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BATTYE v. CHILD SUPPORT SERVS.

November 30, 1994

RICHARD BATTYE, Plaintiff,
v.
CHILD SUPPORT SERVICES, INC., Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Richard Battye brings this two count action alleging violations of the Fair Debt Collection Practices Act and intentional infliction of emotional distress. Presently before the court is defendant Child Support Services, Inc.'s motion to dismiss the complaint. For the reasons set forth below, defendant's motion to dismiss Count I is granted, and Count II is remanded to the Circuit Court of DuPage County.

 I. Background

 Defendant Child Support Services, Inc. ("CSSI") is a debt collection agency incorporated in the State of Illinois. In December, 1993, CSSI sent plaintiff Richard Battye a letter, informing him that he owed $ 17,180, apparently for overdue child support payments. *fn1" Battye alleges that CSSI subsequently contacted him several times by telephone, and both harassed him and threatened legal action. Battye filed the present action in the Circuit Court of DuPage County, alleging violations of the Fair Debt Collections Practices Act, 15 U.S.C. § 1692, et seq. and a state law claim of intentional infliction of emotional distress. CSSI removed the case to this court, and filed the present motion to dismiss.

 II. Motion to Dismiss Standard

 A motion to dismiss should not be granted unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1988); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265 (1986). We take the "well-pleaded allegations of the complaint as true and view them, as well as reasonable inferences therefrom, in the light most favorable to the plaintiff." Balabanos v. North Am. Inv. Group, Ltd., 708 F. Supp. 1488, 1491 n.1 (N.D. Ill. 1988) (citing Ellsworth).

 III. Discussion

 
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. . . .

 15 U.S.C. § 1692a(5). It is therefore necessary that the plaintiff allege and prove both that he acted as a consumer in incurring the alleged obligation, and that the alleged obligation arose out of a transaction, in order to fall within the ambit of the Act. Although there are few reported cases addressing this portion of the Act, their discussion of the section's requirements is instructive. For example, in Zimmerman v. HBO Affiliate Group, 834 F.2d 1163 (3d Cir. 1987), the court noted that the FDCPA was enacted as an amendment to the Consumer Credit Protection Act, 15 U.S.C. § 1601 et seq., and concluded 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, property, insurance, or services" which are "primarily for household purposes" and to defer payment.

 Id. at 1168-69; see also Bloom v. I.C. Sys., Inc., 972 F.2d 1067, 1068 (9th Cir. 1992) (concluding that the FDCPA applies only to "consumer debts," and considering "the purpose for which the credit was extended" in order to determine the nature of the debt) (quotations omitted); S. Rep. No. 382, 95th Cong., 1st Sess., at 3 (1977), reprinted in 1977 U.S.C.C.A.N. at 1697 (FDCPA intended to apply "only to debts contracted by consumers for personal, family, or household purposes").

 Relying upon these cases, the Fourth Circuit recently rejected a claim identical to the one advanced by the plaintiff in the present case. In Mabe v. G.C. Services Ltd. Partnership, 32 F.3d 86 (4th Cir. 1994), the plaintiffs had allegedly failed to pay their respective child support obligations. The defendant entered into a contract to collect those payments on behalf of the Commonwealth of Virginia, which had been assigned the right to receive the payments by the plaintiffs' families, which were instead receiving welfare benefits from the state. The plaintiffs objected to the actions taken by defendant, and filed a lawsuit alleging violations of the FDCPA. The ...


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