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Hoffman v. Encore Capital Group

December 18, 2008

DAVID J. HOFFMAN AND CLAYTON TURNER, PLAINTIFFS-APPELLANTS,
v.
ENCORE CAPITAL GROUP, INC., A DELAWARE CORPORATION; MIDLAND FUNDING NCC-2 CORP., A DELAWARE CORPORATION; MIDLAND CREDIT MANAGEMENT, INC., A KANSAS CORPORATION; AND MRC RECEIVABLES CORP., INC., A DELAWARE CORPORATION,*FN1 DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1798-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 18, 2008

Before Judges Graves and Grall.

Plaintiffs David J. Hoffman (Hoffman) and Clayton Turner (Turner) were initially defendants in two separate Special Civil Part actions filed by MRC to collect unpaid credit card debts. After MRC obtained a default judgment against Turner for approximately $1500, he paid the judgment. MRC's complaint against Hoffman was dismissed because he was the victim of identify theft, and he did not incur the debt.

After MRC's claims against Hoffman and Turner were disposed of, a counterclaim filed by Hoffman was transferred to the Law Division, and it was amended to include Hoffman. In an amended pleading (the complaint), plaintiffs alleged fraud and fraud on the court (count one); violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:3-1 to -20 (CFA) (count two); and violations of the New Jersey Racketeer Influenced and Corrupt Organizations Act, N.J.S.A. 2C:41-1 to -6.2, (RICO) (count three). Plaintiffs' complaint also included class action allegations. Plaintiffs appeal from an order dated January 16, 2008, dismissing their complaint with prejudice for failure to state a claim upon which relief can be granted. We affirm.

Our review of the order granting MRC's motion to dismiss plaintiffs' complaint is governed by the same standard applicable in the trial court. Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005). We therefore accept as true the facts alleged in the complaint to determine whether, when liberally viewed, they set forth a claim against MRC upon which relief can be granted. Printing Mart-Morristown v. Sharp Electronics, Corp., 116 N.J. 739, 746 (1989).

On appeal, plaintiffs present the following arguments:

POINT I

THE COMPLAINT ADEQUATELY ALLEGES FRAUD AND FRAUD ON THE COURT.

POINT II

PLAINTIFFS' N.J. RICO AND CONSUMER FRAUD ACT ALLEGATIONS ARE WELL PLEADED, CERTAINLY FOR PURPOSES OF A MOTION UNDER RULE 4:6-2(E).

A. RACKETEER INFLUENCED AND CORRUPT ...


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