Benjemin Allen Thayer and Emily Hay v. BMO Bank
- Laura Provinzino
- 0:25-cv-03801
- U.S. District Court · District of Minnesota
- 20
In Thayer v. BMO Bank, Judge Provinzino dismissed all claims by two pro se plaintiffs alleging an unlawful check hold, and denied their motion to disqualify the bank's lawyers.
Bank customers who deposit large checks from out-of-state accounts and believe their bank wrongly withheld funds; pro se litigants seeking to disqualify opposing counsel; co-plaintiffs who may lack a personal legal stake in a bank account dispute.
What happened
In Thayer and Hay v. BMO Bank, N.A., two self-represented plaintiffs sued their bank after it temporarily withheld nearly $88,000 from a deposited check, claiming the hold was illegal under the federal Expedited Funds Availability Act and various Minnesota laws. They alleged the hold caused them to miss a rent payment, suffer a court judgment against them, and ultimately be evicted. They also tried to kick the bank's law firm off the case, claiming conflicts of interest and other misconduct.
The court found that one plaintiff, Thayer, had no legal stake in the bank account or the deposited check — which was made out solely to Hay, endorsed only by her, and held in her account alone — so he had no right to sue over the hold. As for Hay, the court found that the check was not the type (a cashier's check) that would have required next-day availability; it was instead a personal check drawn on an out-of-state bank, subject to longer hold rules. Because the deposit exceeded the federal threshold for large deposits and BMO gave written notice of the hold on the same day and the next day, the court concluded the bank followed all applicable rules. The plaintiffs also abandoned most of their other claims by failing to defend them in their court filings.
Judge Provinzino denied the motion to disqualify BMO's law firm, finding the plaintiffs lacked standing to raise conflict-of-interest arguments (since they were never clients of the firm), failed to show any attorney was a necessary witness, and offered only unfounded conspiracy allegations. The judge granted BMO's motion to dismiss in full: Hay's federal funds-availability claim was dismissed with prejudice (meaning she cannot refile it), Thayer's claim was dismissed without prejudice for lack of standing, and the Minnesota state-law claims were dismissed without prejudice for failure to prosecute.
The detailed version
- Benjemin Allen Thayer and Emily Hay v. BMO Bank · No. 0:25-cv-03801
- Laura M. Provinzino
- July 7, 2026
Background
Plaintiffs Benjemin Allen Thayer and Emily Hay, acting without lawyers (pro se), sued BMO Bank, N.A. after BMO placed a hold on a check Hay deposited on May 16, 2025. The check, for $87,835.66, was issued by the "Donna Marie Hay Estate, Courtney Stephens, Personal Representative" from a Regions Bank account in Hoover, Alabama. The check was made payable solely to Hay and endorsed solely by Hay.
On the day of deposit, BMO issued a notice stating that all but $5,525 of the deposit would be withheld for seven business days due to the large amount. The next day, BMO issued a second notice stating the entire deposit would be withheld for seven business days, citing confidential information suggesting the check might not be paid. BMO ultimately released the hold on May 23, 2025 — five business days after the deposit. Plaintiffs allege that during the hold period, they suffered a default judgment in Minnesota state court for nonpayment of rent and were evicted on June 17, 2025. They sought $2,500,000 in damages.
Claims
Plaintiffs' original complaint alleged violations of the Expedited Funds Availability Act (EFAA) and its implementing rules under Regulation CC (federal regulations governing when banks must make deposited funds available). They also raised Minnesota state-law claims including violations of the Minnesota Unfair and Deceptive Trade Practices Act (MUDTPA), conversion, civil theft, fraud, and negligence, and purported to bring the case as a class action on behalf of similarly situated depositors.
In their response to BMO's motion to dismiss, Plaintiffs expressly abandoned their class allegations and their MUDTPA, conversion, and civil theft claims. Although they did not expressly waive their fraud and negligence claims, they did not respond to BMO's arguments on those claims at all, focusing exclusively on their EFAA claims. The court found all non-EFAA claims forfeited under the principle that a plaintiff waives claims by failing to respond to a defendant's dismissal arguments.
Plaintiffs also moved to disqualify BMO's law firm, Stinson LLP, and its attorney Keith Moheban.
Motion to Disqualify Counsel
The court applied the standard that disqualification of a party's chosen counsel is an extreme measure subject to strict scrutiny and requires the moving party to carry the burden of showing disqualification is warranted. The District of Minnesota follows the Minnesota Rules of Professional Conduct on attorney disqualification.
Plaintiffs raised three main grounds, all rejected:
1. Conflicts of interest: Only clients or former clients generally have standing to seek disqualification based on a conflict of interest. Plaintiffs never alleged they were clients of Stinson, so they lacked standing to raise this argument.
2. Necessary witness — unnamed Stinson attorney: Plaintiffs argued that a Stinson attorney not involved in this case was a "necessary witness" regarding a "$0.00 trademark transfer" and "UCC filing irregularities" in unrelated cases. The court found Plaintiffs failed to explain how that attorney's testimony was relevant, let alone strictly necessary, to any claim in this case.
