On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5522-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and LeWinn.
Plaintiff maintained a regular checking account at Bank of America (BOA). In 2007, a dispute arose in which he claimed that, in May and August of that year, BOA wrongfully dishonored two of his mortgage payment checks for insufficient funds when he had sufficient funds to cover them and this damaged his credit rating to a degree that caused him to lose profitable investment opportunities; he also claimed BOA committed fraud by altering the dates on which certain transactions were debited and credited to his account in order to charge him excessive overdraft fees.
In June 2008, plaintiff filed a complaint against BOA alleging "accounting fraud" and seeking damages of $10,000,000 that he claimed resulted from "lost borrowing and investment opportunities over . . . [his] lifetime . . . from [an] adverse credit rating so that [he] . . . couldn't get new and cheaper loans and use those loans productively for further investments." Trial commenced on November 4, 2009, but ended in a mistrial the following day. BOA then filed a motion for summary judgment. Plaintiff now appeals from the January 8, 2010 order granting that motion and dismissing his complaint. We affirm.
Plaintiff's checking account with BOA was governed by a contract consisting of the following documents: (1) a "Deposit Agreement and Disclosures" (Agreement) and (2) a Schedule of Fees. The Agreement governs the manner in which BOA will make deposited funds available to an account holder, depending on whether those deposits are made by wire or electronic transfer or by cash/check deposits.
The Agreement further provides for the assessment of overdraft and "returned item" fees against the account holder for insufficient funds; it states:
Whether we return or pay an insufficient funds item depends on a number of factors, including the amount of the item and the past activity in your account. We may, without notice to you and in our sole discretion, either pay it and overdraw your account or we may decline or return an insufficient funds item unpaid. . . .
We may establish different processing orders for checks and other items. When you do not have enough available funds to pay all checks and other items on a given day, we may pay one or more checks or other items, and return other checks or other items, in any order we deem appropriate. We may change our processing orders at any time without notice to you, even though some processing orders may result in more insufficient funds items and more fees than others.
Although plaintiff's complaint was grounded on the dishonoring of two mortgage checks for insufficient funds, and a claim of excessive overdraft fees - procedures clearly governed by express terms of the Agreement - plaintiff did not assert a claim for breach of contract. His claims sounded only in fraud.
The gravamen of plaintiff's complaint with respect to the two dishonored mortgage checks in May and August 2007 was that these actions by BOA prevented plaintiff from refinancing his residence. He intended to refinance for an amount that was $50,000 over its appraised value and invest that $50,000 in stocks, resulting eventually in a return of $10,000,000.
In support of this claim plaintiff prepared a one-page statement, which reads as follows:
STATEMENT SHOWING HOW BANK OF AMERICA CAUSED
LOSS OF $10 MILLION BY RETURNING MY TWO
If BOA would not have returned my first check on 5/14/2007, I would have been able to save $50,000 by refinancing my mortgage ...