Changes to the Massachusetts debt collection regulations recently proposed by the state’s Attorney General would expand their coverage to reach passive debt buyers who have no direct contact with consumers and require new disclosures for  time-barred debts.

A hearing on the proposal is scheduled for May 18, 2011, and comments are due by June 20, 2011.

The proposal represents yet another example of increasing pressure on debt buyer practices. It would amend the definition of “creditor” to include “a buyer of delinquent debt who either seeks to collect such debt directly or hires a third party or an attorney to collect such debt.” In the Notice of Hearing issued with the proposal, the Attorney General states that the change is intended to “ensure that both active and passive debt buyers are subject to debt collection laws.” (Click here to read an earlier legal alert on judicial and legislative developments targeting debt buyers.)

Thus, the proposed rule would appear to threaten to make passive debt buyers liable for misconduct of the parties who collect their debts, regardless of the relationship between the debt buyer and the collector. This strikes us as a dangerous expansion of normal rules of liability.

If enacted, the proposal would make Massachusetts yet another state to impose new disclosure requirements in connection with attempts to collect time-barred consumer debts. It would require a “creditor” collecting or attempting to collect a debt that it knows or has reason to know is time-barred to disclose certain information, including that the debt “may be unenforceable through a lawsuit because the time for filing suit has or may have expired.” The regulation would mandate how and where the disclosure must appear in written communications and when it must be made in oral communications. (Click here to read an earlier legal alert on New Mexico’s new time-barred debt requirements.)

Other proposed changes include (1) removing the exception from the definition of “debt” for first mortgage loans and debts greater than $25,000 (2) making certain prohibitions applicable to cellular telephone calls and text messaging and (3) expanding the conduct prohibited by the regulations to include various acts and practices prohibited by the federal Fair Debt Collection Practices Act (FDCPA) and/or the regulations of the Massachusetts Bank Commissioner applicable to third-party debt collectors.

Ballard Spahr’s Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws throughout the country, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs).  In addition to having vast experience in defending all manner of debt collection lawsuits, Ballard Spahr lawyers regularly counsel their clients engaged in consumer debt collection on compliance with the FDCPA and state debt collection laws  For more information, please contact group Chair Alan S. Kaplinsky, 215.864.8544 or kaplinsky@ballardspahr.com; Vice Chair Jeremy T. Rosenblum, 215.864.8505 or rosenblum@ballardspahr.com; John L. Culhane, Jr., 215.864.8535 or culhane@ballardspahr.com; Martin C. Bryce, Jr., 215.864.8238 or bryce@ballardspahr.com; Keith R. Fisher, 202.661.2284 or fisherk@ballardspahr.com; Barbara S. Mishkin, 215.864.8528 or mishkinb@ballardspahr.com; or Mark J. Furletti, 215.864.8138 or furlettim@ballardspahr.com.

 


 

 

Copyright © 2011 by Ballard Spahr LLP.
www.ballardspahr.com
(No claim to original U.S. government material.)

 

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.

This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.