On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-6373-03.*fn1
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Parrillo and Sapp-Peterson.
Plaintiff Robert J. Triffin appeals the dismissal of two consolidated complaints against defendant Wachovia Bank, N.A., the payor bank. Plaintiff claimed that defendant violated N.J.S.A. 12A:4-302's midnight deadline rule with respect to several dishonored checks and that as the assignee of those checks he was entitled to reimbursement. In addition, plaintiff argued that the assignment entitled him to recover for defendant's alleged wrongful debiting of the assignor's account. The trial court rejected both theories of recovery. We affirm.
Sometime in the latter months of 2003, plaintiff purchased checks from Check Cashing Services, Inc. (CCS), LC Beverage, Inc. (LC Beverage), and United Check Cashing of Audubon (UCCA), Inc. There is no dispute that at the time plaintiff purchased the checks, he was aware that they had been dishonored by defendant.
On their face, the checks appeared to have originated from the payroll account of State Metal Industries, Inc. (SMI), an account held by First Union National Bank, defendant's predecessor. The checks had been cashed by CCS, LC Beverage and UCCA, but when they ultimately reached defendant they were dishonored as counterfeit.
Plaintiff memorialized the purchase of these dishonored checks by way of four assignment agreements. The assignment agreement for CCS was dated September 17, 2003, and the other three agreements were dated October 3, 2003. All four agreements identified the respective seller, the particular checks and granted plaintiff the right to pursue all claims that "arise from the respective checks." Notably, these agreements were not presented in person to an authorized agent for ratification. Rather, plaintiff obtained a signature sample from the proper agent and at a later date digitally superimposed that signature on an assignment agreement he composed, apparently with the agent's permission.
On November 13, 2003, plaintiff initiated this action by filing a complaint in the Superior Court, Law Division, Camden County. The complaint named defendant, SMI, the payroll contractor and the individuals to whom the checks were written. Plaintiff's claims against defendant alleged breach of contract, violation of the "Midnight Deadline Rule" pursuant to N.J.S.A. 12A:4-302 and 12 C.F.R. 229.34, and wrongful debiting of LC Beverage's account with defendant. On November 8, 2004, plaintiff filed a complaint in the Special Civil Part, Camden County, against defendant, and subsequently an amended complaint on November 24, 2004.
On December 22, 2004, plaintiff filed a motion to transfer two Special Civil Part matters to the Law Division (one venued in Camden County and the other venued in Essex County), to extend discovery, and for leave to file a First Amended Complaint. Defendant opposed the motion and cross-moved for summary judgment dismissing plaintiff's "Midnight Deadline" claims on the grounds that plaintiff lacked the requisite standing to invoke N.J.S.A. 12A:4-302 and 12 C.F.R. 229.34.
The motion judge granted plaintiff's motion to consolidate the two actions venued in Camden County, finding that those matters raised identical midnight deadline issues, denied plaintiff's motion to consolidate the Essex matter with the Camden County actions, and denied a discovery extension. The court then granted defendant's cross-motion for partial summary judgment dismissing plaintiff's midnight deadline claims on the basis that plaintiff lacked the requisite standing to invoke N.J.S.A. 12A:4-302.
On June 23, 2005, defendant filed a motion for summary judgment seeking dismissal of the remaining counts on the basis that plaintiff's assignment agreement was not competent evidence, that the assignment was invalid and that the claim was waived for lack of notice. Plaintiff, in addition to opposing the motion, cross-moved for summary judgment. The motion judge granted defendant's motion and denied plaintiff's cross motion. The present appeal followed.
Plaintiff argues that the trial court erred when it granted summary judgment to defendant and dismissed his Midnight Deadline claims on the basis that plaintiff did not have standing to invoke N.J.S.A. 12A:4-302. Prior to May 2, 2007, two Appellate Division panels reached different results on application of the "Midnight Deadline" rule. In Triffin v. Bridge View Bank, 330 N.J. Super. 473 (App. Div. 2000), Judge Coburn wrote that "where the plaintiff becomes the holder of the check, as well as the assignee of all rights arising from that instrument, after its untimely return and with full knowledge of its dishonor, [he] has no 'vested interest in the timely payment or return of these checks.'" Id. at 478 (quoting Am. Title Ins. Co. v. Burke & Herbert Bank & Trust Co., 813 F. Supp. 423, 428-29 (E.D. Va. 1993), aff'd, 25 F.3d 1038 (4th Cir. 1994)).
However, in Triffin v. Mellon PSFS, 372 N.J. Super. 3 (App. Div. 2004) another panel concluded that a claim based upon a breach of the midnight deadline is assignable, that the assignee may sue in his own name, and that the assignee's knowledge of dishonor or defects in the instrument is irrelevant; it is only what the assignor knew at the time of presentment, and not what the assignee later learned, which is relevant to the claim. [Id. at 7 (emphasis added).]
Although Judge Coburn concurred in the decision, he did so only because "the majority properly conclude[d] that [plaintiff] failed to prove a violation of the 'midnight deadline,'" and therefore its ...