Zahran et al v. PNC Bank N.A. et al

Filing 111

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 4/22/2014. Mailed notice(tlp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBIN ZAHRAN and KAREN ZAHRAN,
Plaintiffs,
v.
TRANSUNION CREDIT INFORMATION
SERVICES CO., TRANS-UNION, EQUIFAX
CREDIT INFORMATION SERVICES, INC.,
EXPERIAN, INFORMATION SOLUTIONS,
INC., BANK OF AMERICA (Successor in
Interest to BNA and LaSalle Bank),
CREDITOR INTERCHANGE LLC,
DISCOVER FINANCIAL SERVICES, CITI
BANK, BARCLAY BANK, REPUBLIC
BANK OF ILLINOIS, P.N.C. BANK
(Successor in Interest to National City Bank),
and LASALLE BANK,
Defendants.

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Case No. 13 C 8804

MEMORANDUM OPINION AND ORDER
Pro se plaintiff Robin Zahran ("Zahran") and his wife Karen, acting through counsel
(collectively "Zahrans"), filed an extraordinarily prolix Complaint in the Circuit Court of Cook
County against a host of defendants, advancing a shotgun fusillade of claims against those
defendants. P.N.C. Bank ("PNC"), as successor in interest to National City Bank ("National"),
was targeted with a purported federal claim as well as several purported claims under state law.
It filed a timely notice of removal to bring the case to this District Court, where it was assigned
at random to this Court's calendar.
Confronted with both answers and motions to dismiss from various defendants (the latter
category including such a motion by PNC), Zahrans sought and were granted leave to file a First

Amended Complaint ("FAC"). PNC renewed its motion to dismiss, and a number of status and
motion hearings ensued during which this Court made it clear that the purported federal claim
against PNC was totally frivolous, so that the state law claims against PNC could well be
remanded to their place of origin in the Circuit Court.1
But PNC's counsel has understandably urged that because he viewed the state law claims
against his client as equally meritless for reasons fully covered in his already-filed motions and
supporting memoranda, it would be a further waste of resources to send this case back to the
state court to be presented afresh to a judge there who lacked entirely the background that this
Court had already acquired in dealing with the case. That argument makes good sense, and this
memorandum opinion and order will deal with PNC's motion for its dismissal in its entirety. 2
First in order is the federal claim, which is sought to be grounded in the Fair Credit
Reporting Act (the "Act," 15 U.S.C. §§ 1681ff.) 3. Both the patent untenability of that claim and
Zahran's continued efforts to pursue it in the face of this Court's repeated patient explanations as
to its total inapplicability to PNC's conduct provide an unwitting probable clue as to why

1

This is not the first time that the Zahrans have launched like litigation or that pro se
plaintiff Zahran has conducted himself in the troublesome manner evidenced in this action -- see
the October 4, 2007 memorandum opinion and order, (2007 WL 2962651) issued in this District
Court's Case No. 01 C 8892 by this Court's then colleague of long standing, Honorable John
Nordberg, attached to this opinion as its Ex. 1. For more on that subject, also see the attached
Appendix following that Ex. 1.
2

What follows in the text is far from fully reflective of the defects in the Zahrans'
attempt to impose liability on PNC. PNC's thorough motions and its thorough memoranda in
support of those motions have has set out a number of other meritorious Fed. R. Civ. P.
("Rule") 12(b)(6) contentions -- one, for example, is based on a persuasive limitations defense -but this Court sees no need to prolong the discussion, for the matters dealt with here suffice to
knock Zahrans out of the box against PNC.
3

Any citations to the Act will take the form "Section --" omitting the prefatory "12

U.S.C."
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Zahran -- who is plainly well able to afford to retain counsel to wage legal battles on his behalf -chooses to proceed pro se instead. Both by his persistently combative stance and by his clear
unwillingness to listen to what is said to him, instead simply waiting (or sometimes not waiting)
for his opportunity to voice his own distorted views of what the law provides, he discloses a sort
of ubermensch mentality: one that persists in ascribing a different meaning to the language of
the Act than that prescribed by the Congress that enacted it and by the courts that have construed
and applied it.
Thus in this instance PNC, as National's successor, had sued to recover something over
$120,000 owed by Zahrans on advances in connection with an unsecured line of credit, but
Zahran's resistance to that action had resulted in a settlement for the much smaller figure of
$40,000 to be paid by the Zahrans in installments, with the parties' settlement agreement
providing for mutual releases when that smaller figure was paid. PNC accurately reported to the
credit reporting agencies that the "Account [was] paid in full for less than [the] full balance." As
Zahrans would have it, that entirely truthful report somehow violated the Act -- an obviously
nonsensical position.
So much, then, for Zahrans' purported federal claim. As for their asserted state law
claims flowing from the same transaction and its mutually-agreed-upon settlement agreement -one purporting to claim fraud in the inducement (FAC Count V), another claiming breach of
contract (FAC Count VI), a third asserting a violation of the Illinois Consumer Fraud and
Deceptive Business Practices Act, 815 ILCS 505/2-101 (FAC Count VII), and the last claiming
estoppel (FAC Count VIII) -- none even superficially survives consideration.
First, Zahrans' fraud-in-the-inducement charge is nothing more than a mere ipse dixit,
wholly lacking in the particularity called for by Fed. R. Civ. P. 9(b). And that is not simply a

