Enhanced Debtors Rights for Massachusetts Residents

By L. Dean Pender

There's a lot of information out there about the federal Fair Debt Collection Practices Act (FDCPA) and how it can help protect debtors from abusive or misinformed creditors. But if you live in Massachusetts you have a different set of tools to help you resolve matters.

1 - In MA, the original creditor is held to the same standard as an assignee or debt collector.

The Massachusetts Attorney General's Debt Collection Regulations (940 CMR 7.00 et. seq.) provide a comprehensive set of rules, which are largely similar to the FDCPA. However, 940 CMR 7.03 establishes a much wider scope, and applies to collection efforts by either the original creditor, an assignee (who purchased the debt from the original creditor), or a debt collector (hired by the creditor or assignee to collect the debt). In contrast, the FDCPA is limited in scope to debt collectors who are collecting on behalf or someone else, or under a different name than that of the original creditor, or who purchase debts after they are in default. In Massachusetts, debtors are protected from abuse by all creditors.

2 - In MA, the validation requirement is upgraded to an evidentiary requirement.

Under the FDCPA, debtors can make what is called a validation request to a debt collector or assignee of a debt. This is essentially where the debtor disputes the debt being collected, and requests that the collector/assignee check to be sure they have the correct information, and provides the debtor with very limited information. This can include the name and address of the creditor (or of original creditor), the amount of the debt, or if they are collecting on a judgment a copy of the judgment. In Massachusetts, the debtor has the right to (within 30 days of receiving their notice of the debt) demand the verification AND certain evidence from the creditor, assignee, or debt collector. They can demand copies of any documents bearing their signature. More importantly, they can demand copies of statements showing all of the dates and amounts of payments, credits, balances, and charges on the account. If the creditor/collector doesn't have them, they can't collect!

3 - In MA, debt collectors and creditors are more strictly limited in how, when, and how often they communicate with debtors.

This applies to phone calls made, voice messages left, or text messages sent to the debtor's residence (or billing address), home phone, cellular phone, or any other personal number provided by the debtor. In addition, the creditor/collector may contact the debtor via some other means no more than twice a month. The exception to these is if the debtor requests such communication (i.e., asking them to call back at another time). The creditor/collector may not call or physically visit a debtor outside of their normal waking hours if the debtor has informed them what those are. If they have not specified their waking hours, the default is 8am-9pm. Physical visits must not occur more than once a month unless there is written consent (this does not apply to repossession attempts). The creditor/collector may not contact the debtor at work if the debtor has requested they not do so. Oral requests are good for 10 days, a written request must follow up within that time period, however.

4 - In MA (and several other states) debtors can sue creditors for violations, and the creditors can be forced to pay the debtor's legal fees.

The Massachusetts Attorney General Debt Collection Regulations start out with a bit of language that, to a Massachusetts lawyer (or judge), references the Massachusetts Consumer Protection Act (Mass. Gen. Law Chapter 93A). That's great for debtors, because it means that any violation of 940 CMR 7.00 is a violation of 93A. And 93A provides a "private right of action". That means the debtor has a right to sue the creditor/collector, or if the creditor sues them first, they can cite violations of 940 CMR 7.00 as the basis of a counterclaim. But 93A goes farther than that. If a debtor follows the pre-litigation procedures set out in 93A, they can not only sue, but if they win, the court can triple the amount of damages, AND force the creditor/collector to pay the debtor's costs of bringing the suit. That means attorney fees and costs, and the filing fee.

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Enhanced Debtors Rights for Massachusetts Residents
There's a lot of information out there about the federal Fair Debt Collection Practices Act (FDCP...