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Leonardo v. Bank of America

April 9, 2010

JENNIFER LEONARDO, PLAINTIFF-APPELLANT/CROSS-RESPONDENT, AND JANET POLACHEK AND JOHN F. MORAN, JR., PLAINTIFFS,
v.
BANK OF AMERICA, F/K/A/ FLEET BANK, N.A., DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-28-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: January 27, 2010

Before Judges Axelrad, Sapp-Peterson and Espinosa.

Plaintiff Jennifer Leonardo appeals the January 7, 2009 order dismissing claims against Bank of America, f/k/a Fleet Bank (referred to as "BOA") with prejudice following our remand to the trial court after we concluded the appeal was interlocutory. We affirm.

The facts before the court were contained in a statement of stipulated facts or are not in dispute. Plaintiff is the adult daughter of Janet Polachek. On Friday, April 23, 2004, Leonardo deposited into her BOA account two checks written by Charles Roper, a Florida resident, dated April l9, 2004, and drawn on his Sun Trust bank account (the "Roper checks"). The checks, numbers 1235 and 1236 in the amounts of $2,500 and $2,595, respectively, were made payable to the "Janet Polachek Racing Stables" and endorsed as payable to plaintiff by Polachek in her name only, there being no "Racing Stable" entity. According to plaintiff's bank statement, her balance prior to depositing the checks was -$155.46.

Plaintiff was notified by BOA by letter of April 28, 2004, that the Roper checks would take six business days from the date of deposit to clear because they were drawn on an out-of-state account. On April 29, plaintiff was told by a bank manager that the funds would be available on April 30, but on that date she was told the funds would not be made available because the checks were improperly endorsed. BOA dishonored several of plaintiff's checks, including: (1) check no. 1079 payable to "Arizona Premium Finance" in the amount of $55.48, dated April 24 and posted to her account on April 29; (2) check no. 1080 payable to "Dambly's" in the amount of $31.75, dated April 26 and posted to her account on April 28; and (3) check no. 1089 payable to "Dambly's" in the amount of $119.80 dated sometime in April, deposited by the payee on May 3 and presented for payment on May 4.*fn1

A hold was placed on plaintiff's account for the amount of the Roper checks and the account was turned over to the bank's fraud unit for investigation. According to the stipulated facts, plaintiff alleges that sometime after April 30, a BOA representative told Douglas Wells, payee of a check issued by plaintiff, that: "[t]here is plenty of money in the account but the account is frozen and being investigated by the bank's fraud unit." On or around May 4, 2004, plaintiff was informed of the fraud inquiry.

BOA suggested that if Polachek went to the bank and identified herself as the endorser and if Roper asked Sun Trust to request return of the funds, BOA would return the funds in exchange for the Roper checks. Sometime afterwards, Polachek presented BOA with a notarized statement confirming her identity as the endorser. Plaintiff brought to BOA an unsigned, typed letter dated May 3, 2004, purportedly from Roper to BOA, stating that the checks were made payable to the stables in error and should have been made payable to Polachek individually. She thereafter provided BOA with an undated, handwritten, signed letter from Roper evidencing the same.

Sun Trust made a written claim against BOA with respect to Roper check no. 1235, and BOA sent it $2,500 on July l2, 2004. Although BOA did not return the funds from check no. 1236 to Sun Trust in response to a similar demand, informing it on August 12, 2004 that plaintiff "[did] not have funds available at [that] time," the proceeds were paid to plaintiff by consent pursuant to an order dated May l5, 2007.*fn2

On December 30, 2004, plaintiff, Polachek, and John Moran*fn3 filed an eleven count complaint against BOA, asserting claims of conversion (count one), unjust enrichment (count two), wrongful dishonor of checks drawn on the account (counts three and four), breach of the implied covenant of good faith and fair dealing imposed by N.J.S.A. 12A:1-203 (count five), unconscionable commercial practices under the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -167 (count six), fraud, intentional and willful misconduct (count seven), negligent misrepresentation that the checks drawn on plaintiff's account would be honored (count eight), breach of fiduciary duty (count nine) and defamation (counts ten and eleven). BOA filed its answer in March 2005.

Plaintiff's theory against the bank was that the Personal Deposit Account Agreement makes deposits available after three business days and provides a general next-day availability for the first $100 of a deposit. Plaintiff contended the third business day was April 27 and, therefore, the Roper funds should have been credited to her account well before any of the aforementioned checks were returned. Then, despite plaintiff following the recommendation of BOA, the bank neither credited the Roper checks to plaintiff's account nor took action to facilitate issuance of a replacement check. Instead, BOA froze her account and referred it for a fraud inquiry. Plaintiff further contended BOA improperly continued to retain the funds and had use of the $2,595 until litigation. According to plaintiff, BOA's conduct constituted an unconscionable commercial practice within the CFA. Her claimed ascertainable loss and damages were: (1) the "NSF" check charges for the aforementioned checks; (2) the cancellation of Moran's automobile insurance policy on his vehicle, which she borrowed, due to the dishonor of check no. 1079 payable to Arizona Premium Finance; (3) Pennsylvania's cancellation of the registration privileges "on plaintiff's vehicle" for sixty days effective June l5, 2004; (4) plaintiff's resulting loss of her summer earnings of $300 per week for twelve weeks; and (5) BOA's retention of her funds until ordered to pay them over to her. She also asserted defamation in connection with BOA's representative's purported disclosure of the fraud inquiry to Wells.

By order of March l7, 2006, the court granted summary judgment against Polachek and Moran on all claims, and granted partial summary judgment against plaintiff on her CFA and unjust enrichment claims. The judge found that plaintiff was not a consumer within the CFA and BOA acted in accordance with reasonable commercial standards in reviewing the checks. In May, plaintiff filed a motion for reconsideration of her CFA claim based on a recently decided unpublished opinion of ours holding that a cause of action may be maintained against a banking institution under the CFA for a violation of a record retention policy, which the court denied by order of July 28, 2006.

Instead of proceeding to trial on the remaining claims, in concert with the parties, a different judge entered a May l5, 2007 order dismissing plaintiff's remaining claims without prejudice and permitting their reinstitution if she were unsuccessful on appeal of the CFA claim, and certifying the resulting judgment as final. Plaintiff appealed and in an unreported opinion of ...


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