NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3463-22
RANDY HOPKINS, on behalf of himself and those similarly situated,
Plaintiff-Appellant,
v.
CONVERGENT OUTSOURCING, INC.,
Defendant-Respondent. __________________________
Argued March 12, 2025 – Decided May 2, 2025
Before Judges Mayer and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0342-23.
Philip D. Stern argued the cause for appellant (Kim Law Firm LLC, attorneys; Philip D. Stern and Yongmoon Kim, on the briefs).
Aaron R. Easley argued the cause for respondent (Sessions Israel and Shartle, LLC, attorneys; Aaron R. Easley and Jay I. Brody, on the brief). PER CURIAM
Plaintiff Randy Hopkins, on behalf of himself and those similarly situated,
appeals from the May 31, 2023 Law Division order granting defendant
Convergent Outsourcing, Inc.'s motion to dismiss plaintiff's complaint for
failure to state a claim. We affirm.
Plaintiff incurred a debt and the lender transmitted that debt to defendant,
a debt collector. Defendant engaged a third-party letter vendor to draft, print,
address and mail a collection letter to plaintiff. The letter included plaintiff's
account number, the amount due to the lender and plaintiff's full name and
address.
In February 2023, plaintiff filed a four-count purported class action
complaint alleging violations of the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. §§ 1692 to 1692p; violations of the Consumer Fraud Act
(CFA), N.J.S.A. 56:8-1 to -229; negligence and invasion of privacy, based on
defendant's sharing plaintiff's personal information to a third party. Defendant,
in lieu of an answer, moved to dismiss the complaint pursuant to Rule 4:6-2(e).
After hearing oral argument, Judge Darren Del Sardo granted defendant's
motion and dismissed the complaint in a May 31, 2023 order accompanied by a
thorough and cogent written decision. The judge noted the plain language of
A-3463-22 2 the FDCPA prohibits a debt collector from communicating, "in connection with
the collection of any debt, with any person other than the consumer, his attorney,
a consumer reporting agency if otherwise permitted by law, the creditor, the
attorney of the creditor, or the attorney of the debt collector." 15 U.S.C. §
1692c(b). The judge found "[t]he allegations presented by plaintiff in this case
do not reflect the concerns espoused by Congress and would require an overly
rigid reading of the statute." After reviewing the legislative history of the
FDCPA, the judge dismissed the claim, reasoning:
Unlike the persons who could inflict harm upon plaintiff through the disclosure of plaintiff's debt information, disclosure to a letter vendor of basic debt information does not fall within the purview of Congressional concerns. Congress intended to prevent harmful debt collection practices; disclosure of debt information to a letter vendor is not the type of disclosure contemplated by Congress. Indeed, plaintiff is unable to demonstrate what direct harm the disclosure has caused and has not shown that disclosure of information to a letter vendor for the sole purpose of mailing constitutes the type of harmful practice sought to be prevented by Congress.
Next, the judge dismissed plaintiff's CFA claim because "'improper
disclosure' of debtor information to a third-party letter vendor . . . alone [did
not] constitute[] an unconscionable practice under the CFA or that any other
A-3463-22 3 alleged unconscionable practice was engaged in by defendant." The judge
further found plaintiff had not suffered an ascertainable loss.
The judge also dismissed plaintiff's negligence claim because "plaintiff
ha[d] not presented an independent basis to impose some duty upon the
defendant" and plaintiff had not shown any damages resulting from defendant's
alleged negligence.
Finally, the judge dismissed plaintiff's claim of invasion of privacy
because defendant
did not engage in conduct violating the FDCPA and did not have an obligation to refrain from disclosure to the mail vendor of debtor information for the purpose of mailing generation. Moreover, plaintiff's complaint is absent an allegation that defendant actually disclosed debtor information so as to publish same to a real person or disclose said information in a way that would result in publicity of private facts.
This appeal follows.
We review de novo a motion to dismiss for failure to state a claim pursuant
to Rule 4:6-2(e). Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157, 171 (2021)
(citing Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl,
P.C., 237 N.J. 91, 108 (2019)).
