NOT FOR PUBLICATION WITHOUT THE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-2320-16T4
ROBERT J. TRIFFIN,
Plaintiff-Appellant,
v.
COMDATA NETWORK, INC. a/k/a
COMCHECK,
Defendant-Respondent,
and
MICHAEL HOLDER, JAMES OWENS and
WILLIAM E. HOLSTER,
Defendants.
Argued May 30, 2018 – Decided June 13, 2018
Before Judges Fisher and Natali.
On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Atlantic
County, Docket No. DC-5380-15.
Robert J. Triffin, appellant, argued the cause
pro se.
Adam A. DeSipio argued the cause for
respondent (DLA Piper LLP, attorneys; Adam A.
DeSipio, on the brief).
PER CURIAM
Plaintiff Robert J. Triffin – the assignee of two entities
that cashed three counterfeit "comcheks," in the amounts of $100,
$1146.20, and $708.92 – commenced this action against defendant
Comdata Network, Inc., which refused to honor these comcheks. The
suit was dismissed by way of summary judgment, and Triffin appeals,
arguing in a single point that the judge erred in "assum[ing] the
material facts needed" to support Comdata's contention that
Triffin's assignors could not be holders in due course because
they failed to heed the warnings on the counterfeit comcheks. We
find insufficient merit in Triffin's contentions to warrant
further discussion in a written opinion, R. 2:11-3(e)(1)(E), and
add only the following few comments about some aspects of Triffin's
arguments.
The record reveals that a comchek is, in Comdata's words, "a
payable-through draft product drawn from" accounts maintained by
Comdata's customers. Those customers, as Comdata asserted, could
elect to utilize an authorization process, which directs the person
or entity presented with a comchek as to how to ensure the
instrument's validity. That process is described in the warnings
on the face of the comcheks:
NOTE: This draft is not valid and will not be
honored without obtaining an authorization
number before cashing or accepting payment.
To obtain this number, call 800-741-3030.
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DO NOT CASH BEFORE CALLING
IMPORTANT: THIS DRAFT WILL NOT BE HONORED
WITHOUT GOVERNMENT ISSUED PHOTO IDENTIFICA-
TION BEING RECORDED TO THE RIGHT (SEE REVERSE
SIDE FOR EXAMPLES)
On the back is another warning:
Do not provide funds to payee before obtaining
an authorization number by calling toll-free
800-741-3030. It is very important not to
accept a COMCHEK with a prior authorization
code unless you call COMCHEK at the number
above to confirm its validity.
No one disputes that the three comcheks in question were
counterfeit or fraudulent. The undated $100 check was not endorsed
by anyone and there is no evidence Triffin's assignor was presented
with photo identification of the person who presented the comchek
for payment. The other two comcheks were drawn on accounts long
closed. The $1146.20 check, which bore a 2014 date, was drawn on
an account closed at least ten years earlier; the $708.92 check
bore a 2015 date and was drawn on an account closed for at least
eight years. The authorization codes on both those checks were
invalid.
In seeking summary judgment, Comdata relied on the failure
of Triffin's assignors to heed the comcheks' many warnings. In
granting summary judgment, Judge James P. McClain correctly
adhered to our holding in Triffin v. Pomerantz Staffing Servs.,
3 A-2320-16T4
LLC, 370 N.J. Super. 301, 309 (App. Div. 2004), that a check-
cashing entity which paid a counterfeit check could not be a holder
in due course when it "fail[ed] to make an inquiry, reasonably
required by the circumstances of the transaction." We also observed
in Pomerantz that check-cashing businesses – such as Triffin's
assignors here – are held to a higher standard when a court
considers whether their actions were commercially reasonable. Id.
at 309-10.
In arguing against the application of this principle, Triffin
relies on N.J.S.A. 12A:3-104(a); he claims comcheks are not
negotiable instruments because they do not constitute, in his
words, "an unconditional order for payment." We reject this
contention because these comcheks express "an unconditional
promise or order to pay a fixed amount of money." Ibid. To be
sure, these comcheks contained a specific methodology for ensuring
their validity, but the promise to pay remained unconditional. The
same was true in Pomerantz. The only difference between this case
and Pomerantz lies in the particular mechanics for ensuring
authenticity; the check in Pomerantz advised that it incorporated
"heat sensitive ink," the examination of which would "confirm
authenticity." Id. at 304. Triffin's claim failed in Pomerantz
because his assignor would have known the check was a counterfeit
if it had made that cursory examination. Here, the assignors would
4 A-2320-16T4
have determined the fraudulent nature of the presented comcheks
by making a toll free telephone call. Those are distinctions
without a difference.
We lastly consider Triffin's argument that Comdata did not
present sufficient evidence to support its affirmative defense
that his assignors were not holders in due course. In moving for
summary judgment, Comdata relied on its vice-president's
certification, which claimed Triffin's assignors could not have
heeded the comcheks' warnings because, if they had called the toll
free number, they would have learned the accounts were closed or
the purported authentication numbers were false. Triffin argues
that to sustain a contention that his assignors were not holders
in due course, Comdata was required to certify that it reviewed
its telephone records and ascertained that no such calls were made
by his assignors. Again, we disagree.
Brill1 does not impose a burden on summary-judgment movants
to brush away every jot and tittle. To the contrary, Brill
recognized that the summary-judgment procedure delineated in our
Court Rules, R. 4:46-1 to -6, was "designed to provide a prompt,
businesslike and inexpensive method of disposing" of cases lacking
in genuine issues of material fact. Id. at 530 (quoting Judson v.
1
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).
5 A-2320-16T4
Peoples Bank & Tr. Co. of Westfield, 17 N.J. 67, 74 (1954)). It
was enough in this instance for Comdata to assert that the
circumstances unequivocally demonstrated the assignors' failure
to heed the comcheks' warnings; Comdata was not obliged to search
its telephone records to support the obvious implication of the
facts presented. Comdata's certification sufficiently conveyed the
necessary facts and made it incumbent on Triffin to provide sworn
statements to the contrary to defeat summary judgment. Triffin
provided nothing like that and, consequently, the judge properly
granted summary judgment.
Affirmed.
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