ROBERT J. TRIFFIN VS. NANCY R. MAZIN, PC (DC-000860-18, ATLANTIC COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1484-18T2
ROBERT J. TRIFFIN,
Plaintiff-Appellant,
v.
NANCY R. MAZIN, PC,
Defendant-Respondent,
and
VINYL RAILING FACTORY, LLC,
and WILLIAM G. MILLIGAN,
individually and t/a VINYL
RAILING FACTORY, LLC,
Defendants.
_______________________________
Argued November 18, 2019 – Decided January 23, 2020
Before Judges Sabatino and Sumners.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. DC-000860-18.
Robert J. Triffin, appellant, argued the cause pro se.
Daniel J. Gallagher argued the cause for respondent.
PER CURIAM
Plaintiff Robert J. Triffin appeals the Special Civil Part's orders of June
29, 2018, granting summary judgment in favor of defendant Nancy R. Mazin
and dismissing his complaint; and September 14, 2018, imposing sanctions of
attorneys' fees and court costs under Rule 1:4-8 for frivolous litigation. We
affirm.
I.
Summary Judgment
The essential facts are not in dispute. Sometime between September 20
and September 25, 2017, William G. Milligan, a former employee of "Vinyl
Railing Factory, LLC," presented check number 53009 (the check) for
$1,311.84, made payable to "Vinyl Factory," for payment to Casino Hotel
Employees Check Cashing Services (CHECCS). The "Vinyl Factory" is a
nonexistent company. The check was drawn from a TD Bank (the bank) attorney
business account maintained by Nancy R. Mazin, P.C. The check was
subsequently dishonored by the bank because it was fraudulently cashed. Mazin
on behalf of Nancy R. Mazin, P.C., executed an "Affidavit of Forgery: Forged
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Signature of Maker," on September 29, 2017, stating the check was stolen and
not endorsed by her law office.
Triffin, who is engaged in the business of buying and pursuing collection
on dishonored negotiable instruments, purchased the dishonored check from
CHECCS. On February 5, 2018, Triffin filed a Special Civil Part complaint
against Mazin, Vinyl Railing Factory, LLC, and Milligan, individually and
trading as Vinyl Railing Factory, LLC, seeking payment on the check. Milligan
and Vinyl Railing Factory LLC were later dismissed because the service of
process by mail was marked "not deliverable as addressed" and returned to the
court.
After receiving a fourth trial date, Mazin filed a motion on short notice
for summary judgment on June 5, which Triffin opposed. On June 29, the day
after argument, Judge James P. McClain entered an order and memorandum of
decision granting summary judgment.
The judge's memorandum acknowledged Mazin's contention that the
checks were fraudulently cashed, but maintained it was unnecessary to address
the dispute to resolve the motion. Instead, he focused on Mazin's argument that
Triffin was not a holder in due course in accordance with N.J.S.A. 12A:2-302
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because CHECCS paid Milligan on the dishonored check without complying
with N.J.S.A. 17:15A-47.
The statute provides in relevant part:
No licensee, or any person acting on behalf of a
licensee, shall:
a. Cash a check which is made payable to a payee which
is other than a natural person unless the licensee has on
file a corporate resolution or other appropriate
documentation indicating that the corporation,
partnership or other entity has authorized the
presentment of a check on its behalf and the federal
taxpayer identification number of the corporation,
partnership or other entity[.]
[N.J.S.A. 17:15A-47(a).]
"Appropriate documentation" is defined by regulation as "a corporate resolution
filed with the Secretary of State, Federal taxpayer identification number, filed
New Jersey Certificate of Authority, filed trade-name certificate or other readily
verifiable official document." N.J.A.C. 3:24-1.3.
The judge found the check's payee, "Vinyl Factory," was "a corporation,
partnership, or entity," under N.J.S.A. 17:15A-47(a). Because CHECCS
possessed no appropriate documentation for Vinyl Factory, as required by
N.J.A.C. 3:24-1.3, the judge maintained the check was not cashed in accordance
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with N.J.S.A. 17:15A-47. Thus, Triffin was not a holder in due course of the
check entitled to collect upon it.
Judge McClain rejected Triffin's argument that Mazin's counsel's
certification in support of summary judgment violated the United States
Constitution's Confrontation Clause because it was made without personal
knowledge. The judge found the argument meritless, unsupported by case law,
and illogical. The judge also found unconvincing Triffin's argument that the
Uniform Commercial Code superseded N.J.S.A. 17:15A-47, based upon City
Check Cashing, Inc. v. Mfrs. Hanover Tr. Co., 166 N.J. 49 (2001). The judge
determined the facts in City Check Cashing, Inc. were inapposite to the facts
before him and the decision directly contradicted Triffin's argument because the
Supreme Court recognized "New Jersey's authority to enact its own '. . . policy
choices in allocating liability in the collection of checks.'" Id. at 57 (stating "the
Legislature[] of [New Jersey has] expressed policy choices in allocating liability
in the collection and payment of checks."). Hence Triffin's complaint against
Mazin was dismissed.
