Begala v. PNC Bank OH

RECOMMENDED FOR FULL-TEXT PUBLICATION 16 Begala, et al. v. Nos. 98-3360; 99-3652 Pursuant to Sixth Circuit Rule 206 PNC Bank Ohio ELECTRONIC CITATION: 2000 FED App. 0192P (6th Cir.) File Name: 00a0192p.06

CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the UNITED STATES COURT OF APPEALS district court. FOR THE SIXTH CIRCUIT _________________

;  JOHN A. BEGALA, STEVEN W.  BORCHERS, CYNTHIA  EDWARDS,  Nos. 98-3360; Plaintiffs-Appellants,  99-3652 > v.   PNC BANK, OHIO, NATIONAL   Defendant-Appellee.  ASSOCIATION,  1 Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 97-00717—Sandra S. Beckwith, District Judge. Argued: February 3, 2000 Decided and Filed: June 7, 2000 Before: WELLFORD, BATCHELDER, and DAUGHTREY, Circuit Judges. _________________ COUNSEL ARGUED: Paul M. De Marco, WAITE, SCHNEIDER, BAYLESS & CHESLEY, Cincinnati, Ohio, for Appellants. Glenn V. Whitaker, VORYS, SATER, SEYMOUR &

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PEASE, Cincinnati, Ohio, for Appellee. ON BRIEF: Paul In short, the Court did not permit Plaintiffs to amend M. De Marco, WAITE, SCHNEIDER, BAYLESS & the complaint because they did not move to do so. CHESLEY, Cincinnati, Ohio, for Appellants. Glenn V. Whitaker, Phillip J. Smith, VORYS, SATER, SEYMOUR & (Emphasis added.) PEASE, Cincinnati, Ohio, for Appellee. Plaintiffs argued in their brief that “there was no _________________ justification for denying plaintiffs the right to amend.” The motion for clarification, as pointed out by the district court, OPINION was not a motion to amend; it was an effort to obtain an _________________ advisory opinion from the court. Plaintiffs state in their brief in Case No. 98-3360 that they “were never given an ALICE M. BATCHELDER, Circuit Judge. Plaintiff John opportunity to further clarify their allegations with evidence.” Begala filed his first lawsuit against PNC Bank on January (Br. at 24.) Of course, the granting of a defendant’s motion 23, 1997. The lawsuit was based upon allegations that PNC to dismiss does not ordinarily afford the unsuccessful violated the Truth-in-Lending Act (“TILA”), 15 U.S.C. §1601 plaintiffs any “opportunity to further clarify their allegations” et seq., as well as various state laws by offering “payment with proof and evidence. What plaintiffs may have stated, holidays” to its loan customers without fully disclosing the almost as an aside, to the district court in a memorandum in additional interest that those customers would incur by opposition to the defendant’s motion to dismiss is also not a accepting PNC’s offer. Defendant PNC sought dismissal motion to amend. under Fed. R. Civ. P. 12(b)(6), and the district court dismissed plaintiff’s TILA claims on July 30, 1997.1 Begala The district court did not err or abuse its discretion in brought a timely appeal and we affirmed the district court’s denying the post-judgment action of plaintiffs (post notice of decision on December 28, 1998. See Begala v. PNC Bank appeal) which they characterize as their attempt “to obtain, (Begala I), 163 F.3d 948 (6th Cir. 1998), cert. denied, 120 via the procedure outlined in First National Bank of Salem v. S.Ct. 166 (1999). Hirsch, 535 F.2d 343 (6th Cir. 1976), the right to amend they have sought and still seek.” As pointed out by defendant in Begala again filed suit against PNC in the same federal response, this was a second lawsuit by plaintiffs’ lawyers court on August 5, 1997, while the appeal in Begala I was “arising out of the same factual allegations.” This effort, in still pending. In the second suit, Begala alleged the same our view, was also a second effort to relitigate that which facts he had pled in Begala I, but this time he alleged might have been asserted in a complaint, a proposed amended violations not only of TILA and the same assortment of state complaint, or in a formal motion to amend prior to an adverse laws but also the Racketeer Influenced and Corrupt judgment and certainly before filing of a notice of appeal. We Organizations Act (“RICO”), 18 U.S.C. §1962, and the do not believe that Hirsch constitutes authority to find the National Bank Act (“NBA”), 12 U.S.C. §§ 85 and 86. PNC district court’s decisions to be erroneous nor a basis for a new round of allegations based upon the same factual scenario which resulted in our first decision found in Begala I, 163 1 The district court evaluated the sufficiency of plaintiff’s federal F.3d at 948. claims only. The pendent state law claims were then dismissed with the federal claims because the court declined to exercise supplemental jurisdiction over the state claims.

