George W. Morosani, Individually and on Behalf of All Otherpersons Similarly Situated, Plaintiff-appellant, v. the First National Bank of Atlanta, Defendant-appellee, 703 F.2d 1220 (11th Cir. 1983)

Plaintiff, George W. Morosani, filed this action against the First National Bank of Atlanta ("Bank") alleging that the Bank had improperly charged excessive interest on a loan extended to plaintiff.¹  Specifically, plaintiff alleged that the bank had agreed to charge interest at a particular percentage rate above the rate charged to the bank's "best and most creditworthy commercial customers" and to compute interest on a "360-day year simple interest basis." Instead, plaintiff asserted, the bank charged a higher interest rate than the agreed-upon percentage above that charged to the bank's best and most creditworthy commercial customers and computed the interest on a 365/360 method. Plaintiff's six-count complaint alleged that the bank's actions gave rise to claims for relief under the civil remedy provisions of the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.A. Sec. 1964 (West Supp.1982) (Counts 1 and 2), under the National Bank Act, 12 U.S.C.A. Secs. 85 & 86 (West Supp.1982) (Counts 3 and 4), and for breach of contract (Counts 5 and 6).

On December 1, 1981, the district court granted the Bank's motion to dismiss the first two counts of plaintiff's complaint. The court relied upon, and incorporated by reference, the order entered in the related case of Kleiner v. First National Bank, 526 F. Supp. 1019 (N.D. Ga. 1981). In that order, the court had dismissed similar RICO claims on the ground that "the practice Plaintiff complains of has not traditionally been treated as criminal in nature; i.e., it is not a recognized form of criminal activity." Id. at 1022. Plaintiff then brought this interlocutory appeal pursuant to 28 U.S.C.A. Sec. 1292(b) (West 1966).

We believe that the district court erred when it dismissed Counts 1 and 2 of plaintiff's complaint on the ground that the alleged misconduct was not "a recognized form of criminal activity." Plaintiff's complaint alleged that the Bank had engaged in a scheme to obtain money by means of false or fraudulent pretenses and representations. Obtaining money by false pretenses, if proved,²  clearly falls within the traditional definition of criminal activity and is specifically prohibited by 18 U.S.C.A. Sec. 1341 (West Supp.1982) when, as alleged here, the services of the U.S. Postal Service are used to further the alleged scheme.³  Thus, we reject the theory upon which the district court dismissed Counts 1 and 2 of plaintiff's complaint.

The Bank has asserted several other theories to support its contention that the treble damage provisions of RICO do not apply to the facts as alleged here. We decline to consider such contentions at this interlocutory appeal stage of the litigation, preferring that the district court address such issues in the first instance. Moreover, although we intimate no opinion on the merits of this case, we note that further development of the facts may make the resolution of such issues unnecessary.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.