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