In previous years, the protection afforded by the two-call per week rule was mitigated by an ambiguity in the definition of ‘communication’ between debtor and creditor under 940 CMR § 7.04 (1)(f). As per the statute, creditors are prohibited from “initiating a communication with any debtor vis telephone, either in person or via text messaging or recorded audio message” in excess of two per week where communication is defined as “conveying information directly or indirectly to any person through any medium.” In the past, collectors who had called debtors twice or more per week, but neither reached nor left a message, exploited this definition to escape liability by alleging that no ‘information’ was conveyed to the debtor. While the case-law shows that judges usually dispensed with this exculpatory defense, some debtors were not so fortunate (see Camacho vs. Northland Group, Inc. No. 13-10773 [D. Mass Sept. 2014]). Furthermore, since the FDCPA does not apply to original creditors, this ‘loophole’ exposed a significant statutory gap in consumer protection. Under this interpretation, creditors would be free to call debtors as frequently as they pleased, with little to no threat of recourse under the FDCPA or MA 940 CMR § 7.04..
However, on appeal the MA Supreme Court ruling dispensed with this exception, thereby overturning Target’s favorable summary judgment. In view of the plain-text reading of the statute, the guidance of then-Massachusetts Attorney General, and an unambiguous, non-restrictive interpretation of the subordinate ‘communication’ clause, the MA Supreme Court decided in favor of the consumer. This landmark decision carves out an important clarification for the two-call per week rule, therefore strengthening an essential clause in consumer protection. Henceforth, irrespective of whether the consumer picked up the phone or received a message, calls in excess of two per week by a debt collector is to be found in violation of ‘940 CMR 7: Debt Collection Regulations’ and therefore punishable under the law. Although, for the moment, this decision only affords protection to those residing in the Massachusetts Commonwealth, we can only hope that the rest of the country will soon follow suit.