Citation Codes Equivalent Citations citation codes Docket Number 25-10216 See more information ... Smart Summary Please sign up to generate summary. JUDGMENT ORIGINAL PDF To access the original judgment, please Sign In or Subscribe. Cole v. Midland States Bank United States District Court District of Massachusetts Richard A . Cole, Plaintiff, V . Civil Action No . 25-10216-NMG Midland States Bank, et al . , Defendants. MEMORANDUM & ORDER GORTON , J. This case arises from the complaint of prose plaintiff Richard A. Cole (" plaint iff" or " Cole " ) a lleging that defendants Midland States Bank (" the Bank" ) and Midland States Bancorp , lnc . ( " Bancorp" ) (collectively , " defendants " ) violated his rights under t h e Electronic Funds Transfer Act , 15 U. S . C. §1693 et seq . (" EFTA" ) , and several state laws . Defendants have filed a motion to dismiss the complaint (Docket No . 19) and , fo r the following reasons , that mot ion will be allowed . I . Background The Ban k is a financial institution and wholly - owned subsidiary of Bancorp . In August , 2023 , Cole and his son Jonathan Cole (" Jonathan " ) both opened bank accounts at the Bank . - 1- In March , 2024 , a $4 , 000 deposit was credited to Jonathan ' s account at the Bank . Desp i te the funds showing as available , the Bank denied each of Jonathan ' s seven attempts to transfer money to Cole ' s account , providing no explanation for its denial s . Cole alleges that the funds were intended to pay for his medical expenses and that the Bank ' s failure to execute the transfers as requested resulted in financial losses . Cole and Jona than then sent 30 - day demand letters to Bancorp seeking relief under M. G. L . ch . 93A ("Chapter 93A" ) Bancorp refused the demand and plaintiff filed the pending l awsuit in February , 2025 . Defendants filed their motion to dismis s in January , 2026 , and plaintiff timely opposed . II . Motion to Dismiss A . Legal Standard Defendants have moved to dismiss the complaint under fed . R. Civ . P . 12(b) (6) . To survive a motion to dismiss pursuant o Rule 12(b) (6) , plaintif f must state a claim for relief that i s actionable as a matter of law and plausible on its face . Ashcroft v . Iqbal , 556 U. S . 662 , 678 (2009) . A claim is facially plausible if , after accepting as true all non - conclusory factual allegations , the court can draw the ceasonable inference that the defendant i s liable . Ocasio - Hernandez v . Fortuno- Burset , 640 F . 3d 1 , 12 (1s t Cir . 2011) -2- B . Application Defendants first move to dismiss the complaint as to Bancorp on the grounds that Cole alleges misconduct only by the Bank , not the parent corporation . Cole responds that Bancorp exercise s control over the Bank , illustrated by the fact that a Bank represen t at ive responded to an email he directed to Bancorp ' s President . Defendants are correct . Parent corporations generally are no. li able for the acts of thei r subsidiaries . United States v . Bestfoods , 524 U. S . 51 , 61 (1998) . Plaintiff ' s allegation regarding his email communications is insufficient to show otherwi se , and the claims against Bancorp will be dismissed. The remaining claims against the Bank are analyzed in turn . 1 . Count I : EFTA The Bank moves to dismiss the EFTA claims on the grounds that 1) Cole is not a " consumer" under the EFTA , 2) the alleged failed transfers do not give rise to an EFTA claim and 3) Cole has alleged no actual damages . The Court agrees that Cole is not a " consumer " for purposes of the EFTA provision upon which he relies . The EFTA provides that , under certain circumstances , a financial institution will be liab le to a consumer for failing to execute an electronic fund transfer " when properly instructed to do so by the con sumer . " 15 U. S . C . § 1693h(a) (1) (emphasis added) ; see also - 3- Driessen v . Na t west Bank PLC , No . 13 - CV - 00217 (MPS) , 2013 WL 12073444 , at * 3 (D . Conn . Oct . 25 , 2013) (" Section 1693h therefore applies where a consumer instructs his or her fi na nci al i nstitution to t ransfer money from his or her account and to a _hird party but the financial institution f ails to do so . " ) (emphas is in original) ; Bene v . Wells Fargo & Co . , No . 22 - CV - 06783 - DMR , 2023 WL 9595360 , at *3 (N . D. Cal . June 30 , 2023) (" Because Johnson claims that Wells Fargo failed to deposit funds into his account- as opposed to transfer funds outside of his account-the provisions of section 1693h do not appear to apply to Plaintiff ' s allegations . " ) . The complaint makes clear that Jonat han , not Cole , instructed the Bank to make the t cansfers . Co l e cannot , therefore , sue under that provis i on of the EFTA and de fe ndants ' motion to dismiss will therefore be allowed with respect to Count 1 . 