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pleading defect, potentially curable by pleading over, for Zahrans have offered nothing better in
the face of the challenge voiced by either PNC's original or its current motion.
Next, nothing in the parties' settlement agreement contains any promise or obligation that
was even arguably breached by PNC's reporting to the credit reporting agencies. Moreover, the
settlement agreement's integration clause forecloses any potential extracontractual breach of
contract claim. 4
Third, any attempted invocation of the Illinois statute barring "Consumer Fraud and
Deceptive Business Practice" obviously carries no more heft than the already-described state
common law fraud claim. So that count in the FAC fails as well.
Lastly, any potential promissory estoppel claim is barred by the provision in the parties'
settlement agreement that Zahrans did not rely on any promises of PNC outside of that
agreement when they executed it. So Zahrans have gone 0 for 4 on their putative state law
claims against PNC.
Conclusion
Zahrans filed, and have stubbornly persisted in, meritless claims against PNC under both
federal and state law. Hence PNC's motion for dismissal from the FAC is granted. But because
a number of Zahrans' other targets in this action have also filed motions for dismissal (including
still another that has just been tendered), and because it would seem to make little sense to
splinter this case by creating the potential for piecemeal appeals (and the same may be said as to
the potential for more than one sanctions award), this Court expressly refrains from considering
the possibility of any Rule 54(b) determination pending the resolution of other dismissal
4

PNC's truthful reports to the credit reporting agencies produced credit reports from
those agencies stating accurately that after Zahrans had made their final installment payment in
October 2011 the balance of the PNC account was "$0," that the debt had been "legally paid in
full for less than the full balance" and that the account was "paid in full."
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motions. That of course deprives the result here of finality as a legal matter at the present time,
but this Court sees no consequent prejudice to either party.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: April 22, 2014

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APPENDIX
When this Court adverted orally to Judge Nordberg's opinion in Zahrans' earlier litigation
after learning of it through PNC's attachment of that opinion as an exhibit to its renewed motion
to dismiss the FAC (this Court had no prior knowledge of that earlier action or of Judge
Nordberg's opinion), Zahran objected that the opinion had been withdrawn and should therefore
not be considered. This Court has no reason not to credit Zahran's statement, and it certainly has
no desire to expand the current imbroglio further by looking into that subject. Moreover, Judge
Nordberg has just announced his retirement from this District Court on the 32d anniversary of
President Reagan's signing of his judicial commission, so that the exception to ex parte
communications that permits judge-to-judge communications would no longer apply to permit an
inquiry of now former Judge Nordberg if this Court were inclined to explore the matter further
(as it is not).
That said, however, this Court is of course well aware of the near-universal practice of
members of the judiciary (including this Court) to respond, upon receiving one of the infrequent
requests by litigants to withdraw already-issued formal written opinions, with the answer
suggested by Stanza 71 of The Rubaiyat of Omar Khayyan:
The Moving Finger writes; and, having writ,
Moves on: nor all your Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all your Tears wash out a Word of it.
That principle does not of course apply where a judge has determined that an opinion was issued
in error and should therefore be withdrawn, but nothing of that sort was suggested by Zahran
here as to Judge Nordberg's opinion. Instead the more common occasion for withdrawal of an
issued opinion stems from litigants' resolution of a dispute between them, with one party
agreeing to such resolution on condition that the unfavorable opinion should not be left in place,

and the Court accommodates that party's request in the interest of assisting the litigants in
implementing their agreed-upon resolution.
In this instance this Court had already expressed itself in the terms outlined in this
opinion of its own before it ever knew about Judge Nordberg's earlier opinion and decision. It is
thus quite irrelevant to the present case whether or not that Judge Nordberg opinion was
withdrawn or, if it was, what occasioned the withdrawal.
It should again be emphasized that the views and the rulings expressed in this Court's
opinion were formulated from its extended and repeated exchanges with Zahran well before this
Court had even heard of the earlier Judge Nordberg opinion and ruling. It is however
noteworthy that Zahran's characteristics referred to by Judge Nordberg -- his pejorative
characterizations of his adversaries and the mindset that he manifested more than a half-dozen
years ago -- are almost eerily mirrored in his performance before this Court, further negating any
possibility that this Court's discussion of the merits and the conclusions it has announced reflect
solely subjective views. 1

1

To label Zahran as a serial litigator would be a major understatement. PNC's renewed
motion to dismiss -- its March 22, 2014 filing targeting the FAC -- not only identified Judge
Nordberg's opinion (which had itself referred to 75 earlier lawsuits to which Zahran or Zahran
and his wife had been parties (30 federal cases, 20 cases in the Circuit Court of Cook County and
25 cases in the Circuit Court of DuPage County) but also listed at least 10 lawsuits in Cook
County and several in this District Court filed since the issuance of Judge Nordberg's opinion.
And as the Judge Nordberg opinion also noted, several other courts have not only warned Zahran
about his litigation conduct but have sanctioned him on a number of occasions.
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