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The district court, on April 13, 1998, ten days after a notice again moved for dismissal arguing that the duplicative claims of appeal had been filed, set out appropriate light on its in second suit were barred by res judicata and that the new actions in denying this motion: claims failed to state a claim upon which relief could be granted under Fed. R. Civ. P. 12(b)(6). In response to PNC’s The purpose of the motion for clarification is, apparently, motion, Begala amended his complaint to add two new to learn whether the Court would have granted the plaintiffs, Stephen Borchers and Cynthia Edwards. PNC motions to dismiss had Plaintiffs amended the complaint countered by again moving to dismiss the amended complaint to add certain allegations. For the reasons that follow, citing res judicata and failure to state a claim under the motion (Doc 28) is DENIED. Fed. R. Civ. P. 12(b)(6). Plaintiffs contend, in their current motion and the reply On March 6, 1998, the district court dismissed all of memorandum in support thereof, that they requested plaintiffs’ federal claims, finding that Begala’s individual leave to amend the complaint and that the Court should claims were barred by the doctrine of res judicata and that the have granted them permission to do so instead of remaining claims were insufficient under Fed. R. Civ. P. granting Defendant’s motions to dismiss. A review of 12(b)(6).2 Plaintiffs took a two-fold approach to attacking the docket in this matter reveals that Plaintiffs never that decision. First, they filed a timely notice of appeal from moved for leave to amend their complaint. Rather, in the order dismissing their claims. Second, they sought opposition to the motions to dismiss, Plaintiffs requested clarification of the order by the district court under that they be permitted to amend the complaint in the Fed. R. Civ. P. 60(b) on the issue of whether the plaintiffs event that the Court found it to be deficient. would be allowed to amend their complaint. The district court denied the plaintiffs’ motion for clarification on April . . . An open request for the Court to permit 9, 1999, and plaintiffs’ sought a timely appeal from the April amendment to cure deficiencies, once the Court identifies 9th order as well. The appeals have been consolidated for those deficiencies, will not defeat a meritorious motion consideration by this Court. to dismiss pursuant to Rule 12(b)(6). Had plaintiffs filed a motion to amend the complaint prior to this Court’s I. FACTUAL BACKGROUND consideration of the motions to dismiss and accompanied that motion with a memorandum identifying the The facts in this case are generally undisputed. Plaintiffs proposed amendments, the Court would have considered Begala, Borchers and Edwards all took out installment loans the motions to dismiss in light of the proposed with PNC’s predecessor in interest. After PNC acquired the amendments to the complaint. The Court would not have loans, PNC sent periodic letters to these (and other similar) dismissed this action had it been convinced that the debtors offering a “payment holiday.” The terms of the letter deficiencies in the complaint would have been cured by indicated that the customer would be allowed to skip a the proposed amendments. Absent such a motion, payment now in return for the customer’s agreement (1) to however, Defendant was entitled to a review of the complaint as filed pursuant to Rule 12(b)(6). Plaintiffs were not entitled to an advisory opinion from the Court 2 As in Begala I, the district court evaluated the sufficiency of informing them of the deficiencies of the complaint and plaintiffs’ federal claims only. The pendent state law claims were then then an opportunity to cure those deficiencies. dismissed with the federal claims because the court declined to exercise supplemental jurisdiction over the state claims.

