Barimah v. Bank of America Inc. et al
Filing
75
MEMORANDUM OPINION AND ORDER GRANTING 49 Defendant's Motion for Summary Judgment; DENYING 59 Plaintiff's Cross-Motion for Summary Judgment; GRANTING 55 Defendant's Motion to Seal; GRANTING 61 Plaintiff's Motion to Seal; DE NYING as moot 64 Defendant's Motion to Seal; GRANTING 67 Defendant's Motion to Seal, contingent upon Defendant filing an unsealed, redacted version of its reply and opposition by 8/16/2016; GRANTING 68 Plaintiff's Motion to Seal, contingent upon Plaintiff filing an unsealed, redacted version of his reply by 8/16/2016; GRANTING 71 Plaintiff's Motion to Seal; GRANTING 73 Plaintiff's Motion to Seal and directing that the Clerk of the Court shall CLOSE this case. Signed by Judge Paul W. Grimm on 8/1/2016. (kns, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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MIKE TWUM BARIMAH,
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Plaintiff,
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v.
Case No.: PWG-14-3324
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BANK OF AMERICA, INC.
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Defendant.
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MEMORANDUM OPINION AND ORDER
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allegedly were withdrawn by his cousin, Kwame Adofo, formerly a Co-Defendant in this case.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. MSJ_0040, 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. MSJ_0031, ECF No. 49-6. He did not visit the United States for a ten-year
interval between 2002 and 2012. Jt. Rec. MSJ_0033, ECF No. 49-6.
In or around May and
June 2012, Barimah was in the United States. See Jt. Rec. MSJ_0050, ECF No. 49-6.
1
Accompanying BofA’s motion for summary judgment is a memorandum of law, Def.’s
Mem., ECF No. 49, and sealed memorandum of law, Def.’s Sealed Mem., ECF No. 50. Included
in Barimah’s motion for summary judgment is an opposition to BofA’s motion; Barimah also
filed a sealed version of this document, Pl.’s Sealed Mot., ECF No. 58. BofA filed a sealed
response, Def.’s Resp., ECF No. 66, which serves as a reply with respect to its motion for
summary judgment and an opposition to Barimah’s motion. Barimah also filed a sealed
response, Pl.’s Resp., ECF No. 69, which is a reply with respect to his motion for summary
judgment. The cross-motions for summary judgment are ripe for review. A hearing is
unnecessary in this case. See Loc. R. 105.6. To the extent that I reference sealed documents, the
portions of those documents referenced are unsealed.
2
In addition to the cross-motions for summary judgment presently before me, there are
seven motions to seal. I will address them in a separate section of this memorandum.
3
I will refer to the parties’ collective exhibits as Jt. Rec.; in compliance with the Case
Management Order, ECF No. 19, the exhibits include consecutive pagination of all exhibit pages
using the “MSJ_” prefix. Many of these exhibits contain multiple types of documents (e.g., a
deposition followed by bank statements all in the same exhibit). The parties have filed the
exhibits separately as attachments to their briefings and as individual filings, see, e.g., ECF Nos.
70, 72, & 74. Additionally, some exhibits have been filed both in sealed and unsealed versions.
See, e.g., ECF Nos. 49-8 & 51-1. For these reasons, I will not only cite to the “MSJ_” page
number but also provide the ECF Number of the document as well.
2
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. MSJ_0041, 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. MSJ_0049–50, ECF No. 49-6.
During this time period, Barimah authorized Adofo to conduct certain transactions with
respect to the BofA account. See Jt. Rec. MSJ_0042, ECF No. 49-6. Adofo apparently made
purchases on behalf of Barimah from 2006 to 2012 using the BofA account. See Jt. Rec.
MSJ_0174, ECF No. 49-7. Adofo did so using ATM account withdrawals, debit transactions,
and checks. See MSJ_0242–424, ECF No. 49-7. In November 2006, the balance on Barimah’s
account was $81,152.22. Jt. Rec. MSJ_0184, ECF No. 49-7. In October 2012, the balance on
Barimah’s account was around $20,000. Jt. Rec. MSJ_272, ECF No. 49-8. Barimah claims that
these withdrawals by Adofo were unauthorized. See Jt. Rec. MSJ_0042, 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. MSJ_0025–27. 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. MSJ_0427, 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
3
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.
