SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0607-15T2

ROBERT J. TRIFFIN,

Plaintiff-Appellant,

v.

UNITED STATES FIRE INSURANCE

CO., Individually and d/b/a 

CRUM & FORSTER,

Defendant-Respondent,

and

JUAN PINERO,

Defendant.

_________________________________________

Argued April 6, 2017 – Decided

Before Judges O'Connor and Whipple.

On appeal from Superior Court of New Jersey, 

Law Division, Camden County, Docket No. DC2147-13.

Robert J. Triffin, appellant, argued the 

cause pro se.

Michael F. Bevacqua, Jr. argued the cause 

for respondent (Mandelbaum Salsburg, P.C., 

attorneys; Mr. Bevacqua, of counsel and on 

the brief). 

NOT FOR PUBLICATION WITHOUT THE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.

June 12, 2017
A-0607-15T2

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PER CURIAM

Plaintiff Robert J. Triffin brings this action to recover 

on a dishonored check defendant United States Fire Insurance 

Company, Inc. (USIF) issued to the order of defendant Juan 

Pinero. Plaintiff appeals from the following four Special Civil 

Part orders: (1) the April 2, 2015 order compelling him to pay 

$300 to restore his complaint; (2) the April 24, 2015 order 

denying his motion for reconsideration of the April 2, 2015

order; (3) the July 24, 2015 order granting USIF summary 

judgment dismissal; and (4) the September 4, 2015 order denying 

plaintiff's motion for reconsideration of the July 24, 2015 

order.1 After reviewing the record and the parties' briefs, we 

affirm in part and reverse in part.

I

We discern the following facts from the motion record. In 

March 2012, USIF issued a check for $848 for disability benefits 

to Pinero. On April 24, 2012, Pinero contacted USIF and 

reported he had not received the check. That same day, USIF 

directed its bank to stop payment on the check. Despite the 

stop payment order, on May 3, 2012, the original check was 

 

1 Defendant Pinero failed to file a responsive pleading and, 

after entry of default, plaintiff obtained a default judgment 

against him. 
A-0607-15T2

3

cashed at Pennsauken Check Cashing (PCC), a licensed check 

cashing business. 

On the back of the check appears what purports to be 

Pinero's signature, endorsing the instrument in blank. Above 

his signature is a stamped restrictive endorsement stating, "For 

Deposit Only Atlantic City Check Cashing 05/03/2012."

2 Atlantic 

City Check Cashing (ACCC) is also a check cashing business. 

Below the endorsement area of the check is a stamp stating, "Pay 

to the Order of Republic Bank of Chicago[,] . . . Pennsauken 

Check Cashing[,] Licensed Cashier of Checks[.]" The specific 

order of the three endorsements was Pinero's purported blank 

endorsement, followed by ACCC's restrictive endorsement, and 

then PCC's restrictive endorsement. 

Because of USIF's stop payment order, the Republic Bank of 

Chicago dishonored the check when PCC presented it for payment. 

Five months later, plaintiff and PCC entered into an assignment 

agreement, in which plaintiff purchased PCC's rights to the 

dishonored check. Plaintiff then filed a complaint in the 

Special Civil Part against USIF as the drawer of the check and 

 

2 The copy of the back of the original check is difficult to 

read, but the record clarifies and the parties do not dispute 

the content of this endorsement. At one point during the 

litigation, plaintiff asserted Atlantic City Check Cashing's 

endorsement was "obliterated," but subsequently retracted this 

contention. 
A-0607-15T2

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against Pinero as the payee. Plaintiff claimed he held the 

rights of a holder in due course and sought to recover the full 

amount of the draft, $848, plus statutory interest and fees. 

During the litigation, the trial court entered an order on 

April 30, 2013, dismissing plaintiff's complaint with prejudice 

because plaintiff failed to provide court-ordered discovery. 

Plaintiff appealed and we reversed the order, finding 

plaintiff's violation of the subject discovery order should have 

been addressed by a sanction less severe than a dismissal of his 

complaint with prejudice. See Triffin v. U.S. Fire Ins. Co., 

No. A-0225-13 (App. Div. Dec. 23, 2014).

After the matter was remanded in December 2014, plaintiff 

failed to produce the discovery he had been ordered to provide 

back in 2013. The ordered discovery included various answers to 

interrogatories and responses to USIF's notice to produce. 

