plaintiff's check was issued for pharmaceuticals . . ." and "the dishonored check is a debt . . ."); (Pl.'s Mem. at 2) ("A check necessarily involves . . . the same type of delay"); (Pl.'s mem. at 3) ("The responsibility to pay a dishonored check is precisely such an 'obligation'"); (Pl.'s Mem. at 4) ("The House report confirms . . . that dishonored checks are included within the Act"); (Pl.'s Mem. at 5) ("Bad check collection is more profitable than collection of other types of debt"); (Pl.'s Mem. at 6) ("Acceptance of a check in any event constitutes deferring payment"); (Pl.'s Mem. at 7) ("The check collection process involves the merchant's depository bank . . ."); (Pl.'s Mem. at 8) ("Nor is a check money for the purpose of a gift . . ."); (Pl.'s Mem. at 9) ("Deferring payment is an essential, known, and foreseeable element of receiving a check. . ."); (Pl.'s Mem. at 10) (the meaning of "debt" and "debt collector" under the FDCPA "includes dishonored checks ") (emphasis added in all).
There is no allegation in the Complaint that, either at the time of the transaction or subsequently, Rite Aid extended to Plaintiff the opportunity to defer payment on the check. In the absence of any allegation of conditionality in connection with the negotiable instrument made at the time of tender, Plaintiff's check was not an extension of credit and, hence, not a "debt" within the meaning of the FDCPA. Perez v. Slutsky, 1994 U.S. Dist. LEXIS 17711, *4, 1994 WL 698519, at *2 (N.D.Ill. Dec. 12, 1994) ("In order to state a claim under the FDCPA, a plaintiff must allege that the debt giving rise to the cause of action is an offer or extension of credit covered by the FDCPA") (citing Zimmerman, 834 F.2d at 1169). The pleading thus fails to state a claim under the FDCPA. The fact that the check was later dishonored does not affect this result.
In finding that a dishonored check -- which was intended to be payment when tendered -- is not a "debt" under the FDCPA, this Court is in agreement with numerous sister district courts that have considered the question. Cf. Adams v. Law Offices of Stuckert & Yates and Stephen Needles, 926 F. Supp. 521, 526 (E.D.Pa. 1996) (applying definition of debt as enunciated in Zimmerman and finding "debt" within meaning of FDCPA in part because defendant rendered services to plaintiff "without having to render payment contemporaneously"); See Roberts, 736 F. Supp. at 1527 ("Since plaintiff's check was negotiable upon execution, defendant did not grant plaintiff any right to purchase merchandise and defer payment for it . . . There is no authority for plaintiff's argument that payment by check absent an agreement by the seller to hold the check for a period of time before presentment to the drawee, constitutes an extension of credit rather than a cash transaction"); Checkrite, slip op. at 2 (citing Zimmerman and finding "acceptance of a check in payment for consumer goods does not constitute the extension of credit as contemplated by the FDCPA because there is no agreed-upon deferral of payment [as of time check was tendered]"). Cederstrand v. Landberg, 933 F. Supp. 804, 806 (D.Mn. 1996) (considering whether a dishonored check is a "debt" under the FDCPA and concluding that "[a] complaint under the FDCPA which fails to allege an offer or extension of credit fails to state a claim under the FDCPA") (citing Zimmerman, 834 F.2d at 1168-69).
It is true, however, as Plaintiff points out, that the federal courts are not unanimous on this question. See Keele v. Wexler, et al., 1995 U.S. Dist. LEXIS 13215, 1995 WL 549048, at *3 (N.D.Ill. Sept. 12, 1995) ("This court agrees . . . that dishonored checks are legal obligations to pay money arising out of a transaction when checks are the form of payment and, therefore, qualify as "debt" under the [FDCPA]"); Narwick v. Wexler, et al., 901 F. Supp. 1275, 1281 (N.D.Ill. 1995); In re Scrimpsher, 17 Bankr. 999, 1010 (Bankr. N.D.N.Y. 1982) ("I find as a matter of law that dishonored checks (1) are legal obligations to pay money arising out of a transaction when checks are the form of payment, and therefore (2) qualify as a 'debt' under the FDCPA"). Critically, however, those district courts that have found a dishonored check to be a "debt" under the FDCPA were not bound by, and did not rely upon, the definition of "debt" enunciated in Zimmerman, whereas those courts which have reached the conclusion that this Court does today have either explicitly relied upon Zimmerman -- precedent which this Court is bound by -or have adopted its reasoning.
Thus, as the Zimmerman court noted in affirming the dismissal of a claim for failure to allege an offer or extension of credit, "insofar as the defendant may have overreached in [its] accusations and efforts to collect money . . . the plaintiff's remedy is elsewhere than under the FDCPA." 834 F.2d at 1169.
In light of the dismissal of Plaintiff's federal action, the Court declines to exercise supplemental jurisdiction over the pendant state claim, pursuant to 28 U.S.C.A. § 1367(c)(3) (West 1993).
An appropriate Order follows.
O R D E R
AND NOW, this 14th day of November, 1996, upon consideration of Defendant CRA's Motion to Dismiss and Memorandum in support thereof (Doc. No. 3), and Plaintiff's Memorandum in Opposition thereto (Doc. No. 4), IT IS HEREBY ORDERED THAT:
1. Defendant CRA's Motion is GRANTED. The first count of Plaintiff's case is DISMISSED.
2. Plaintiff's pendant state law claim is DISMISSED pursuant to 28 U.S.C.A.
3. The matter may now be marked CLOSED.
BY THE COURT:
John R. Padova J.