4
The parties have substantial disagreement with respect to the factual record of this case.
See Pl.’s Sealed Mot. 5–28. Because I will grant BofA’s motion for summary judgment, I have
presented the facts in a light most favorable to Barimah, the non-moving party, to the extent the
evidence allows. There is significant disagreement with respect to the background facts,
including how Adofo withdrew the funds; how he obtained the ATM card linked to the account;
whether the account was a joint account with both Adofo and Barimah named as account
owners; if it was a joint account, how it became one; and the extent and sufficiency of BofA’s
fraud investigation. Because these facts are not relevant to the narrow issue addressed by my
ruling, I have not discussed them here.
4
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)
(2)
(3)
(4)
(5)
(6)
The sale, lease, rental, loan, or bailment of any consumer goods, consumer
realty, or consumer services;
The offer for sale, lease, rental, loan, or bailment of consumer goods,
consumer realty, or consumer services;
The offer for sale of course credit or other educational services;
The extension of consumer credit;
The collection of consumer debts; or
The purchase or offer for purchase of consumer goods or consumer realty
from a consumer by a merchant whose business includes paying off
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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
5
In Barimah’s amended complaint, he pleaded that BofA violated the MCPA by engaging
in unfair or deceptive trade practices under Md. Code Ann., Com. Law §§ 13-301(1) and 13301(3) only. See Am Compl. ¶ 103. He raises for the first time in his response to BofA’s motion
for summary judgment, that BofA also engaged in unfair or deceptive trade practices under § 13301(9), see, e.g., Pl.’s Sealed Mot. 33–34. Section 13-301(9) defines unfair or deceptive trade
practices as
(9)
Deception, fraud, false pretense, false premise, misrepresentation, or
knowing concealment, suppression, or omission of any material fact with
the intent that a consumer rely on the same in connection with:
(i)
(ii)
(iii)
The promotion or sale of any consumer goods, consumer realty, or
consumer service;
A contract or other agreement for the evaluation, perfection,
marketing, brokering or promotion of an invention; or
The subsequent performance of a merchant with respect to an
agreement of sale, lease, or rental
Because Barimah raises the alleged violation under § 13-301(9) for first time in his response to
BofA’s motion for summary judgment, it was not properly pleaded, and I will only address the
alleged violations under §§ 13-301(1) and 13-301(3). However, even if I were to consider
BofA’s alleged violation of § 13-301(9), it would be dismissed for the same reasons as the other
alleged violations of the MCPA.
Barimah also states in his motion that BofA violated the MCPA
in failing to provide him with documentation they relied on during their
investigation and subsequent repeated denial by stating there was no error without
taking into account the information that was available to the bank during its
investigation and persistent active concealment of the fact that Adofo had been
joined to his account and granted an access device in his own name.
6
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 consumers across the State . . .
(2)
The General Assembly is concerned that public confidence in merchants
offering goods, services, realty, and credit is being undermined, although
the majority of business people operate with integrity and sincere regard
for the consumer. . . .
Md. Code Ann., Com. Law § 13-102. However, the MCPA does not apply to unfair or deceptive
trade practices in all contexts. Rather, it prohibits these practices only in the contexts as set forth
in § 13-303. Barimah has not identified the particular provision of § 13-303 under which he is
bringing his claim. But, in taking a liberal view of Barimah’s allegations, it is only plausible that
he is bringing his claims under §§ 13-303(1), 13-303(2), and 13-303(4) as well as based on a
violation of the Electronic Funds Transfer Act (the “EFTA”), 15 U.S.C. § 1693 et seq.
1. §§ 13-303(1) and 13-303(2)
Under §§ 13-303(1) and 13-303(2), unfair or deceptive trade practices are prohibited in
the context of “[t]he sale, lease, rental, loan, or bailment of any consumer goods, consumer
Pl.’s Sealed Mot. 15. As with Barimah’s § 13-301(9), these alleged violations on the part of
BofA for conduct subsequent to it sending the Investigation Letter exceed the scope of the
allegations in Barimah’s complaint. Accordingly, I will not address them here. However, even
if I were to consider these allegations based on BofA’s subsequent conduct, they also would fail
for the reasons stated in this memorandum opinion and order.
