                                                                     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 &

                                                                                         1
2       Begala, et al. v.                   Nos. 98-3360; 99-3652           Nos. 98-3360; 99-3652                    Begala, et al. v.    15
        PNC Bank Ohio                                                                                                PNC Bank Ohio

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.
14   Begala, et al. v.                 Nos. 98-3360; 99-3652       Nos. 98-3360; 99-3652                        Begala, et al. v.        3
     PNC Bank Ohio                                                                                              PNC Bank Ohio

  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.
4       Begala, et al. v.                   Nos. 98-3360; 99-3652      Nos. 98-3360; 99-3652                  Begala, et al. v.    13
        PNC Bank Ohio                                                                                         PNC Bank Ohio

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.
12       Begala, et al. v.                  Nos. 98-3360; 99-3652           Nos. 98-3360; 99-3652                   Begala, et al. v.       5
         PNC Bank Ohio                                                                                              PNC Bank Ohio

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).
6        Begala, et al. v.                Nos. 98-3360; 99-3652    Nos. 98-3360; 99-3652                  Begala, et al. v.   11
         PNC Bank Ohio                                                                                    PNC Bank Ohio

    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
10   Begala, et al. v.                Nos. 98-3360; 99-3652       Nos. 98-3360; 99-3652                    Begala, et al. v.     7
     PNC Bank Ohio                                                                                         PNC Bank Ohio

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
8      Begala, et al. v.                 Nos. 98-3360; 99-3652     Nos. 98-3360; 99-3652                    Begala, et al. v.      9
       PNC Bank Ohio                                                                                        PNC Bank Ohio

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
