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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5244-07T1

ROBERT J. TRIFFIN,

Plaintiff-Appellant,

v.

WACHOVIA BANK, N.A.,

Defendant-Respondent.

_________________________________

ROBERT J. TRIFFIN,

Plaintiff-Appellant/

Cross-Respondent,

v.

BANK OF AMERICA, N.A.,

Defendant-Respondent/

Cross-Appellant,

and

FEDERAL RESERVE BANK,

Defendant.

________________________________________________________________

December 28, 2010

Argued November 9, 2010 - Decided

Before Judges Payne and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Gloucester County, Docket Nos. DC-1581-07, DC-1945-07, and DC-1946-07.

RobertJ. Triffin,appellant/cross- respondent, argued the cause pro se.

John North argued the cause for respondent Wachovia Bank, N.A. (Greenbaum, Rowe, Smith & Davis, LLP, attorneys; Jodi L. Rosenberg, on the brief).

Gregg S. Sodini argued the cause for respondent/cross-appellant Bank of America, N.A. (Sodini & Spina, LLC, attorneys; Mr. Sodini and Daniel Barros, on the brief).

PER CURIAM

Plaintiff Robert J. Triffin appeals from two February 28, 2008, orders granting summary judgment to defendants and dismissing three consolidated Special Civil Part cases. Triffin also appeals the denial of his summary judgment application, his applications for discovery, as well as orders of March 25, 2008, and May 14, 2008, denying reconsideration. Defendant Bank of America (BOA) cross-appeals the denial of counsel fees. The trial judge held that Triffin lacked standing to sue under the federal statutory regulations concerning substitute checks. We affirm the trial judge s decision in this regard and reverse and remand for the judge to consider whether counsel fees should be awarded in favor of BOA under Rule 1:4-8, which governs frivolous litigation, and the frivolous litigation statute N.J.S.A. 2A:15-59.1.

Triffin argues that portions of the regulations pertaining to substitute checks, Federal Reserve System Regulations, 12 C.F.R. 229.51, 12 C.F.R. 229.52 and 12 C.F.R. 229.56 (2010), promulgated to implement the Check Clearing for the 21st Century Act (Check 21), give an assignee such as him standing to sue for violations of the regulations. Substitute checks are simply replacements for negotiable instruments that contain the critical operative information of the originals, provided by a bank in lieu of the originals. They may be treated as legally identical to the original. The regulations explicitly create a cause of action for a payor, payee, drawer or drawee of dishonored checks or anyone harmed by a bank's failure to provide a usable substitute check. 12 C.F.R. 229.52; 12 C.F.R. 229.56.

I

Triffin, a law school graduate who is not a licensed attorney, has been in the business of purchasing dishonored negotiable instruments and then suing pro se either on the notes or on a variety of contractual or statutory theories. Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237, 241 (App. Div. 2007). He has obtained notoriety for filing over 15,000 lawsuits as an assignee of dishonored checks. Triffin v. Am. Intern. Group, Inc., 372 N.J. Super. 517, 521 n.2 (App. Div. 2004). We recently decided a case against Triffin involving the exact issues raised in this appeal, affirming the trial court's ruling that Triffin lacked standing. Triffin v. Wachovia Bank, N.A., 406 N.J. Super. 427, 430-31 (App. Div. 2009).

We adopt here the reasoning in Wachovia Bank, supra, 406 N.J. Super. at 431-33, where we found that Triffin lacked standing to pursue claims of breach of warranties contained in the Check 21 Act because such claims, allegedly arising from the breach of a statutory duty, were not assignable to him. See Triffin v. TD Banknorth, N.A., 190 N.J. 326 (2007); Triffin v. Bridge View Bank, 330 N.J. Super. 473 (App. Div. 2000).

As an assignee, Triffin not only lacks standing because he is seeking to enforce a statutory right he does not possess, but also because he was not harmed by the banks' use of substitute, truncated duplicate checks. "The 'essential purpose' of the standing doctrine in New Jersey is to 'assure that the invocation and exercise of judicial power in a given case are appropriate.'" Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 80 (App. Div. 2001) (quoting N.J. State Chamber of Commerce v. N.J. Election Law Enforcement Comm'n, 82 N.J. 57, 69 (1980)). To have standing, a plaintiff must demonstrate "a substantial likelihood of some harm visited upon [him or her] in the event of an unfavorable decision . . . ." Somerset Valley Bank, supra, 343 N.J. Super. at 81.

In his two current law suits against Wachovia Bank, N.A. (Wachovia), Triffin claims that information on sixteen checks was obliterated by the bank stamps indicating why the check was dishonored ("RETURN REASON D CLOSED ACCOUNT," "RETURN REASON A NOT SUFFICIENT FUNDS," etc.). See Wachovia Bank, supra, 406 N.J. Super. at 429. In his present suit against BOA he makes the same claim with regard to two checks. Triffin has an assigned right to sue the maker of these checks to recover the face value of the check. The check-cashing establishment that assigned that right to him is required by statute to retain records of all transactions, including a copy of the front and back of all checks, as well as the names of the payee and the person presenting the check.1 N.J.S.A.17:15A-44.l. Thus, all of that information was available to Triffin from the assignor check cashing businesses.

We agree with the trial judge that as an assignee Triffin had no standing to enforce the statutory rights afforded by Check 21, but we also find he lacks standing because he was not harmed in any demonstrable way by the actions of defendants.

II.

"[T]he New Jersey Supreme Court has remained committed to the so-called American rule, that is, that the parties bear their own counsel fees." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:42-9 (2011). However, equity, rule, or statute may permit a court to order one side to pay attorney fees for the other, and two of these fee-shifting mechanisms in New Jersey are Rule 1:4-8 and N.J.S.A. 2A:15-59.1. BOA sought relief in the trial court under both.

