On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-0886-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Yannotti.
Plaintiff Robert J. Triffin appeals from an order entered by the Law Division on April 29, 2011, dismissing his claims against defendant H&R Block, Inc. (H&R Block) pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief could be granted. We affirm the order, as modified to reflect that the dismissal is without prejudice.
On December 14, 2010, plaintiff filed a complaint against H&R Block, Rochmeen F. Fapread (Fapread) and Marc Pierre (Pierre) in the Law Division asserting claims pertaining to certain dishonored checks drawn on H&R Block's account in U.S. Bank. These are: check # 6181926, payable to Fapread, in the amount of $563.44; and check # 6181881, payable to Pierre, in the amount of $559.12. Copies of the checks were appended to plaintiff's complaint.*fn1 The checks indicate that they had been dishonored as "altered/fictitious."
Plaintiff alleged that Check Cashing Services, Inc. (CCS) cashed the check payable to Pierre, and Atlantic City Check Cashing (ACCC) cashed the check payable to Fapread. Plaintiff claimed that, at the time CSS and ACCC cashed the respective checks, they did not have knowledge of any defenses or claims on the part of any person with regard to the checks. According to plaintiff, CCS and ACCC therefore became the holders in due course of the checks they cashed, pursuant to N.J.S.A. 12A:3-302.
Plaintiff further alleged that CCS and ACCC had assigned the checks to him. Plaintiff claimed that, as a result of the assignments, he had the legal status of holder in due course of the checks. Plaintiff sought judgment for the amount of the checks, the returned check fees, fees incurred for consolidated credit reporting and access maintenance, as well as prejudgment interest.
On February 22, 2011, H&R Block filed an answer disclaiming liability. In its separate defenses, H&R Block asserted that it was not liable on the subject instruments because it did not sign them and they were not signed by another person authorized to sign the checks on its behalf. H&R Block also asserted that plaintiff was not a holder in due course of the checks. It appears that the complaint was not served upon Fapread or Pierre, and the trial court dismissed the claims against them.
On April 6, 2011, H&R Block filed a motion to dismiss pursuant to Rule 4:6-2(e), which plaintiff opposed. The trial court decided the motion on the papers. The court entered an order dated April 29, 2011, granting the motion and later filed a letter opinion setting forth its reasons for doing so.
In its opinion, the court stated that only the party who forged or counterfeited a check may be liable on that instrument. The court noted that the checks at issue had not been signed by anyone authorized by H&R Block to do so, as shown by the fact that the checks were returned by the bank "altered/fictitious." The court therefore concluded that, based on these alleged facts, plaintiff did not have a right to recover against H&R Block.
The court additionally stated that a party could not recover on a forged or counterfeit instrument unless it was a holder in due course. The court said that, to establish holder in due course status, a holder must have taken the check in good faith and without notice of the check's invalidity. Here, plaintiff alleged that CCC and ACCC were holders in due course, and he was a holder in due course as a result of CCC's and ACCC's assignments of the checks to him.
The court said that in order to establish that CCC and ACCC were holders in due course, plaintiff had to show they took reasonable measures to ensure that the checks these entities cashed were not forged or counterfeit. The court noted that the checks each bore a statement indicating that their validity could "be determined by holding them at an angle to view a watermark as authentication." The court determined that because plaintiff had not alleged facts indicating that the check cashers took reasonable steps to ensure the checks were legitimate, the complaint failed to state a claim upon which relief could be obtained against H&R Block.
Plaintiff appeals and argues that the court erred by: (1) failing to treat the motion as one for summary judgment and basing its decision on facts not in evidence; (2) stating that a party must be a holder in due course to recover upon a forged or counterfeit check; and (3) finding that prior to cashing a check, a party ...