Messing v. Bank of America, N.A.

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 ⁶ 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)(l)?

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”? ⁷ 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. ⁸ 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. ⁹ 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 ¹⁰ 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 grounds, 359 Md. 513 , 754 A.2d 1030 (2000); Md. Rule 2-501(e). In other words, once we have concluded that there is no genuine issue of material fact, our standard of review “is whether the trial court was legally correct.” Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591 , 578 A.2d 1202 (1990). Applying that standard to the instant case, we conclude, for the reasons set forth below, that the circuit court was legally correct in granting appellee’s motion for summary judgment and dismissing with prejudice appellant’s complaint. Discussion I. Appellant contends that the circuit court erred in construing the “reasonable identification” requirement of C.L. § 3- ¹¹ 501(b)(2) to include a thumbprint signature if demanded by appellee, notwithstanding appellant’s proffer of his driver’s license and a credit card.

C.L. § 3-501 (b)(2) provides: Upon demand of the person to whom presentment is made, the person making presentment must (i) exhibit the instrument, (ii) give reasonable identification and, if presentment is made on behalf of another person, reasonable evidence of authority to do so, and (iii) sign a receipt on the instrument for any payment made or surrender the instrument if full payment is made. (Emphasis added). Because C.L. § 3-501(b)(2) does not define “reasonable identification,” appellant maintains that we should look to Title 31, § 103.28 of the Code of Federal Regulations (“CFR”) 4 which, according to appellant, does. That regulation was promulgated by the United States Department of the Treasury pursuant to the Bank Secrecy Act, 31 U.S.C. § 5311 , et seq. 5 For certain cash transactions exceeding $10,000 per business day,' 6 31 C.F.R. § 103.28 requires that financial institutions handling such transactions verify “the identity ... of any person or entity on whose behalf such transaction is to be effected.” That verification is to “be made by examination of a document, other than a bank signature card, that is normally acceptable within the banking community as a means of identification when cashing checks for nondepositors (e.g., a drivers [sic] license or credit card).” Id.

Because 31 C.F.R. ¹² § 103.28 recognizes a driver’s license or credit card as a reasonable method for establishing “identification when cashing checks for nondepositors,” appellant argues that other methods of identification, such as appellee’s thumbprint signature program, are unreasonable. We disagree. While 31 C.F.R. § 103.28 does indicate that a driver’s license or a credit card may be an acceptable form of identification for certain transactions in excess of $10,000, it does not, as appellant suggests, preclude appellee from requiring a thumbprint signature of non-account holders who wish appellee to honor their checks. A “drivers license [sic] or credit card,” according to 31 C.F.R. § 103.28 , are only examples of the types of identification “normally acceptable within the banking community as a means of identification when cashing-checks for nondepositors.” Nowhere does 31 C.F.R. § 103.28 suggest that a driver’s license and a credit card are the only acceptable forms of identification.

Nor does 31 C.F.R. § 103.28 preclude a financial institution from requesting additional or alternative forms of identification. Indeed, if the Treasury Department had intended to limit reasonable identification under 31 C.F.R. 103.28 to just a driver’s license and a credit card, it could have done so. But it did not. Nonetheless, appellant would have us disregard a cardinal tenet of statutory construction that a court may not “omit words to make a statute express an intention not evidenced in its original form,” 7 by omitting the language in 31 C.F.R. 103.28 indicating that a driver’s license or a credit card are only examples of reasonable identification and not the only acceptable forms of such identification.

While the phrase “reasonable identification” under former U.C.C. § 3-505(l)(b), now codified in Maryland as C.L. § 3-501(b)(2), has been addressed by the other state courts in ¹³ other contexts, 8 what constitutes “reasonable identification” under C.L. 3 — 501(b)(2)—particularly whether a “thumbprint signature” does — is a question that has not been addressed by any federal or state court, at least not in any reported opinion. Appellee’s thumbprint requirement is a form of “reasonable identification” for a number of reasons. First, a thumbprint signature has been accepted by the drafters of the Maryland UCC as an effective, reliable, and accurate way to authenticate a writing on a negotiable instrument. “In accord with the systematic presentation of the UCC and its use of consistent terminology,” U.C.C. § 1-201 sets forth “46 basic terms” to be used throughout the Code to “offer a starting point for the interpretation of many Code sections.” 1 William D. Hawkland, Uniform Commercial Code Series, § 1-201:1 (1998). The term “signed” is defined in C.L. § 1-201(39)(1975, 1997 Repl.Vol.) as “any symbol executed or adopted by a party with present intention to authenticate a writing,” and that definition applies throughout the Maryland UCC.

