Messing v. Bank of America

• Decision Date: 28 February 2002
• Docket Number: No. 2646,2646
• Citation: 143 Md. App. 1,792 A.2d 312
• Parties: Jeff E. MESSING, v. BANK OF AMERICA, N.A.
• Court: Court of Special Appeals of Maryland

792 A.2d 312

143 Md. App. 1

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

No. 2646, Sept. Term, 2000.

Court of Special Appeals of Maryland.

February 28, 2002.

Jeff E. Messing, Appellant, pro se.

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

Submitted before DAVIS, DEBORAH S. EYLER, and KRAUSER, JJ. KRAUSER, Judge.

This appeal focuses on one of the most expressive parts of the human body—the thumb: "thumbs up" (approval), "thumbs down" (disapproval), "thumbing one's nose" (defiance), and "thumbing a ride" (requesting transport).¹ Notwithstanding all of the things we ask of this unassuming two-jointed digit, appellee, Bank of America, adds one more task—personal identification. The thumbprint, if Bank of America has its way, will now be one more means by which the identity of a non-account check holder is expressed and confirmed. This idea has of course not met with universal approval, and that is why this matter of first impression is now before us.

Specifically, we are presented with the question of whether Bank of America's practice of requiring non-account check holders to provide a thumbprint signature before it will honor a check is lawful. Appellant, Jeff E. Messing, claims that it is not and filed a complaint for declaratory judgment in the Circuit for Baltimore City, requesting a declaration that the practice is illegal and an order requiring its cessation. In reply, appellee filed a motion for summary judgment. That motion was granted; appellant's complaint was dismissed; and this appeal followed.

In addition to the question of the legality of appellee's thumbprint signature program, appellant also raises questions as to whether appellee "accepted," "dishonored," or "converted" appellant's check upon presentment. All of these questions have been presented for our review and are set forth below as they appear in appellant's brief.

I. Did the circuit court err in construing the requirement of giving "reasonable identification" under [C.L.] § 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?

II. Did the circuit court err in finding the appellee did not accept the particular check at issue, as "acceptance" is defined in [C.L.] § 3-409(a)?

III. Did the circuit court err in finding that the appellee did not dishonor the particular check at issue, as "dishonor" is defined in [C.L.] § 3-502(d)(1)?

IV. Did the circuit court err in finding the appellee did not convert the cash proceeds of the particular check at issue, as "conversion" is set out in [C.L.] § 3-420?

V. Did the circuit court err in not giving full effect to the plain language of [C.L.] § 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"?

VI. Did the circuit court err in granting appellee's motion for summary judgment and dismissing with prejudice as a matter of law the appellant's complaint for declaratory judgment?

For the reasons that follow, we hold that the circuit court did not err in granting summary judgment and dismissing appellant's complaint. Requiring thumbprint signatures for non-account check holders is lawful, and at no time did appellee accept, convert, or dishonor appellant's check.

However, because this appeal involves a request for declaratory judgment and the circuit court neither entered a written declaration of the rights of the parties nor did it file any written opinion which could be treated as a declaratory judgment, we shall vacate the judgment and remand this case to the circuit court to enter a written declaration of the rights of the parties consistent with this opinion. Bushey v. Northern Assurance Co. of America, 362 Md. 626, 651-52, 766 A.2d 598 (2001); see also Maryland Ass'n of Health Maintenance Organizations v. Health Servs. Cost Review Comm'n, 356 Md. 581, 741 A.2d 483 (1999)

("`whether a declaratory judgment action is decided for or against the plaintiff, there should be a declaration in the judgment or decree defining the rights of the parties under the issues made.'") (citation omitted). Before doing so, however, we shall review the merits of this case. Bushey, 362 Md. at 651-52,

766 A.2d 598 (2001); see also Ashton v. Brown, 339 Md. 70, 660 A.2d 447 (1995)(remand was appropriate action even though the merits of the controversy were addressed on appeal).

Background

On August 3, 2000, appellant attempted to cash a check for $976 at the Light Street branch office of appellee in Baltimore City. That check was made out to appellant and drawn on a Bank of America customer checking account.

