July 22, 2011
RICHARD A. DUNNE AND CHRISTINA DUNNE, PLAINTIFFS-APPELLANTS,
JP MORGAN CHASE BANK, N.A., CHASE CARD SERVICES AND CHASE BANK, U.S.A., N.A., DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6732-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 22, 2011
Before Judges A. A. Rodriguez and Reisner.
Richard A. Dunne and his wife Christina Dunne appeal from the October 15, 2010 order dismissing their verified complaint asserting claims against JP Morgan Chase Bank, N.A. (Bank); Chase Card Services and Chase Bank, U.S.A., N.A. (collectively "Card Services"). We affirm the October 15, 2010 decision by Judge Thomas R. Vena.
On February 22, 2010, Richard wrote check #5741 drawn on the couple's joint personal checking account with the Bank, in the amount of $6,692.51 made payable to Chase Card Services. The check was mailed to Card Services, which presented it for payment to the Bank. It is undisputed that the Bank made a mistake and debited $16,692.51 from the Dunnes's personal checking account instead of the correct amount of the check.
This error was discovered fourteen days later when Richard reviewed the monthly Bank statement. He spoke to Edward L. Rogers, Vice-President at the Bank, who admitted that the Bank had made a mistake. The Bank credited the Dunnes's account $16,692.51 and debited $6,692.51.
The Dunnes filed a three-count verified complaint asserting claims against the Bank and Card Services. Judge Vena signed an order to show cause and set a return date. The Bank and Card Services moved to dismiss the verified complaint. In a written opinion, Judge Vena granted the motion and dismissed the verified complaint. The judge rejected the Dunnes's argument that they are entitled to the relief set by N.J.S.A. 12A:3-406*fn1 because the Bank's negligence, carelessness, or recklessness resulted in the alteration of their check. The Dunnes want Card Services to forgive their credit card debt ($10,000), alleging that § 3-406 mandates such remedy.
On appeal, the Dunnes contend that "an 'alteration' to a negotiable instrument takes place, as the 'plain language' of its definition at [N.J.S.A. 12A: 3-407(a)] states; when '. . . an unauthorized change . . . purports to modify in any respect the obligation of a party,' and is not limited solely to those occasions when the negotiable instrument is physically effected."
They also contend that the Bank, is most certainly asserting the alteration that it, and it alone, created to avoid a monetary loss of its own, and because it was the only party whose failure to exercise ordinary care lead to the alteration of pro se plaintiff-appellant's check, it is precluded from asserting that alteration to avoid having the penalty borne upon it that is sanctioned by [N.J.S.A. 12A:3-406] for its negligence.
Lastly, the Dunnes contend that:
The language contained in the credit card, statements, which defendant-respondents [Card Services] assert identifies the designated location to which customers are to send conditional payments or payments containing the notation "Paid In Full," does not satisfy the requirement set forth in [N.J.S.A. 12A:3-311(c)(1)] that 'a conspicuous statement' be sent to their customers specifically advising them of the designated place to which such payments are to be sent.
Based on a careful review of the record and legal arguments, we determine that these arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We merely note that, as did Judge Vena, we reject these arguments. First, we note that N.J.S.A. 12A:3-406(a) limits its remedy to "a person, who, in good faith, pays the instrument or takes it for value or for collection." The Dunnes are not such persons, but are simply the makers of the check.
More importantly, they have not suffered a loss. They were, in effect, credited the $10,000 that was caused by an error in processing the check. To forgive a $10,000 debt that has nothing to do with check #5741, based on N.J.S.A. 12A:3-406(a), would be an error and would result in a windfall to the Dunnes.
Lastly, a mistake in processing is not an alteration. The amount of check #5741 remains the same, $6,692.51. The error was not an alteration of the check, but an erroneous debit from the Dunnes's account.
Affirmed substantially for the reasons expressed by Judge Vena in his October 19, 2010 written opinion.