USIF filed a motion to sanction plaintiff because of his 

continued failure to serve the subject discovery and, on April 

2, 2015, the court entered an order dismissing plaintiff's 

complaint without prejudice. In addition, the court directed 

the outstanding discovery be served upon USIF no later than 

June 1, 2015, and that plaintiff pay a $300 restoration fee. 

On April 24, 2015, plaintiff's motion for reconsideration 

of the April 2, 2015 order, in which plaintiff argued the court 
A-0607-15T2

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erred by imposing the $300 restoration fee, was denied. On or 

about May 1, 2015, plaintiff served USIF with all remaining 

discovery and paid the $300 restoration fee. It is not clear 

from the record when plaintiff filed his motion to restore his 

complaint, but he asserts and USIF does not dispute that motion 

was filed within thirty days of the April 2, 2015 order of 

dismissal. On June 5, 2015, plaintiff's complaint was restored. 

Thereafter, on July 24, 2015, the trial court granted USIF 

summary judgment dismissal.

3 On September 4, 2015, plaintiff's 

motion for reconsideration of the July 24, 2015 order was 

denied. In its oral opinion, the trial court explained its 

reasons why USIF was entitled to summary judgment dismissal:

Plaintiff claims to have the rights of a 

holder in due course of the subject check, 

which entitles him to enforce the instrument 

against the drawer by virtue of an 

assignment agreement between him and

PCC. . . . 

The court found that to enforce USIF's 

obligations with respect to the check, the 

plaintiff had to show that he was either a 

holder of the check or a nonholder in 

possession who has the rights of a holder. 

The court found he could show neither. 

 

3 Plaintiff complains there is no order stating his cross 

motion for summary judgment was denied. We deem it implicit 

that when USIF was granted summary judgment dismissal, 

plaintiff's cross motion for summary judgment was denied.
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First, the check contained three 

endorsements. The first is by the original 

payee, Juan Pinero. That Pinero is the 

original endorser is made clear by the fact 

that he was the payee on the check and 

therefore only he could negotiate it. 

The second endorsement is by Atlantic Check 

Cashing.

And the third endorsement is by Pennsauken 

Check Cashing. 

There is no endorsement to plaintiff. As a 

result, plaintiff cannot be a holder of the 

check through negotiation because – because 

negotiation would require both an 

endorsement to the plaintiff and delivery to 

him of . . . the check.

[Thus,] [p]laintiff's only option to become 

a holder of the check is by way of an 

assignment and delivery of the check from a 

previous holder of that instrument. 

Now, to obtain this status, plaintiff had to 

show that he obtained the check as a result 

of an assignment and delivery of the check 

to him by a holder. See N.J.S.A. 12A:3-301 

– 12A:3-203(b), and 12A:3-203. 

Plaintiff has failed to make this showing. 

As noted, Juan Pinero is the first endorser 

of the check as between Atlantic and 

Pennsauken, Atlantic is the second endorser, 

and Pennsauken is the third endorser.

This is clear from the facts of the case and 

from the endorsements on the back of the 

check.

Pennsauken's endorsement has to be the last 

because it was necessary for the check to be 

deposited into the Republic Bank of Chicago 

. . . . 
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Accordingly, Atlantic's endorsement was 

second, after Pinero's endorsement, but 

before Pennsauken's endorsement. Thus, the 

chain of endorsements was Pinero to Atlantic 

to Pennsauken.

But plaintiff's assignment of the check is 

from Pennsauken. Thus, for plaintiff to be 

a nonholder in possession with the rights of 

a holder, Pennsauken had to first be a 

holder. In order for Pennsauken to be a 

holder, a prior holder had to negotiate, in 

other words, sign and deliver the check to 

Pennsauken. [Because,] [t]he holder of the 

check before Pennsauken was Atlantic[,] 

. . . Atlantic had to endorse and deliver 

the check [to] Pennsauken. 

However, . . . Atlantic's endorsement of the 

check was restrictive. Specifically, 

Atlantic's endorsement of the check was for 

deposit only. The U.C.C. states the 

following with respect to restrictive 

endorsement[s]: If an instrument bears [a]n 

endorsement in blank or to a particular bank 

using the words "for deposit," . . . the 

following rules apply. 