In considering a Rule 4:6-2(e) motion, "[a] reviewing court must examine
'the legal sufficiency of the facts alleged on the face of the complaint,' giving
A-3463-22 4 the plaintiff the benefit of 'every reasonable inference of fact.'" Ibid. (quoting
Dimitrakopoulos, 237 N.J. at 107). "The essential test [for determining the
adequacy of a pleading] is simply 'whether a cause of action is "suggested" by
the facts.'" Green v. Morgan Props., 215 N.J. 431, 451-52 (2013) (quoting
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). "At
this preliminary stage of the litigation the [c]ourt is not concerned with the
ability of [the] plaintiff to prove the allegation contained in the complaint."
Printing Mart-Morristown, 116 N.J. at 746.
"[I]f the complaint states no claim that supports relief, and discovery will
not give rise to such a claim, the action should be dismissed." Dimitrakopoulos,
237 N.J. at 107. "A trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995).
On appeal, plaintiff largely reprises the same arguments raised before the
motion judge: his claims should not be dismissed. We disagree, addressing
plaintiff's claims in turn.
In order to establish an FDCPA claim, a plaintiff must demonstrate: (1)
the plaintiff is a consumer; (2) the defendant is a debt collector; (3) the
A-3463-22 5 challenged practice involves an attempt to collect a "debt" as defined by the
FDCPA; and (4) the defendant violated the FDCPA in attempting to collect the
debt. Midland Funding LLC v. Thiel, 446 N.J. Super. 537, 549 (App. Div. 2016)
(quoting Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir.
2014)). Here, the trial judge correctly considered legislative intent to determine
whether the alleged conduct violated the FDCPA.
In examining the plain meaning of a statute, "the Legislature's intent is
paramount and, generally, the statutory language is the best indicator of that
intent." Hodges v. Sasil Corp., 189 N.J. 210, 223 (2007).
Free access — add to your briefcase to read the full text and ask questions with AI
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-3463-22
RANDY HOPKINS, on behalf of himself and those similarly situated,
Plaintiff-Appellant,
v.
CONVERGENT OUTSOURCING, INC.,
Defendant-Respondent. __________________________
Argued March 12, 2025 – Decided May 2, 2025
Before Judges Mayer and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0342-23.
Philip D. Stern argued the cause for appellant (Kim Law Firm LLC, attorneys; Philip D. Stern and Yongmoon Kim, on the briefs).
Aaron R. Easley argued the cause for respondent (Sessions Israel and Shartle, LLC, attorneys; Aaron R. Easley and Jay I. Brody, on the brief). PER CURIAM
Plaintiff Randy Hopkins, on behalf of himself and those similarly situated,
appeals from the May 31, 2023 Law Division order granting defendant
Convergent Outsourcing, Inc.'s motion to dismiss plaintiff's complaint for
failure to state a claim. We affirm.
Plaintiff incurred a debt and the lender transmitted that debt to defendant,
a debt collector. Defendant engaged a third-party letter vendor to draft, print,
address and mail a collection letter to plaintiff. The letter included plaintiff's
account number, the amount due to the lender and plaintiff's full name and
address.
In February 2023, plaintiff filed a four-count purported class action
complaint alleging violations of the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. §§ 1692 to 1692p; violations of the Consumer Fraud Act
(CFA), N.J.S.A. 56:8-1 to -229; negligence and invasion of privacy, based on
defendant's sharing plaintiff's personal information to a third party. Defendant,
in lieu of an answer, moved to dismiss the complaint pursuant to Rule 4:6-2(e).
After hearing oral argument, Judge Darren Del Sardo granted defendant's
motion and dismissed the complaint in a May 31, 2023 order accompanied by a
thorough and cogent written decision. The judge noted the plain language of
A-3463-22 2 the FDCPA prohibits a debt collector from communicating, "in connection with
the collection of any debt, with any person other than the consumer, his attorney,
a consumer reporting agency if otherwise permitted by law, the creditor, the
attorney of the creditor, or the attorney of the debt collector." 15 U.S.C. §
1692c(b). The judge found "[t]he allegations presented by plaintiff in this case
do not reflect the concerns espoused by Congress and would require an overly
rigid reading of the statute." After reviewing the legislative history of the
FDCPA, the judge dismissed the claim, reasoning:
Unlike the persons who could inflict harm upon plaintiff through the disclosure of plaintiff's debt information, disclosure to a letter vendor of basic debt information does not fall within the purview of Congressional concerns. Congress intended to prevent harmful debt collection practices; disclosure of debt information to a letter vendor is not the type of disclosure contemplated by Congress. Indeed, plaintiff is unable to demonstrate what direct harm the disclosure has caused and has not shown that disclosure of information to a letter vendor for the sole purpose of mailing constitutes the type of harmful practice sought to be prevented by Congress.
