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Barimah v. Bank of America Inc.

United States District Court, D. Maryland, Southern Division

August 1, 2016

MIKE TWUM BARIMAH, Plaintiff,
v.
BANK OF AMERICA, INC. Defendant.

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge.

         Plaintiff Mike T. Barimah had a bank account with Defendant Bank of America, Inc. (“BofA”). Between 2006 and 2012, certain funds deposited in Barimah’s account with BofA allegedly were withdrawn by his cousin, Kwame Adofo, formerly a Co-Defendant in this case. Barimah filed suit alleging various claims associated with what he characterized as a conspiracy between Adofo and BofA regarding the unauthorized withdrawal of these funds. Subsequently, Barimah amended his complaint in such a manner as to dismiss (1) all of his claims against Adofo, see ECF Nos. 28, 34-36, and (2) dismiss all but one claim against BofA, see ECF Nos. 29 & 35. The sole remaining claim alleges violations by BofA of the Maryland Consumer Protection Act (the “MCPA”), Md. Code Ann., Com. Law § 13-301 et seq., relating to a letter that Barimah received from BofA informing him that BofA’s fraud investigation with respect to Adofo’s withdrawals had revealed no unauthorized account activity. BofA and Barimah have filed cross-motions for summary judgment, respectively. Def.’s Mot., ECF No. 49; Pl.’s Mot., ECF No. 59.[1] Because I find that the MCPA does not apply to the fraud investigation letter that BofA sent to Barimah, I will grant BofA’s motion for summary judgment and deny Barimah’s motion for summary judgment.[2]

         I. BACKGROUND

         The factual background of this case is long and complex; however, only a small portion of it is relevant to Barimah’s sole remaining claim and will be discussed here. Barimah opened an account ending in 1063 with Nations Bank, NA, in the 1990s, see Jt. Rec. MSJ0040, ECF No. 49-6;[3] this account subsequently was transferred to BofA after Nations Bank, NA, merged with BofA, see Pl.’s Sealed Mot. 6. Barimah lived in Ghana but visited the United States frequently. Jt. Rec. MSJ0031, ECF No. 49-6. He did not visit the United States for a ten-year interval between 2002 and 2012. Jt. Rec. MSJ0033, ECF No. 49-6. In or around May and June 2012, Barimah was in the United States. See Jt. Rec. MSJ0050, ECF No. 49-6.

         When Barimah opened his account, he directed all statements to be mailed to an address belonging to his cousin, Kwame Adofo, in Maryland. Jt. Rec. MSJ0041, ECF No. 49-6. From the opening of the account until 2012, the bank account statements were to be sent to Adofo. Id. From 2006 to 2012, Adofo did not send any bank account statements to Barimah, and Barimah did not otherwise review them. See Jt. Rec. MSJ0049-50, ECF No. 49-6.

         During this time period, Barimah authorized Adofo to conduct certain transactions with respect to the BofA account. See Jt. Rec. MSJ0042, ECF No. 49-6. Adofo apparently made purchases on behalf of Barimah from 2006 to 2012 using the BofA account. See Jt. Rec. MSJ0174, ECF No. 49-7. Adofo did so using ATM account withdrawals, debit transactions, and checks. See MSJ0242-424, ECF No. 49-7. In November 2006, the balance on Barimah’s account was $81, 152.22. Jt. Rec. MSJ0184, ECF No. 49-7. In October 2012, the balance on Barimah’s account was around $20, 000. Jt. Rec. MSJ272, ECF No. 49-8. Barimah claims that these withdrawals by Adofo were unauthorized. See Jt. Rec. MSJ0042, ECF No. 49-6.

         On November 23, 2012, Barimah filed a fraudulent activity report contesting certain activity on his account between 2011 and 2012. See Jt. Rec. MSJ0025-27. Barimah claimed that he did not receive an ATM/Check Card relating to the BofA account and that he had no knowledge of the identity or whereabouts of the individual using the card. Id. In response to Barimah’s fraudulent activity report, BofA sent a December 27, 2012, investigation letter (“Investigation Letter”) to Barimah with respect to his BofA account ending in 1063. See Jt. Rec. MSJ0427, ECF No. 49-8. This letter reported the results of BofA’s fraud investigation, stating that “no error has occurred in this instance. Our records show the transaction activity in question was authorized and posted correctly to your account.” Id. The letter also reversed the temporary credit of $9, 571.00 that had been applied to Barimah’s account pending the fraudulent activity investigation. Id.[4]

         II. DISCUSSION

         Summary judgment is proper when the moving party demonstrates, through “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials, ” that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary judgment demonstrates that there is no evidence to support the nonmoving party’s case, the burden shifts to the nonmoving party to identify evidence that shows that a genuine dispute exists as to material facts. See Celotex v. Catrett, 477 U.S. 317 (1986). The existence of only a “scintilla of evidence” is not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party opposing summary judgment. Id. “In ruling on a motion for summary judgment, this Court reviews the facts and all reasonable inferences in the light most favorable to the nonmoving party.” Downing v. Baltimore City Bd. of School Comm’rs, No. RDB 12-1047, 2015 WL 1186430, at *1 (D. Md. Mar. 13, 2015) (citing Scott v. Harris, 550 U.S. 372, 378 (2007)).

         In the absence of supporting evidentiary materials, an attorney’s ispe dixit argument about the facts is not sufficient to raise disputes of material fact.

         A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). Further, “[t]he court need consider only the cited materials . . . .” Fed.R.Civ.P. 56(c)(3), and is not obligated to sift through the summary judgment filings in search of facts the parties have not deemed worthy of citing themselves.

         A. The Investigation Letter Is Not a Basis for a MCPA

         Barimah pleaded that BofA’s December 27, 2012, letter violates the MCPA. See Am. Compl. ¶¶ 102-108. The MCPA states relevantly:

         [a] person may not engage in any unfair or deceptive trade practice, as defined in this subtitle or as further defined by the Division, in:

(1) The sale, lease, rental, loan, or bailment of any consumer goods, consumer realty, or consumer services;
(2) The offer for sale, lease, rental, loan, or bailment of consumer goods, consumer realty, or consumer services;
(3) The offer for sale of course credit or other educational services;
(4) The extension of consumer credit;
(5) The collection of consumer debts; or
(6) The purchase or offer for purchase of consumer goods or consumer realty from a consumer by a merchant whose business includes paying off consumer debt in connection with the purchase of any consumer goods or consumer realty from a consumer.

Md. Code Ann., Com. Law § 13-303. The MCPA defines “[u]nfair or deceptive trade practices” to include a “(1) [f]alse, falsely disparaging, or misleading oral or written statement, visual description, or other representation of any kind which has the capacity, tendency, or effect of deceiving or misleading consumers” and a “(3) [f]ailure to state a material fact if the failure deceives or tends to deceive.” Id. at § 13-301. In addition, certain statutory violations also constitute unfair or deceptive trade practices. See Id. at § 13-301(14).[5] “This title shall be construed and applied liberally to promote its purpose.” Id. at § 13-105; see also State v. Cottman Transmissions Sys., Inc., 587 A.2d 1190, 1204 (Md. Ct. Spec. App. 1991).

         The General Assembly of Maryland documented its legislative findings and purpose in enacting the MCPA:

(a)(1) The General Assembly of Maryland finds that consumer protection is one of the major issues which confront all levels of government, and that there has been mounting concern over the increase of deceptive practices in connection with sales of merchandise, real property, and services and the extension of credit.
. . .
(b)(1) It is the intention of this legislation to set certain minimum statewide standards for the protection of ...

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