Benjamin Thayer and Emily Hay v. BMO Bank

Background

Plaintiffs Benjamin Thayer and Emily Hay filed a complaint against BMO Bank, N.A. alleging that after they deposited a cashier's check into their BMO bank account, BMO failed to make any funds available by the next business day. They claim this violated the Expedited Funds Availability Act ("EFAA"), the implementing federal regulation known as Regulation CC (Title 12, Code of Federal Regulations, Part 229), and various state laws. Plaintiffs allege this failure caused them to miss rent payments, which led directly to eviction and homelessness, as well as severe health harms.

Alongside their complaint, plaintiffs filed: (1) applications to proceed in forma pauperis (IFP) — a legal mechanism allowing litigants to pursue court cases without prepaying filing fees based on financial hardship; (2) an emergency motion for a temporary restraining order (TRO); and (3) a motion for a preliminary injunction. Both injunctive motions sought an order directing BMO to provide funds sufficient for plaintiffs to secure housing while the case is pending, and an order prohibiting BMO from violating Regulation CC in the future.

IFP Applications

The court found that plaintiffs' IFP applications appear to satisfy the applicable requirements and granted them. Plaintiffs may therefore proceed in this case without prepaying court fees.

Legal Standard for TRO and Preliminary Injunction

The court applied the same four-factor standard — derived from Dataphase Systems, Inc. v. CL Systems, Inc., 640 F.2d 109 (8th Cir. 1981) — to both the TRO and the preliminary injunction motions. The factors are: (1) the threat of irreparable harm to the moving party absent an injunction; (2) the balance of harms between the parties; (3) the public interest; and (4) the probability that the moving party will succeed on the merits.

The court emphasized a threshold requirement: to obtain a preliminary injunction, plaintiffs must first show irreparable harm — meaning harm that cannot be adequately remedied by money damages later. Pure economic loss, even if significant, generally does not qualify as irreparable harm as long as those losses can be recovered through a damages award. Additionally, speculative harm — harm that is merely possible but not grounded in concrete facts — is insufficient to support injunctive relief.

Ruling on TRO and Preliminary Injunction

The court denied both motions. As to plaintiffs' request for housing funds, the court found that the harm alleged — inability to pay rent, eviction, and resulting financial hardship — is compensable through monetary damages if plaintiffs prevail on their claims. Because adequate legal remedies exist, this does not constitute the kind of irreparable harm required for injunctive relief.

As to plaintiffs' request for a forward-looking injunction to prevent BMO from future Regulation CC violations, the court found the request was based on speculation. Plaintiffs offered no facts suggesting BMO would engage in similar conduct again, and speculative harm cannot support a preliminary injunction under Eighth Circuit precedent.

The court explicitly noted it was making no comment on the potential merits of plaintiffs' underlying EFAA, Regulation CC, or state law claims — the denial was limited to the injunctive relief requests.

Procedural Next Steps

The case continues. The court ordered plaintiffs to submit a completed U.S. Marshals Service Form (Form USM-285) within 30 days to effect service of process on BMO. If plaintiffs fail to submit this form within 30 days, the matter may be dismissed without prejudice — meaning it could potentially be refiled — for failure to prosecute under Federal Rule of Civil Procedure 41(b). Upon receipt of the completed form, the Clerk of Court is directed to seek a waiver of service from BMO. If BMO fails without good cause to return the waiver within 30 days, the court will impose on BMO the costs of formally serving the lawsuit.