Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

RIEBE v. JUERGENSMEYER & ASSOCS.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


October 31, 1997

MICHAEL RIEBE and BARBARA RIEBE, Plaintiffs,
v.
JUERGENSMEYER AND ASSOCIATES and JOHN E. JUERGENSMEYER, Defendants.

The opinion of the court was delivered by: NORGLE

OPINION AND ORDER

 CHARLES R. NORGLE, SR., District Judge:

 Before the court are Defendants' Motion to Dismiss Plaintiffs' Amended Complaint and Motion for Attorney's Fees. For the following reasons, the court grants the Motion to Dismiss and denies the Motion for Attorney's Fees.

 I. BACKGROUND

 The origin of this federal case is a minor's failure to return a library book. In 1995, Elizabeth Riebe, a minor, borrowed a library book from the St. Charles Public Library ("the Library"). The due date came and went without Ms. Riebe returning it. The Library waited. After Ms. Riebe failed to return the book for six months, the Library retained Defendants to write to her parents ("Plaintiffs") requesting payment of $ 29.95. *fn1" Addressed to Plaintiffs, the letter, as Plaintiffs see it, implied that they, or their daughter, could be arrested and imprisoned for intentional theft of public library property. Attached to the letter was a copy of the provisions of the Illinois Criminal Code. *fn2" Rather than paying the $ 29.95 or at least returning the book, and thereby putting the matter to rest, Plaintiffs filed a complaint in federal court, alleging that Defendants' letter violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. (1996).

 Defendants now move to dismiss Plaintiffs' amended complaint and for attorney's fees. They argue that this court lacks subject matter jurisdiction under the FDCPA because their letter to Plaintiffs did not involve a "debt" within the meaning of the statute. *fn3"

 II. DISCUSSION

 A. Motion to Dismiss

 Congress created the FDCPA to protect consumers from unfair, deceptive, and harassing debt collection practices. 15 U.S.C. § 1629(e). However, this protection extends only to the collection of a "debt" as the word is defined by the FDCPA. That is:

 

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. § 1692(a)(5).

 In a recent opinion, the Seventh Circuit clarified the meaning of "debt" under the FDCPA. Bass v. Stolper, Koritzinsky, Brewster & Neider, 111 F.3d 1322, 1325-26 (7th Cir. 1997). In Bass, the court addressed whether the FDCPA "applies to third-party efforts to collect payment from consumers who use a dishonored check for the purchase of goods or services." Id. at 1323. The crux of the case, however, was "whether the payment obligation that arises from a dishonored check constitutes a 'debt' as defined in the [FDCPA]." Id. The court answered in the affirmative, and held that "an offer or extension of credit is not required for a payment obligation to constitute a 'debt' under the FDCPA." Id. at 1326. The court reasoned that "the plain language of the [FDCPA] defines 'debt' quite broadly 'as any obligation to pay arising out of a [consumer] transaction.'" Id. at 1325. The court concluded that "as long as the transaction creates an obligation to pay, a debt is created." Id.

 Though the Bass court noted that the statute defined "debt" broadly, it acknowledged that not all obligations to pay are considered "debts" under the FDCPA. Id. at 1324. In doing so, the court focused on the term "transaction" included in the statute's definition of "debt." Id. at 1325-26; see also Newman v. Boehm, Pearlstein & Bright, Ltd., 119 F.3d 477, 480-81 (7th Cir. 1997) (under Bass, the definition of "debt" under the FDCPA "focuses on the transaction creating the obligation to pay"). "Transaction" is not defined in the FDCPA. Bass, 111 F.3d at 1325. However, the court stated that "the term 'transaction' is a broad reference to many types of business dealings between parties . . . ." Id. (citing Webster's New World Dictionary 1509 (2d ed. 1986)).

 As an illustration, the court explained that some conduct, such as theft, "did not amount to a transaction" which could give rise to a "debt" under the statute. 111 F.3d at 1326 (citing Zimmerman v. HBO Affiliate Group, 834 F.2d 1163 (3rd Cir. 1987) (payment obligation arising from theft of television signals was outside the reach of the FDCPA because there was no transaction)). The court stated, "although a thief undoubtedly has an obligation to pay for the goods or services he steals, the FDCPA limits its reach to those obligations to pay arising from consensual transactions, where parties negotiate or contract for consumer-related goods or services." Id.

 Thus, cases holding that a "debt" exists under the FDCPA have consistently involved some form of initial "business dealing" creating the obligation to pay. *fn4" See Bass, 111 F.3d at 1323 (purchase of groceries with dishonored check); Newman, 119 F.3d at 481 (obligation to pay past-due condominium assessments arose from underlying purchase of units). Nonetheless, Plaintiffs urge this court to adopt the following definition of "transaction" provided in Black's Law Dictionary :

 

Act of transacting or conducting any business; between two or more persons; negotiation . . . . It may involve selling, leasing, borrowing, mortgaging, or lending. Something which has taken place, whereby a cause of action has arisen . . . .