Next, the judge dismissed plaintiff's CFA claim because "'improper
disclosure' of debtor information to a third-party letter vendor . . . alone [did
not] constitute[] an unconscionable practice under the CFA or that any other
A-3463-22 3 alleged unconscionable practice was engaged in by defendant." The judge
further found plaintiff had not suffered an ascertainable loss.
The judge also dismissed plaintiff's negligence claim because "plaintiff
ha[d] not presented an independent basis to impose some duty upon the
defendant" and plaintiff had not shown any damages resulting from defendant's
alleged negligence.
Finally, the judge dismissed plaintiff's claim of invasion of privacy
because defendant
did not engage in conduct violating the FDCPA and did not have an obligation to refrain from disclosure to the mail vendor of debtor information for the purpose of mailing generation. Moreover, plaintiff's complaint is absent an allegation that defendant actually disclosed debtor information so as to publish same to a real person or disclose said information in a way that would result in publicity of private facts.
This appeal follows.
We review de novo a motion to dismiss for failure to state a claim pursuant
to Rule 4:6-2(e). Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157, 171 (2021)
(citing Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl,
P.C., 237 N.J. 91, 108 (2019)).
In considering a Rule 4:6-2(e) motion, "[a] reviewing court must examine
'the legal sufficiency of the facts alleged on the face of the complaint,' giving
A-3463-22 4 the plaintiff the benefit of 'every reasonable inference of fact.'" Ibid. (quoting
Dimitrakopoulos, 237 N.J. at 107). "The essential test [for determining the
adequacy of a pleading] is simply 'whether a cause of action is "suggested" by
the facts.'" Green v. Morgan Props., 215 N.J. 431, 451-52 (2013) (quoting
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). "At
this preliminary stage of the litigation the [c]ourt is not concerned with the
ability of [the] plaintiff to prove the allegation contained in the complaint."
Printing Mart-Morristown, 116 N.J. at 746.
"[I]f the complaint states no claim that supports relief, and discovery will
not give rise to such a claim, the action should be dismissed." Dimitrakopoulos,
237 N.J. at 107. "A trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995).
On appeal, plaintiff largely reprises the same arguments raised before the
motion judge: his claims should not be dismissed. We disagree, addressing
plaintiff's claims in turn.
In order to establish an FDCPA claim, a plaintiff must demonstrate: (1)
the plaintiff is a consumer; (2) the defendant is a debt collector; (3) the
A-3463-22 5 challenged practice involves an attempt to collect a "debt" as defined by the
FDCPA; and (4) the defendant violated the FDCPA in attempting to collect the
debt. Midland Funding LLC v. Thiel, 446 N.J. Super. 537, 549 (App. Div. 2016)
(quoting Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir.
2014)). Here, the trial judge correctly considered legislative intent to determine
whether the alleged conduct violated the FDCPA.
In examining the plain meaning of a statute, "the Legislature's intent is
paramount and, generally, the statutory language is the best indicator of that
intent." Hodges v. Sasil Corp., 189 N.J. 210, 223 (2007). "Statutory words are
ascribed their ordinary meaning and are read in context with related provisions,
giving sense to the legislation as a whole." Ibid. "Our duty is to construe and
apply the statute as enacted." DiProspero v. Penn, 183 N.J. 477, 492 (2005)
(quoting In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980)).
