ROBERT J. TRIFFIN VS. UNITED STATES FIRE INSURANCECOMPANY(DC-2147-13, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0607-15T2

ROBERT J. TRIFFIN,

Plaintiff-Appellant,

v.

UNITED STATES FIRE INSURANCE
CO., Individually and d/b/a
CRUM & FORSTER,

Defendant-Respondent,

and

JUAN PINERO,

Defendant.

_________________________________________

Argued April 6, 2017 – Decided June 12, 2017

Before Judges O'Connor and Whipple.

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. DC-
2147-13.

Robert J. Triffin, appellant, argued the
cause pro se.

Michael F. Bevacqua, Jr. argued the cause
for respondent (Mandelbaum Salsburg, P.C.,
attorneys; Mr. Bevacqua, of counsel and on
the brief).
PER CURIAM

Plaintiff Robert J. Triffin brings this action to recover

on a dishonored check defendant United States Fire Insurance

Company, Inc. (USIF) issued to the order of defendant Juan

Pinero. Plaintiff appeals from the following four Special Civil

Part orders: (1) the April 2, 2015 order compelling him to pay

$300 to restore his complaint; (2) the April 24, 2015 order

denying his motion for reconsideration of the April 2, 2015

order; (3) the July 24, 2015 order granting USIF summary

judgment dismissal; and (4) the September 4, 2015 order denying

plaintiff's motion for reconsideration of the July 24, 2015

order.1 After reviewing the record and the parties' briefs, we

affirm in part and reverse in part.

I

We discern the following facts from the motion record. In

March 2012, USIF issued a check for $848 for disability benefits

to Pinero. On April 24, 2012, Pinero contacted USIF and

reported he had not received the check. That same day, USIF

directed its bank to stop payment on the check. Despite the

stop payment order, on May 3, 2012, the original check was

1
Defendant Pinero failed to file a responsive pleading and,
after entry of default, plaintiff obtained a default judgment
against him.
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cashed at Pennsauken Check Cashing (PCC), a licensed check

cashing business.

On the back of the check appears what purports to be

Pinero's signature, endorsing the instrument in blank. Above

his signature is a stamped restrictive endorsement stating, "For

Deposit Only Atlantic City Check Cashing 05/03/2012."2 Atlantic

City Check Cashing (ACCC) is also a check cashing business.

Below the endorsement area of the check is a stamp stating, "Pay

to the Order of Republic Bank of Chicago[,] . . . Pennsauken

Check Cashing[,] Licensed Cashier of Checks[.]" The specific

order of the three endorsements was Pinero's purported blank

endorsement, followed by ACCC's restrictive endorsement, and

then PCC's restrictive endorsement.

Because of USIF's stop payment order, the Republic Bank of

Chicago dishonored the check when PCC presented it for payment.

Five months later, plaintiff and PCC entered into an assignment

agreement, in which plaintiff purchased PCC's rights to the

dishonored check. Plaintiff then filed a complaint in the

Special Civil Part against USIF as the drawer of the check and

2
The copy of the back of the original check is difficult to
read, but the record clarifies and the parties do not dispute
the content of this endorsement. At one point during the
litigation, plaintiff asserted Atlantic City Check Cashing's
endorsement was "obliterated," but subsequently retracted this
contention.
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against Pinero as the payee. Plaintiff claimed he held the

rights of a holder in due course and sought to recover the full

amount of the draft, $848, plus statutory interest and fees.

During the litigation, the trial court entered an order on

April 30, 2013, dismissing plaintiff's complaint with prejudice

because plaintiff failed to provide court-ordered discovery.

Plaintiff appealed and we reversed the order, finding

plaintiff's violation of the subject discovery order should have

been addressed by a sanction less severe than a dismissal of his

complaint with prejudice. See Triffin v. U.S. Fire Ins. Co.,

No. A-0225-13 (App. Div. Dec. 23, 2014).

After the matter was remanded in December 2014, plaintiff

failed to produce the discovery he had been ordered to provide

back in 2013. The ordered discovery included various answers to

interrogatories and responses to USIF's notice to produce.

