Judge rules creditors’ uncompleted phone calls to debtors still considered 'communication'

By Dawn Brotherton | Aug 15, 2016

WOBURN, Mass. (Legal Newsline) — A Massachusetts Superior Court judge has ruled that missed phone calls directed to voicemail where no message is left are considered communication with a debtor.

In Watkins v. Glenn Associates Inc., Brent Watkins claims a representative from Glenn Associates called his cellphone four times in a two-day period. Watkins alleged that the four calls violated the Massachusetts Debt Collections Regulations and Massachusetts Consumer Protection Act, which states, "unfair and deceptive act or practice for a creditor to . . . initiat[e] a communication with any debtor via telephone . . . in excess of two such communications in each seven-day period...” 

Court documentation shows that Glenn Associates had spoken to him five days earlier about the debt, but continued its attempts to reach him.

Glenn Associates did not dispute the calls, nor that Watkins was a debtor and it is a creditor. The only question in dispute was whether the phone calls made that went unanswered were considered “initiating a communication.” 

The defendant contended that the calls did not initiate communication, because no voicemail was left, nor did the representative actually speak to the plaintiff.

Judge Dennis J. Curran granted summary judgment to the plaintiff, noting in his decision that if Glenn Associates left a voicemail on each occasion, there would be no question that its conduct violated (the regulations).

"It cannot escape responsibility for its actions by thinking that it was skirting the law by failing to leave each such message, when the effect of the calls — constant intrusions upon an individual's (here, Mr. Watkins's) time, attention, and peace of mind — is the same," Curran wrote.

David Bizar, partner with Seyfarth Shaw LLP, said the uncompleted calls to consumers were treated the same as completed calls.

“(The court) looked to the intent of the Attorney General (AG)’s regulations, guidance and language," Bizar told Legal Newsline.

Bizar did not speculate whether Glenn Associates might appeal. The decision was rendered, but no judgment for liability has yet been entered. Until the judge decides what consequences the defendant might face, the case remains open.

“Massachusetts has among the most restrictive consumer debt collection laws in the country," Bizar said. "The ruling on this regulation can cause as much harm as it does good. 

"Creditors often convey helpful information when they reach debtors about their debt. My view is that this decision will fall in the ‘gotcha’ category. A lot of creditors will be caught off guard … I expect we haven’t seen the last of (this type of lawsuit).”

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Massachusetts Attorney General's Office Seyfarth Shaw, LLP Superior Court of the Commonwealth of Massachusetts

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