 Black's Law Dictionary 1496 (6th ed. 1990). Despite Plaintiffs' urging, this definition does not necessarily weigh entirely in their favor. The definition still suggests that a transaction involves a "business dealing," and merely notes that such dealing may involve borrowing or lending. In any event, the court declines to rely on Black's Law Dictionary as authority in this case

 Here, there was no initial "business dealing" creating an obligation to pay, only an obligation to return a library book. In theory, this may have created some type of contract, but not in the context of a "business dealing" as contemplated by the FDCPA, e.g, the purchase of consumer goods or services. See Bass, 111 F.3d at 1326. Rather, the borrowing of a library book is a public privilege that largely depends on trust and the integrity of the borrower.

 Therefore, for purposes of the facts of this case, we agree with Defendants' assertion that "public libraries do not engage in business transactions with patrons -- they lend public property to patrons, free of charge." Def. Reply at 1. *fn5" A library is not a center of commerce but rather a "place dedicated to quiet, to knowledge, and to beauty," and "a place to test or expand ideas . . . ." Board of Educ. v. Pico, 457 U.S. 853, 868, 73 L. Ed. 2d 435, 102 S. Ct. 2799 (1982) (citations omitted). Moreover, "an adequate library is essential for the dissemination of knowledge." Seibold v. Kinston-Lenoir County Public Library, 264 N.C. 360, 141 S.E.2d 519 (N.C. 1965). "Its very purpose is to aid in the acquisition of knowledge through reading, writing and quiet contemplation." Kreimer v. Bureau of Police, 958 F.2d 1242, 1261 (3rd. Cir. 1992). Unfortunately, when one fails to return library materials, he frustrates this purpose by depriving the public the full-use of the tremendous resources that a library has to offer. *fn6"

 Consequently, the court finds that the borrowing of a library book is not the type of conduct that the FDCPA considers a transaction. As such, the ensuing obligation to pay for failure to return the book did not create a "debt" under the FDCPA. To do so would simply stretch the reach of the FDCPA too far, beyond the intended scope of "business dealings" by consumers. See Mabe v. G.C. Services Limited Partnership, 32 F.3d 86, 88 (4th Cir. 1994) (government-imposed obligation to pay child support not a "debt" under the FDCPA because it was not incurred in exchange for consumer goods or services); Staub v. Harris, 626 F.2d 275, 278 (3rd Cir. 1980) (FDCPA did not apply to tax collection efforts because "the relationship between taxpayer and taxing authority does not encompass that type of pro tanto exchange which the statutory definition [of debt] envisages."); Battye v. Child Support Services, 873 F. Supp. 103, 105-06 (N.D. Ill. 1994) (obligation for past-due child support was not a "debt" under the FDCPA because it did not arise out of a transaction and Plaintiff was not a consumer); Shorts v. Palmer, 155 F.R.D. 172, 176 (S.D. Ohio 1994) (obligation to pay for shoplifted cigars was not a "debt" because it did not arise from a transaction and Plaintiff was not a consumer). *fn7"

 Accordingly, the court grants Defendants' Motion to Dismiss.

 B. Attorney's Fees

 Defendants' move for attorney's fees pursuant to 15 U.S.C. § 1692k(a)(3) (1996). Section 1692k(a)(3) provides in relevant part:

 

On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs.

 In support of their motion, Defendants allege that Plaintiffs acknowledged in their original complaint that they were responsible for a fine, rather than a debt. According to Defendants, it was only in Plaintiffs' amended complaint that Plaintiffs deleted the reference to a fine as a means to avoid early dismissal. Furthermore, Defendants allege that the letters of Plaintiffs' counsel demanding settlement of the case for $ 4,000 amounted to extortion; in one of these letters, Plaintiffs' counsel threatened to file a lawsuit seeking over $ 31,000 if Defendants did not settle.

 The court has reviewed each of the letters. Although Plaintiffs' counsel used very strong language in the letters, the court is not convinced by that alone that Plaintiffs' brought this lawsuit in bad faith and for the purpose of harassment. See Perry v. Stewart Title Co., 756 F.2d 1197, 1211 (5th Cir. 1985); Latimer v. Transworld Systems, Inc., 842 F. Supp. 274, 275 (E.D. Mich. 1993). Moreover, despite Defendants' characterization of the lawsuit as absurd, the facts of this case are sufficiently unique to bring an action (albeit unsuccessful) under the statute, especially in light of the recent debate of what constitutes a "debt" under the FDCPA. Finally, Plaintiffs filed this suit before the Seventh Circuit's opinion in Bass. Therefore, the court concludes that an award of attorney's fees is not warranted in this case.

 III. CONCLUSION

 For the foregoing reasons, the court grants Defendants' Motion to Dismiss Plaintiffs' suit for lack of subject matter jurisdiction and denies Defendants' Motion for Attorney's Fees under 15 U.S.C. § 1692k(a)(3).

 IT IS SO ORDERED.

 ENTER:

 10-31-97

 CHARLES RONALD NORGLE, SR., Judge

 United States District Court


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.