On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-17289-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and strer.
Plaintiff Robert Triffin appeals from the trial court's order granting the cross-motion for summary judgment of defendant Apollo Group Inc. (Apollo). Plaintiff sued to recover on a dishonored check that Apollo issued to the order of co-defendant Jennifer Harris. The trial court found that the check bore evidence of forgery or alteration that defeated any claim by plaintiff to be a holder in due course. We reverse.
It is undisputed that Apollo issued check number 3620309 in the amount of $2,366, to the order of Harris, dated October 20, 2008, and drawn on its account at Wells Fargo Bank in Phoenix, Arizona. One Stop Mt. Holly (One Stop), apparently a licensed check casher, presented it for payment, but the check was dishonored on October 31, 2008. Through a written agreement of April 28, 2010, One Stop, by its general manager, Jo Anne Barlieb, assigned all its rights in this check to plaintiff.
Plaintiff attached a copy of the "Assignment Agreement" to his complaint, which included certain warranties of the seller. Although preceded by language prescribed by Rule 1:4-4(b), seller stated "to the best of its knowledge" that it cashed the check for Harris herself. "Seller gave value for the referenced check by cashing it for the payees who [are] identified on the referenced checks." However, One Stop further certified, without the "best of its knowledge" qualifier, that "at the time it cashed the referenced checks," One Stop "had no notice of any defense or claims in recoupment," no notice that the check was "overdue or had been dishonored," and the check "did not bear any evidence of forgery or alteration" and was "neither irregular nor incomplete as to call into question [its] authenticity."*fn1
Also undisputed are aspects of the appearance of the instrument that plaintiff purchased, which are evident from the copy attached to plaintiff's complaint. On the face of the check, Apollo is described as a subsidiary of the University of Phoenix, Inc. Harris's name appears on the "to the order of" line along with a seven digit number. A New Jersey address is listed under her name. There is no memo line indicating the purpose of the $2,366 payment. Next to the pre-printed "DATE" is the insertion "20-OCT-08," but to the left, stamped at angle is the date, "OCT 28 2008" apparently reflecting a stage in the processing of the check. Next to drawer's signature, which appears to be Joseph L. D'Amico, is another stamp which is partly illegible. Lastly, in large block letters, stamped on the left side of the check appear the words, "RETURN REASON - S" and "REFER TO MAKER."
What appears to be Jennifer Harris's signature is found on the first line of the endorsement area on the back of the check directly below the pre-printed words "ENDORSE CHECK HERE" and to the right of an "X." "Jennifer" is written in cursive, with most letters identifiable. "Harris" is stylistically written with a prominent "H" which is extended into a sweeping, generally horizontal line to the right, in place of the letters "arris."
On the next pre-printed line appears another signature, which is illegible. It appears to have another hand-written mark or letter superimposed on it, creating the appearance of two horizontal lines, but it is unclear whether they are flourishes that are part of the signature, or at least one is a cross-out. To the right of that signature, on the same line, is what appears to be a cursive "H," somewhat similar in appearance to the "H" on the first line.
To the right of the single "H" are the initials "JH" in block letters. The block letter "H" bears some resemblance to the cursive "H" in "Harris" on the line above. The crossbars in both the cursive "H" and the block letter "H" begin in the lower right of the letter and proceed on an angle up to the left, as opposed to crossing at the same point on both vertical lines.
On the third pre-printed line is written "for deposit only" followed by "acct" and an eight-digit number. The words "for deposit only" are stricken with a single horizontal line. The "JH" on the second line appears clearly above the stricken language. At the other end of the back of check, appears the pre-printed message, "THIS DOCUMENT IS PROTECTED BY ARTIFICIAL WATERMARKS HOLD AT AN ANGLE TO VIEW." The check was apparently deposited at Beneficial Savings Bank of Philadelphia, as its name is imprinted on the back of the check.
On June 3, 2010, plaintiff filed his complaint against Apollo and Harris in Special Civil Part.*fn2 He alleged that One Stop had no notice of any defenses or claims by any party to the check, and was a holder in due course, and plaintiff was assigned One Stop's rights. He alleged that Harris indorsed the check and cashed it with One Stop. He sought payment, plus prejudgment interest and certain costs.
In December 2010, Apollo filed an answer. Apollo generally denied plaintiff's allegation that he had purchased all of One Stop's rights in the dishonored check "that the defendants respectively drew and cashed with assignor." But, Apollo asserted a lack of knowledge or information sufficient to form a belief as to the truth or falsity of plaintiff's allegation that "[a]s evidenced by the back of the attached dishonored check, on the date identified thereon the defendant payee [Harris] endorsed the referenced check, and in exchange for such endorsement, assignor gave value by cashing the referenced check for said payee." Apollo also denied plaintiff's allegation that when One Stop cashed the check, it "had no knowledge of any defenses or claims by any party to the referenced check." Apollo alleged as affirmative defenses the statute of limitations, and failure to state a claim. Apollo also "reserve[d] the right to pursue additional affirmative defenses as they become known."
In January 2011, apparently before either side engaged in discovery,
plaintiff filed a motion for summary judgment. In his statement of
material facts, plaintiff alleged that Harris personally cashed the
check with One Stop. However, as noted above, the only record proof of
that claim was the certification of One Stop's general manager, who
qualified her claim "to the best of her knowledge."*fn3
Plaintiff also alleged that One Stop
cashed the check in good faith and for consideration; and Apollo
stopped payment on the check. He alleged the check was dishonored
after One Stop presented it, and he was assigned One Stop's rights. He
also alleged that when One Stop cashed the check, he also was unaware
of any claims or defenses to payment of the check. He also asserted,
"It is crucial to note that Apollo does not allege in its answer that
the underlying dishonored instrument is not a negotiable instrument,
or that any signature appearing thereon is forged."
Apollo cross-moved for summary judgment, initially supported solely by a certification of counsel who apparently lacked personal knowledge of relevant facts.*fn4 Apollo disputed that Harris was the person who cashed the check at One Stop, and asserted that the check plaintiff possessed was a "fraudulent photocopy of the real check." Apollo asserted that Harris indorsed the check with the restrictive endorsement "deposit only" with her account number, and she deposited it at USAA Federal Savings Bank (USAA FSB) on October 27, 2008. Apollo claimed payment was made after the check was deposited at USAA FSB.
Defense counsel certified as true and accurate copies: the check as deposited at USAA FSB on October 27, 2008, "the forged check cashed at One Stop" on or about October 29, 2008," and the check as apparently re-submitted by One Stop on October 30, 2008.*fn5 The attributes of the face of the check that Apollo asserted was deposited at USAA FSB on October 27, 2008 were identical to those of the check that plaintiff possessed, as described above, except ...