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The highest court in Massachusetts ruled yesterday that creditors (not just debt collectors) must adhere to Title 940 Code Mass. Regs. § 7.04(1)(f) (2012), which prohibits “[i]nitiating a communication with any debtor via telephone, either in person or via text messaging or recorded audio message, in excess of two such communications in each seven-day period (emphasis added).”

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In the case of Debra Armata v. Target Corporation, SJC-12448 (June 25, 2018), the Massachusetts Supreme Judicial Court was charged with deciding whether Title 940 Code Mass. Regs. § 7.04(1)(f) (2012) applies to creditors, such as Target Corporation, who use automatic dialing devices or voluntarily decide not to leave voicemail messages. [id.] The Court concluded that it does.

This case stemmed from Target Corporation’s collection efforts and its undisputed telephone calls to Plaintiff, Debra Armata. Target did not deny it called Armata more than 2 times in a seven-day period, but it denied that its process of playing a pre-recorded message to Armata constitutes as an “initiated communication” within the meaning of the Code. Target argued that it did not always initiate a communication because: (1) in some circumstances it was not able to connect with the consumer using a live representative (and instead used a pre-recorded message); and, (2) the content of Target’s messages was not a “communication” under the Code.

Using prior guidance offered by MA Attorney General stating, 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 (Debra Armata v. Target Corporation, SJC-12448 (June 25, 2018), the court reasoned that Target had the ability to reach Armata or leave a voicemail message and; moreover, the fact that Target did not successfully directly convey information to Armata about the debt is unimportant, because Target nevertheless initiated the process of conveying information to Armata via telephone. [id.] Thus, while the Fair Debt Collection Practices Act does not typically apply to creditors collecting on their own debts, Title 940 Code Mass. Regs. § 7.04(1)(f) (2012) does apply to creditors and, more importantly, the process used by Target Corporation falls within the definition of an “initiated communication,” which is limited in frequency according to the Code.

Credit managers and creditors should carefully review their internal collection efforts, as they relate to MA consumers, to determine whether they are in compliance with MA law. A copy of the Court’s opinion in Debra Armata v. Target Corporation may be found by clicking here.

This communication does not create a legal relationship, nor is it intended to be legal advice. Inquiries do not create a legal relationship. Please consult with your attorney for specific legal advice.