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Mass. Call Count Cap Violated by Debt Collector Not Leaving Voicemail Message

A Massachusetts Superior Court recently held that reaching a debtor’s voicemail, but choosing to not leave a message, is a “communication” under the Massachusetts Debt Collection Regulations, 940 Code Mass. Regs. § 704(1)(f).

A copy of the opinion in Watkins v. Glenn Associates, Inc. is available at: Link to Opinion.

The plaintiff sued for injunctive relief and to recover damages from a creditor for alleged violations of the Massachusetts Debt Collection Regulations, 940 Code Mass. Regs. § 704 et seq., which states that it is an “unfair and deceptive act or practice for a creditor to…[i]nitiat[e] a communication with any debtor via telephone…in excess of two such communications in each seven-day period…”  940 Code Mass. Regs. § 704(1)(f).

The creditor called the plaintiff’s cell phone on Dec. 17, 2014 and spoke to him regarding an alleged outstanding college tuition debt.  Five days later, the creditor called the plaintiff’s cell phone two times.  The very next day, the creditor again called the plaintiff’s cell phone two times.  Each of the four follow-up phone calls successfully connected to the plaintiff’s voicemail system, but the creditor did not leave any messages.

In reviewing the plaintiff’s Motion for Summary Judgment, the court noted that it was “undisputed that [Defendant] is a creditor, [Plaintiff] is a debtor, and that [Defendant] called [Plaintiff] regarding a debt more than twice in a seven-day period.”  Thus, “[t]he only question before the court [was] one of statutory interpretation: whether the telephone calls in question constituted ‘initiating a communication’ under the state debt collection regulations.”

Connecting to a Debtor’s Voicemail Constitutes a Communication Under Massachusetts Law

The creditor argued the calls were not a “communication” because a communication requires the successful transmittal of information, which it maintained could only be accomplished by speaking to the plaintiff or leaving a voicemail.  The court noted, however, that the collector’s position failed for two reasons.  First, the law defines communication as “conveying information directly or indirectly to any person.” 940 Code Mass. Regs. § 703.  Thus, the court reasoned, “repeatedly calling [Plaintiff’s] cell phone from a number identified as belonging to [Defendant] indirectly conveyed to [Plaintiff] its demand that he speak with [them] – again – even without [Defendant] leaving a voicemail, the calls fall squarely within the law’s definition of ‘communication.’”

Second, “[i]nsofar as the Attorney General’s Office is the department charged with enforcing particular laws, its interpretation of the protections provided thereunder is entitled to substantial deference, at least where it is not inconsistent with the plain language of the statutory provisions.’’  Smith v. Winter Place, LLC, 447 Mass. 363, 367-68 (2006).

As the court noted, in 2011, the Attorney General’s Office issued Guidance With Respect to Debt Collection Regulations, in which it stated that the primary purpose of 940 Code Mass. Regs. § 7.04 was to “limit the number of times a creditor can communicate with a debtor via telephone to try to collect a debt.”  Thus, it explained, “unsuccessful attempts by a creditor to reach a debtor via telephone may not constitute initiation of communication if the creditor is truly unable to reach the debtor or to leave a message for the debtor.”

However, the court held that “if a creditor is in fact able to leave a message for the debtor, it cannot circumvent the Debt Collection law on excessive ‘initiation of communication’ merely by choosing not to leave a voicemail.”  To hold otherwise, the court believed, “would render the limit on initiating communication meaningless and permit creditors to call ceaselessly until the debtor had no choice but to answer – an outcome clearly contrary to the stated anti-harassment purpose of the Debt Collection law.”

Thus, the court held that, even though they did not leave a message, the creditor’s four follow-up phone calls constituted “initiating communication,” resulting in a violation of 940 Code Mass. Regs. § 704(1)(f).  Accordingly, the court granted the plaintiff’s Motion for Summary Judgment.

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