On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Somerset County, Docket No. DC-5025-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically September 11, 2009
Before Judges Messano and Alvarez.
Pro se plaintiff Robert J. Triffin appeals the denial of reinstatement of his complaint against several named parties including defendant Bank of America, the only defendant actually served. Plaintiff also appeals the award to defendant of $7857.92 in counsel fees and $377.92 in costs. For the reasons that follow, we affirm as to the denial of reinstatement of the complaint, but reverse the award of counsel fees.
"Plaintiff is in the business of purchasing dishonored negotiable instruments." Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 78 (App. Div. 2001). After acquisition, plaintiff pursues the rights and interests he claims are created by those instruments, over and above their face value. See, Ibid. In this case, plaintiff purchased check number 2390 on March 1, 2006. The instrument, written for $89.11, was made payable to Frank Wallace, a named defendant who was not served. The check was drawn on an account maintained by Golden Eagle Cleaning Services, Inc. After the check was cashed by Credit Currency One, Inc., the assignor, it was discovered that Golden Eagle had issued a stop payment on the check.
Defendant, the bank at which the account was maintained, supplied a substitute check to Cash Currency One, Inc.; plaintiff alleged that this violated 12 C.F.R. 229.51 and 12 C.F.R. 229.52. Specifically, plaintiff claimed that defendant's substitute check did not "accurately represent all of the information that was on the face and back of the original check at the time of its truncation by [defendant]."
Plaintiff filed a first amended complaint against defendant on September 26, 2006, as to check number 836. The instrument was made payable to David Aochoa, a second named defendant who was not served. It was drawn on the account of Marcellus Hill and was cashed by plaintiff's assignor, Check Cashing Service, Inc. The check was dishonored by defendant because the account had insufficient funds to clear the check. Similar claims referring to 12 C.F.R. 229.51 and 12 C.F.R. 229.52 were made by plaintiff against defendant arising from this check.
As has been true in the past, plaintiff pursues his claims against the only defendant who indisputably has the financial means to satisfy a judgment. See, e.g., Triffin v. TD Bank-North, N.A., 199 N.J. 326 (2007); Triffin v. Wachovia Bank, N.A., 406 N.J. Super. 427 (App. Div.), certif. denied, 199 N.J. 131 (2009); Triffin v. Bank of America, 391 N.J. Super. 83 (App. Div. 2007).
Plaintiff's complaint sought damages for defendant's purportedly wrongful conversion related to the checks. Plaintiff's key contention, however, is that defendant violated the Check Clearing for the Twenty-First Century Act (the Check 21 Act), 12 U.S.C. 5001-5018, adopted by Congress on October 28, 2003, and made effective on October 28, 2004.
The Federal Reserve implements the Check 21 Act through the regulations promulgated in the C.F.R. The stated purpose of the law is to enhance the "ability of banks that want to process checks electronically to take full advantage of that technology." 69 Fed. Reg. 47290 (Aug. 9, 2004). The Check 21 Act, implemented after the tragic events of September 11, 2001, provides for the creation and use of electronic images of checks, technically referred to as truncated checks. 12 U.S.C.A. § 5002 (2009). This process allows banking institutions to shield the overall system from disruptions in the physical transportation of checks thereby "improv[ing] the overall efficiency of the Nation's payment system." Ibid.
Defendant filed an answer, separate defenses and crossclaims on October 23, 2006. Defendant's attorneys notified plaintiff on October 24, 2006, that if he did not dismiss all claims with prejudice within twenty-eight days, defendant would seek damages pursuant to the frivolous litigation statute, N.J.S.A. 2A:15-59.1, and Rule 1:4-8. Defendant's attorney reasserted the demand that plaintiff dismiss all remaining claims against defendant by correspondence on October 27, 2006.
Plaintiff thereafter filed a notice of dismissal with prejudice of the conversion counts on November 6, 2006. The matter was scheduled for trial on December 18, 2006, a Monday. Plaintiff dismissed his remaining claims against defendant with prejudice on December 15, 2006, the Friday before trial, in mid-afternoon.
On January 4, 2007, defendant filed a motion seeking attorneys' fees and costs pursuant to the frivolous litigation rule and statute. On January 8, 2007, plaintiff filed a cross-motion for leave to reinstate all of his Check 21 Act claims against defendant. By order dated January 10, 2007, the first motion judge awarded attorneys' fees and costs, subject to submission of a detailed certification of services. For reasons not clear from the record, the motion to reinstate was separately addressed by a second motion judge. The application was denied without ...