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pay an “extension fee” in place of the monthly payment3 and For each of the loans at issue, PNC made one initial (2) to pay an additional payment at the end of the loan. advancement of funds. There is no question that this action constituted a “loan made” as that term is used in Ohio The plaintiffs each allege that when the time came to pay Revised Code §§ 1151.21 and 1161.28. The plaintiffs off their respective loans, they were unfairly surprised to participated in payment holidays that were not new credit discover that they had incurred additional interest charges. In transactions, but simply an increase of fees and interest on addition, plaintiff Borchers alleges that a “payment holiday” that original loan made. Because in Ohio selected banks can was imposed upon him by PNC without his explicit charge unlimited fees and interest on loans made, the authorization. The plaintiffs allege that this practice of additional fees and interest charged to the plaintiffs by PNC offering payment holidays without fully disclosing the do not violate the NBA. Plaintiffs’ complaint failed to state additional fees and interest charges incurred violates federal a cause of action upon which relief can be granted, and their law, specifically TILA, RICO and NBA. With the exception claims under the NBA were properly dismissed. of the unauthorized payment holiday allegation, PNC generally does not dispute the facts as alleged, but rather E. Mr. Borcher’s Unauthorized Payment Holiday Claim claims its practice does not violate any laws. The district court analyzed each allegation in plaintiffs’ complaint, but did not explicitly discuss Mr. Borcher’s 3 unauthorized payment holiday claim. The district court PNC’s offer of payment holiday to John Begala on May 21, 1993 apparently viewed the narrow allegation that PNC Bank follows: imposed a payment holiday upon Mr. Borcher without his PNC Bank would like to help you accumulate some extra authorization as a claim sounding in state law and dismissed cash during the vacation season by giving you an opportunity to it with the plaintiffs’ other state law claims. We think the postpone one loan payment. district court’s view was sound. However, to the extent that Mr. Borcher’s claim might be argued as stating a cause of Here’s how it works. The authorization form attached action under federal law, we have reviewed the applicable below lists a loan extension fee, which is the payment you make now in order to postpone your regular payment. Simply sign the provisions of TILA and NBA and conclude that Mr. authorization and forward it along with your extension fee Borcher’s allegation has no basis in federal law and is a state payment. Your loan term will automatically be extended by the law claim only. Therefore, this claim was also properly one payment you’re postponing now. dismissed by the district court. That’s all there is to it. This offer is good until July 31, F. Request to Amend Complaint 1993 so you can postpone your June or July payment. If you’d like to take advantage of this offer, here’s your In connection with their failed RICO claim, plaintiffs argue chance. Remember, just sign and detach the authorization on appeal that the district court erred in refusing to allow provided below and return it with your extension payment in the them to amend their complaint. We review for abuse of enclosed envelope. We must receive your authorization and discretion a district court's denial of a motion to amend. See extension payment prior to your regular payment due date in the LRL Properties v. Portage Metro Housing Auth., 55 F.3d month during which you wish to postpone a payment. 1097, 1104 (6th Cir.1995). If you have any questions regarding this offer please call 651-TALK.

