ROBERT J. TRIFFIN v. PNC BANK, N.A.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4444-04T24444-04T2

ROBERT J. TRIFFIN,

Plaintiff-Appellant,

v.

PNC BANK, N.A.,

Defendant-Respondent,

and

RETRA V. WASHINGTON AND

BERNARD JONES,

Defendants.

 

Argued June 1, 2006 - Decided June 19, 2006

 
Before Judges Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, DC-28792-04.

Gregg S. Sodini argued the appeal for appellant (Sodini & Spina, attorneys, Mr. Sodini, on the brief).

Robert J. Triffin argued the cause pro se.

PER CURIAM

Defendant PNC Bank appeals from a March 18, 2005 summary judgment in the Special Civil Part in favor of plaintiff Robert Triffin in the amount of $1,804.91. We affirm.

Plaintiff Robert Triffin "is in the business of purchasing dishonored instruments," and then suing the maker of the check for the face value of the check. Triffin v. Cigna Ins. Co., 297 N.J. Super. 199, 201 (App. Div. 1997). Here, he purchased two checks from Currency One, Inc., and, as a holder in due course, he commenced suit against defendant PNC Bank and the payors of the check. PNC Bank claims the assignments by which plaintiff obtained his rights were invalid, primarily because plaintiff had been found liable for civil fraud by the Pennsylvania Court of Common Pleas. See In re Triffin, 151 N.J. 510, 514 (1997) (citing Triffin v. Continental Bank, No. 5509 (slip op. at 3) (Pa. C.P. June 18, 1990), aff'd, 594 A.2d 790 (Pa. Super. Ct.), appeal denied, 600 A.2d 955 (Pa. 1991)).

PNC grounds its argument on The Check Cashers Regulatory Act of 1993, N.J.S.A. 17:15A-30 to -52 (the Act), which provides that the Commissioner of Banking may revoke or suspend the license of a check casher if, after notice and hearing, the Commissioner, among other things, determines that the licensee "[i]s associating with, or has associated with, any person . . . who has had a final judgment entered against him in a civil action upon grounds of fraud, misrepresentation or deceit . . . ." N.J.S.A. 17:15A-48a(5). While defendant acknowledges that if the assignment agreement at issue here is valid plaintiff is entitled to judgment, see Triffin v. Cigna Ins. Co., supra, PNC argues that because Triffin was found liable for civil fraud, the assignment from Currency One to plaintiff is void and unenforceable.

We recently addressed this same issue in an unpublished decision. Triffin v. Fleet Nat'l Bank, No. A-2064-03 (App. Div. Feb. 10, 2005). In Fleet, supra, we concluded that there was "no evidence in the Act that a bank sued by a holder in due course for the alleged improper dishonor of a check is 'one of the class for whose especial benefit of the statute was enacted,' nor that the Legislature 'intended to create a private cause of action under the statute.'" No. A-2064-03 (slip op. at 5) (quoting In re State Comm'n of Investigation, 108 N.J. 35, 41 (1987) (quoting Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 2088, 45 L. Ed. 2d 26, 36 (1975)). We also noted that even if Fleet were able to invoke the Act, the Commissioner had not determined, after notice and a hearing, that the licensed check casher had violated the Act. Ibid. We said:

[T]here has yet to be a determination, after notice and hearing, that [the licensed check casher] violated the Act. [The licensed check casher], which is not a party to this appeal, might well defend against any action by the Commissioner on the basis that it did not know of Triffin's decade-old civil fraud judgment and that, in any event, engaging in a legitimate business transaction with Triffin did not constitute "associating with" him as that term is used in the Act.

[Ibid.]

Here, in granting summary judgment, the trial judge relied substantially on our decision in Fleet. The judge said:

I think I definitely understand the argument. And I have read the cases, and particularly, the unpublished decision of Triffin v. Fleet National Bank, . . . A-2064-03, which was decided on February 10, 2005.

Reading all the cases, and the cases relied upon by the Appellate Division in that decision, I agree with the Appellate decision. And I'll adopt their reasoning. . . .

The whole position is, as stated, was that associating with someone who has an adverse civil fraud judgment, a check-casher doing so . . . subjects that check casher of losing their license after notice of hearing, and a determination by the Commissioner of Banking and Insurance, does not - you know - give - without that having been done, and having been determined, it does not give on simply a public policy grounds a basis for the defendant not to honor these assignments to Mr. Triffin.

The issue was definitely raised, and I understand it. And as expressed in that opinion, that you are raising whether as the assignments to Mr. Triffin should be void as being contrary to public policy, as expressed in the act.

And I certainly look at it that public policy expressed in the act that these - these associations may subject somebody to losing a license, that whether it's such a strong mandate of public policy that anybody dealing with someone subject to an adverse fraud judgment, who has taken assignment, all those assignments can simply be voided. And that's . . . what the defendant is asking.

I think that being expressed as one of the bases for a check-casher to be subject to some license discipline or . . . revocation, I don't think that's sufficient to say as a result a public policy requires that all assignments just be void, basically as matter of law, for somebody like Mr. Triffin.

We agree with the trial judge. Our decision in Fleet was based on the same factual and legal considerations as are present here. We remain unconvinced that the Act creates a private cause of action. Even if it did, because the Commissioner has never determined that Currency One violated the Act, PNC's arguments that the assignment is void and unenforceable are without merit.

Affirmed.

 

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A-4444-04T2

June 19, 2006