Monetary Sanctions
About three weeks after summary judgment was granted, Mazin moved
under Rule 1:4-8, for $8617.50 in attorneys' fees and $65.68 in court costs. The
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motion contended that Triffin failed to comply with a May 17, 2018 letter (the
notice) by Mazin's counsel, advising Triffin that his complaint was frivolous in
accordance with Rule 1:4-8 and it should be dismissed because his allegations
are factually incorrect, are based off fabrication or
intentional misrepresentation which is readily available
to you. You did not purchase the dishonored checks,
wherein Ms. Mazin's name was forged, as a holder in
due course and the check[] [was] illegally cashed in
violation of New Jersey's Check Cashing Law, i.e.
N.J.S.A. 17:15A-47.
The notice further cautioned Triffin that if the compliant was not dismissed,
attorney's fees and court costs would be sought under Rule 1:4-8.
On September 14, Judge McClain issued an order and memorandum of
decision awarding Mazin $2067.83, the fees accumulated by Mazin after the
twenty-eight-day window for Triffin to withdraw his complaint had closed.
In determining to impose sanctions, Judge McClain cited Triffin's: (1)
experience in the business of buying negotiable instruments; (2) legal training
such as graduating from law school and passing the New Jersey bar exam;1 and
(3) experience as a pro se litigant, having filed anywhere between 4000 to 15,000
lawsuits. The judge agreed with Triffin's contention that the notice did not state
1
Triffin was denied admission to the Pennsylvania and New Jersey Bar based
on character and fitness deficiencies. In re Triffin, 151 N.J. 510, 517, 529
(1997).
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the requirement under Rule 1:4-8 (b) (1) that Triffin had twenty-eight days to
withdraw the complaint to avoid the imposition of sanctions. The judge,
however, explained sanctions were still appropriate under Rule 1:4-8(a)(3)
because the "complaint counts at issue must have either not been likely to have
evidentiary support, or plaintiff must have failed to withdraw or [correct] these
counts after a reasonable opportunity for further investigation or discovery
revealed insufficient evidentiary support." Judge McClain reasoned Triffin's
complete inaction in failing to verify or refute the merits of the notice,
constituted valid grounds for sanctions.
In further support of sanctions, Judge McClain found significance in
Triffin's: (1) failure to address N.J.A.C. 17:15A-47 in his opposition to the
summary judgment; (2) failure to provide, in any of Triffin's materials or
submissions, proof that CHECCS had proper documentation authorizing them
to cash checks for the Vinyl Factory; and (3) "ongoing and longstanding
business relationship" with CHECCS that would have made it easy for Triffin
to seek information to verify the contentions in the notice.
In awarding Mazin more than $6500 less than she sought in attorneys' fees
and court costs, the judge explained the sum requested was "excessive" based
on the facts of the case. He concluded the attorneys' fees incurred after the
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expiration of the twenty-eight-day window required by Rule 1:4-8 were a
reasonable sanction given Triffin's refusal to dismiss his complaint for the
reasons cited in the notice.
II.
Before us, Triffin raises the following arguments:
POINT ONE
THE TRIAL JUDGE COMMITTED REVERSIBLE
ERROR WHEN HE GRANTED SUMMARY
JUDGMENT UPON FINDING, AND WITHOUT
ANY EVIDENCE IN THE RECORD, THAT
TRIFFIN'S ASSIGNOR CASHED MAZIN PC'S
CHECK IN VIOLATION OF THE NEW JERSEY
CHECK CASHERS' REGULATORY ACT.
POINT TWO
THE TRIAL JUDGE COMMITTED PREJUDICIAL
AND REVERSIBLE ERROR ERROR [SIC] WHEN
HE HELD THAT TRIFFIN'S ENTITLEMENT TO
RECOVER UPON MAZIN PC'S DISHONORED
CHECK WAS CONTINGENT UPON TRIFFIN'S
STATUS AS A HOLDER IN DUE COURSE.
POINT THREE
THE TRIAL JUDGE MISAPPLIED THE LEGAL
STANDARDS FOR ATTORNEY FEE SANCTIONS,
AND PREJUDICIALLY ABUSED HIS DISCRETION
WHEN HE ORDERED TRIFFIN TO PAY $2,067.83
IN FRIVOLOUS LITIGATION SANCTIONS.
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We conclude plaintiff's arguments are without sufficient merit to warrant
discussion, Rule 2:11-3(e)(1)(E), and affirm substantially for the reasons
expressed in both of Judge McClain's thoughtful, well-reasoned memoranda of
decisions. We add the following brief remarks.
We review the trial court's decision granting summary judgment de novo,
using the identical standard governing the trial court. Townsend v. Pierre, 221
N.J. 36, 59 (2015). Thus, we consider, as the motion judge did, "'whether the
competent evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a rational factfinder
to resolve the alleged disputed issue in favor of the non-moving party.'" Davis
v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014) (citation omitted).
If there is no genuine issue of material fact, we must then "'decide whether the
trial court correctly interpreted the law.'" DepoLink Court Reporting & Litig.
Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation
omitted). We review issues of law de novo and accord no deference to the trial
judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
A court's decision to award attorney's fees "will be reversed on appeal
only if it 'was not premised upon consideration of all relevant factors, was based
upon consideration of irrelevant or inappropriate factors, or amounts to a clear
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error in judgment.'" McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 498 (App.
Div. 2011) (quoting Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div.
2005)).
Applying these standards, we discern no reason to disturb the challenged
orders.
Affirmed.
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