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Armata v. Target Corp.

Supreme Judicial Court of Massachusetts, Hampden

June 25, 2018

DEBRA ARMATA
v.
TARGET CORPORATION & another. [1]

          Heard: March 6, 2018.

         Civil action commenced in the Superior Court Department on July 20, 2015. The case was heard by John S. Ferrara, J., on motions for summary judgment.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Sergei Lemberg for the plaintiff.

          Brian Melendez, of Minnesota (Alan E. Brown also present) for the defendants.

          Maura Healey, Attorney General, & Benjamin K. Golden & Max Weinstein, Assistant Attorneys General, for the Attorney General, amicus curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          LENK, JUDGE

         In this case, we construe the revised Massachusetts debt collection regulations, which limit how often a creditor may attempt to contact a debtor via telephone in order to collect a debt. Title 940 Code Mass. Regs. § 7.04(1)(f) (2012) (regulation), implementing G. L. c. 93A, § 2, prohibits creditors from "[i]nitiating a communication with any debtor via telephone, either in person or via text messaging or recorded audio message, in excess of two such communications in each seven-day period." Creditors are exempt under the regulation when they are "truly unable to reach the debtor or to leave a message for the debtor." Office of the Attorney General, Guidance with Respect to Debt Collection Regulations (2 013) (http://www.mass.gov/ago/docs/government/debt-colleetion-guidance-2013.pdf [https://perma.cc/V4Q8-Y39E]) (Attorney General's guidance). We must decide whether the regulation applies to creditors, such as the defendants, who use automatic dialing devices or voluntarily decide not to leave voicemail messages. We conclude that it does.

         Debra Armata commenced an action in the Superior Court against Target Corporation and Target Enterprises, Inc., doing business as Target Corporate Services, Inc. (collectively, Target), alleging that Target violated the regulation by telephoning her more than two times in a seven-day period in order to collect a debt. A Superior Court judge granted Target's motion for summary judgment and denied Armata's cross-motion for summary judgment regarding liability under the regulation, and Armata appealed. Target does not deny that it telephoned Armata more than twice in a seven-day period in order to collect a debt. Rather, Target maintains that it did not "initiate" any communications within the meaning of the regulation because it telephoned Armata with an automatic dialing device, which only plays the prerecorded message after the call is answered and no live Target representative is available. Target also contends that the majority of telephone calls, which Armata did not answer, did not constitute "communications" within the meaning of the regulation because they did not convey any information, given that Target did not leave voicemail messages. In the alternative, Target claims that it was exempt from the regulation because, although it was able to reach Armata, it could not, as a practical matter, leave her voicemail messages without violating State and Federal law.

         Target's proffered interpretation of the regulation is inconsistent with its plain meaning and the Attorney General's guidance, and is contrary to the regulation's purpose of preventing creditors from harassing, oppressing, or abusing debtors. The regulation applies to any attempted telephonic communication by a creditor to a debtor in an effort to collect a debt, so long as, as here, the creditor is able to reach the debtor or to leave a voicemail message for the debtor. Further, Target was not exempt from the regulation, because it was not actually precluded from leaving Armata voicemail messages under State or Federal law. Accordingly, Armata is entitled to summary judgment on the issue of liability.

         1. Background.

         The material facts are not in dispute. In May, 2013, Armata applied for a Target-branded debit card. She then incurred a debt to Target; the debt at issue was more than thirty days past due, and was incurred for personal purposes. Target telephoned Armata numerous times beginning on January 23, 2015, in order to collect the debt.[2] There were times when Target telephoned Armata concerning the debt more than twice in a seven-day period.[3]

         No person physically placed the telephone calls to Armata; rather, Target telephoned her using a "predictive dialer," which is an automatic dialing device. When Target cardholders answer the telephone calls placed by Target's predictive dialer, a live representative is on the line ninety-five per cent of the time. For the other five per cent of telephone calls, a recorded message is played; the recorded message does not start until the predictive dialer detects that someone has answered the telephone call and only if a live representative is unavailable.

         When Armata did answer the telephone calls from Target, she heard a prerecorded message requesting that she contact Target. The record is silent as to whether she heard such a message more than twice in any given week. Armata was never connected with a live person. Although Target was able to leave Armata voicemail messages, it chose not to, based on an internal policy not to leave voicemail messages.

         Armata commenced an action in the Superior Court, alleging that Target violated the regulation by placing more than two debt collection calls to her cellular telephone within a seven-day period. See 940 Code Mass. Regs. § 7.04(1) (f) . Target moved for summary judgment, and Armata cross-moved for summary judgment as to liability. Reasoning that Target's unsuccessful attempts to speak to Armata via telephone did not constitute "communications" as defined by the regulations, and that there was no indication that Armata heard a prerecorded message from Target more than twice in a given week, a Superior Court judge denied Armata's motion and allowed Target's motion. Armata appealed, and we transferred the case from the Appeals Court to this court on our own motion.

         2. Discussion. a. Standard of review.

         "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). "In a case like this one where both parties have moved for summary judgment, the evidence is viewed in the light most favorable to the party against whom judgment [has entered]" (citation omitted). Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012). "Because our review is de novo, we accord no deference to the decision of the motion judge." DeWolfe v. Hingham Ctr., Ltd., 464 Mass. 795, 799 (2013).

         b. Statutory and ...


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