On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Gloucester County, Docket Nos. DC-1581-07, DC-1945-07, and DC-1946-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 9, 2010 - Decided Before Judges Payne and Koblitz.
Plaintiff Robert J. Triffin appeals from two February 28, 2008, orders granting summary judgment to defendants and dismissing three consolidated Special Civil Part cases. Triffin also appeals the denial of his summary judgment application, his applications for discovery, as well as orders of March 25, 2008, and May 14, 2008, denying reconsideration. Defendant Bank of America (BOA) cross-appeals the denial of counsel fees. The trial judge held that Triffin lacked standing to sue under the federal statutory regulations concerning substitute checks. We affirm the trial judge's decision in this regard and reverse and remand for the judge to consider whether counsel fees should be awarded in favor of BOA under Rule 1:4-8, which governs frivolous litigation, and the frivolous litigation statute N.J.S.A. 2A:15-59.1.
Triffin argues that portions of the regulations pertaining to substitute checks, Federal Reserve System Regulations, 12 C.F.R. § 229.51, 12 C.F.R. § 229.52 and 12 C.F.R. § 229.56 (2010), promulgated to implement the Check Clearing for the 21st Century Act (Check 21), give an assignee such as him standing to sue for violations of the regulations. Substitute checks are simply replacements for negotiable instruments that contain the critical operative information of the originals, provided by a bank in lieu of the originals. They may be treated as legally identical to the original. The regulations explicitly create a cause of action for a payor, payee, drawer or drawee of dishonored checks or anyone harmed by a bank's failure to provide a usable substitute check. 12 C.F.R. § 229.52; 12 C.F.R. § 229.56.
Triffin, a law school graduate who is not a licensed attorney, has been in the business of purchasing dishonored negotiable instruments and then suing pro se either on the notes or on a variety of contractual or statutory theories. Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237, 241 (App. Div. 2007). He has obtained notoriety for filing over 15,000 lawsuits as an assignee of dishonored checks. Triffin v. Am. Intern. Group, Inc., 372 N.J. Super. 517, 521 n.2 (App. Div. 2004). We recently decided a case against Triffin involving the exact issues raised in this appeal, affirming the trial court's ruling that Triffin lacked standing. Triffin v. Wachovia Bank, N.A., 406 N.J. Super. 427, 430-31 (App. Div. 2009).
We adopt here the reasoning in Wachovia Bank, supra, 406 N.J. Super. at 431-33, where we found that Triffin lacked standing to pursue claims of breach of warranties contained in the Check 21 Act because such claims, allegedly arising from the breach of a statutory duty, were not assignable to him. See Triffin v. TD Banknorth, N.A., 190 N.J. 326 (2007); Triffin v. Bridge View Bank, 330 N.J. Super. 473 (App. Div. 2000).
As an assignee, Triffin not only lacks standing because he is seeking to enforce a statutory right he does not possess, but also because he was not harmed by the banks' use of substitute, truncated duplicate checks. "The 'essential purpose' of the standing doctrine in New Jersey is to 'assure that the invocation and exercise of judicial power in a given case are appropriate.'" Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 80 (App. Div. 2001) (quoting N.J. State Chamber of Commerce v. N.J. Election Law Enforcement Comm'n, 82 N.J. 57, 69 (1980)). To have standing, a plaintiff must demonstrate "a substantial likelihood of some harm visited upon [him or her] in the event of an unfavorable decision . . . ." Somerset Valley Bank, supra, 343 N.J. Super. at 81.
In his two current law suits against Wachovia Bank, N.A. (Wachovia), Triffin claims that information on sixteen checks was obliterated by the bank stamps indicating why the check was dishonored ("RETURN REASON D CLOSED ACCOUNT," "RETURN REASON A NOT SUFFICIENT FUNDS," etc.). See Wachovia Bank, supra, 406 N.J. Super. at 429. In his present suit against BOA he makes the same claim with regard to two checks. Triffin has an assigned right to sue the maker of these checks to recover the face value of the check. The check-cashing establishment that assigned that right to him is required by statute to retain records of all transactions, including a copy of the front and back of all checks, as well as the names of the payee and the person presenting the check.*fn1 N.J.S.A. 17:15A-44.l. Thus, all of that information was available to Triffin from the assignor check cashing businesses.
We agree with the trial judge that as an assignee Triffin had no standing to enforce the statutory rights afforded by Check 21, but we also find he lacks standing because he was not harmed in any demonstrable way by the actions of defendants.
"[T]he New Jersey Supreme Court has remained committed to the so-called American rule, that is, that the parties bear their own counsel fees." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:42-9 (2011). However, equity, rule, or statute may permit a court to order one side to pay attorney fees for the other, and two of these fee-shifting mechanisms in New Jersey are Rule 1:4-8 and N.J.S.A. 2A:15-59.1. BOA sought relief in the trial court under both.
Pursuant to Rule 1:4-8(d), sanctions for frivolous litigation may include "(1) an order to pay a penalty into court, or (2) an order directing payment to the movant of some or all of the reasonable attorneys' fees and other ...