7
realty, or consumer services” or the offer of the same. With respect to claims brought under
§§ 13-303(1) and 13-303(2), the unfair or deceptive trade practice must induce the consumer to
enter into the transaction. See White v. Kennedy Krieger Inst., Inc., 110 A.3d 724, 755, cert.
denied sub nom. White v. Kennedy Krieger Inst., 116 A.3d 476 (2015) (“Our holding reflects the
prior holdings of the Court of Appeals, as well as the underlying purpose of the [M]CPA to
provide a broad remedy for consumers who are fraudulently induced into sale or lease
transactions.” (citing Md. Code Ann., Com. Law § 13–102(b)(3)). “The CPA squarely applies to
leases and is designed in part “‘to protect consumers from unfair or deceptive trade practices that
induce [ ] prospective tenants to enter into a lease.’” Id. at 754-55 (quoting Butler v. S & S
P’ship, 80 A.3d 298, 317 (Md. 2013)) (emphasis added). “[T]he deceptive practice must occur
in the sale or offer for sale to consumers.” Morris v. Osmose Wood Preserving, 667 A.2d 624,
636 (Md. 1995). Accordingly, the unfair or deceptive trade practice cannot be made after the
sale or offer to be actionable under the MCPA. See Scroggins v. Dahne, 335 Md. 688, 696, 645
A.2d 1160, 1164 (Md. 1994) (“At the time the lease in the instant case was entered into, there
was no chipping or peeling paint on the premises. As the chipping or peeling paint did not exist
at the time the lease was entered into, the landlord could not be said to have engaged in a
deceptive trade practice under the [M]CPA [for statements made during the term of the lease].”).
BofA’s Investigation Letter was dated December 27, 2012, well after Barimah opened his
account. It cannot have induced him to open it or have been related to any offer BofA made in
opening the account. Barimah argues that “Maryland Courts have held that the [MCPA] applies
to deposit bank accounts and debit transactions as in the present case.” Pl.’s Sealed Mot. 35
(citing Margolis, 110 A.2d at 791–95). He further argues that the court in Margolis found that
the MCPA applies not just to the opening of the account but also to ATM transactions, which are
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considered point-of-sale transactions. See id. at 36. However, the case in Margolis involved
certain representations and disclosures made in a Deposit Account Agreement relating to
overdraft fees that the bank charged the plaintiffs with respect to their checking account.
Margolis, 110 A.2d at 791–95. It is unclear whether the plaintiffs in Margolis entered into the
Deposit Account Agreement at the time of opening their accounts or whether the plaintiffs
entered into this agreement each time they used their ATM cards as point-of-sale transactions.
Id. As a result, it is not clear from Margolis whether Maryland courts have applied the MCPA to
individual ATM transactions. And even if the court in Margolis recognized that the MCPA
applies to individual ATM transactions, it did so in the context of an agreement disclosing its
handling of debits and credits and associated overdraft fees that the bank would apply each time
the consumer engaged in an ATM transaction. Id. This same reasoning does not apply to the
present case. The Investigation Letter reports BofA’s findings following its investigation of
Barimah’s fraud reports. As such, it did not relate to future ATM transactions by Barimah and
cannot be reasonably interpreted as relating to a sale or offer for sale on the part of BofA to
Barimah. Accordingly, the Investigation Letter cannot serve as a basis for an unfair or deceptive
trade practice claim based on § 13-303(1) or 13-303(2).
2. §§ 13-303(4)
Under §§ 13-303(4), unfair or deceptive trade practices are prohibited in the context of
the “extension of consumer credit.” The MCPA defines consumer credit as “credit . . . primarily
for personal, household, family, or agricultural purposes.” See § 13-101(d)(1). The MCPA does
not define “extension of consumer credit,” but this Court has looked to the definition in “an
analogous statute, the Maryland Credit Services Business Act,” which defines “extension of
consumer credit” as “the right to defer payment of debt or to incur debt and defer its payment,
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offered or granted primarily for personal, family, or household purposes.” See Robinson v.
Nationstar Mortgage LLC, No. TDC-14-3667, 2015 WL 4994491, at *3 n.2 (D. Md. Aug. 19,
2015); see also Marchese v. JPMorgan Chase Bank, N.A., 917 F. Supp. 2d 452, 466 (D. Md.
