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Triffin v. Bob Evans Farms, Inc.

A-5815-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

CHECKS—To make a claim against the drawer of a check, even a holder in due course needs to overcome proofs that the check it cashed was not counterfeit.

An assignee of a dishonored payroll check sued the drawer of the check for its face value and interest. The assignee also sought reimbursement for the returned check fee. The assignee claimed that he was entitled to the face value of the payroll check because he was assigned the check by a check cashing company that had cashed the check. The drawer contended that the assignor of the check was never an employee and that it was not obligated to honor the check because it was counterfeit. At trial, the check in question was introduced into evidence along with an authentic check issued by the drawer. The two checks were compared and an employee of the drawer testified that the check in question was counterfeit because it did not resemble the payroll checks the drawer regularly issued to its employees.

The lower court compared the two checks and noted such differences as: 1) the drawer’s logo was in a larger font on the check in question; 2) the drawer’s logo was scripted on the check in question and was in block letters on the authentic check; 3) the payee area on the check in question was in block format and the payee area on the authentic check was on a line; 4) the name and the address of the bank was in a different location on the check in question; 5) the check date, number, and amount were placed within shaded boxes on the check in question and were not on the authentic check; and 6) the check in question had a dark, bold, splotch font that did not appear on the authentic check. The only similarity between the two checks was that the signature on the check in question was identical to the authentic check. The lower court held that the check in question was counterfeit and dismissed the assignee’s complaint. The assignee appealed on the basis that the lower court assumed facts that were not in evidence and refused to find that the drawer’s signatures were identical on both checks.

The Appellate Division affirmed the lower court’s ruling. The Court rejected the assignee’s argument that the lower court assumed facts that were not in evidence. It held that the testimony of the drawer’s employee, who was competent to testify because he regularly distributed the drawer’s checks, along with the comparison of the check in question with the authentic check established that the check offered by the assignee was counterfeit. The Court further ruled that the assignee had the burden of proving the authenticity of the check. It held that the similarity of the drawer’s signatures on both checks had been overcome by the evidence of the distinct differences between the checks presented by the drawer.

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