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charges did not violate the NBA. The Kenty court agreed II. ANALYSIS with the bank and concluded that advancing funds to pay the insurance premiums constituted a “loan made.” See Kenty, 92 We review de novo a district court's dismissal for failure to F.3d at 393-4. state a claim. Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). To survive a motion to dismiss under Plaintiffs misread Kenty to require that additional interest Fed. R. Civ. P. 12(b)(6), a "complaint must contain either charges must be part of a new loan made before a national direct or inferential allegations respecting all the material bank may charge unlimited interest. Kenty did not so hold. elements to sustain a recovery under some viable legal Kenty merely recognized that for the unlimited interest theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 provisions of Ohio Revised Code §§ 1151.21 and 1161.28 to F.2d 434, 436 (6th Cir. 1988) (internal quotation marks and be applicable, the interest must be charged as part of a “loan citations omitted). made.” The significant issue before the Kenty court was whether the additional funds advanced by the bank to 4pay the We must treat as true all of the well-pleaded allegations debtors’ car insurance premiums were “loans made.” of the complaint. All allegations must be construed in the light most favorable to the plaintiff. In order for a In this case, PNC bank offered payment holidays that dismissal to be proper, it must appear beyond doubt that allowed the debtors to defer a regular loan payment by paying the plaintiff would not be able to recover under any set of an extension fee and then making up the payment at the end facts that could be presented consistent with the of the loan. We specifically held in Begala I that these allegations of the complaint. payment deferrals were not new credit transactions. See Begala I, 163 F.3d at 951. Plaintiffs’ costs associated with Bower v. Federal Express Corp., 96 F.3d 200, 203 (6th Cir. their loans did, of course, increase because the plaintiffs chose 1996) (citations omitted). "Although this standard for Rule to extend their payment terms. But, as there was no 12(b)(6) dismissals is quite liberal, more than bare assertions additional advancement of funds, i.e., no increase in the of legal conclusions is ordinarily required to satisfy federal principal amount of the plaintiffs’ loans, Kenty’s analysis to notice pleading requirements." Scheid, 859 F.2d at 436 determine whether an additional advancement of funds (citing 5A C. WRIGHT & A. MILLER, FEDERAL constituted a “loan made” is inapplicable to this case. PRACTICE & PROCEDURE § 1357, at 596 (1969)). In addition, we review de novo district court dismissals of cases on res judicata grounds. Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 918 F.2d 658 (6th Cir. 1990). 4 The Kenty decision considered the question, raised by the parties, A. RES JUDICATA of whether the advancement of funds to pay the debtors’ insurance premiums was a forebearance under Ohio Revised Code § 1343.01, rather The district court concluded that named-plaintiff Begala’s than a loan made. However, as Judge Merritt plainly recognized, Ohio individual federal claims in this action were barred by res Revised Code §1343.01 does not apply to the lending practices of banks judicata because the claims of Begala I were dismissed under in Ohio. See Gross v. Standard Oil Co., 345 N.E.2d 89, 91 (Ohio Ct. Fed. R. Civ. P. 12(b)(6) and Begala simply reasserted the Common Pleas 1976) (recognizing that credit transactions with banking institutions are governed by Chapter 11 of the Ohio Revised Code while same facts in the present lawsuit. The doctrine of res judicata credit transactions entered into with other entities are governed by has four elements: Chapter 13 of the Ohio Revised Code).

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1. A final decision on the merits in the first action Any association may take, receive, reserve, and charge on by a court of competent jurisdiction; any loan or discount made, or upon any notes, bills of 2. The second action involves the same parties, or exchange, or other evidences of debt, interest at the rate their privies, as the first; allowed by the laws of the State . . . where the bank is 3. The second action raises an issue actually located . . . . litigated or which should have been litigated in the first action; 12 U.S.C. § 85. This statute has been interpreted by the 4. An identity of the causes of action. United Sates Supreme Court, under the Most Favored Lender Doctrine, to allow banks to charge the rate allowed to the Sanders Confectionary Prods., Inc. v. Heller Financial, Inc., "most favored lenders" under state law. Marquette Nat'l Bank 973 F.2d 474, 480 (6th Cir. 1992). v. First of Omaha Serv. Corp., 439 U.S. 299, 314 n.26, (1978) (citing 12 C.F.R. § 7.7310(a)). Therefore, the question Begala’s individual claims, previously dismissed by a court becomes one of Ohio state banking law, and the maximum of competent jurisdiction, make essentially the same factual interest