A depository bank that purchases the 

instrument or takes it for collection when 

so endorsed converts the instrument, unless 

the amount paid by the bank with respect to 

the instrument is received by the endorser 

or applied consistent with the endorsement. 

N.J.S.A. 12A:3-206(c). Accordingly, by 

taking the check for collection . . . from 

Atlantic, Pennsauken became a converter of 

the check with respect to Atlantic, not 

USIF, unless it paid Atlantic for the check. 

Plaintiff has proffered no evidence that 

Pennsauken paid Atlantic for the check. 

Accordingly, Pennsauken is a converter of 

the check with respect to Atlantic and not, 
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as plaintiff mistakenly contends, with 

respect to USIF. . . . 

Here, because Pennsauken is a converter of 

the check, pursuant to [N.J.S.A.] 3-206(c), 

it cannot be a holder of the check. And 

because Pennsauken is not a holder of the 

check, plaintiff cannot be nonholder in 

possession of the check with the rights of a 

holder[,] inasmuch as having that status 

required him to take the check from a 

holder. 

In sum, plaintiff cannot enforce the check 

because he's neither a holder nor a 

nonholder in possession with the rights of a 

holder. There are no other means for him to 

enforce the check. See N.J.S.A. 12A:3-301.

This appeal ensued. 

II

Plaintiff presents the following points for our 

consideration: 

Point I: THE TRIAL COURT DID NOT HAVE THE 

AUTHORITY TO DEVIATE FROM THE MANDATED 

RESTORATION FEES SET FORTH IN RULE 6:4-4. 

 

POINT II: [THE TRIAL COURT] COMMITTED 

REVERSIBLE ERROR WHEN [IT] FAILED TO 

APPREHEND [SIC] THAT [DEFENDANT] WAIVED THE 

ISSUE OF THE ENFORCEABILITY OF ACCC'S "FOR 

DEPOSIT ONLY" STAMP ON USIF'S DISHONORED 

CHECK. 

POINT III: [THE TRIAL COURT] COMMITTED 

REVERSIBLE ERROR WHEN [IT] MISAPPLIED THE 

CONTROLLING LEGAL STANDARDS TO THE PARTIES'

CROSS-MOTIONS FOR SUMMARY JUDGMENT. 

 
A-0607-15T2

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As for plaintiff's first argument, we are satisfied the 

court mistakenly exercised its discretion when it ordered 

plaintiff to pay a $300 restoration fee. Rule 6:4-6 provides in 

pertinent part:

The provisions of R. 4:23 (sanctions for 

failure to make discovery) shall apply to 

actions in the Special Civil Part, except 

that:

. . . .

(b) Restoration Fees. The amounts of the 

restoration fees of $100 and $300 specified 

in R. 4:23-5(a) are reduced to $25 if the 

motion is made within 30 days and $75 

thereafter.

Here, it is uncontested plaintiff filed his motion to 

restore his complaint within thirty days of the order dismissing 

his complaint. Therefore, the restoration fee in this Special 

Civil Part matter was $25, not $300. Accordingly, the provision 

in the April 2, 2015 order compelling plaintiff to pay a $300 

restoration fee and the April 24, 2015 order denying his motion 

for reconsideration of the April 2, 2015 order are reversed. 

However, we discern no merit in plaintiff's remaining 

arguments. Having fully considered these points in light of the 

record and the applicable law, we affirm the July 24, 2015 and 

September 4, 2015 orders for substantially the same reasons 

expressed by the trial court in its oral opinion on September 4, 
A-0607-15T2

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2015. In the final analysis, in order for plaintiff to enforce 

this negotiable instrument under these circumstances, plaintiff 

must either be a "holder" of the instrument or a "nonholder in 

possession of the [negotiable] instrument . . . [with] the 

rights of a holder." See N.J.S.A. 12A:3-301. There is no 

evidence plaintiff was either. The July 24, 2015 and September 

4, 2015 orders are therefore affirmed.

To the extent we have not addressed any specific argument 

advanced by plaintiff, it is because we found such argument 

without sufficient merit to require discussion in a written 

opinion. See R. 2:11-3(e)(1)(E).

Affirmed in part and reversed in part.