                                NOT FOR PUBLICATION WITHOUT THE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-0723-17T3

ANTHONY V. OTTILIO,
individually, and OTTILIO
PROPERITES, LLC,

          Plaintiffs-Appellants,

v.

VALLEY NATIONAL BANCORP,
VALLEY NATIONAL BANK,
SAR 1, INC., GERALD H. LIPKIN,
MICHAEL GHABRIAL, JOHN CINA,
ANDREW B. ABRAMSON, ROBERT C.
SOLDOVERI, HANS KRETSCHMAN,
FORTRESS HOLDINGS, LLC, ALFRED
SORRENTINO, JR., and GENOVA
BURNS GIANTOMASI WEBSTER, 1

     Defendants-Respondents.
_______________________________

                    Submitted December 10, 2018 – Decided April 3, 2019

                    Before Judges Messano, Fasciale and Rose.



1
  The order on appeal captions respondent Genova Burns, LLC f/k/a Genova
Burns Giantomasi Webster as Genova Burns Giantomasi Webster.
            On appeal from Superior Court of New Jersey, Law
            Division, Monmouth County, Docket No. L-1403-14.

            Kenneth J. Rosellini, attorney for appellants.

            Lowenstein Sandler, LLP, attorneys for respondents
            Valley National Bancorp, Valley National Bank, SAR
            1, Inc., Gerald H. Lipkin, John Cina, Andrew B.
            Abramson, Robert C. Soldoveri and Alfred Sorrentino,
            Jr. (Richard S. Thompson, of counsel and on the brief).

            Greenberg Dauber Epstein & Tucker, PC, attorneys for
            respondent Genova Burns, LLC, f/k/a Genova Burns
            Giantomasi Webster (Edward J. Dauber and Sheryl L.
            Reba, on the brief).

            Ansell Grimm & Aaron, PC, attorneys for respondent
            Hans Kretschman (James G. Aaron, on the brief).

            Del Sardo & Montanari, LLC, attorneys for respondent
            Fortress Holdings, LLC (Darren J. Del Sardo, on the
            brief).

PER CURIAM

      In 2011, Valley National Bank (VNB) successfully foreclosed on

properties owned by Anthony V. Ottilio and his company, Ottilio Properties,

LLC (collectively, plaintiffs). VNB acquired the properties at multiple sheriff's

sales and conveyed them to its subsidiary, defendant SAR 1, Inc. (SAR), and

defendants Fortress Holdings, LLC (Fortress) and Hans Kretschman.

      In November 2013, plaintiffs filed a complaint in federal district court

against VNB, its parent company, Valley National Bancorp, and VNB officers

                                                                         A-0723-17T3
                                       2
and directors, John Cina, Andrew B. Abramson and Robert C. Soldoveri. Also

named as defendants were VNB's former senior vice president, Michael

Ghabrial, who was in charge of bank-owned real estate and allegedly used his

position to solicit bribes, and Alfred Sorrentino, Jr., a VNB officer who

allegedly provided financial advice to plaintiffs.      Plaintiffs also named as

defendants the law firm of Genova Burns Giantomasi Webster (Genova), which

represented plaintiffs in the mortgage transactions, and Kretschman.

      The complaint alleged that defendants engaged in a corrupt scheme to

defraud plaintiffs and obtain their properties in violation of the federal Racketeer

Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, and

New Jersey's RICO statute, N.J.S.A. 2C:41-1 to -6.2. The complaint also pled

causes of action for common law fraud, violations of the Consumer Fraud Act

(CFA), N.J.S.A. 56:8-1 to -210, personal liability based on fraud, tortious

interference with prospective business relationships and existing contracts,

slander of title, and intentional infliction of emotional distress. Genova and the

Valley Defendants 2 moved to dismiss the complaint.




2
  For the balance of the opinion, we refer to VNB, its affiliated entities, and its
officers and directors, except Ghabrial, as the Valley Defendants.


