Messing v. Bank of America

• Decision Date: 07 April 2003
• Docket Number: No. 27 Sept. Term, 2002.,27 Sept. Term, 2002.
• Parties: Jeff E. MESSING v. BANK OF AMERICA, N.A.
• Court: Maryland Court of Appeals

821 A.2d 22

373 Md. 672

Jeff E. MESSING v. BANK OF AMERICA, N.A.

No. .

Court of Appeals of Maryland.

April 7, 2003.

Jeff E. Messing (Marc H. Messing, on brief), Baltimore, for petitioner.

Dennis P. McGlone (Brian L. Moffet of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC, on brief), Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ. HARRELL, Judge.

I.

The case sub judice involves a bank check. A check is defined as a draft payable on demand and drawn on a bank. Maryland Code (1974, 2002 Repl.Vol.), Commercial Law Article, § 3-204(f)(i).¹ The circumstances which gave rise to the case before us are, in terms of its genesis, reminiscent of those described in the case of Board of Inland Revenue v. Haddock.² In that case, the protagonist, Mr. Haddock, after some dispute involving uncollected income-taxes owed, elected to test the limits of the law of checks as it existed at British common law at the time. Operating on the proposition that a check was only an order to a bank to pay money to the person in possession of the check or a person named on the check, and observing that there was nothing in statute or custom at the time specifying that a check must be written on paper of certain dimensions, or even paper at all, Haddock elected to tender payment to the tax collector by a check written on the back of a cow. The Collector of Taxes at first attempted to endorse the check, but, we are informed, the check "appeared to resent endorsement and adopted a menacing posture" at which point the Collector abandoned the attempt and refused to accept the check. Mr. Haddock then led the check away and was subsequently arrested in Trafalgar Square for causing an obstruction, upon which he was said to have observed that "it was a nice thing if in the heart of the commercial capital of the world a man could not convey a negotiable instrument down the street without being arrested." He subsequently was summoned by the Board of Inland Revenue for non-payment of income-tax.

The case sub judice arises from Petitioner's irritation with the Bank of America's Thumbprint Signature Program. Under the Thumbprint Signature Program, a bank requests non-customer presenters of checks over the counter to place an "inkless" thumbprint or fingerprint on the face of the check as part of the identification process. The program was developed, as the Court of Special Appeals informs us in its opinion in this case, by the American Bankers Association, working with the Federal Deposit Insurance Corporation (FDIC), the Federal Reserve Banks, the Office of the Comptroller of the Currency, the Federal Bureau of Investigation, and other law enforcement officials and banking trade associations across the county in response to rising instances of check fraud. Messing v. Bank of America, 143 Md.App. 1, 15-16, 792 A.2d 312, 320-21 (2002). It is undisputed that the Bank of America's Thumbprint Signature Program uses an inkless fingerprinting device that leaves no ink stains or residue.

II.

At some point in time prior to 3 August 2000, Petitioner, as a holder, came into possession of a check in the amount of Nine Hundred Seventy-Six Dollars ($976.00)(the check) from Toyson J. Burruss, the drawer, doing business as Prestige Auto Detail Center. Instead of depositing the check into his account at his own bank, Petitioner elected to present the check for payment at a branch of Mr. Burruss' bank, Bank of America, the drawee.³ On 3 August 2000, Petitioner approached a teller at Bank of America's 10 Light Street Banking Center in Baltimore City and asked to cash the check. The teller, by use of a computer, confirmed the availability of funds on deposit, and placed the check into the computer's printer slot. The computer stamped certain data on the back of the check, including the time, date, amount of the check, account number, and teller number. The computer also effected a hold on the amount of $976.00 in the customer's account. The teller gave the check back to the Petitioner, who endorsed it. The teller then asked for Petitioner's identification. Petitioner presented his driver's license and a major credit card. The teller took the endorsed check from Petitioner and manually inscribed the driver's license information and certain credit card information on the back of the check.

At some point during the transaction, the teller counted out $976.00 in cash from her drawer in anticipation of completing the transaction. She asked if the Petitioner was a customer of Bank of America. The Petitioner stated that he was not. The teller returned the check to Petitioner and requested, consistent with bank policy when cashing checks for non-customers, that Petitioner place his thumbprint on the check.⁴ Petitioner refused and the teller informed him that she would be unable to complete the transaction without his thumbprint.

