The opinion of the court was delivered by: Joyner, District Judge.
Defendant, Mandee's/Big M., Inc. has filed a motion to dismiss
the Plaintiffs Complaint pursuant to Fed.R.Civ.P. 12(b)(6) on
the grounds that she has failed to plead a cause of action
against it under the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. § 1692, et. seq. For the reasons which
follow, the motion shall be granted.
In December, 1999, Plaintiff bought several items of clothing
at one of the moving defendant's retail stores in Philadelphia,
paying for those items with a personal check in the amount of
$50.97. Apparently, Plaintiffs check was returned for
insufficient funds and Mandee's thereafter turned the plaintiffs
account over to defendant Goldman & Company for collection.
Goldman sent Plaintiff two letters on May 16, 2001 and June 11,
2001, which Plaintiff alleges violate Sections 1692e, 1692f and
1692g of the FDCPA in that they used false, deceptive and
misleading representations in an effort to collect on the debt,
failed to advise Plaintiff that she had the right to contest the
validity of the debt and attempted to collect an amount not
expressly authorized by the agreement
creating the debt or permitted by law. (Complaint, ¶ s11-20).
Plaintiff alleges that Moving Defendant is liable for Goldman's
actions as "Goldman was acting on behalf of Mandee's, and
pursuant to an agency relationship, and Goldman acted with the
consent of and under the supervision and control of Mandee's."
(Complaint, ¶ 9).
By way of the motion which is now before the Court,
Mandee's/Big M, Inc. contends that since a dishonored check is
not a "debt" under the FDCPA and it is not a "debt collector"
within the meaning of the Act, Plaintiffs complaint fails to
state a claim against it upon which relief can be granted.
Standards Governing Rule 12(b)(6) Motions
Under Rule 12(b)(6), a motion to dismiss may be granted only
when it is clear that no relief could be granted under any set
of facts that could be proved consistent with the allegations.
Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81
L.Ed.2d 59 (1984); Quarles v. Germantown Hospital & Community
Health Services, 126 F. Supp.2d 878, 880 (E.D.Pa. 2000),
(quoting Hishon). The Court must accept all well-pleaded
allegations as true and construe the complaint in a light most
favorable to the plaintiff when determining whether, under any
reasonable reading of the pleadings, the plaintiff may be
entitled to relief. See, e.g., Lake v. Arnold, 232 F.3d 360,
365 (3d Cir. 2000); Allah v. Seiverling, 229 F.3d 220, 223 (3d
Cir. 2000). Although generally, courts may not look beyond the
complaint in deciding a motion to dismiss, they may consider an
undisputedly authentic document that a defendant attaches to the
motion if the plaintiff's claims are based on that document.
ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994);
Pension Benefit Guaranty Corp. v. White Consolidated
Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
A. Whether dishonored check is a "debt" under the FDCPA.
As noted, Mandee's first seeks dismissal of the complaint
against it on the grounds that a dishonored check does not
constitute a "debt" within the meaning of the FDCPA. The FDCPA,
of course, was enacted as an amendment to the Consumer Credit
Protection Act, 15 U.S.C. § 1601, et. seq. "to eliminate debt
collection practices by debt collectors and to protect consumers
against debt collection abuses." Bezpalko v. Gilfillan, Gilpin
& Brehman, No. 97-4923, 1998 WL 321268, *3, 1998 U.S. Dist.
LEXIS 8859, *11 (E.D.Pa. 1998), quoting 15 U.S.C. § 1692(e). A
threshold requirement for application of the FDCPA is that the
prohibited practices are used in an attempt to collect a debt.
Zimmerman v. HBO Affiliate Group, 834 F.2d 1163, 1167 (3d Cir.
1987). Thus, if the financial transaction at issue (i.e.
Plaintiffs dishonored check) does not constitute a "debt" under
the FDCPA, then Plaintiff has no cognizable federal claim.
Sarver v. Capital Recovery Associates, Inc., 951 F. Supp. 550,
552 (E.D.Pa. 1996).
"Debt" is defined in Section 1692a(5) of the Act. Under that
The term "debt" means any obligation or alleged
obligation of a consumer to pay money arising out of
a transaction in which the money, property,
insurance, or services which are the subject of the
transaction are primarily for personal, family or
household purposes, whether or not such obligation
has been reduced to judgment.
A number of courts in this circuit, including several within
this district have previously considered the question of whether
or not a dishonored check
operates as a debt under the FDCPA. In each of those cases, our
sister courts concluded that such a check is not a debt within
the meaning of the Act. See, e.g., Krevsky v. Equifax Check
Services, 85 F. Supp.2d 479 (M.D.Pa. 2000); Bezpalko and
Sarver, both supra. In so holding, however, each of these
courts relied upon the Third Circuit's decision in Zimmerman v.
HBO Affiliate Group, also supra, that a cable television
company's demand for monetary compensation in settlement of
asserted legal claims against persons whom the defendants had
accused of illegally receiving certain microwavable television
signals was not an attempt to collect a "debt" within the
meaning of the FDCPA. In recognizing that the statute did not
define the nature of the "transaction" which may give rise to a
"debt" and that the concept of a transaction is a broad one, the
Third Circuit found that:
"the type of transaction which may give rise to a
`debt' as defined in the FDCPA is the same type of
transaction as is dealt with in all other subchapters
of the Consumer Credit Protection Act, i.e., one
involving the offer or extension of credit to a
consumer. Specifically, it is a transaction in which
a consumer is offered or extended the right to
acquire money, ...