ROBERT J. TRIFFIN VS. PLAZA GIFT & JEWELRY, LLC (DC-003566-15, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0060-15T3

ROBERT J. TRIFFIN,

Plaintiff-Appellant,

v.

PLAZA GIFT & JEWELRY, LLC,

Defendant-Respondent,

and

JAMES RICKARD,

Defendant.

_________________________________

Argued February 14, 2017 – Decided October 31, 2017

Before Judges Espinosa and Suter.

On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Bergen
County, Docket No. DC-003566-15.

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

Jeffrey T. Carney argued the cause for
respondent.

PER CURIAM

Plaintiff Robert J. Triffin appeals from an adverse judgment
against him in his Special Civil Part suit against defendants to

collect on a $645 stop-ordered check issued by defendant Plaza

Gift & Jewelry, LLC (Plaza). He also appeals from orders denying

his motions for summary judgment and for reconsideration. Because

we conclude plaintiff should have been granted summary judgment,

we need not address the issues presented regarding the trial.

I.

Plaintiff's complaint alleged he purchased the dishonored

check in question from a check cashing agency, Fair Lawn Financial

Services LLC (FLFS) pursuant to an assignment agreement. The

dishonored check and the assignment agreement between plaintiff

and FLFS were attached as exhibits to the complaint.

The copy of the check attached to the complaint showed it was

dated October 19, 2013, drawn on the account of Plaza Gift &

Jewelry, LLC and made payable to James Rickard for $645. The back

of the check reflects an endorsement by Rickard on October 19,

2013 and that FLFS apparently deposited the check on the same

date. The check was apparently returned, unpaid, as a result of

a stop payment order, on October 23, 2013.

In the assignment agreement, Tim Harty, a principal of FLFS,

certified that FLFS transferred all of its rights to the check in

question to plaintiff. FLFS warranted "that at the time it cashed

the referenced check[]; it had no notice that the referenced

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check[] had been dishonored."

Plaza filed an answer in which it neither admitted nor denied

plaintiff's allegations. In its counterclaim, Plaza alleged the

complaint was filed in bad faith and that plaintiff knew he was

not a bona fide holder in due course. In answers to

interrogatories, Plaza stated Rickard sold what he purported was

a gold chain and that, after he left the store, it was determined

the chain was only gold plated. Plaza stated a stop payment order

was placed on the check within fifteen minutes of Rickard's

departure after discovering the identification information he had

provided was false.

Plaintiff filed a motion for summary judgment.1 In support

of the motion, plaintiff filed a certification in which he asserted

1
The statement of material facts submitted in support of the
motion failed to comply with the requirements of Rule 4:46-2(a),
which states:

The statement of material facts shall set
forth in separately numbered paragraphs a
concise statement of each material fact as to
which the movant contends there is no genuine
issue together with a citation to the portion
of the motion record establishing the fact or
demonstrating that it is uncontroverted. The
citation shall identify the document and shall
specify the pages and paragraphs or lines
thereof or the specific portions of exhibits
relied on. A motion for summary judgment may
be denied without prejudice for failure to
file the required statement of material facts.

3 A-0060-15T3
he "did not know of any claims or defenses of any parity [sic] to

the payment of Plaza Gift's referenced check" at the time FLFS

cashed the check. The aforementioned assignment agreement, in

which Harty certified FLFS had no knowledge the check had been

dishonored at the time it cashed the check, was also submitted in

support of the motion.

An order was entered denying the motion with the following

statement: "Contested Issue of Material Fact."

Plaintiff filed a motion for reconsideration; Plaza cross-

moved for summary judgment and sanctions. The motion judge denied

both motions. After plaintiff filed his notice of appeal, the

motion judge issued supplementary findings of fact and conclusions

of law in support of the orders denying summary judgment and

reconsideration pursuant to Rule 2:5-1. In that supplementary

statement, the motion judge stated plaintiff could not be a holder

in due course because "he obviously took the check by assignment

after it was dishonored . . . . And the stop order payment was

on its face."