2013). The types of transactions that constitute extension of credit include loan modifications,
see Nationstar, 2015 WL 4994491, at *3; Marchese, 917 F. Supp. at 466, and certain reverse
mortgage products, see Wiseman v. First Mariner Bank, No. ELH-12-2423, 2013 WL 5375248,
at *24 (D. Md. Sept. 23, 2013).
Although the Investigation Letter references “the temporary credit for $9571.00 that was
previously applied to [Barimah’s] account” and states that it would be reversed, this type of
credit does not fall under the definition of “extension of consumer credit” recognized by this
Court.
BofA provided the temporary credit for the duration of its fraud investigation; its
revocation of this temporary credit, having determined from its investigation that there was no
fraud, cannot be interpreted as an “extension of consumer credit,” which is “the right to defer
payment of debt or to incur debt and defer its payment.” Accordingly, the Investigation Letter
cannot serve as a basis for an unfair or deceptive trade practice claim based on § 13-303(4).
3. Applicability of the Electronic Funds Transfer Act6
Barimah has also argued that the Investigation Letter violated the MCPA because it was
also a violation of the EFTA, see, e.g., Pl.’s Sealed Mot. 4; Pl.’s Resp. 14–16. The MCPA
provides that certain statutory violations constitute unfair or deceptive trade practices. See Md.
Code Ann., Com. Law § 13-301(14). The EFTA is not one of the listed statutory violations.
6
It is unclear if Barimah is arguing that the EFTA is relevant in considering whether the
MCPA is applicable to BofA’s conduct with respect to sending the Investigation Letter to
Barimah or whether such conduct constituted a violation of the MCPA. Because I will base my
ruling on the applicability of the MCPA to BofA’s conduct, I will discuss Barimah’s argument
on the relevance of the EFTA here.
10
Nevertheless, Barimah argues that the EFTA is relevant as a guide in determining whether the
MCPA is applicable, stating that courts in Massachusetts and Missouri have adopted this
reasoning when interpreting their consumer protection laws. See Pl.’s Resp. 14–15. As an initial
matter, these decisions are not binding on this Court. Additionally, they are unpersuasive.
In Berenson v. Nat'l Fin. Servs., LLC, the United States District Court for the District of
Massachusetts considered whether a violation of the EFTA constituted a violation of the
Massachusetts consumer protection act, Mass. Gen. Laws Ann. ch. 93A, § 2. See 403 F. Supp.
2d 133, 149 (D. Mass. 2005). However, the scope of Mass. Gen. Laws Ann. ch. 93A, § 2 is
much broader than the language in the MCPA. Mass. Gen. Laws Ann. ch. 93A, § 2 provides that
“(a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of
any trade or commerce are hereby declared unlawful.” An act or practice violates this section if
“[i]t fails to comply with existing statutes, rules, regulations or laws, meant for the protection of
the public’s health, safety, or welfare promulgated by the Commonwealth or any political
subdivision thereof intended to provide the consumers of this Commonwealth protection . . . .”
Mass. Regs.Code tit. 940, § 3.16(3). The Massachusetts consumer protection act does not have
the same limitations in the scope of its applicability as compared to the MCPA. See § 13-303.
Accordingly, I do not find Berenson to be persuasive.
In Gaffney v. Cmty. Fed. Sav. & Loan Ass’n, the Missouri Court of Appeals found that
the EFTA “sets out guidelines as well as the liabilities of the banks and the customer concerning
the use of the automated teller machine.” 706 S.W.2d 530, 533–34 (Mo. Ct. App. 1986).
However, this case involved a state law claim for breach of contract on the contractual duty to
debit a depositor’s account only when an authorized transaction occurs. See id. at 532–34. The
Missouri court did not apply the EFTA to a state consumer protection statute, much less to one
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similar to the MCPA. Accordingly, I do not find Gaffney to be persuasive. For these reasons, I
will not use the EFTA as a guide in determining whether the MCPA is applicable to BofA’s
conduct.