Upon entering the bank, appellant handed the check to a teller. The teller then confirmed the availability of the funds on deposit, and placed the check in a computer validation slot. After "validating" the availability of those funds, the computer stamped the time, date, account number, and teller number on the back of the check. It also placed a hold on $976 in the drawer's account.

The teller then gave the check back to appellant to endorse. After he had endorsed the check, the teller asked appellant for identification. In response, appellant presented his driver's license and a major credit card. The identification information on the license and credit card was then transferred by the teller to the back of the check.

During this transaction, the teller asked appellant if he was a Bank of America customer. When he said "no," the teller returned the check to appellant and requested that he place his "thumbprint signature" on the check in accordance with appellee's thumbprint signature policy for "non-account holders." That policy, which is posted at each teller's station,² requires a non-account holder, seeking to cash a check drawn on a Bank of America customer account, to provide a thumbprint signature.

The provision of such a signature is neither messy nor time consuming. A thumbprint signature is created by applying one's right thumb to an inkless fingerprinting device that leaves no ink stain or residue. The thumbprint is then placed on the face of the check between the memo and signature line.

After requesting appellant's thumbprint signature, the teller counted out $976 in cash from her drawer anticipating that appellant would comply with that request. When he refused to do so, the teller indicated that the bank would not be able to complete the transaction without his thumbprint. Appellant then asked to see the branch manager, and the teller referred him to a "Mr. Obrigkeit," the branch manager. Upon entering the branch manager's office, appellant demanded that the check be cashed despite his refusal to place his thumbprint on the check. The branch manager examined the check and returned it to appellant explaining that because appellant was not an account holder, Bank of America would not cash the check without his thumbprint on the instrument. The requirement of a thumbprint signature from non-account holders was in accordance with the deposit agreement that Bank of America has with each of its account holders. That agreement states that Bank of America is permitted "to establish physical and/or documentary requirements" of payees or other holders who seek to cash an item drawn on a Bank of America customer's account.

Appellant then requested that the branch manager provide him with a copy of the Bank's thumbprint policy. The branch manager contacted appellee's regional headquarters and was informed that no such information was available for public distribution. After the branch manager conveyed that information to appellant, appellant left the bank. Moments later, the teller released the hold on the customer's funds, voided the transaction in the computer, and placed the $976 in cash back in her drawer.

Indignant over the bank's policy, appellant filed a complaint for a declaratory judgment requesting the circuit court to "determine and declare" that 1) appellant had provided appellee with "reasonable identification" without his thumbprint; 2) requiring a thumbprint is not "reasonable identification" under Maryland Code (1975, 1997 Repl.Vol., Supp.2000), § 3-501(b)(2) of the Commercial Law Article ("C.L.");³ 3) requiring a thumbprint of non-account holders to cash a check is "illegal, inappropriate, and unnecessary;" 4) requiring non-account holders to provide a thumbprint is an invasion of privacy; 5) non-account holders need not provide a thumbprint to cash a check with appellee; 6) appellee had accepted the check; 7) appellee had wrongfully dishonored the check; and 8) appellee had wrongfully converted the check. Appellant also requested that the circuit court order appellee to cease and desist from requiring thumbprint signatures in Maryland.

In reply, appellee filed a motion to dismiss appellant's complaint or, in the alternative, for summary judgment. Appellant then responded by filing an opposition to appellee's motion and a cross motion for summary judgment. At a hearing on those motions, the circuit court entered summary judgment in favor of appellee and dismissed appellant's complaint with prejudice.

Standard of Review

In evaluating appellant's contention that the circuit court erred in granting appellee's motion for summary judgment, we observe that summary judgment is appropriate only when, after viewing the motion and response in favor of the non-moving party, there is no genuine issue of material fact, and the party in whose favor judgment is entered is entitled to judgment as a matter of law. Pittman v. Atlantic Realty Co., 127 Md.App. 255, 269-70, 732 A.2d 912,rev'd on other...