                                                                            A-0723-17T3
                                         3
      The district court judge granted those motions, concluding that plaintiffs

failed to plead their federal RICO claims with sufficient particularity. The judge

noted the complaint failed to allege predicate acts of racketeering because it

"fail[ed] to specify which defendant made an alleged misrepresentation and for

what purpose, when the misrepresentation was made, or how the

misrepresentations . . . deprived [plaintiffs] of their property." The judge further

concluded that the complaint "failed to properly allege a pattern of racketeering

activity," because it alleged a "violation arising out of a single scheme directed

only at [p]laintiffs." The judge declined to exercise supplemental jurisdiction

over plaintiffs' state law claims. 3

      Plaintiffs then commenced this action in the Law Division. The amended

complaint, filed in October 2014, alleged the same causes of action as the federal

complaint, minus the federal RICO claim, and added a cause of action for unjust

enrichment against the Valley Defendants and Fortress.4




3
 Plaintiffs appealed, and the Court of Appeals affirmed the decision. Ottilio v.
Valley Nat'l Bancorp, 591 F. App'x 167 (3d Cir. 2015).
4
  The amended complaint added Gerald H. Lipkin, VNB's Chairman, President
and CEO, as a defendant, as well as the related entity, SAR, and Fortress as
defendants. Our references to the Valley Defendants include Lipkin and SAR.
                                                                            A-0723-17T3
                                         4
      The essence of the complaint was that the Valley Defendants conspired to

foreclose on plaintiffs' properties, using cross-collateralization provisions in the

underlying documents.       Plaintiffs claimed Genova failed to follow their

instructions in drafting a 2007 refinance agreement as a "stand-alone" mortgage,

and that Genova obtained legal work from VNB in exchange for participating in

the scheme. Plaintiffs alleged that the individual Valley Defendants engaged in

a fraudulent scheme to obtain the properties at less-than-market value,

mismanaged monies held in trust for plaintiffs, and VNB interfered with

plaintiffs' ability to obtain other financing when they were in financial distress.

Plaintiffs alleged Kretschman was a VNB "insider," to whom the bank supplied

information that enabled him to obtain one of the properties at below-market

value. Plaintiffs' unjust enrichment count alleged the Valley Defendants and

Fortress obtained the beneficial use of a sewer easement in favor of the

foreclosed property transferred to Fortress because the sewer line ran under

adjacent property owned by plaintiffs since 2011.

      The Valley Defendants and Genova moved to dismiss the complaint. In a

comprehensive written opinion, the judge recapped prior litigation between

plaintiffs and defendants. He noted that plaintiffs never opposed VNB's 2010

motion for summary judgment, which sought a money judgment on the loans


                                                                            A-0723-17T3
                                         5
VNB made to plaintiffs. He held that plaintiffs conceded the "entire controversy

doctrine preclude[d] all claims . . . that accrued prior" to that judgment.

         The judge also observed that plaintiffs made the same allegations against

the Valley Defendants and Genova when they moved to vacate the foreclosure

judgment and stay the sheriff's sales.        He said: "These allegations were

considered and rejected by the [c]ourt," and, as a result, "the doctrine of

collateral estoppel bars [p]laintiffs from raising these issues in the instant

action." The judge noted that the Bankruptcy Court dismissed plaintiffs' two

petitions attempting to forestall the foreclosure and found they were filed in bad

faith.

         The judge cited to Reid v. Reid, 310 N.J. Super. 12, 19 (App. Div. 1998),

and determined plaintiffs' state RICO claims were barred by res judicata. He

reasoned that most of the other counts of the complaint were "barred by

collateral estoppel, res judicata, and the entire controversy doctrine." The judge

also concluded that, assuming arguendo these principles did not bar plaintiffs'

slander of title count, "the claim would still be barred by the applicable statute

of limitations." The judge granted Genova's motion and dismissed the complaint

with prejudice; he also dismissed the complaint with prejudice as to the Valley

Defendants, except for the unjust enrichment count.


                                                                              A-0723-17T3
                                         6
      Several months later, the Valley Defendants and Fortress moved for

summary judgment on the unjust enrichment count. The judge granted Fortress's

motion. He also concluded that plaintiffs failed to demonstrate VNB had been

unjustly enriched. The judge noted plaintiffs' encumbered rights in the easement

to VNB pursuant to the governing mortgage documents. This appeal follows. 5

      Plaintiffs contend that none of their claims are barred by res judicata,

collateral estoppel or the entire controversy doctrine, particularly because of

jurisdictional limitations imposed upon foreclosure proceedings in New Jersey.

They also contend there are significant differences between federal RICO claims

and those cognizable under our RICO statute, such that the federal district

court's judgment has no preclusive effect on their state RICO claims. Lastly,

plaintiffs argue their amended complaint adequately stated common law claims

not precluded by any prior litigation.

