ROBERT J. TRIFFIN VS. COMDATA NETWORK, INC. (DC-5380-15, ATLANTIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 13, 2018
• Docket: A-2320-16T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

2 A-2320-16T4 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.

6 A-2320-16T4