As to what “signed” means, the Official Comment to C.L. § 1-201(39) states: The inclusion of authentication in the definition of “signed” is to make clear that as the term is used in this Act a ¹⁴ complete signature is not necessary. Authentication may be printed, stamped or written; it may be by initials or by thumbprint. C.L. § 1-201, Official Comment 39 (1975, 1997 Repl.Vol.)(em-phasis added). Among the sections of the Maryland UCC employing the term “signed,” which, as noted, includes a thumbprint, are: C.L. § 3-401(a)(holding that a “person is not liable on an instrument unless (i) the person signed the instrument.”)(emphasis added); C.L. § 3-402(a)(“If a person acting ... as a representative signs an instrument ..., the represented person is bound by the signature ... .”)(emphasis added); C.L. § 3^403(a)(“[A]n unauthorized signature is ineffective except ... in favor of a person who in good faith pays the instrument or takes it for value.”)(emphasis added); C.L. § 3-419(b)(“An accommodation party may sign the instrument [and] ... is obliged to pay the instrument in the capacity in which the accommodation party szpres.”)(emphasis added).

Consequently, a thumbprint is deemed an acceptable and reliable form of signature throughout the Maryland UCC. Second, the process that a non-account holder goes through to provide a thumbprint signature is not unreasonably inconvenient. As noted, non-account holders seeking to cash a check are asked to apply their right thumb to an inkless fingerprinting device to create a “thumbprint signature.” Unlike fingerprinting — which has repeatedly been upheld as an “unobtrusive” form of identification 9 — thumbprint signatures ¹⁵ do not require application of ink nor do they require the participation of more than one digit. In fact, appellant’s thumbprint signature program uses an inkless fingerprinting device that leaves no ink stains or residue.

And third, this procedure is a reasonable and necessary answer to the growing incidence of check fraud. The American Bankers Association has reported that check fraud losses have grown, between 1995 and 1997, at an average rate of 17.5 percent. Carreker-Antinori, Provide Your Bank with a Shield of Protection against Check Fraud, Thompson Financial Publishing, at http://www.tfp.com/text/Fraudlink.pdf. “Industry estimates based on survey data show that actual losses from check fraud amounted to $512.3 million in 1997, a 5.2 percent increase over the $487.1 million estimated for 1995.” Id. As a result of the rising level of check fraud, thumbprint programs, as appellee notes, “have been endorsed by the American Bankers Association and more than thirty (30) state bankers associations including Arizona, Maryland, Missouri, Oregon, Texas, Utah and Virginia.” Testifying before the United States House of Representatives as to the effectiveness of these programs, Charles L. Owens, former Chief of the Financial Crimes Section of the FBI, stated: We have supported implementation of inkless fingerprint policies which have been adopted by over 20 State bankers associations for non-bank customers negotiating checks.

Where implemented, these procedures have successfully reduced negotiation of stolen and counterfeit checks by as much as 50 percent. Computer Generated Check Fraud, Subcommittee on Domestic and International Monetary Policy, Committee on Banking and Financial Services, U.S. House of Representatives, May 1, 1997; see also Perkey v. Department of Motor Vehicles, 42 Cal.3d 185 , 228 Cal.Rptr. 169 , 721 P.2d 50 , 53 ¹⁶ (1986)(stating that the fingerprint requirement is one of the few non-invasive reliable means of combating rampant fraud). Finally, appellant’s contention that a thumbprint does not serve the purposes of the Act is unpersuasive. We agree with appellant that a thumbprint cannot be used, in most instances, to confirm the identity of a non-account checkholder at the time that the check is presented for cashing, as his or her thumbprint is usually not on file with the drawee at that time.

We disagree, however, with appellant’s