On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. DC-6158-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
Plaintiff Robert J. Triffin appeals from an April 18, 2006, order granting defendant Wachovia Bank, N.A. (Wachovia) summary judgment. Because the procedure used by the motion judge deprived plaintiff of a fair opportunity to present his case, we reverse and remand the matter for further proceedings consistent with this opinion.
Plaintiff filed an amended complaint on January 11, 2006, in the Special Civil Part against Wachovia and six fictitious parties. He alleged he was the assignee pursuant to written agreements of all rights involving three dishonored checks that were attached as exhibits to the complaint. Each check was allegedly drawn on Wachovia, or its predecessor in interest, First Union Bank, and when they were dishonored, because of insufficient funds or stop payment orders, facsimiles were returned to plaintiff's assignor.
As to each of the three check facsimiles, plaintiff alleged that Wachovia was liable pursuant to Federal Reserve Systems Practices, 12 C.F.R. § 229.56 (2007). That regulation provides a cause of action if damages result from a bank's breach of certain warranties set forth in 12 C.F.R. § 229.52, which require the facsimile, or substitute check, to be the legal equivalent of the original check. Plaintiff alleged that the names of the individual drawers of the checks were "obliterated" and the required warranties, therefore, had been breached. He also alleged common law theories of conversion and breach of contract. The balance of the complaint alleged that a fictitious drawer and payee were also liable respectively on each of the three dishonored checks.
Wachovia filed its answer on March 24, 2006, and on April 4, 2006, moved for summary judgment. Relying upon Triffin v. Bridge View Bank, 330 N.J. Super. 473 (App. Div. 2000), it argued that plaintiff lacked standing to bring the action because he purchased his assignment rights after the checks were dishonored and with full knowledge of same.*fn1
Also on April 4, plaintiff served a notice in lieu of subpoena upon Wachovia seeking to have certain documents produced at trial, now listed for April 18, and to have individuals with knowledge of the facts of the case produced as witnesses. Defendant did not respond to the notice either in advance, or, as is apparent from the record, on the day of trial.
Wachovia's counsel requested by subsequent letter that the motion be heard "in advance of the trial." She also filed with the judge a copy of an unreported decision of another Law Division judge that dismissed a similar complaint brought by plaintiff. That judge found, among other things, that plaintiff suffered no loss as a result of any alleged violation of 12 C.F.R. § 229.56 by the bank because he knew of the condition of the facsimile prior to purchasing the assignment.
Plaintiff filed opposition to the motion and cited our opinion in Triffin v. Somerset Valley Bank, 343 N.J. Super. 73 (App. Div. 2001), in which we noted, "There is nothing in Bridge View Bank to indicate that the holding should be expanded beyond actions brought under N.J.S.A. 12A:4-302." Id. at 82. Plaintiff argued that since his cause of action was not brought pursuant to the "midnight deadline rule," he had standing to bring a claim under § 229.56.
On the trial date, the judge proceeded to consider Wachovia's summary judgment motion by asking plaintiff "how that obliteration [of information on the face of the check] caused your loss." Plaintiff responded to the judge's inquiry, but also noted,
The only issue we have [today] is a de facto motion to dismiss for failure to set forth a cause of action, which should not have been denominated as a motion for summary judgment . . . because ...