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Triffin v. Wachovia Bank

April 16, 2009


On appeal from the Superior Court of New Jersey, Law Division, Somerset County, DC-6158-05.

Per curiam.


Argued December 2, 2008

Before Judges Wefing, Parker and LeWinn.

Plaintiff Robert J. Triffin appeals from the January 11, 2008 order of the Special Civil Part granting summary judgment to defendant Wachovia Bank, N.A., dismissing his complaint. For the reasons that follow, we affirm.

The factual background of this matter may be summarized as follows.*fn1 In December 2005, plaintiff entered into separate assignment agreements with three check-cashing entities, in which he purchased those entities' rights and interests in certain dishonored checks. The assignors had received legally enforceable copies of those checks at the time they were dishonored.

On January 11, 2006, plaintiff filed a complaint in the Special Civil Part against Wachovia and fictitious parties, claiming that he was the assignee of three checks that were allegedly drawn on Wachovia or its predecessor, First Union National Bank, that were dishonored because of holds for uncollected funds, insufficient funds and stop-payment orders.

Plaintiff contended that Wachovia provided his three assignors with illegible check substitutes, which he claimed constituted a violation of warranties under the Federal Reserve Systems Practices, 12 C.F.R. § 229.52. Therefore, plaintiff alleged that Wachovia was liable under 12 C.F.R. § 229.56 for the amount of the original checks, together with pre-judgment interest and all expenses, for a total of $1,401.04. Plaintiff further alleged that Wachovia was liable for conversion and breach of the duty of good faith and fair dealing, and that the fictitious parties were also liable for the dishonored checks.

Wachovia answered the complaint and, ten days later, filed a motion for summary judgment. On April 18, 2006, the trial judge granted summary judgment to Wachovia. Plaintiff appealed, and we reversed and remanded the matter in Triffin v. Wachovia Bank, N.A., No. A-4942-05 (App. Div. September 27, 2007). The basis for the remand was our conclusion that the trial judge had "mistakenly adopted a procedure that denied plaintiff the full and fair opportunity to present his case." (Slip op. at 8). We added, however:

In doing so, we do not imply in any way that plaintiff can necessarily prevail. Plaintiff seeks to impose liability on Wachovia pursuant to 12 C.F.R. § 229.56 . . . . In our view, in order to recover any damages, plaintiff must prove he suffered an actual loss occasioned by Wachovia's alleged breach of the warranties contained in § 229.52. Moreover, the trial judge will have to consider whether plaintiff's admitted purchase of the assigned rights to the dishonored checks 1) with knowledge that each check had already been dishonored, and 2) with knowledge of the actual appearance of the check facsimiles demonstrates that any loss he suffered "resulted in whole or in part from [his] negligence or failure to act in good faith." [Slip op. at 8-9 (quoting 12 C.F.R. § 229.56 (3)(i)).]

On November 6, 2007, Wachovia renewed its motion for summary judgment on remand. Wachovia argued that (1) plaintiff lacked standing; (2) the warranties under 12 C.F.R. § 229.51 "et seq." did not apply because defendant did not receive consideration for the checks; (3) there was no nexus between the alleged violations and plaintiff's damages; and (4) plaintiff's common law claim for breach of the duty of good faith and fair dealing was preempted by the Uniform Commercial Code (UCC).

On November 15, 2007, plaintiff served Wachovia with a notice in lieu of subpoena to produce a witness to testify about the disputed checks and the account cards related to those checking accounts. Wachovia filed a motion to quash plaintiff's subpoena.

On January 11, 2008, Judge Anthony F. Picheca, Jr., heard oral argument, after which he rendered a decision from the bench granting Wachovia's motion for summary judgment and rejecting plaintiff's reliance upon Triffin v. TD Banknorth, N.A., 190 N.J. 326 (2007). Judge Picheca found that plaintiff did not have standing to pursue his claims because, similar to plaintiff's lack of standing to pursue claims under N.J.S.A. 12A:4-302 in Triffin v. TD Banknorth, N.A., id. at 328, plaintiff's claims under 12 C.F.R. §§ 229.52 and 229.56 were not assignable. Judge Picheca thereupon entered orders (1) granting summary judgment to Wachovia and (2) quashing plaintiff's notice in lieu of subpoena.

On appeal, plaintiff presents the following arguments for our consideration:



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