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GARY v. GOLDMAN & CO.

January 14, 2002

RANDELL GARY, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED,
V.
GOLDMAN & COMPANY AND MANDEE'S (PROPERLY KNOWN AS BIG M, INC.).



The opinion of the court was delivered by: Joyner, District Judge.

MEMORANDUM AND ORDER

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.

Factual Background

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).

Discussion

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 subsection,

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.
"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, ...

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