Any call from a creditor to a consumer’s cell phone that goes to voicemail is an official “communication,” according to a new ruling by the Massachusetts Superior Court. In Watkins v. Glenn Associates, Inc., the Court held that even if the creditor does not leave a message on the consumer’s voicemail, the creditor’s call counts as one of two permitted calls per week under Massachusetts state law.

In this case, the creditor Glenn Associates  called and spoke with consumer Brent Watkins one time about his student debt, and subsequently called back four times during the same seven-day period without either speaking to Watkins or leaving a voicemail message. The consumer then sued the creditor, alleging that their calls violated the Massachusetts Consumer Protection Act and the Massachusetts Attorney General’s Debt Collection Regulations, which specify that creditors and collection agencies may not call or text a consumer “in excess of two such communications in each seven-day period.”

The Superior Court had to determine whether the calls in this instance constituted a “communication” with the consumer. The Court held that by repeatedly calling Watkins, even without saying anything, Glenn Associates “indirectly conveyed” a demand to speak with Watkins again about the debt. Judge Dennis Curran further opined that “the defendant’s conduct was insidiously and obviously designed – twice – to invade the privacy of an individual’s dinner hour,” conduct that in the Court’s view “is simply not right.”

The Court granted summary judgment to Watkins in the case. Ultimately, the Court says that Glenn Associates “cannot escape responsibility for its actions by thinking that it was skirting the law but failing to leave each such message, when the effect of the calls – constant intrusions upon an individual’s…time, attention, and peace of mind – is the same.”

insideARM Perspective

Voicemail messages continue to be a bonanza for consumer litigation in the ARM industry, and the decisions from courts have been inconsistent. As recently as last October, the Sixth Circuit Court of Appeals ruled a voicemail is not a “communication” in a different student loan-related case.

insideARM has written about numerous voicemail message cases over the years. We have hosted webinars on the subject. We have resources on our website devoted to the subject. (See To The Point – Telephony and Voicemail MessagesTo The Point – Voicemails and Foti, and To The Point – Written and Verbal Communications).

Unfortunately, there is no perfect solution. In December of 2014, insideARM published an excellent article by Rozanne Andersen, Chief Compliance Officer at Ontario Systems, discussing the various options used by agencies and the pitfalls associated with each.

One can only hope that the CFPB will provide clear guidance on the voicemail message quagmire in their upcoming rulemaking.

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