3d 312, 322 (3d Cir. 2006) (second omission in original)
(quoting Cnty. of Morris v. Fauver, 153 N.J. 80, 99 (1998)) (internal quotation
marks omitted). However, while "conduct can constitute contractual assent,"
Skuse, 244 N.J. at 50 (an employee agreed to arbitration when she clicked
"CLICK HERE to acknowledge"), "[s]ilence does not ordinarily manifest
assent" to an agreement, Weichert Co. Realtors v. Ryan, 128 N.J. 427, 436
(1992). "A proposed modification by one party to a contract must be accepted
A-3318-24 21 by the other to constitute mutual assent to modify" and one-sided "actions made
after an agreement has been reached or [statements] added to a completed
agreement [do not] . . . modify the original terms of a contract, especially where
the other party does not have knowledge of the changes, because knowledge and
assent are essential to an effective modification." Cnty. of Morris, 153 N.J. at
100.
We cannot conclude the initial account agreement, silent as to arbitration
or dispute resolution forum, placed plaintiff on notice she might be compelled
to abdicate her right to sue in court, individually or as part of a class, and
arbitrate any future claims without her affirmative assent by simply failing to
"opt out." "An arbitration provision is not enforceable unless the consumer has
reasonable notice of its existence." Wollen, 468 N.J. Super. at 498 (citing
Hoffman v. Supplements Togo Mgmt., LLC, 419 N.J. Super. 596, 609 (App.
Div. 2011)) (internal quotation marks omitted). We are unpersuaded plaintiff
was on sufficient notice of or accepted an "assent-by-opt-out" alternative to
affirmative assent to arbitrate her claims.
Here, although the trial court did not reach the issue of notice, OceanFirst
invites us to conclude its 2014 mailing properly notified plaintiff of the new
arbitration agreement and the requirement that she could "opt out" to reject it,
A-3318-24 22 rendering the arbitration agreement enforceable. Again, we do not agree the
initial agreement allowed for imposition of an arbitration agreement by
operation of plaintiff's inaction on mailed notice. Nonetheless, accepting
OceanFirst's invitation to assess whether it established presumptive receipt by
plaintiff of its notice of arbitration agreement, we are not convinced.
We have long "recognized a presumption that mail properly addressed,
stamped, and posted was received by the party to whom it was addressed." SSI
Med. Servs. v. HHS, Div. of Med. Assistance & Health Servs., 146 N.J. 614,
621 (1996). In order to benefit from the "presumption that mail properly
addressed, stamped, and posted was received by the party to whom it was
addressed," the proponent must show "(1) that the mailing was correctly
addressed; (2) that proper postage was affixed; (3) that the return address was
correct; and (4) that the mailing was deposited in a proper mail receptacle or at
the post office." Ibid. OceanFirst, relying on sweepingly general evidence of
its routine practice and custom, failed to make a sufficient showing.
Crucially, "evidence of office custom alone is insufficient to trigger the
presumption of mailing and receipt." Id. at 622. "Evidence of office custom
requires other corroboration that the custom was followed in a particular
A-3318-24 23 instance, in order to raise a presumption of mailing and receipt and meet the
preponderance of the evidence standard." Id. at 622-23.
OceanFirst established plaintiff's account records reflected her correct
address, defendant's address was routinely used as the return address on account
statements sent via third-party mailer, and plaintiff admitted she received other
OceanFirst mailings at her home. However, OceanFirst failed to present any
specific evidence pertinent to this particular mailing to plaintiff. We note the
sparse two-page certification of the third-party mailer's representative lacked
any specificity to the general mailing of the arbitration provision to customers
or the specific mailing to plaintiff. Records of unrelated notices mailed to
plaintiff's address roughly seven years later add no probative value. Without so
much as a mailing list including plaintiff among intended recipients of the new
arbitration agreement, there can be no viable argument OceanFirst surmounted
the threshold for establishing plaintiff's presumptive receipt.
Accordingly, there can be no fair conclusion plaintiff lawfully assented to
the unilaterally-imposed arbitration requirement and waiver of class action by
failing to opt out of a provision about which she had no proven notice. To the
extent we have not addressed any remaining arguments raised by defendant , we
A-3318-24 24 have determined they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3318-24 25