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Cumis Mutual Insurance v. Mirek Rosol

February 22, 2011

CUMIS MUTUAL INSURANCE SOCIETY, INC. ("CUMIS") A/S/O POLISH & SLAVIC FEDERAL CREDIT UNION, PLAINTIFF-RESPONDENT,
v.
MIREK ROSOL, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1450-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT

Argued December 7, 2010 - Decided Before Judges Messano and Waugh.

Defendant Mirek Rosol appeals from a judgment in favor of plaintiff Cumis Mutual Insurance Society, Inc. (Cumis). Cumis sued Rosol as assignee of the rights of its insured, the Polish & Slavic Federal Credit Union (PSFCU), of which Rosol was a member. Cumis sought to recover funds Rosol had transferred from one of his PSFCU accounts based upon a provisional credit from a Canadian check that was subsequently returned as fraudulent. On cross-motions for summary judgment, the Law Division denied Rosol's motion and granted Cumis's motion. Because we conclude that there were genuine issues of material fact precluding summary judgment, we reverse.

I.

We discern the following facts from the record on appeal. PSFCU is a federal credit union authorized pursuant to the provisions of the Federal Credit Union Act, 12 U.S.C.A. §§1751 to 1795(k). During his approximately fifteen year membership in the credit union, Rosol maintained a "share" account, a mortgage loan, and other credit accounts.

In fall 2005, Rosol received an email from someone he did not know, offering to pay him a ten percent fee if he would receive checks, deposit them, and then transfer the funds to others. The person sending the email purported to be in China.

On November 19, 2005, Rosol received a cashier's check for $9800 and deposited it in a new account he had opened at PSFCU. The check was made payable to Rosol and was issued in the name of Priority One Credit Union in Florida. The check made reference to a "Certportal Investment."

Rosol then received another check, which was drawn on a Canadian bank. The second check was for $45,000, and was also payable to Rosol. The payor was an entity called Danka Canada, Inc. Rosol deposited the second check in his new account on November 22, 2005.

PSFCU was notified that the first check had been dishonored on November 25, 2005. Although the credit union notified Rosol that the check had been returned as dishonored, PSFCU did not disclose that the check was fraudulent.*fn1 According to Rosol, he met with the manager of PSFCU's Clifton branch and was told that "the check was not fraudulent but ha[d] merely been 'stopped.'" Rosol further maintains that he paid a $50 fee for "a search or check" on the $45,000 Canadian check. The credit union, however, maintains in its brief that the $50 was only a fee for collecting a foreign check.*fn2

Although the Canadian check had not finally cleared, PSFCU provisionally credited the $45,000 to Rosol's account on

December 6, 2005. Rosol went to the branch on the same day and inquired about the status of the check. According to Rosol's certification, a bank employee "confirmed that the funds were [in his account]" and gave him a verification number. Rosol also certified that he was "told these monies were collected and in [his] account."

During his visit to the branch on December 6, 2005, Rosol arranged for an international wire transfer to Japan in the amount of $36,240. He also obtained a money order for $4500, which was sent to someone in London. The funds for both transfers came from the account that had received the provisional credit of $45,000.

On December 16, 2005, PSFCU was notified that the Canadian check had been dishonored and would be returned as a fraudulent instrument. It made a demand on Rosol for the return of the $43,624.53 he had removed from the new account based upon the provisional credit. When Rosol refused, PSFCU made a claim against Cumis, which paid it $38,609.53, after ...


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