rate allowed to banks under Ohio law determines allegations between the same parties as did his claims in whether PNC has charged excessive interest in this case. See Begala I; therefore, his individual claims are precluded. See Kenty v. Bank One, Columbus, N.A., 92 F.3d 384, 393 (6th City of Canton v. Maynard, 766 F.2d 236, 239 (6th Cir. 1985) Cir. 1996). (per curiam) (affirming district court’s 12(b)(6) dismissal of cause of action under principles of res judicata). Begala tries Ohio law allows “building and loan associations” as well as to distinguish this suit from Begala I by arguing that while the “savings banks” to charge unlimited dues, fines, interest and claims in the first lawsuit were limited to PNC’s activities in premiums on loans made. See OHIO REV. CODE ANN. carrying out its payment holiday program, the second lawsuit §§ 1151.21, 1161.28 (Anderson 1996). Therefore, under the challenges the entire scheme of PNC in association with other Most Favored Lender doctrine, PNC may also charge entities to impose, collect, and cover up unlawful charges. unlimited interest on its loans made. This is a meaningless distinction. The payment holidays Begala challenged without success in Begala I are the same Plaintiffs rely heavily upon our earlier decision, Kenty v. payment holidays at issue here. The law does not allow Bank One, Columbus, N.A., 92 F.3d 384 (6th Cir. 1996). In Begala the luxury of returning to federal court with the same Kenty, the plaintiffs obtained car loans from the defendant set of facts until he succeeds in alleging a federal cause of national bank on the understanding that if they did not action. See Sanders, 973 F.2d at 484 (“Identity of causes of purchase auto insurance, the bank would purchase it for them. action means an ‘identity of the facts creating the right of If the bank did purchase this insurance, the funds to pay the action and of the evidence necessary to sustain each insurance were advanced by the bank and then added to the action.’”); see also Federated Dep’t Stores, Inc. v. Moitie, debtors’ loans. The Kenty plaintiffs claimed that adding the 452 U.S. 394, 401-2 (1981) (explaining that res judicata is premiums to their automobile loans constituted excessive animated by principles of finality rather than by concerns of interest and violated federal law. The bank countered by individual equity). arguing that adding the premiums to the loan balance was an advancement of funds that constituted “loans made” and because the Most Favored Lender doctrine allowed the bank to charge any amount of interest on its “loans made;” these

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inference be drawn against Begala, the non-moving party. B. TILA Drawing that inference would violate established practice under Fed. R. Civ. P. 12(b)(6) and the rule that RICO Plaintiffs Borchers and Edwards claim that PNC violated its pleadings are to be liberally construed. See United States v. duty under TILA to disclose the fact that additional finance Qaoud, 777 F.2d 1105, 1116 (6th Cir. 1985). charges would be assessed due to the payment holidays, as well as the amount of such charges. Begala made this very Plaintiffs’ complaint is nonetheless defective because argument in his first lawsuit. The district court dismissed it plaintiffs have wholly failed to plead an association-in-fact. for failure to state a claim, and we affirmed. See Begala I, A properly pled RICO claim must cogently allege activity 163 F.3d at 951-2. The only basis that plaintiffs advance for “that would show ongoing, coordinated behavior among the distinguishing this action from the first lawsuit is an defendants that would constitute an association-in-fact.” allegation in which named-plaintiff Borchers claims that PNC Frank v. D’Ambrosi, 4 F.3d 1378, 1386 (6th Cir. 1993). In granted him a payment holiday on one occasion without his this case, the complaint essentially lists a string of entities authorization. Plaintiffs contend that this factual difference allegedly comprising the enterprise, and then lists a string of brings the current action within the scope of Travis v. supposed racketeering activities in which the enterprise Boulevard Bank, N.A., 880 F. Supp. 1226 (N.D. Ill. 1995), a purportedly engages. Although the plaintiff may allege the case which we distinguished but nevertheless spoke separate elements of “enterprise” and “pattern of racketeering approvingly of in affirming the dismissal of Begala I. activity” through the same facts, see Qaoud, 777 F.2d at 1115, Specifically, we said of Travis: the complaint must contain facts suggesting that the behavior of the listed entities is “coordinated” in such a way that they In that case, the bank, without proper authorization, function as a “continuing unit,” see Frank, 4 F.3d at 1386. procured insurance against Travis’s default and then This complaint is entirely devoid of any such factual charged Travis for the premium payments. Faced with a allegations. Accordingly, plaintiffs have failed to state a scenario in which the principal amount of a consumer’s RICO claim, and the district court properly