USIF filed a motion to sanction plaintiff because of his

continued failure to serve the subject discovery and, on April

2, 2015, the court entered an order dismissing plaintiff's

complaint without prejudice. In addition, the court directed

the outstanding discovery be served upon USIF no later than

June 1, 2015, and that plaintiff pay a $300 restoration fee.

On April 24, 2015, plaintiff's motion for reconsideration

of the April 2, 2015 order, in which plaintiff argued the court
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erred by imposing the $300 restoration fee, was denied. On or

about May 1, 2015, plaintiff served USIF with all remaining

discovery and paid the $300 restoration fee. It is not clear

from the record when plaintiff filed his motion to restore his

complaint, but he asserts and USIF does not dispute that motion

was filed within thirty days of the April 2, 2015 order of

dismissal. On June 5, 2015, plaintiff's complaint was restored.

Thereafter, on July 24, 2015, the trial court granted USIF

summary judgment dismissal.3 On September 4, 2015, plaintiff's

motion for reconsideration of the July 24, 2015 order was

denied. In its oral opinion, the trial court explained its

reasons why USIF was entitled to summary judgment dismissal:

Plaintiff claims to have the rights of a
holder in due course of the subject check,
which entitles him to enforce the instrument
against the drawer by virtue of an
assignment agreement between him and
PCC. . . .

The court found that to enforce USIF's
obligations with respect to the check, the
plaintiff had to show that he was either a
holder of the check or a nonholder in
possession who has the rights of a holder.

The court found he could show neither.

3
Plaintiff complains there is no order stating his cross
motion for summary judgment was denied. We deem it implicit
that when USIF was granted summary judgment dismissal,
plaintiff's cross motion for summary judgment was denied.
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First, the check contained three
endorsements. The first is by the original
payee, Juan Pinero. That Pinero is the
original endorser is made clear by the fact
that he was the payee on the check and
therefore only he could negotiate it.

The second endorsement is by Atlantic Check
Cashing.

And the third endorsement is by Pennsauken
Check Cashing.

There is no endorsement to plaintiff. As a
result, plaintiff cannot be a holder of the
check through negotiation because – because
negotiation would require both an
endorsement to the plaintiff and delivery to
him of . . . the check.

[Thus,] [p]laintiff's only option to become
a holder of the check is by way of an
assignment and delivery of the check from a
previous holder of that instrument.

Now, to obtain this status, plaintiff had to
show that he obtained the check as a result
of an assignment and delivery of the check
to him by a holder. See N.J.S.A. 12A:3-301
– 12A:3-203(b), and 12A:3-203.

Plaintiff has failed to make this showing.
As noted, Juan Pinero is the first endorser
of the check as between Atlantic and
Pennsauken, Atlantic is the second endorser,
and Pennsauken is the third endorser.

This is clear from the facts of the case and
from the endorsements on the back of the
check.

Pennsauken's endorsement has to be the last
because it was necessary for the check to be
deposited into the Republic Bank of Chicago
. . . .
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Accordingly, Atlantic's endorsement was
second, after Pinero's endorsement, but
before Pennsauken's endorsement. Thus, the
chain of endorsements was Pinero to Atlantic
to Pennsauken.

But plaintiff's assignment of the check is
from Pennsauken. Thus, for plaintiff to be
a nonholder in possession with the rights of
a holder, Pennsauken had to first be a
holder. In order for Pennsauken to be a
holder, a prior holder had to negotiate, in
other words, sign and deliver the check to
Pennsauken. [Because,] [t]he holder of the
check before Pennsauken was Atlantic[,]
. . . Atlantic had to endorse and deliver
the check [to] Pennsauken.

However, . . . Atlantic's endorsement of the
check was restrictive. Specifically,
Atlantic's endorsement of the check was for
deposit only. The U.C.C. states the
following with respect to restrictive
endorsement[s]: If an instrument bears [a]n
endorsement in blank or to a particular bank
using the words "for deposit," . . . the
following rules apply.