In summary, whether under §§ 13-303(1), 13-303(2), 13-303(4), or the EFTA, there is no
basis in Maryland law for applying the prohibition against unfair or deceptive trade practices set
forth in the MCPA to the content of a letter sent by a bank responding to a customer’s fraud
report. Nor has Barimah cited to any authority for such an application of the MCPA, and I have
found none in my research of the statute or relevant case law. Indeed, the application of the
MCPA to this case would depart from the purpose of the law as described in the statute:
protecting consumers who are induced into entering into transactions based on unfair or
deceptive trade practices. There existed other avenues to challenge Adofo’s withdrawal of funds
from Barimah’s account that would have more properly held both Adofo and BofA liable, if the
facts demonstrated that liability was warranted. Those claims have been dismissed voluntarily
by Barimah and are no longer before me. Having abandoned these claims in pursuit of a single
MCPA claim, Barimah has chosen to stake his claim on the applicability of a statute that does
not address his dispute with BofA. For these reasons, I will grant BofA’s motion for summary
judgment and deny Barimah’s motion for summary judgment.
B. The Investigation Letter Is Not an Unfair or Deceptive Practice
Even if Barimah’s claim was legally cognizable under the MCPA, it still would fail. In
order to bring his claim under the MCPA, Barimah must demonstrate (1) that BofA engaged in
unfair or deceptive trade practices under § 13-301 and (2) that this practice caused him actual
loss or injury. See Piortrowski v. Wells Fargo Bank, N.A., No. DKC 11-3758, 2013 WL 247549,
at *10 (D. Md. Jan. 22, 2013). A plaintiff must establish that he or she “relied upon the
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defendant’s false or misleading statements and suffered actual loss or injury as a result of that
reliance.” Pruitt v. Alba Law Group, P.A., No. DKC-15-458, 2015 WL 5030214, at *10 (D. Md.
Aug. 24, 2015) (quoting Butler v. Wells Fargo Bank, N.A., No. MJG-12-2705, 2013 WL
3816973, at *3 (D. Md. July 22, 2013)) (emphasis in Butler) (internal quotation marks omitted).
Even assuming that Barimah can demonstrate that BofA engaged in unfair or deceptive trade
practices under §§ 13-301(1) or 13-301(3), Barimah has not identified any evidence that he
suffered actual loss or injury caused by BofA’s Investigation Letter, which simply reported the
outcome of its investigation of his fraud claim and the explanation that it did not find fraudulent
activity.
Barimah argues that he suffered injury in both (1) his combined opposition to BofA’s
motion for summary judgment and cross-motion, see Pl.’s Sealed Mot. 38–41, and (2) his
response, see Pl.’s Resp. 19–21. In these filings, he cites to the record only twice in support of
his argument that he suffered actual loss or injury. See Pl.’s Sealed Mot. 40. First, Barimah
states that “Adofo still had an ATM [card] at this point which was used to make withdrawals as
late as October 22, 2012 in Jessup[,] Maryland.” Id. However, his citation only shows that
someone made a withdrawal from the account ending in 1063 on this date, not that it was Adofo.
More fundamentally, Barimah cannot demonstrate that the Investigation Letter, dated December
27, 2012, caused him an actual loss or injury with respect to a withdrawal made before he
received the Investigation Letter.
Second, he states that he suffered injury by renewing his account in June 2013, citing to a
signature card that shows Chris Bonsu as an individual named on the account ending in 1063.
See Pl.’s Sealed Mot. 40 (citing Jt. Rec. MSJ_0428, ECF No. 49-8). It is true that Chirs Bonsu’s
name is on the signature card, but this fact, if accepted as true, does not in its solitary isolation
13
demonstrate how it caused Barimah injury or how it is related to BofA’s letter addressing the
result of Barimah’s fraud complaint.
Barimah also cites to the record in his discussion of disputed facts stating that he incurred
expenses for travel and for paying the Norman Law Firm fees and costs, see Pl.’s Sealed Mot.
20–21 (citing Jt. Rec. MSJ_0062, ECF No. 49-6), and that he refrained from bringing an EFTA
claim against BofA within the statute of limitations, see id. at 21 (citing Jt. Rec. MSJ_0062, ECF
No. 49-6). However, the closest that Barimah comes to supporting these statements is that he
“decided to engage [an] attorney.” See Jt. Rec., MSJ_0062. But he does not provide evidentiary
facts to support what those costs and fees were or how he sustained them in reliance on BofA’s
Investigation Letter.