3. Necessary witness — Moheban / bad faith: Plaintiffs accused Moheban of bad faith because his meet-and-confer emails went to their spam folder. The court found nothing in Plaintiffs' own account suggested bad faith; it also noted that Plaintiffs had consented to electronic service and were responsible for monitoring their own email. The court added that Plaintiffs made no attempt to show how Moheban's testimony would be necessary at trial.
The court also rejected Plaintiffs' allegations of a conspiracy involving Stinson attorneys and the Minnesota Office of Lawyers Professional Responsibility, finding them unsupported and irrelevant to this case. The motion to disqualify was denied in its entirety, including Plaintiffs' alternative request for a special master.
Motion to Dismiss — Standing (Thayer)
BMO moved to dismiss Thayer's EFAA claim under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing — the constitutional requirement that a plaintiff have a real, personal legal stake in the dispute.
To establish standing, a plaintiff must show: (1) an injury in fact — a concrete invasion of a legally protected interest; (2) that the injury is fairly traceable to the defendant's conduct; and (3) that a favorable ruling would likely redress the injury.
The court found Thayer had no legally protected interest in the deposited funds. The check was made out solely to Hay, endorsed only by Hay, deposited into Hay's account, and all hold notices were addressed to Hay. The complaint contained nothing suggesting Thayer was an intended payee or had a BMO account. The fact that Hay "authorized" Thayer's participation or that he was present at the deposit did not create a legally protected interest. A plaintiff must assert his own legal rights, not those of another. The court also found the "third-party standing" exception inapplicable because Hay herself was a party in the case and was not hindered from protecting her own interests. Thayer's EFAA claim was therefore dismissed for lack of subject-matter jurisdiction.
Motion to Dismiss — Failure to State a Claim (Hay)
The court analyzed Hay's EFAA claim under Rule 12(b)(6), accepting all factual allegations as true but requiring the complaint to plausibly show BMO violated the law.
Whether the check was a cashier's check
Hay's claim rested partly on the allegation that the deposited check was a "qualifying cashier's check," which Regulation CC requires banks to make available by the next business day. Under Regulation CC (12 C.F.R. § 229.2(i)), a cashier's check must be drawn on a bank, signed by a bank officer on the bank's behalf, be a direct obligation of the bank, and be provided to a customer for remittance purposes. The court found the check did not qualify: it was drawn on the Estate's personal bank account, not a bank itself, and was not signed by any bank officer. The physical check, incorporated by reference into the complaint, contradicted Hay's characterization, and under Eighth Circuit precedent the exhibit controls over the allegation.
What rules actually applied
Because the check was a personal check drawn on an out-of-state (Alabama) bank, it was a "nonlocal check" under 12 C.F.R. § 229.2(v). For nonlocal checks, funds generally must be available by the fifth business day after deposit — not the next day. Furthermore, two exceptions in Regulation CC permitted an even longer hold: (1) "large deposits" exceeding $6,725, and (2) reasonable cause to believe the check is uncollectible. Both exceptions applied here: the deposit of $87,835.66 vastly exceeded the large-deposit threshold, and BMO cited confidential information suggesting the check might not be paid.
Compliance with notice requirements
When invoking these exceptions, a bank must notify the depositor in writing of the delayed amount, the reason, and when funds will be available — either at the time of deposit or as soon as practicable. BMO sent Hay a notice on the day of deposit citing the large-deposit exception, and a second notice the next day citing collectability concerns, both identifying the delayed amount and the availability date (the seventh business day). The court held BMO complied with Regulation CC as a matter of law. It further noted that BMO actually released the funds on the fifth business day, which would have been within the standard nonlocal-check window even without any exception.
Type of Dismissal
The court addressed each claim separately:
- Hay's EFAA claim: Dismissed with prejudice under Rule 12(b)(6). The court found amendment would be futile because BMO fully complied with Regulation CC based on the undisputed facts, so the claim could not conceivably be repleaded successfully. The court also noted that Plaintiffs had previously been given opportunities to amend their complaint and had not used them appropriately.
- Thayer's EFAA claim: Dismissed without prejudice under Rule 12(b)(1). When a court lacks jurisdiction (as opposed to reaching the merits), the proper remedy is dismissal without prejudice.
- Minnesota state-law claims: Dismissed without prejudice under Rule 41(b) for failure to prosecute, because the court did not reach the merits of those claims.
Order
1. Plaintiffs' Motion to Disqualify Counsel (ECF No. 40) is DENIED. 2. BMO's Motion to Dismiss (ECF No. 33) is GRANTED: - Hay's EFAA/Regulation CC claim: DISMISSED WITH PREJUDICE (Rule 12(b)(6)). - Thayer's EFAA/Regulation CC claim: DISMISSED WITHOUT PREJUDICE (Rule 12(b)(1)). - Plaintiffs' Minnesota state-law claims: DISMISSED WITHOUT PREJUDICE (Rule 41(b)).
Judgment is to be entered accordingly.
Read the full 20-page opinion on CourtListener, the free public archive maintained by the Free Law Project.