dismissed this indebtedness was unilaterally increased by the lender, the claim under Fed. R. Civ. P. 12(b)(6). district court correctly concluded that the insurance purchase “and the subsequent addition of the resulting D. NBA premiums to Plaintiffs’ existing indebtedness constituted a new credit transaction.” The plaintiffs contend that PNC violated the National Bank Act (“NBA”) by charging excessive interest in connection Begala I, 163 F.3d at 951 n.1. with the payment holidays. Because PNC is a nationally chartered bank, it is governed by the NBA, 12 U.S.C. §§ 38 Plaintiffs make much of the fact that PNC’s alleged actions, et seq. (1988). The NBA and its accompanying regulations like those of the bank in Travis, were unilateral. That, allow nationally chartered banks to charge interest up to the however, is not the basis on which we distinguished Travis. maximum amount permitted to the most-favored We held in Begala I that payment deferrals cannot be state-chartered banks in the state in which they are operating. construed as new credit transactions, and Travis was It provides in relevant part: distinguishable because the bank in that case had increased the principal amount of the plaintiff’s indebtedness. See id. In this case, there is no allegation that the principal amount of

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the loans increased and, accordingly, no basis for communicating, collecting, and/or attempting to collect distinguishing the present case from Begala I. Thus, the fraudulent and unlawful charges related to payment district court properly dismissed plaintiffs’ TILA claims. holidays; and interfering with credit and other financial opportunities of customers who refused to pay charges C. RICO related to or resulting from payment holidays. Plaintiffs contend that PNC bank working in concert with Under RICO, an enterprise is prohibited from engaging in its affiliated agencies and others have violated federal law by a coordinated effort to collect an unlawful debt. Specifically, granting payment holidays and then collecting the additional the RICO statute provides: interest and fees from unsuspecting debtors. Specifically, the ninth claim for relief in plaintiffs’ complaint reads in It shall be unlawful for any person employed by or pertinent part: associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, At all times relevant to this Complaint, Defendant PNC to conduct or participate, directly or indirectly, in the Bank, Ohio, N.A., in conjunction with The Central Trust conduct of such enterprise’s affairs through a pattern of Company, National Association, The Central racketeering activity or collection of unlawful debt. Bancorporation, Inc., PNC Financial Corp., New Financial Corp., PNC Bank Corp., various affiliated 18 U.S.C. § 1962(c). entities, agencies, accountants, legal counsel, dealers, and John Doe(s) (hereinafter the “Enterprise”), was an Plaintiffs’ complaint fails adequately to allege the existence association-in-fact “enterprise” as that term is defined in of a RICO enterprise, although not entirely for the reasons 28 U.S.C. § 1961(4), engaged in and affecting interstate cited by the district court. The district court held that the commerce. The enterprise was and is engaged in complaint had failed to allege an enterprise distinct from PNC legitimate banking activities, in addition to the pattern of because all of the entities listed in the complaint were racketeering activity and collection of unlawful debt subdivisions or agents of PNC. Under RICO, a corporation described below. In addition to defendant, the other cannot be both the "enterprise" and the "person" conducting entities and persons comprising the enterprise facilitated or participating in the affairs of that enterprise. See, e.g., the racketeering activity by, inter alia, creating and/or Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1489 (6th participating in the creation of, false, inaccurate, Cir. 1989). Under the "non-identity" or "distinctness" misleading, and deceptive representations and requirement, a corporation may not be liable under section information concerning payment holidays, as alleged 1962(c) for participating in the affairs of an enterprise that herein; communicating, and/or participating in the consists only of its own subdivisions, agents, or members. An communication of, false, inaccurate, misleading, and organization cannot join with its own members to undertake deceptive representations and information concerning regular corporate activity and thereby become an enterprise payment holidays, as alleged herein; disseminating and distinct from itself. See United States v. Computer Sciences transmitting, and/or participating in the dissemination Corp., 689 F.2d 1181, 1190 (4th Cir.1982). and transmission of, false, inaccurate, misleading, and deceptive payment holiday solicitation letters and other It is not clear from the pleadings, however, that the information related to payment holidays; demanding, “dealers” (to take one example) are subdivisions, agents or members of PNC, and to so conclude requires that an