Rather, Barimah’s hiring an attorney to investigate whether the
Investigation Letter was accurate or actionable reflects that he disagreed with the opinion
explained in the letter, not that he accepted and relied on it. See Pl.’s Mot. 16 (“Plaintiff was not
persuaded by BofA’s persistent seemingly perfunctory investigation and failure to give any
reasons why it had found that there was no error, Plaintiff gave instructions to the Norman Law
[F]irm which took up the matter.”). These statements are not enough to support his contention
that he suffered actual loss or injury in reliance on the Investigation Letter.7
7
Without explanation, advance permission of the Court, or Defendant’s consent, Barimah
filed a supplement to his reply, ECF No. 72, on November 30, 2015, over a month after filing his
reply on October 28, 2015, and long after the deadline imposed by Loc. R. 105.2(a) for filing a
reply brief. This supplement is an affidavit by Barimah stating under oath that he suffered
certain injuries as a result of the Investigation Letter. This filing is untimely and has not been
considered. Because I have found that the MCPA is inapplicable with respect to BofA’s conduct
regarding the Investigation Letter, even if this affidavit were to establish for the purposes of
summary judgment that Barimah suffered actual loss or injury, I would still grant summary
judgment in favor of BofA. Moreover, attempting to supplement the record to cure factual
deficiencies after filing a reply brief, which afforded Defendant no opportunity to respond,
would be patently unfair.
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Finally, Barimah states that he lost the provisional credit associated with the account
ending in 1063. See Pl.’s Sealed Mot. 20 (citing Jt. Rec. MSJ_0194, Ex. 49-7). However, this
loss did not occur because of his reliance of a false or misleading statement on the part of BofA;
instead, it was due to the conclusions that BofA reached that his fraud claim was unfounded. As
a result, the loss of the provisional credit referenced in the letter is not an “actual loss or injury”
for the purposes of Barimah’s MCPA claim.
Barimah’s conclusory and self-serving statements in his briefings are not enough to
create a genuine dispute of material fact with respect to whether the Investigation Letter caused
him actual loss or injury. Additionally, the two isolated citations to the record also fail to
establish a genuine dispute as to whether he suffered loss or injury. Accordingly, even if the
Investigation Letter did serve as a valid claim under the MCPA, there is no evidence that
Barimah suffered actual loss or injury caused by BofA’s letter, and his claim would fail.8
III.
SEALED MATERIALS
The parties have filed seven motions to seal.9 This Court’s Local Rules require that any
motion to seal include “(a) proposed reasons supported by specific factual representations to
justify the sealing and (b) an explanation why alternatives to sealing would not provide sufficient
protection.” Loc. R. 105.11. I will discuss the motions individually below.
A. ECF No. 55
BofA filed this motion to seal with respect to its memorandum of law for its motion for
summary judgment, Def.’s Sealed Mem., ECF No. 50-1, and Exhibits E, G, and H to its motion,
8
Because I find that there is no genuine dispute of material fact with respect to whether the
Investigation Letter caused Barimah to suffer actual loss or injury, I do not need to consider
whether BofA sending the Investigation Letter to Barimah was an unfair or deceptive trade
practice under § 13-301.
9
No oppositions have been filed with respect to these motions, and the time to do so has
passed. See Loc. R. 105.2(a).
15
ECF Nos. 51, 52, and 53, respectively.10
These documents contain confidential business
information regarding “BofA’s procedures in investigating a fraud claim.” See ECF No. 55.
Unsealed, redacted versions of BofA’s memorandum of law, ECF No. 49-1, and Exhibits E, G,
and H, ECF Nos. 49-8, 49-10, and 49-11, respectively, have been filed on the docket.
Accordingly, I find that there is sufficient justification to seal these documents and that no
alternative would provide sufficient protection and will grant BofA’s motion to seal, ECF No.
55.
B. ECF No. 61
Barimah has filed a motion to seal with respect to his response to BofA’s motion for
summary judgment and cross-motion for summary judgment, Pl.’s Mot., ECF No. 58. This
document references the confidential business information in BofA’s motion for summary
judgment and attached exhibits. An unsealed, redacted version of Barimah’s response, ECF No.
