On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Atlantic County, DC 905-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and C.L. Miniman.
Plaintiff appeals from an order of September 4, 2007, which granted summary judgment to defendant Wal-Mart Stores, Inc., and an order of September 25, 2007, denying reconsideration. The Special Civil Part held that plaintiff's opposition to summary judgment was untimely and, on reconsideration, that plaintiff "failed to meet [his] burden" to show "that the Court erred or overlooked something in [its] prior decision." We can find no statement of reasons for the original order granting summary judgment, apparently because it was marked "unopposed."*fn1
The answer to the summary judgment motion was filed on a date later than that noted in a "status report" letter from WalMart's counsel to the court, dated July 19, 2007, which stated "absent settlement, Plaintiff will file opposition to the Motion for Summary Judgment on or before August 3, 2007." Plaintiff states he understood that he had until August 8, 2007, to respond and he met that deadline. The judge relied on the defendant's letter of July 19, 2007, notwithstanding that the motion was originally made returnable on August 17, 2007. See R. 6:3-3(b)(1) (referring to R. 1:6-2(d)).
We need not pursue the issue, in any event, as summary judgment presents a question of law, and there are no reasons given for the original grant of the motion. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We cannot simply affirm the disposition on procedural grounds, even if we were otherwise inclined to do so, because no statement of reasons or opinion accompanied the grant of summary judgment. See R. 1:7-4.
It is undisputed that plaintiff purchased the subject dishonored checks drawn on Wal-Mart's account with J.P. Morgan Chase Bank. In his first amended complaint, plaintiff alleged with respect of each of the nine checks:
1. As evidenced by an assignment agreement attached hereto as Exhibit "A", plaintiff Triffin purchased from the assignor identified in Exhibit "A", all of assignor's rights in a dishonored check, Exhibit "B", that the defendants respectively drew and cashed with assignor.
2. As evidenced by the back of the attached dishonored check, on the date identified thereon the defendant payee endorsed the referenced check, and in exchange for such endorsement, assignor gave value by cashing the referenced check for said defendant payee.
3. At the time assignor cashed the referenced check, assignor had no knowledge of any defenses or claims by any party to the referenced check, and thereby, assignor became a holder in due course of the referenced dishonored check as provided by N.J.S.A. 12A:3-302.
4. Pursuant to the controlling decision of the Appellate Division of the Superior Court of New Jersey in Triffin v. CIGNA Insurance Company, 297 N.J. Super. 199 (App. Div. 1997), plaintiff has the legal status of a holder in due course in this action.
5. Pursuant to N.J.S.A. 12A:3-414, the defendant drawer of the underlying dishonored check is deemed to have contracted with all who gave value for its referenced check; upon dishonor of its attached check that the defendant drawer would pay the amount of the referenced item to a party with the legal status of a holder in due course.
6. Pursuant to N.J.S.A. 12A:4-403, [and as explained in Official Comment Seven thereto], the defendant drawer's dishonor by "stop payment" is not a cognizable legal defense against a party such as ...