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 .

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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)

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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

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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 .

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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 .

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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) .

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