Benjamin Thayer and Emily Hay v. BMO Bank

Case: Benjamin Thayer and Emily Hay v. BMO Bank, N.A., No. 25-cv-3801 (LMP/DLM), U.S. District Court for the District of Minnesota. Decided October 14, 2025, by United States District Judge Laura M. Provinzino.

Background and Claims Plaintiffs Benjamin Thayer and Emily Hay filed a complaint against BMO Bank, N.A. alleging that after depositing a cashier's check into their BMO account, the bank failed to make the funds available by the next business day as required under the Expedited Funds Availability Act (EFAA) and Regulation CC (Title 12, Chapter II, Subchapter A, Part 229 of the Code of Federal Regulations), as well as various state laws. Plaintiffs allege that BMO's conduct directly caused their inability to pay rent, resulting in eviction, homelessness, and severe health harms.

IFP Applications (Proceeding Without Prepaying Fees) Plaintiffs filed applications to proceed in forma pauperis — that is, without prepaying the court's filing fees. The court found that the applications appeared to satisfy the applicable requirements and granted them.

Motions for Temporary Restraining Order (TRO) and Preliminary Injunction Plaintiffs filed an emergency motion for a TRO and a separate motion for a preliminary injunction, both seeking an order directing BMO Bank to provide funds sufficient for them to secure housing during the pendency of the case, and to enjoin (prohibit) BMO from future violations of Regulation CC.

The court applied the standard four-factor test from Dataphase Systems, Inc. v. CL Systems, Inc., 640 F.2d 109 (8th Cir. 1981): (1) threat of irreparable harm to the movant if relief is denied; (2) balance of harms between the parties; (3) the public interest; and (4) probability of success on the merits. The court focused its analysis on the irreparable harm requirement, which is a threshold requirement — plaintiffs must show harm that cannot be adequately remedied through money damages.

The court found that the harm alleged — inability to pay rent, eviction, and homelessness — is fundamentally economic in nature and, if Plaintiffs prevail on the merits, would be compensable through an award of monetary damages. Citing Beber v. NavSav Holdings, LLC, 140 F.4th 453 (8th Cir. 2025), the court noted that economic loss alone does not constitute irreparable harm as long as the losses can be recovered. The court expressly declined to comment on the potential merits of Plaintiffs' underlying claims.

As to the request to enjoin future violations of Regulation CC, the court found Plaintiffs offered no facts beyond speculation that BMO would engage in similar conduct again, which is insufficient under Eighth Circuit precedent (S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771 (8th Cir. 2012)).

Both motions — the Emergency Motion for TRO and Preliminary Injunction (ECF No. 4) and the Motion for Preliminary Injunction (ECF No. 8) — were DENIED.

Service of Process Instructions The court ordered Plaintiffs to submit a completed U.S. Marshals Service Form (Form USM-285) within 30 days to effect service on BMO Bank. Failure to do so may result in dismissal without prejudice (allowing refiling) under Federal Rule of Civil Procedure 41(b) for failure to prosecute. Upon receipt of the completed form, the Clerk of Court is directed to seek a waiver of service from BMO Bank under Federal Rule of Civil Procedure 4(d)(1). If BMO Bank fails without good cause to return the waiver within 30 days of mailing, the court will impose the costs of effecting service on BMO Bank under Federal Rule of Civil Procedure 4(d)(2).

Status of Case The underlying lawsuit remains pending. No ruling has been made on the merits of the EFAA, Regulation CC, or state law claims.