In his appeal, plaintiff argues the motion judge erred in

denying him summary judgment because he was entitled to summary

4 A-0060-15T3
judgment as a matter of law.2 Plaza argues summary judgment was

properly granted, contending plaintiff cannot be a holder in due

course because he knew the check he purchased had been dishonored.

II.

In reviewing a summary judgment decision, we view the evidence

"in the light most favorable to the non-moving party" to determine

"if there is a genuine issue as to any material fact or whether

the moving party is entitled to judgment as a matter of law." Rowe

v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012) (citing Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). We

review questions of law de novo, State v. Gandhi, 201 N.J. 161,

176 (2010), and need not accept the trial court's conclusions of

law. Davis v. Devereux Found., 209 N.J. 269, 286 (2012).

The facts here are largely undisputed. The question before

us is, therefore, a purely legal one: whether plaintiff was a

holder in due course despite his knowledge that the check had been

dishonored when he purchased it.

Plaintiff's knowledge did bar holder in due course status

pursuant to N.J.S.A. 12A:3-302(a), which states a holder in due

course is the holder of an instrument if:

2
Plaintiff also presents arguments regarding the judgment entered
following trial which we need not address in light of our
disposition of this argument.

5 A-0060-15T3
 (1) the instrument when issued or
negotiated to the holder does not bear such
apparent evidence of forgery or alteration or
is not otherwise so irregular or incomplete
as to call into question its authenticity; and

(2) the holder took the instrument for
value, in good faith, without notice that the
instrument is overdue or has been dishonored
or that there is an uncured default with
respect to payment of another instrument
issued as part of the same series, without
notice that the instrument contains an
unauthorized signature or has been altered,
without notice of any claim to the instrument
described in [N.J.S.A.] 12A:3-306, and without
notice that any party has a defense or claim
in recoupment described in subsection a. of
[N.J.S.A.] 12A:3-305.

[(Emphasis added).]

This statute does not provide the only means to acquiring

holder in due course status, however. An assignee who accepts an

instrument knowing it has been dishonored can still be a holder

in due course under the shelter rule, codified in N.J.S.A. 12A:3-

203(b), which states the "[t]ransfer of an instrument . . . vests

in the transferee any right of the transferor to enforce the

instrument, including any right as a holder in due course" unless

"the transferee engaged in fraud or illegality affecting the

instrument."

Plaza does not dispute that plaintiff acquired the check

through a valid assignment. Because there is no contention or

evidence that plaintiff engaged in "fraud or illegality affecting

6 A-0060-15T3
the check," he acquired "any right [FLFS had] to enforce the

instrument." It follows that, if FLFS was a holder in due course,

plaintiff acquired that status as a result of the assignment. See

Triffin v. Liccardi Ford, Inc., 417 N.J. Super. 453, 457 (App.

Div. 2011) (recognizing that if the check casher "was a holder in

due course when it obtained the check from [payee], it could assign

its interest in the check to [plaintiff] and he in turn could

enforce [the check casher's] rights as its assignee").

We must then determine whether FLFS satisfied the criteria

in N.J.S.A. 12A:3-302(a) to be a holder in due course. The first

requirement addresses whether the instrument bore "such apparent

evidence of forgery or alteration or is . . . otherwise so

irregular or incomplete as to call into question its authenticity."

No argument was made in the trial court or on appeal that the

check was inherently suspect and our review of the check discloses

no such infirmity.

The challenge to holder in due status here concerns the second

requirement, that the holder had notice the check was dishonored.

However, the only argument made in the trial court and on appeal

is that plaintiff had knowledge the check was dishonored when he

purchased it. There is no argument that FLFS knew Plaza had issued

a stop payment order on the check before cashing it. Indeed, the

7 A-0060-15T3
certification by Harty that FLFS had no knowledge regarding this

is unrefuted.

As a result, there was no genuine issue of material fact that

barred the legal conclusions that: FLFS was a holder in due course

of the check and plaintiff was a holder in due course by virtue

of the valid assignment from FLFS. Accordingly, summary judgment

should have been granted to plaintiff.

Reversed and remanded for the entry of judgment consistent

with this opinion. We do not retain jurisdiction.

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