A depository bank that purchases the
instrument or takes it for collection when
so endorsed converts the instrument, unless
the amount paid by the bank with respect to
the instrument is received by the endorser
or applied consistent with the endorsement.
N.J.S.A. 12A:3-206(c). Accordingly, by
taking the check for collection . . . from
Atlantic, Pennsauken became a converter of
the check with respect to Atlantic, not
USIF, unless it paid Atlantic for the check.

Plaintiff has proffered no evidence that
Pennsauken paid Atlantic for the check.
Accordingly, Pennsauken is a converter of
the check with respect to Atlantic and not,
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 as plaintiff mistakenly contends, with
respect to USIF. . . .

Here, because Pennsauken is a converter of
the check, pursuant to [N.J.S.A.] 3-206(c),
it cannot be a holder of the check. And
because Pennsauken is not a holder of the
check, plaintiff cannot be nonholder in
possession of the check with the rights of a
holder[,] inasmuch as having that status
required him to take the check from a
holder.

In sum, plaintiff cannot enforce the check
because he's neither a holder nor a
nonholder in possession with the rights of a
holder. There are no other means for him to
enforce the check. See N.J.S.A. 12A:3-301.

This appeal ensued.

II

Plaintiff presents the following points for our

consideration:

Point I: THE TRIAL COURT DID NOT HAVE THE
AUTHORITY TO DEVIATE FROM THE MANDATED
RESTORATION FEES SET FORTH IN RULE 6:4-4.

POINT II: [THE TRIAL COURT] COMMITTED
REVERSIBLE ERROR WHEN [IT] FAILED TO
APPREHEND [SIC] THAT [DEFENDANT] WAIVED THE
ISSUE OF THE ENFORCEABILITY OF ACCC'S "FOR
DEPOSIT ONLY" STAMP ON USIF'S DISHONORED
CHECK.

POINT III: [THE TRIAL COURT] COMMITTED
REVERSIBLE ERROR WHEN [IT] MISAPPLIED THE
CONTROLLING LEGAL STANDARDS TO THE PARTIES'
CROSS-MOTIONS FOR SUMMARY JUDGMENT.

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 As for plaintiff's first argument, we are satisfied the

court mistakenly exercised its discretion when it ordered

plaintiff to pay a $300 restoration fee. Rule 6:4-6 provides in

pertinent part:

The provisions of R. 4:23 (sanctions for
failure to make discovery) shall apply to
actions in the Special Civil Part, except
that:

. . . .

(b) Restoration Fees. The amounts of the
restoration fees of $100 and $300 specified
in R. 4:23-5(a) are reduced to $25 if the
motion is made within 30 days and $75
thereafter.

Here, it is uncontested plaintiff filed his motion to

restore his complaint within thirty days of the order dismissing

his complaint. Therefore, the restoration fee in this Special

Civil Part matter was $25, not $300. Accordingly, the provision

in the April 2, 2015 order compelling plaintiff to pay a $300

restoration fee and the April 24, 2015 order denying his motion

for reconsideration of the April 2, 2015 order are reversed.

However, we discern no merit in plaintiff's remaining

arguments. Having fully considered these points in light of the

record and the applicable law, we affirm the July 24, 2015 and

September 4, 2015 orders for substantially the same reasons

expressed by the trial court in its oral opinion on September 4,

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2015. In the final analysis, in order for plaintiff to enforce

this negotiable instrument under these circumstances, plaintiff

must either be a "holder" of the instrument or a "nonholder in

possession of the [negotiable] instrument . . . [with] the

rights of a holder." See N.J.S.A. 12A:3-301. There is no

evidence plaintiff was either. The July 24, 2015 and September

4, 2015 orders are therefore affirmed.

To the extent we have not addressed any specific argument

advanced by plaintiff, it is because we found such argument

without sufficient merit to require discussion in a written

opinion. See R. 2:11-3(e)(1)(E).

Affirmed in part and reversed in part.

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