1 To the extent that Cole alleges that Jonathan has assigned to him all claims aris i ng from these facts , the Court is unpers uaded . Even assuming , arguendo , that such claims can be legally assigned , Cole has made no showing that Jonathan actually did so a nd the Court cannot accept the contention on faith . 1 To the extent that Cole also brings a claim under the Massachusetts state - l aw analogue , M. G. L . c . 167B , §19 , that claim wi ll be dismiss e d for the same reason . - 4- The Court notes that Cole , in his affidavit in support of his opposition to the motion to dismiss (Docket No . 25) , relies on the output of generative artificial intelligence ("AI") to support his legal claim that he , as the intended recipient of a tcansfer , may sue under 15 U. S . C . §1693 et seq . Instead of citing legal authority , Cole provides the Court with a screenshot of an " AI Overview" output , presumably from a Google search , indicating that the intended recipient of a failed electronic t ransfer may file a claim under the EFTA . Not only is he , and the AI output , incorrect as explained above , but also his assertions to the Court amount to a mater i al misrepresentation of the l aw . That he i s prose makes the offense no le ss gr i evous and he i s hereby admonished not to make such ill - founded misrepresentations in the future . Because Cole is not a proper plaintiff under this provi sion of the EFTA , the Court decl ines to address defendants ' alternative theories . ii. Count II: Chapter 93A Count II of the complaint alleges that the failed transfers sub ject the Bank to liability under Chapter 93A §2(c) . Defendan ts move to dismiss that claim on the basis that , inter alia , Cole has alleged no behavior that could reasonably be considered unfair or decept ive . - 5- Defendants are correct . To succeed on a claim under Chapter 93A §2(c) , plaintiff must allege conduct that 1) falls within the penumbra of some law or other established concept of unfairne ss , 2) i s immoral , unethical , oppressive or unscrupulous and 3) results in substant ial harm t o consumers . PMP Assocs . , Inc . v . Globe Newspaper Co ., 366 Mass . 593 , 596 (19 75) . The alleged fai led transfers are neither unfair nor immoral , and the motion to dismiss will therefore be allowed with re spect to Count II . iii. Count III and IV: Emotional Distress and Elder Abuse Claims Counts III and IV make various claims of intentional and negligent infliction of e motional d i stress and elder abuse . Defendants move to dismiss on the grounds that the complaint alleges no facts to support emotional distress liability and that Massachuse tt s state law provides no civil cause of action for elder abuse claims . Defendants are again correct . First , plaintiff cites M. G. L . Ch . 19A in support of his claims of elder abuse and fi nancial exploitation of an elderly person . Chapter 19A provides no civil cause o f action and such claims mus t there f ore be dismissed . Youn g v . JPMorgan Chase Bank , N. A., 759 F . Supp . 3d 283 , 288 (D . Mass . 2024) . - 6- __J 6 With respect to the claims of negligent and international infliction of emotional distress , both theories of l iabi li ty requ i re some showing that a reasonable person would suffer emotional d i s tres s under the circumstances of the case . See Ag i s v . Howard Johnson Co . , 371 Mass . 140 , 145 , (1976) (finding t hat intentional infliction of emotional distress requires a show i ng of emot ional distress that " no reasonable man coul d be e xpec ted to endure " ) ; Payton v . Abbott Labs , 386 Mass . 540 , 557 , 43 7 N. E . 2d 171 , 181 (1982) (fi nd i ng that negligen t infliction of emot ional distress requires a showing that " a reasonabl e person wou l d have suffered emotional distress under the circums t ances " ) . The Court concludes that no reasonable person would e xp e rience e motional distress as the result of the several f ailed bank transfers complained of i n this action . The moti on to d i smi ss will therefore be allowed with respect to Count s III an d IV . ORDER For the fo rgoing reasons , the motion to dismiss (Docket No . 1 9 ) i s ALLOWED. So ordered . Nathaiel M. Gorton Sen io r United States Di strict Judge Da e d : June J , 2026 - 7-