Plaintiff alleged defendant's use of a letter vendor to create a debt
collection letter was, in and of itself, abusive, deceptive or unfair. In support of
his arguments, plaintiff cites out-of-state decisions interpreting the FDCPA. We
note "decisions of the federal courts of appeals are not binding on this court,"
Daniels v. Hollister Co., 440 N.J. Super. 359, 367 n.7 (App. Div. 2015), and
therefore decline to address the out-of-jurisdiction cases cited by plaintiff. See
A-3463-22 6 Pressler & Verniero, Current N.J. Court Rules, cmt. 3.5 on R. 1:36-3 (2025)
("On questions of federal constitutional law and statutory law, only decisions of
the United States Supreme Court are binding on the courts of this state.").
We concur with the motion judge's determination that defendant's use of
a letter vendor was not abusive, deceptive, nor unfair and reject plaintiff's
proposed interpretation of the FDCPA as uncritically literal. Defendant's
disclosure of debt-related information to a letter vendor was not the type of
conduct Congress intended to regulate when it enacted the FDCPA. When
viewing plaintiff's complaint and affording him all reasonable inferences of fact,
plaintiff did not "genuinely allege" any facts establishing defendant's conduct
violated the FDCPA.
We next address plaintiff's CFA claim. "To prevail on a CFA claim, a
plaintiff must establish three elements: '1) unlawful conduct by defendant; 2)
an ascertainable loss by plaintiff; and 3) a causal relationship between the
unlawful conduct and the ascertainable loss.'" Zaman v. Felton, 219 N.J. 199,
222 (2014) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009)).
Allegations that contain only "mere[] statements of a legal conclusion" cannot
survive a motion to dismiss for failure to state a claim; a complaint must be
supported by "specific facts that would allow a fact-finder to draw that
A-3463-22 7 conclusion." Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 114 (App.
Div. 2009).
We agree with the motion judge's determination plaintiff's complaint
failed to state a claim under the CFA because there was nothing unconscionable
or unlawful about defendant's actions, and plaintiff did not demonstrate an
ascertainable loss.
Turning to plaintiff's negligence claim, a plaintiff must establish "(1) a
duty of care; (2) a breach of that duty; (3) proximate cause; and (4) actual
damages." Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cnty.
of Essex, 196 N.J. 569, 584 (2008)).
Here, plaintiff alleged defendant owed him a duty "to maintain the
confidentiality of his private financial information." We concur with the motion
judge's determination that the FDCPA was not intended to impose a duty barring
debt collectors from disclosing certain information to letter vendors; therefore,
plaintiff failed to demonstrate defendant owed him a duty. Plaintiff also failed
to show he suffered any damages, which is likewise fatal to his negligence claim.
Finally, we consider plaintiff's claim of invasion of privacy. "As a tort,
invasion of privacy encompasses 'four distinct kinds of invasion of four different
interests of the plaintiff.'" Villanova v. Innovative Investigations, Inc., 420 N.J.
A-3463-22 8 Super. 353, 360 (App. Div. 2011) (quoting Rumbauskas v. Cantor, 138 N.J. 173,
179 (1994)). Relevant here, invasion of privacy includes "making public private
information about plaintiff[]." Ibid. (quoting Rumbauskas, 138 N.J. at 180).
"[I]nvasion of privacy by unreasonable publication of private facts occurs
when . . . 'the matters revealed were actually private, that dissemination of such
facts would be offensive to a reasonable person, and that there is no legitimate
interest of the public in being apprised of the facts publicized.'" Romaine v.
Kallinger, 109 N.J. 282, 297 (1988) (quoting Bisbee v. John C. Conover Agency,
186 N.J. Super. 335, 340 (App. Div. 1982)).
Here, plaintiff alleged defendant invaded his privacy by "unreasonable
publication of private facts" containing his financial information and, as a result,
defendant damaged plaintiff "by exposing [his] private information to persons
who lacked any right or entitlement to know [his] private financial information."
We agree with the motion judge's determination the complaint failed to
state a claim for invasion of privacy because there was nothing unreasonable or
offensive about defendant's conveyance of plaintiff's information to a letter
vendor for the legitimate purpose of creating a collection letter.
A-3463-22 9 To the extent we have not expressly addressed any of plaintiff's remaining
issues, it is because they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3463-22 10