59-1, has been filed on the docket. Accordingly, I find that there is sufficient justification to seal
this document and that no alternative would provide sufficient protection and will grant
Barimah’s motion to seal, ECF No. 61.
C. ECF Nos. 64
BofA has filed a motion to seal with respect to its reply in support of its motion for
summary judgment and opposition to Barimah’s cross-motion for summary judgment, ECF No.
63. There appears to have been an error in the initial filing of the unsealed, redacted version and
the sealed version of this document. See ECF No. 65. As a result, the unsealed, redacted version
is marked “filed in error” and is no longer available to the public, see ECF Nos. 62 & 65, and the
10
BofA also filed ECF No. 54 under seal, which is the redacted portion of Exhibit E. This
filing appears to be a duplicate of ECF No. 51. For the same reason that I will order ECF No. 51
to be sealed, I also will order ECF No. 54 to be sealed.
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sealed version also is marked “filed in error,” see ECF Nos. 63 & 65. Accordingly, I will deny
as moot BofA’s motion to seal, ECF No. 64.
D. ECF No. 67
BofA has filed a motion to seal with respect to its second filing of its reply in support of
its motion for summary judgment and opposition to Barimah’s cross-motion for summary
judgment, Def.’s Resp., ECF No. 66. This document references and discusses the confidential
business information in the other briefings. As a result of the filing errors discussed above, the
unsealed, redacted version of this document is no longer available to the public. See ECF Nos.
62 & 65. Having reviewed the redacted filing and compared it with the sealed filing, I find that
there is sufficient justification to seal this document and that no alternative would provide
sufficient protection and will grant BofA’s motion to seal, ECF No. 67, contingent upon BofA
refiling an unsealed, redacted version of its reply and opposition as directed below.
E. ECF No. 68
Barimah has filed a motion to seal with respect to his reply in support of his cross-motion
for summary judgment, Pl.’s Resp., ECF No. 69. This document references and discusses the
confidential business information in the other briefings. However, Barimah has not filed an
unsealed, redacted version of his reply that is available to the public. Having reviewed the sealed
filing, I find that there is sufficient justification to seal this document and that no alternative
would provide sufficient protection and will grant Barimah’s motion to seal, ECF No. 67,
contingent upon him filing an unsealed, redacted version of his reply as directed below.
F. ECF Nos. 71 and 73
Barimah has filed motions to seal with respect to Exhibits K and L, ECF Nos. 70 & 74,
respectively. Exhibit K consists of photocopies of his passports documenting his travel. Exhibit
17
L consists of a medical certificate detailing certain of his medical conditions. Both of these
filings contain sensitive personal information that is properly the subject of seal in its entirety. I
find that there is sufficient justification to seal these documents and that no alternative would
provide sufficient protection and will grant Barimah’s motions to seal, ECF Nos. 71 and 73.
IV.
CONCLUSION
For the reasons explained above, I will GRANT Defendant’s motion for summary
judgment and DENY Plaintiff’s cross-motion for summary judgment.
ORDER
Accordingly, it is this 1st day of August, 2016, hereby ORDERED that
1. Defendant’s motion for summary judgment, ECF No. 49, is GRANTED;
2. Plaintiff’s cross-motion for summary judgment, ECF No. 59, is DENIED;
3. Defendant’s motion to seal, ECF No. 55, is GRANTED;
4. Plaintiff’s motion to seal, ECF No. 61, is GRANTED;
5. Defendant’s motion to seal, ECF No. 64, is DENIED as moot;
6. Defendant’s motion to seal, ECF No. 67, is GRANTED contingent upon Defendant filing
an unsealed, redacted version of its reply and opposition by August 16, 2016;
7. Plaintiff’s motion to seal, ECF No. 68, is GRANTED contingent upon Plaintiff filing an
unsealed, redacted version of his reply by August 16, 2016;
8. Plaintiff’s motion to seal, ECF No. 71, is GRANTED;
18
9. Plaintiff’s motion to seal, ECF No. 73, is GRANTED; and
10. The Clerk of the Court shall CLOSE this case.
So ordered.
/S/
Paul W. Grimm
United States District Judge
dpb
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