Pursuant to Rule 1:4-8(d), sanctions for frivolous litigation may include "(1) an order to pay a penalty into court, or (2) an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation, or both."

In order to pursue sanctions for frivolous litigation under N.J.S.A. 2A:15-59.1, a party must comply strictly with the safe harbor provisions outlined in the safe harbor requirements of Rule 1:4-8(b). Ferolito v. Park Hill, 308 N.J. Super. 401, 408-10 (App. Div.), certif. denied, 200 N.J. 502 (2009) (failure to identify relevant issues in notice precluded award of fees and costs). A litigant who believes an adverse party's counsel has advanced a frivolous argument must give notice and demand the withdrawal of the frivolous pleading, allowing twenty-eight days from service of the paper to do so. R. 1:4-8(b)(1). A certification that a notice and demand has been properly made, as well as the actual notice and demand, must be included in any motion for sanctions. Ibid. Here, BOA sent two such "safe harbor" letters; one on September 7, 2007, and another on February 13, 2008, enclosing the prior letter. In its September letter, BOA reminded Triffin of Triffin v. Commerce Bank, N.A., No. 07-CV-1759 (D.N.J. June 28, 2007), in which the District Court found that Triffin could not claim any losses "associated with the check substitution process" and ordered Triffin to appear for a hearing to determine whether frivolous litigation fees should be assessed against Triffin for the identical claim he brought in these complaints. Commerce Bank, supra, No. 07-CV-1759 (slip op. at 7). The District Court stated:

Here, Triffin's complaint fails to even hint to any damages suffered because of Commerce Bank's breach of a substitute check warranty. Clearly, this is a requirement to state a substitute check warranty claim. Because Triffin fails to allege this basic requirement, his claims must fail. Moreover, as noted above, Triffin does not even mention what information is purportedly missing from the substitute checks. If a harm was suffered by the alleged breach of a substitute check warranty, in all likelihood Triffin would be able to point to the missing information and causally connect it to a harm suffered. His failure to do so further supports the Court's dismissal of his claims.

Furthermore, the Court notes that it is troubled by this litigation. Here, not only was Triffin's complaint frivolous, but a search of this Court's dockets and a review of publicly available information leads the Court to strongly suspect that Triffin brought this complaint in bad faith, without any factual foundation, in order to harass Commerce Bank. See Triffin v. Am. Intern. Group, Inc., 372 N.J. Super 517, 521 n.2, (App. Div. 2004) (noting Triffin's "notoriety" for having "filed over 15,000 lawsuits as assignee of dishonored checks"); see also Tim O'Brien, Frequent Filer Flagged as Fraud, 176 N.J.L.J. (April 26, 2004); Tim O'Brien, N.J. Appellate Courts are Putting Frequent Filer's Feats to the Fire, 177 N.J.L.J. 177 (July 19, 2004). In such circumstances, sanctions may be appropriate under Federal Rule of Civil Procedure 11. See Teamsters Local Union No. 430 v. Cement Express, Inc., 841 F.2d 66, 68 (3d Cir. 1988). Therefore, the Court shall order Triffin to show cause before the Court why attorneys fees and costs should not be awarded to Commerce Bank, and/or sanctions imposed.

[Id. (slip op. at 2).]

Here, the trial judge denied BOA's application without indicating any reasons. As we stated in Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008):

"Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Salch v. Salch, 240 N.J. Super. 441, 443, (App. Div. 1990). "The absence of adequate findings . . . necessitates a reversal." Heinl v. Heinl, 287 N.J. Super. 337, 347, (App. Div. 1996). "We ordinarily remand to the trial court to make findings of fact if the trial court failed to do so." Barnett and Herenchak, Inc. v. State Dep't of Transp., 276 N.J. Super. 465, 473 (App. Div. 1994).

The trial judge should reconsider and articulate his reasons for his decision regarding the award of counsel fees. R. 1:7-4(a). In weighing the factors required to decide such an application, the trial judge should be mindful of Triffin's prior litigation including the Supreme Court's decision in TD Banknorth, supra, 190 N.J. at 328-29, the District Court's unpublished decision in Commerce Bank, supra, 07-CV-1759 (slip op. at 6), as well as our prior unpublished decision in Triffin v. Wachovia Bank, N.A., No. A-4942-05 (Sept. 27, 2007) (slip op. at 6), where we reversed a trial court's decision, made "by essentially trying the case without the production of witnesses or the admission of evidence," and remanded the matter for retrial. After a summary judgment motion by Wachovia, asserting only that Triffin lacked standing to pursue his claims on the grounds of the non-assignability of statutory claims, the trial court convened what Triffin reasonably assumed was a hearing solely on the issue of standing, surprising him by then essentially deciding the merits of the case. Ibid. We reversed because the process in the trial court was essentially unfair without commenting on the issue of standing. Ibid.

The trial judge should consider Triffin's litigation here in light of his past litigation and determine whether under all of the relevant circumstances, Triffin's complaints were prosecuted with the purpose to "harass . . . or needless[ly] increase . . . the cost of litigation" as a tactic to persuade the defendants to settle the cases on favorable terms. R. 1:4-8(a)(1).

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

1 Triffin actually successfully sued, in Ocean County, the drawer of a check using a truncated check. Triffin v. PNC Bank, N.A., DC-18628-07. In a previous action filed in Ocean County, he had claimed, in allegations similar to those here, that the same check was not "legally enforceable" because it was damaged by another bank. Triffin v. PNC Bank, N.A., DC-7639-07.