Court upholds bank's right to require thumbprint to cash checks

In a case supporting the battle against check fraud, the Court of Appeals yesterday upheld Bank of America's right to require thumbprint identification from non-customers trying to cash checks.

"The bank is pleased with the ruling," said attorney Dennis P. McGlone, who represented Bank of America on appeal. "It's clear now the Court of Appeals has determined the thumbprint is a reasonable and appropriate identification when the bank is dealing with a stranger, a non-customer."

The petitioner, Baltimore lawyer Jeff E. Messing, argued the bank violated his privacy by requiring thumbprint identification in August 2000 before it would cash a $976 check written to him by a Bank of America account-holder.

Messing presented a driver's license and major credit card for identification during the failed transaction.

The teller confirmed there was enough money in the account and began to cash the check, going so far as counting out the money from the cash drawer.

But when Messing refused to place his thumbprint on the check via the bank's inkless identification system, the bank refused to hand over the cash. The teller voided the transaction and Messing sued, claiming several violations of Maryland's commercial code.

Messing sought to have the trial court order the bank to cease requiring thumbprints as identification in Maryland.

But the courts disagreed with Messing's view that requiring his thumbprint was "illegal, inappropriate, and unnecessary."

Although the teller began the check-cashing process by inserting the check into bank machinery, the appeals court agreed that Bank of America did not officially accept the check; and, because the bank never accepted the check, it never dishonored it, the court reasoned.

"The mere fact that the teller's computer printed information on the back of the check does not, as [Messing] contends, amount by itself to an acceptance," the court wrote.

"The statute clearly states that acceptance becomes effective when the presenter is notified of that fact," the court wrote. "The facts demonstrate that at no time did the teller notify [Messing] that the bank would pay on the check."

The appeals court did agree that, since Messing sought a declaratory judgment, rather than granting summary judgment the circuit court was required to enter a written declaration of the rights of the parties. The appeals court agreed with the Court of Special Appeals that the trial court's judgment must, therefore, be vacated and the case remanded to the circuit court to enter a proper written declaration of rights consistent with the opinion.

Chief Judge Robert M. Bell and Judge John C. Eldridge signed a separate opinion, concurring with the result but dissenting as to the reasonableness of the identification requirement.

"Today, honest citizens attempting to cope in this world are constantly being required to show or give drivers' licenses, photo identification cards, social security numbers, the last four digits of social security numbers, mothers' 'maiden names,' 16 digit account numbers, etc.," Eldridge wrote. "Enough is enough."

Referring to the majority's language about Messing's annoyance with the bank, the dissent continued, "The most reasonable thing in this case was petitioner's 'irritation with the Bank of America's Thumbprint Signature Program.'" Messing could not be reached for comment yesterday.

WHAT THE COURT HELD

Case: Jeff E. Messing v. Bank of America, CA No. 27, Sept. Term 2002. Reported. Opinion by Harrell, J. Filed April 7, 2003.

Issue: Did the court err in holding that a bank's requirement that a non-customer provide a "thumbprint signature" to cash a check constituted "reasonable identification" under Maryland Commercial Law Article Sec. 3-501(b)(2)?

Holding: No. A bank's requirement of a thumbprint placed upon a check presented over the counter by a non-customer is reasonable.

Counsel: Jeff E. Messing for petitioner; Dennis P. McGlone for respondent.

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