Watkins v. Glenn Associates, Inc., No. 15-cv-3302 (Mass. Sup. Ct. June 10, 2016).
In this case, the plaintiff sought relief from the defendant's alleged violations of the Massachusetts Debt Collection Regulations, 940 Code Mass. Regs. § 7.04 and the Massachusetts Consumer Protection Act, G.L. c. 93A, §2. The Code states in part that it is an "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..." 940 Code Mass. Regs. § 7.04(1)(f). The defendant called the plaintiff's cell phone on December 17th, twice on December 22nd, and twice on December 23rd. The defendant spoke with the consumer on December 17th, but reached his voicemail on December 22nd and December 23rd. The defendant did not leave any voicemails for the plaintiff. Watkins v. Glenn Associates, Inc., No. 15-cv-3302 (Mass. Sup. Ct. June 10, 2016).
The question for the Court in this case was "whether the telephone calls in question constituted 'initiating a communication' under the state debt collection regulations." The Court determined that, based upon the language of the statute and the Attorney General's guidance, because the defendant was able to leave a message for the debtor, such contact constituted a communication.
The Court placed much of its focus on the Attorney General's Guidance that "unsuccessful attempts by a creditor...may not constitute initiation of communication if the creditor is truly unable...to leave a message for the debtor." Despite the fact that the defendant did not leave a voicemail for the plaintiff, the Court reasoned that because the defendant had a choice not to leave a voicemail, this action was a communication.