      We disagree with most of these arguments. However, we conclude some

of plaintiffs' claims were adequately pled in the amended complaint and may not


5
   Plaintiffs entered into consent orders vacating defaults previously entered
against Ghabrial and Kretschman. Both then moved to dismiss. The judge
granted those motions, concluding that "the doctrines of collateral estoppel, res
judicata, and the entire controversy doctrine bar" plaintiffs' claims, except for
slander of title and unjust enrichment. Concerning those counts, the judge held
that plaintiffs "have failed to plead anything other than general conclusory
allegations in support of th[ese] claim[s]."
                                                                         A-0723-17T3
                                         7
be precluded. We therefore affirm in part, reverse in part, and remand for further

proceedings consistent with this opinion.

                                         I.

      "The standard a trial court must apply when considering a Rule 4:6-2(e)

motion to dismiss a complaint for failure to state a claim upon which relief can

be granted is 'whether a cause of action is "suggested" by the facts.'" Teamsters

Local 97 v. State, 434 N.J. Super. 393, 412 (App. Div. 2014) (quoting Printing

Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). Despite this

liberal standard, "[a] pleading should be dismissed if it states no basis for relief

and discovery would not provide one." Rezem Family Assocs., LP v. Borough

of Millstone, 423 N.J. Super. 103, 113-14 (App. Div. 2011) (citing Camden Cty.

Energy Recovery Assocs., LP v. N.J. Dep't of Envtl. Prot., 320 N.J. Super. 59,

64 (App. Div. 1999)). In addition, "dismissal is mandated where the factual

allegations are palpably insufficient to support a claim upon which relief can be

granted." Rieder v. State, 221 N.J. Super. 547, 552 (App. Div. 1987). We

review the trial court's decision de novo. Flinn v. Amboy Nat'l Bank, 436 N.J.

Super. 274, 287 (App. Div. 2014).

      We review the grant of summary judgment applying the same standard as

the trial judge. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of


                                                                            A-0723-17T3
                                         8
Pittsburgh, 224 N.J. 189, 199 (2016) (citing Mem'l Props., LLC v. Zurich Am.

Ins. Co., 210 N.J. 512, 524 (2012)). Summary judgment is appropriate "if the

pleadings, depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact challenged and that the moving party is entitled to a judgment or

order as a matter of law." Ibid. (quoting R. 4:46-2(c)).

      To determine whether there are genuine issues of material fact, we

consider "whether the competent evidential materials presented, when viewed

in the light most favorable to the non-moving party, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the non-

moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014)

(quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "An

issue of material fact is 'genuine only if, considering the burden of persuasion at

trial, the evidence submitted by the parties on the motion, together with all

legitimate inferences therefrom favoring the non-moving party, would require

submission of the issue to the trier of fact.'" Grande v. St. Clare's Health Sys.,

230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).

      Res judicata "contemplates that when a controversy between parties is

once fairly litigated and determined it is no longer open to relitigation."


                                                                           A-0723-17T3
                                        9
Adelman v. BSI Fin. Servs., Inc., 453 N.J. Super. 31, 39 (App. Div. 2018)

(quoting Lubliner v. Bd. of Alcoholic Beverage Control for Paterson, 33 N.J.

428, 435 (1960)). "The application of res judicata . . . requires substantially

similar or identical causes of action and issues, parties, and relief sought."

Walker v. Choudhary, 425 N.J. Super. 135, 151 (App. Div. 2012) (quoting

Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460 (1989)). "To be accorded res

judicata effect, a judicial decision 'must be a valid and final adjudication on the

merits of the claim.'" Id. at 150 (quoting Velasquez v. Franz, 123 N.J. 498, 506

(1991)).

      "Collateral estoppel . . . represents the 'branch of the broader law of res

judicata which bars relitigation of any issue which was actually determined in a

prior action, generally between the same parties, involving a different claim or

cause of action.'" Tarus v. Borough of Pine Hill, 189 N.J. 497, 520 (2007)

(quoting Sacharow v. Sacharow, 177 N.J. 62, 76 (2003)). "Although collateral

estoppel overlaps with and is closely related to res judicata, the distinguishing

feature of collateral estoppel is that it alone bars relitigation of issues in suits

that arise from different causes of action." Selective Ins. Co. v. McAllister, 327

N.J. Super. 168, 173 (App. Div. 2000) (citing United Rental Equip. Co. v. Aetna

Life & Cas. Ins. Co., 74 N.J. 92, 101 (1977)).