Petitioner requested, and was referred to, the branch manager. Petitioner presented the check to the branch manager and demanded that the check be cashed notwithstanding Petitioner's refusal to place his thumbprint on the check. The branch manager examined the check and returned it to the Petitioner, informing him that, because Petitioner was a non-customer, Bank of America would not cash the check without Petitioner's thumbprint on the instrument. After some additional exchanges, Petitioner left the bank with the check in his possession. The branch manager advised the teller that Petitioner had left the bank with his check. In response, the teller released the hold on the customer's funds, voided the transaction in the computer, and placed the cash back in her teller drawer.

Rather than take the check to his own bank and deposit it there, or returning it to Burruss, the drawer, as dishonored and demanding payment, Petitioner, two months later, on 10 October 2000, filed a declaratory judgment action against Bank of America (the Bank) in the Circuit Court for Baltimore City. Petitioner claimed that the Bank had violated the Maryland Uniform Commercial Code (UCC) and had violated his personal privacy when the teller asked Petitioner to place an "inkless" thumbprint on the face of the check at issue. Petitioner asked the trial court to declare that: 1) Petitioner had provided "reasonable identification" without his thumbprint; 2) under § 3-501(b)(2), a thumbprint is not reasonable identification; 3) requiring a thumbprint of non-customers to cash a check is illegal, inappropriate, and unnecessary; 4) requiring non-customers to provide a thumbprint is a violation of the personal privacy of non-customers; 5) the Bank be required to cease requiring thumbprints in Maryland; 6) the Bank had "accepted" the check when presented by Petitioner; 7) the Bank "wrongfully dishonored" the check; and 8) the Bank wrongfully converted the check. Petitioner also sought injunctive relief directing Bank of America to cease participation in the Thumbprint Signature Program.

On 15 November 2000, the Bank filed a Motion to Dismiss or, in the alternative, for Summary Judgment. Petitioner opposed the Bank's Motion and filed a "cross" Motion for Summary Judgment. After the Circuit Court heard oral arguments on the pending motions, it denied Petitioner's request for injunctive relief and entered summary judgment in favor of the Bank, dismissing the Complaint with prejudice.⁵

Petitioner appealed on 17 January 2001. The Court of Special Appeals concluded that the Circuit Court's decision in favor of the Bank was legally correct, but remanded the case for entry of a proper declaratory judgment as to the rights of the parties consistent with its opinion. Messing v. Bank of America, 143 Md.App. 1, 792 A.2d 312 (2002).

Petitioner petitioned this Court for a writ of certiorari. On 10 June 2002, we granted the petition. Messing v. Bank of America, 369 Md. 301, 799 A.2d 1262 (2002).

III.

Six questions are presented for our consideration. They are:

"1. Did the Court of Special Appeals err in construing the requirement of giving "reasonable identification" under the Annotated Code of Maryland, Commercial Law Article, Section 3-501(b)(2), to require a thumbprint if demanded by a drawee to whom presentment of a check is made, notwithstanding the proffer of reasonable and customary documentary forms of identification?

"2. Did the Court of Special Appeals err in finding the [Respondent] did not accept the particular check at issue, as "acceptance" is defined in the Annotated Code of Maryland, Commercial Law Article, Section 3-409(a)?

"3. Did the Court of Special Appeals err in finding that the [Respondent] did not dishonor the particular check at issue, as "dishonor" is defined in the Annotated Code of Maryland, Commercial Law Article, Section 3-502(d)(1)?

"4. Did the Court of Special Appeals err in finding the [Respondent] did not convert the cash proceeds of the particular check at issue, as "conversion" is set out in the Annotated Code of Maryland, Commercial Law Article, Section 3-420?

"5. Did the Court of Special Appeals err in not giving full effect to the plain language of the Annotated Code of Maryland, Commercial Law Article, Section 3-111, that states that when no address is stated in an instrument, "The place of payment is the place of business of the drawee or maker. If the Drawee or maker has more than one place of business, the place of business is any place of business of the drawee or maker chosen by the person entitled to enforce the instrument"?

"6. Did the Court of Special Appeals err in vacating the judgment of the Circuit Court for Baltimore City and remanding the case to the Circuit Court for the entry of a written declaration of the rights of the parties consistent with the Court of Special Appeals' opinion?"

IV.

Summary judgment is only appropriate where, when viewing the motion and response in a light most favorable to the non-moving party, there are no genuinely...