                        NOT FOR PUBLICATION WITHOUT THE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-3621-15T2

WELLS FARGO BANK, N.A.,

        Plaintiff-Appellant,

v.

NORTHERN EXECUTIVE MOTOR CLUB
LLC,

        Defendant,

and

NAVY FEDERAL CREDIT UNION,

        Defendant-Respondent.

__________________________________

              Argued September 20, 2017 – Decided October 2, 2017

              Before Judges Fuentes, Koblitz and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Docket No. L-3722-
              15.

              Christine F. Marks argued the cause for
              appellant (Greenbaum, Rowe, Smith and Davis,
              LLP, attorneys; John D. North, of counsel and
              on the brief; Ms. Marks, on the brief).

              Peter G. Siachos argued the cause for
              respondent (Gordon & Rees, Scully Mansukhani,
              LLP, attorneys; Mr. Siachos and Matthew P.
              Gallo, on the brief).
PER CURIAM

       Wells Fargo Bank, N.A. appeals from an August 7, 2015 order

dismissing count five of its complaint, the only count against

Navy Federal Credit Union (NFCU), for failure to state a claim

upon which relief can be granted under Rule 4:6-2(e).     Wells Fargo

also    appeals    from    the   October   9,   2015   order   denying

reconsideration.    Despite Rule 1:6-2, both motions were decided

without granting oral argument, although it was requested and

therefore required.       We now reverse after de novo review because

the motion court's reasoning was in error.         The court did not

consider a pertinent statute, N.J.S.A. 12A:4-205(a), and made a

premature factual determination of a lack of "ordinary care."

       Our review of a motion to dismiss on these grounds is de

novo.   Smerling v. Harrah's Entm't, Inc., 389 N.J. Super. 181, 189

(App. Div. 2006).     We review the legal sufficiency of the facts

alleged in the complaint with liberality, giving all reasonable

inferences to the plaintiff.       Major v. Maguire, 224 N.J. 1, 26

(2016) (citing Printing Mart-Morristown v. Sharp Elecs. Corp., 116

N.J. 739, 746 (1989)).

       Wells Fargo deposited a check for $64,000 drawn on NFCU made

payable to Jennifer Aldridge and Northern Executive Motor Club,

LLC (Northern Executive) into Northern Executives' account at

Wells Fargo on July 24, 2014.       The check had an indorsement from


                                    2                          A-3621-15T2
Aldridge1 but not Northern Executive.     The check was otherwise

facially proper in all respects.

     Wells Fargo subsequently honored checks drawn and allowed

other withdrawals against the credit that was created by depositing

the $64,000 check.   Six days after the check was deposited NFCU

returned the check to Wells Fargo unpaid, based on the missing

signature of Northern Executive, Wells Fargo's customer.     NFCU's

failure to honor the check created an overdraft of $63,725.63,

which was not paid by Northern Executive.

     Wells Fargo's complaint alleged it was a holder in due course.

The motion court reasoned:

          Wells Fargo is not a holder in due course.
          Wells Fargo failed to exercise ordinary care
          and that failure substantially contributed to
          the improper negotiation of the check. Here
          the check lacked one of two required
          signatures.

     The Uniform Commercial Code, however, as codified in the New

Jersey statutes, accords holder in due course status to a bank

that deposits a check into a customer's account even if not

indorsed by the customer.    N.J.S.A. 12A:4-205 states:

          If a customer delivers an item to a depositary
          bank for collection:

          a. the depositary bank becomes a holder of
          the item at the time it receives the item for
          collection if the customer at the time of

1
 This indorsement was later determined to be fraudulent. Aldridge
was deceased.
                                 3                         A-3621-15T2
           delivery was a holder of the item, whether or
           not the customer indorses the item, and, if
           the bank satisfies the other requirements of
           [N.J.S.A.]12A:3-302, it is a holder in due
           course ; and

           b. the depositary bank warrants to collecting
           banks, the payor bank or other payor, and the
           drawer that the amount of the item was paid
           to the customer or deposited to the customer's
           account.

The other requirements of N.J.S.A. 12A:3-302 are not at issue

here.   Thus, pursuant to a New Jersey statute, the failure of

Wells Fargo's customer, Northern Executive, to indorse the check

does not prevent Wells Fargo from being a holder in due course.

     The motion court's determination that Wells Fargo "failed to

exercise ordinary care" is a factual determination that must abide

a trial.    It cannot be determined by the court based on the

complaint alone.   Oral argument might well have assisted the court

in narrowing the issues and focusing on the appropriate statute.

We reverse and remand for trial.

     Reversed and remanded for further proceedings.




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