                                                                            A-0723-17T3
                                        10
            For the doctrine of collateral estoppel to apply to
            foreclose the relitigation of an issue, the party asserting
            the bar must show that: (1) the issue to be precluded is
            identical to the issue decided in the prior proceeding;
            (2) the issue was actually litigated in the prior
            proceeding; (3) the court in the prior proceeding issued
            a final judgment on the merits; (4) the determination of
            the issue was essential to the prior judgment; and (5)
            the party against whom the doctrine is asserted was a
            party to or in privity with a party to the earlier
            proceeding.

            [Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521
            (2006) (quoting In re Estate of Dawson, 136 N.J. 1, 20-
            21 (1994)).]

"Even where these requirements are met, the doctrine, which has its roots in

equity, will not be applied when it is unfair to do so." Id. at 521-22 (quoting

Pace v. Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002)).

      Finally,

                   [t]he entire controversy doctrine [(ECD)],
            codified in Rule 4:30A, . . . "embodies the principle that
            the adjudication of a legal controversy should occur in
            one litigation in only one court; accordingly, all parties
            involved in a litigation should at the very least present
            in that proceeding all of their claims and defenses that
            are related to the underlying controversy."

            [Wadeer v. N.J. Mfrs. Ins. Co., 220 N.J. 591, 604-05
            (2015) (quoting Highland Lakes Country Club & Cmty.
            Ass'n v. Nicastro, 201 N.J. 123, 125 (2009))].




                                                                          A-0723-17T3
                                       11
"The entire controversy doctrine, however, is constrained by principles of

equity[   and]   'does   not   apply    to     unknown      or   unaccrued   claims.'"

Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, PC , ___

N.J. ___, ___ (2019) (slip op. at 3) (quoting Wadeer, 220 N.J. at 606).

      We apply these principles to the case at hand.

                                         II.

RICO claims

      A plaintiff must prove five elements to sustain a claim under New Jersey's

RICO statute:


             (1) the existence of an enterprise; (2) that the enterprise
             engaged in or its activities affected trade or commerce;
             (3) that defendant was employed by, or associated with
             the enterprise; (4) that he or she participated in the
             conduct of the affairs of the enterprise; and (5) that he
             or she participated through a pattern of racketeering
             activity.

             [State v. Ball, 268 N.J. Super. 72, 99 (App. Div. 1993)
             (Ball I), aff'd, 141 N.J. 142 (1995).]

"[U]nder the RICO Act 'enterprise' is an element separate from the 'pattern of

racketeering activity' . . . ." Ball, 141 N.J. at 161-62.

             [T]he enterprise . . . must have an "organization." The
             organization of an enterprise need not feature an
             ascertainable structure or a structure with a particular
             configuration.     The hallmark of an enterprise's

                                                                              A-0723-17T3
                                        12
            organization consists rather in those kinds of
            interactions that become necessary when a group, to
            accomplish its goal, divides among its members the
            tasks that are necessary to achieve a common purpose.
            The division of labor and the separation of functions
            undertaken by the participants serve as the
            distinguishing marks of the "enterprise" because when
            a group does so divide and assemble its labors in order
            to accomplish its criminal purposes, it must necessarily
            engage in a high degree of planning, cooperation and
            coordination, and thus, in effect, constitute itself as an
            "organization."

            [Id. at 162 (emphasis added).]

Under our statute, "[a] 'pattern of racketeering activity' requires '[e]ngaging in

at least two incidents of racketeering conduct' that 'embrace criminal conduct'

and are interrelated." Mayo, Lynch & Assocs., Inc. v. Pollack, 351 N.J. Super.

486, 495 (App. Div. 2002) (second alteration in original) (quoting N.J.S.A.

2C:41-1(d)).

      To establish a RICO conspiracy, a plaintiff must show that (1) "a

defendant agreed to participate directly or indirectly in the conduct of the affairs

of the enterprise by agreeing to commit, or to aid other members of the

conspiracy to commit, at least two racketeering acts[,]" and (2) the defendant

"acted knowingly and purposely with knowledge of the unlawful objective of

the conspiracy and with the intent to further its unlawful objective." Ball, 141

N.J. at 180 (emphasis added) (quoting Ball I, 268 N.J. Super. at 99-100).

