Heard: March 6, 2018.
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.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Lemberg for the plaintiff.
Melendez, of Minnesota (Alan E. Brown also present) for the
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.
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)
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.
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
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
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. There were times when
Target telephoned Armata concerning the debt more than twice
in a seven-day period.
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.
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.
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.
Discussion. a. Standard of review.
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).
Statutory and ...