In Beauvoir v. Israel, 2015 WL 4429757 (2d Cir. 2015), the Court of Appeals for the Second Circuit limited the definition of “debt” under the FDCPA to consensual transactions.
Although we have not previously had occasion to address whether money owed as a result of theft constitutes a “debt” for purposes of the FDCPA, several of our sister circuits have addressed the question and unanimously held that liability deriving from theft or torts does not constitute a “debt” within the meaning of the FDCPA. See Fleming v. Pickard, 581 F.3d 922, 926 (9th Cir.2009) (“[W]e have little difficulty concluding that Defendants’ cause of action against Plaintiffs for wrongful conversion does not, as a matter of law, constitute a debt for purposes of the FDCPA.”); Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1371 (11th Cir.1998) (“[T]he FDCPA may be triggered only when an obligation to pay arises out of a specified ‘transaction’…. Because Hawthorne’s alleged obligation to pay Mac Adjustment for damages arising out of an accident does not arise out of any consensual or business dealing, plainly it does not constitute a ‘transaction’ under the FDCPA.”); Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1326 (7th Cir.1997) ( “[A]lthough 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.”); Zimmerman v. HBO Affiliate Grp., 834 F.2d 1163, 1168 (3d Cir.1987) (“[N]othing in the statute or the legislative history leads us to believe that Congress intended to equate asserted tort liability with asserted consumer debt.”). Each court reasoned that the “transaction” from which the obligation to pay money arises must, by definition, be one that is consensual in nature. We join our sister circuits and hold that money owed as a result of theft is not an “obligation or alleged obligation of a consumer to pay money arising out of a transaction” and, therefore, does not constitute a “debt” for purposes of the FDCPA. 15 U.S.C. § 1692a(5). Such an obligation plainly is not one that has “arisen as a result of the rendition of a service or purchase of property or other item of value.” Beggs, 145 F.3d at 512. Applying this holding, we conclude that the Beauvoirs have not plausibly alleged a “debt” within the meaning of the FDCPA. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The complaint alleges in only conclusory terms the existence of a “consumer debt.” J.A. 11–12. This threadbare recital is contradicted by the April 23, 2012 letter from Israel, attached as an exhibit to the Beauvoirs’ complaint, stating that the money owed is a result of “the consumption of unmetered gas,” J.A. 20, and by National Grid’s May 31, 2012 state-court complaint, alleging that the Beauvoirs “diverted and consumed unmetered natural gas … by means of unlawfully tampering with [National Grid’s] gas meter,” J.A. 54. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”)