                                                                            A-0723-17T3
                                        13
      We acknowledge, as plaintiffs urge, that our statute is "broader in scope

than the federal [RICO] statute." Ball I, 268 N.J. Super. at 107. Plaintiffs

contend this means the federal district court's decision is not entitled to

preclusive effect. They also argue that they only became aware of Ghabrial's

multiple crimes after the federal action was dismissed, and, unlike the federal

complaint, they have now alleged multiple instances of racketeering activity in

the amended complaint. Neither of these assertions is significant.

      The amended complaint alleges in conclusory terms "defendants acted in

concert . . . ." Although there are some factual allegations regarding Ghabrial's

activities, the amended complaint does not allege sufficient facts establishing an

"enterprise" as defined in Ball. As to the RICO conspiracy count, the allegations

are insufficient to prove both that defendants "acted knowingly and purposely"

in the affairs of the enterprise and that they participated in the affairs "with

knowledge of the unlawful objective of the conspiracy." Ball, 141 N.J. at 180.

In short, the RICO claims were properly dismissed, not only because of the

disposition of plaintiffs' federal complaint, but also because of the inadequacy

of the pleading. 6 R. 4:6-2(e).


6
  As noted, Lipkin, SAR, and Fortress were not parties to the federal action,
thus, res judicata does not apply. Nonetheless, the allegations in the amended
complaint are inadequate as to them.
                                                                          A-0723-17T3
                                       14
State Common Law and CFA Claims

      The federal district court refused to exercise supplemental jurisdiction

over plaintiffs' other state law claims. As such, res judicata does not apply to

bar the claims. However, we agree with the motion judge that collateral estoppel

and the ECD apply to bar most of them.

      VNB obtained final judgment in the foreclosure action in August 2011.

In January 2012, plaintiffs moved to adjourn the scheduled sheriff's sales and

vacate the judgment. Plaintiffs' application for an order to show cause alleged:

(1) VNB breached its fiduciary duty by mismanagement of monies held in trust;

(2) VNB's officials, Abramson and Soldoveri, deceptively attempted to purchase

plaintiffs' properties at below-market value; (3) VNB and Genova deceived

plaintiffs into cross-collateralizing the loans; (4) VNB and Genova engaged in

fraudulent schemes to take the properties away; and (5) VNB interfered with

plaintiffs' effort to obtain new financing. The chancery court denied the requests

to adjourn the foreclosure sales or vacate the previous judgment.

      In their August 2011 petition in the Bankruptcy Court, plaintiffs alleged

that Kretschman illegally tried to obtain funds from VNB to purchase one of

their properties at an approaching auction sale at below-market value. The

Bankruptcy Court dismissed plaintiffs' petition by finding that they filed it in


                                                                          A-0723-17T3
                                       15
bad faith and remanded the case to the chancery court. In June 2012, plaintiffs

filed a second petition in the Bankruptcy Court. In opposition to VNB's motion

to dismiss, plaintiffs alleged VNB's misrepresentation of an upset price on one

of the properties hindered plaintiffs' ability to reorganize under Chapter 11 of

the Bankruptcy Code. The Bankruptcy Court dismissed the second petition.

      In reviewing the Valley Defendants' and Genova's motions to dismiss, the

judge delineated plaintiffs' factual assertions in support of the state law causes

of action. It suffices to say that the facts asserted by plaintiffs in resisting

foreclosure were nearly identical to those asserted in the amended complaint in

support of their common law claims.

      We reject plaintiffs' argument that they were unable to assert these facts

in support of defenses or counterclaims in the foreclosure action. Pursua nt to

Rule 4:64-5, a party generally cannot assert non-germane claims in a foreclosure

action and, therefore, the ECD does not work as a bar to those claims being

asserted at a later date. Adelman, 453 N.J. Super. at 38. "To determine which

types of claims are germane, 'a liberal rather than a narrow approach' should be

used."   Ibid. (quoting Leisure Tech.-Ne., Inc. v. Klingbeil Holding Co., 137

N.J. Super. 353, 358 (App. Div. 1975)). Our courts have held a variety of claims

to be germane. See Delacruz v. Alfieri, 447 N.J. Super. 1, 12-21 (Law Div.


