been entered. As defendants note, Soldal is inapplicable. In fact, the Soldal court specifically found that there need not be a privacy interest at stake in order to state a claim under the Fourth Amendment because the Fourth Amendment unmistakably protects property as well as privacy.
Viewing the facts in the light most favorable to plaintiffs and having found no injury to plaintiffs' constitutional rights, there can be no claim that the defendants conspired to violate plaintiffs' civil rights under § 1983. The Seventh Circuit has made clear that § 1983 does not punish conspiracy alone. Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th Cir. 1982). Rather, an actual denial of a civil right is necessary before a cause of action arises. Id. Furthermore, a conspiracy requires factual allegations showing a meeting of the minds. Id. Conclusory allegations will not suffice. The court need not address whether plaintiffs' allegations are conclusory because as the foregoing discussion has indicated, plaintiffs have failed to allege the violation of any cognizable constitutional right. Therefore, plaintiffs have not stated a claim under § 1983 for conspiracy.
In addition, the court need not determine whether plaintiffs have sufficiently alleged that defendants acted under color of state law.
For the foregoing reasons, the court dismisses Count I of plaintiffs' complaint.
B. COUNT II: 15 U.S.C. § 1692
In Count II, plaintiffs allege that Regency violated of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA") by using tactics that were unfair and harmful to the plaintiffs to collect a debt. Complaint, at P 20. Specifically, plaintiffs claim that Regency violated the FDCPA by using fear, coercion, threats and harassment by the police to collect an alleged debt. Id.
The purpose of the FDCPA is to "eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent state action to protect consumers against debt collection abuses." 15 U.S.C. § 1692. Through its various provisions, the FDCPA prohibits, among other things, certain types of communication in connection with debt collection, 15 U.S.C. § 1692c, and harassment or abuse of persons in connection with the collection of a debt. 15 U.S.C. § 1692d.
Regency argues that plaintiffs fail to state a claim that Regency violated the FDCPA because that statute does not apply to Regency or the type of situation presented here. The definitional section of the FDCPA at 15 U.S.C. § 1692a supports defendant's argument. First, the term "creditor" means "any person who offers or extends credit creating a debt or to whom a debt is owed . . . ." 15 U.S.C. § 1692a(4). Clearly, Regency is not a "creditor" as that term is defined in the FDCPA because in the instant case, the alleged debt arose by a mistake at Regency Savings Bank in over-crediting plaintiffs' account. Regency did not offer or extend credit to plaintiffs. Second, 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." 15 U.S.C. § 1692a (5). Plaintiffs do not allege that the "debt" arose out of any transaction. In fact, plaintiffs do not address the source of the alleged "debt" except to allege that Regency filed a criminal charge against plaintiffs "that the plaintiffs had passed a 'bad check.'" Complaint, at P 9(a). Regency states that it contacted the Naperville Police Department to investigate the refusal of the plaintiffs to return an amount of $ 18,000 which Regency credited to plaintiffs' checking account in error. Regency submits that this is not a "debt" as defined in the FDCPA. Third, the term "debt collector" means "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another . . . the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. . . ." 15 U.S.C. 1692a(6). Plaintiff alleges that because Regency used the City of Naperville and its police officers to collect an alleged debt, it "used a third person to collect a debt" and therefore, Regency is a debt collector under 15 U.S.C. § 1692. Complaint, at PP 18 and 19. Plaintiff apparently ignores the plain language of the statute. The plaintiffs have not alleged that the police are in a business the principal purpose of which is the collection of debts nor do they regularly collect debts. Nor did Regency contract with the Naperville Police Department or use their name in order to collect a debt. Rather Regency contacted the Naperville Police Department to investigate what Regency suspected to be a criminal matter.
Because plaintiffs have not alleged facts placing the defendants within the scope of the definitions of the FDCPA, plaintiffs cannot state a claim under 15 U.S.C. § 1692. In Zimmerman v. HBO Affiliate Group, 834 F.2d 1163 (3d Cir. 1987), where the defendant demanded monetary compensation from the plaintiff in settlement of an asserted legal claim (that plaintiff illegally received microwave television signals), the court held that the complaint failed to state a claim under the FDCPA because plaintiffs alleged no offer or extension of credit. Id. at 1169. Similarly, in the instant case, plaintiffs' complaint fails to properly allege facts that the alleged "debt" and the parties to this action, much less their conduct, are covered by the FDCPA. Therefore, the court finds that the complaint fails to state a claim under the FDCPA. Count II of the complaint is dismissed with prejudice pursuant to FED. R. OF CIV. P. 12(b)(6) because plaintiffs have failed to state a claim upon which relief may be granted.
For the reasons set forth above, the court grants defendants' motion to dismiss plaintiffs' complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6).
Date: AUG 26 1993
JAMES H. ALESIA
United States District Judge