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Triffin v. Wachovia Bank

January 20, 2009

ROBERT J. TRIFFIN, PLAINTIFF-APPELLANT,
v.
WACHOVIA BANK, N.A., DEFENDANT-RESPONDENT.
ROBERT J. TRIFFIN, PLAINTIFF-APPELLANT,
v.
BANK OF AMERICA (SUCCESSOR IN INTEREST TO) UNITED JERSEY BANK), DEFENDANT-RESPONDENT, AND U.S. GOURMET FOOD, LLC, ADAIRA SANDERS, KEITH SIMMONS AND JAMES SOTO, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-4362-07 and Somerset County, DC-5132-06.

The opinion of the court was delivered by: Messano, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 8, 2008

Before Judges Parrillo, Lihotz and Messano.

In each of these two appeals, argued back-to-back and consolidated for purposes of this opinion, plaintiff Robert J. Triffin challenges the motion judge's dismissal of his complaint with prejudice. We have considered the arguments he raises in light of the record and applicable legal standards. We affirm.

I.

"Plaintiff is in the business of purchasing dishonored negotiable instruments" and thereafter seeking collection as assignee of all rights and interests in those instruments. Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 78 (App. Div. 2001). We recite the relevant facts and procedural history as they relate to each appeal.

As to A-6107-06T2

On August 28, 2006, plaintiff executed an assignment agreement with CLCP, Inc., t/a Twin City Wine & Spirits, which transferred to plaintiff all rights and interests in twelve separate checks that were previously dishonored by defendant, Wachovia Bank, NA (Wachovia).

On February 16, 2007, plaintiff filed a complaint against Wachovia in which he claimed in six separate counts that defendant had "transfer[ed], present[ed], or return[ed]," six "substitute check[s]" "in violation of 12 C.F.R. 229.51 and 12 C.F.R. 229.52." Plaintiff attached to the complaint copies of his assignment agreement and each of the six substitute checks. In essence, plaintiff contended that as to each of the substitute checks, Wachovia had affixed stamps or other information that served to obliterate or obscure information as it appeared on the original check. Plaintiff claimed that by its "failure to return to [his] assignor a depicted check that sets forth all of the information that was on the original depicted check," Wachovia violated 12 C.F.R. 229.56.

Wachovia answered the complaint and moved for summary judgment on April 24, 2007. Plaintiff filed opposition and cross-moved for summary judgment. Wachovia argued that plaintiff lacked standing to bring any claim under 12 C.F.R. 229.51, that Twin City could not assign plaintiff its right to a statutory cause of action, and that plaintiff had not demonstrated any proximately-caused damages as a result of the alleged regulatory violations. In particular, Wachovia argued that the recently decided Supreme Court decision of Triffin v. TD Banknorth, N.A., 190 N.J. 326 (2007), was dispositive of the issues presented.

The motion judge concluded that plaintiff was "not a payor or payee, drawer or drawee" of any of the checks, and that he took his assignment "after knowledge of a dishonored check or instrument." Based upon the holding in TD Banknorth, supra, the judge concluded that plaintiff "does not come under the purview of the protection required by the regulations." He granted Wachovia's motion and dismissed ...


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