                                                                          A-0723-17T3
                                       16
2015) (collecting cases). We have no doubt that plaintiffs could have asserted

claims of fraud, for example, as defenses or counterclaims to VNB's foreclosure

efforts, but they did not do so. Therefore, the ECD serves as an additional bar

to much of what plaintiffs alleged in the amended complaint.

      Plaintiffs argue that some facts alleged in the amended complaint had not

occurred until after the foreclosure judgment was final, and, therefore, neither

collateral estoppel nor the ECD bars claims that did not exist at the time the

foreclosures were finalized.7 For example, plaintiffs claim, without alleging

specific dates, that VNB interfered with their ability to obtain financing

elsewhere in order to redeem the foreclosed properties. Most significantly,

plaintiffs' amended complaint details Ghabrial's 2013 conviction for bribery and

asserts that he was involved in multiple criminal activities while in charge of

VNB's commercial real estate department.

      The motion judge generally did not consider whether these allegations,

based on facts that occurred after the foreclosure judgment, could have

supported any of the state law claims. We therefore are required to consider


7
   The complaint does not allege facts regarding Genova's conduct subsequent
to the foreclosures. We conclude that the motion judge properly dismissed the
complaint pursuant to collateral estoppel and the ECD as to Genova, and we
affirm that order.


                                                                        A-0723-17T3
                                      17
whether the amended complaint adequately pleads a common law cause of

action against any defendant.

Fraud8

      In order to establish a common law fraud claim, a plaintiff must

demonstrate that a defendant "(1) made a representation or omission of a

material fact; (2) with knowledge of its falsity; (3) intending that the

representation or omission be relied upon; (4) which resulted in reasonable

reliance; and that (5) plaintiff suffered damages." DepoLink Court Reporting &

Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 336 (App. Div. 2013)

(citing Jewish Ctr. of Sussex Cty. v. Whale, 86 N.J. 619, 624 (1981)). The

"particulars of the wrong, with dates and items if necessary, shall be state d

insofar as practicable." R. 4:5-8(a). It suffices to say that plaintiffs' amended

complaint is bereft of any post-foreclosure judgment particulars that adequately

allege fraud. With the exception of Ghabrial, the third count of the amended

complaint alleging fraud was properly dismissed.




8
  Plaintiffs' brief makes no argument regarding the dismissal of their consumer
fraud claim (count four), the personal liability for fraud claim (count five), or
the slander of title claim (count eight). An issue not briefed is deemed waived.
Soc'y Hill Condo. Ass'n, Inc. v. Soc'y Hill Assocs., 347 N.J. Super. 163, 176
(App. Div. 2002).
                                                                         A-0723-17T3
                                      18
Tortious Interference

      To establish a claim for intentional interference with a prospective

economic relationship, a plaintiff must show "(1) the existence of a reasonable

expectation of economic advantage; (2) intentional and malicious interference

with that expectation[;] (3) the interference caused [the] plaintiff to lose the

prospective economic advantage; and (4) damage." Beck v. Tribert, 312 N.J.

Super. 335, 352 (App. Div. 1998) (citing Printing Mart-Morristown, 116 N.J. at

751-52). The sixth count of plaintiffs' amended complaint alleged "[d]efendants

intentionally and improperly . . . with malice, interfered with the reasonable

expectation of economic advantage . . . [p]laintiffs would obtain by refinancing

and redeeming the [p]laintiffs' income producing properties . . . ." Plaintiffs

alleged that "th[e] interference caused no less than [twelve] prospective lenders"

to refuse them credit or otherwise terminate negotiations. As already noted, the

amended complaint does not allege specific dates, therefore, it is impossible to

tell whether the alleged facts pre-date the final proceedings in foreclosure, and

whether, regardless of the dates, plaintiffs could have asserted these facts as a

defense or counterclaim in those proceedings.

      As a result, we reverse the dismissal of this count as to the Valley

Defendants and Ghabrial. Because this count makes no allegations regarding


                                                                             A-0723-17T3
                                       19
the other defendants, we affirm as to them.

      Plaintiffs' seventh count alleged that defendants acting intentionally and

with malice "interfered with the performance of . . . [p]laintiffs' income

producing leases with tenants . . . ."

