The recent Massachusetts Federal District Court decision Hatuey v. IC System Civil No. 1:16-cv-12542-DPW 11/14/2018 points up an interesting contrast between the application of the Federal Fair Debt Collection Pratices Act (FDCPA) to a debt collector versus the Massachusetts Attorney General's Debt Colletion regulations applied to a creditor. The cases emphasize that debt collection regulation is not consistent and those in receivables management must use extreme care to keep themselves educated as to sometimes contradictory regulatory frameworks.
In the Hatuey case, the plaintff, Josie Hatuey, received collection calls from the defendant, ICS, seeking payment for debts owed by a Brian O'Neill and O'Neill LLC. Hatuey received one call in February 2015 during which Hatuey informed ICS he was not O'Neill or O'Neill LLC and did not owe the debt. ICS did not thereafter call him with reference to that debt. ICS called Hatuey six times between November 23 and December 1, 2016 with reference to a different debt owed by O'Neill and O'Neill LLC. Hatuey answered only one of the six 2016 calls. He told ICS that he was not O'Neill or O'Neill LLC, and that he did not owe the debt. ICS thereafter stopped calling him.
The Hatuey court focussed on the low number of calls, that Hatuey did not answer them, that ICS immediately ceased calling when advised the debts were not Hatuey's, that the calls were not at inconvenient hours nor abusive, and found that ICS did not call Hatuey with an intent to annoy, abuse of harass and therefore did not violate the FDCPA. The court found in favor of ICS.
The Hatuey case provides an interesting contrast to Brent Watkins v. Glenn Associates a 2016 Massachusetts Superior Court case decided under 940 CMR 7.00, the Massachusetts Attorney General's Fair Debt Collection Regulations. In the Watkins case, Glenn Associates sought payment for its own debt, presumably debt it had purchased. As in Hatuey, at issue were phone calls Glenn Associates made to Watkins. Glenn Associates spoke to Watkins on his cell phone on December 17,
2014 regarding an alleged outstanding college tuition
debt. Glenn Associates then called Mr. Watkins' cell phone twice on December
22, 2014 and twice on the next day, December 23, 2014. Glenn Associates did not speak to Watkins during the December 22 and 23, 2014 calls, nor did it leave messages, and made no other calls to Watkins.
The Watkins court found Glenn Associates violated The Massachusetts Debt Collection Regulations when it called Watkins and left no messages. "The unambiguous
language of the Debt Collection regulations states 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 court referred to Attorney General's guidance on the regulations and reasoned a creditor "... cannot
circumvent the Debt Collection law on excessive "initiation of
communication" merely by choosing not to leave a voicemail. To hold
otherwise would render the limit on initiating communication meaningless and permit creditors to call
In the Hatuey case, the debt collector made six calls during the period from November 23 to December 1, 2016, and would undoubtedly have violated the Massachusetts regulations. In fact, ICS' acts were arguably worse than those of Glenn Associates because it called Hatuey six times without leaving messages to Glenn Associates four times. The FDCPA and the Massachusetts Debt Collection Regulations cover the same classes of persons, debt collectors and creditors. No one is served when the same activities are illegal under one set of regulations but legal under another. Debt collection regulation should be made more consistent and predictable.