                    To establish a claim for tortious interference with
             contractual relations, a plaintiff must prove: (1) actual
             interference with a contract; (2) that the interference
             was inflicted intentionally by a defendant who is not a
             party to the contract; (3) that the interference was
             without justification; and (4) that the interference
             caused damage.

             [Russo v. Nagel, 358 N.J. Super. 254, 268 (App. Div.
             2003) (citing 214 Corp. v. Casino Reinvestment Dev.
             Auth., 280 N.J. Super. 624, 628 (Law Div. 1994))].

      Here, it is quite clear that the factual underpinnings for the claim existed

before and during the foreclosure proceedings, and there is no readily observable

reason why those facts were not included in the constellation of allegations

plaintiffs asserted throughout the foreclosure and bankruptcy litigation. Count

seven was properly dismissed.

Intentional Infliction of Emotional Distress and Unjust Enrichment

      In order to prove intentional infliction of emotional distress, a plaintiff

must show:

             (1) defendant[s] acted intentionally; (2) defendant[s']
             conduct was "so outrageous in character, and so

                                                                          A-0723-17T3
                                         20
            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;" (3) defendant[s']
            actions proximately caused him emotional distress; and
            (4) the emotional distress was "so severe that no
            reasonable [person] could be expected to endure it."

            [Segal v. Lynch, 413 N.J. Super. 171, 191 (App. Div.
            2010) (last alteration in original) (quoting Buckley v.
            Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988)).]

Litigation-induced stress is not actionable. Picogna v. Bd. of Educ. of Cherry

Hill, 143 N.J. 391, 393 (1996).

      The ninth count of plaintiffs' complaint alleged that defendants acted

intentionally to "inflict deliberate emotional distress, psychological trauma, and

psychic pain and suffering" on Anthony Ottilio. Although the motion judge did

not address this particular count of plaintiffs' amended complaint, we conclude

it fails to adequately plead a cause of action for this tort. Defendants' alleged

conduct is not "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." Nor does the amended complaint

adequately allege the necessary severity of distress caused by the conduct. We

affirm dismissal of count nine of the amended complaint.

      The judge granted summary judgment as to the tenth count of the amended

complaint, alleging VNB, Valley National Bancorp, SAR and Fortress were

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unjustly enriched by an adverse utilities easement running through another

property owned by plaintiffs. However, the record failed to prove the existence

of the easement. Moreover, as the motion judge found, the underlying mortgage

documents executed in 2002 encumbered plaintiffs' mortgaged property and "all

other rights whatsoever that [plaintiffs] or any other owner has or may acquire

in the [l]and," including easements. Therefore, as the judge properly concluded,

plaintiffs cannot demonstrate defendants were unjustly enriched beyond

contractual rights provided by the mortgage itself. Summary judgment was

properly granted on the tenth count.

                                       III.

      In summary, we affirm the Law Division's January 13, 2015 order

dismissing the amended complaint as to Genova; the April 1, 2016 orders

granting summary judgment to the Valley Defendants and Fortress on the tenth

count, alleging unjust enrichment; and the January 6, 2017 order dismissing the

amended complaint as to Kretschman.

      We affirm in part and reverse in part the Law Division's January 13, 2015

order granting partial summary judgment to the Valley Defendants. We affirm

the dismissal as to all counts, except the sixth count, tortious interference with




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prospective business relationships. The matter is remanded to the trial court for

further proceedings.

       We hasten to add that our decision should not be interpreted as foreclosing

the Valley Defendants, upon development of a more complete record, from

seeking summary judgment by asserting plaintiffs' claim is barred by collateral

estoppel or the ECD, i.e., that the factual underpinnings for the claim were

asserted or could have been asserted in prior litigation. On the record before us,

we cannot definitively rule on that issue.

       We affirm in part and reverse in part the Law Division's January 6, 2017

order dismissing the amended complaint as to Ghabrial. We affirm the dismissal

of all counts of the complaint, except count three, alleging common law fraud,

and count six, alleging tortious interference with prospective business

relationships. We issue a similar caveat against an overly broad interpretation

of our holding. We only decide that plaintiffs' amended complaint as to those

counts states causes of action against Ghabrial that, on the record before us,

were not precluded as a matter of law by res judicata, collateral estoppel or the

ECD.

       Affirmed in part, reversed in part and remanded.        We do not retain

jurisdiction.


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