A District Court judge in Massachusetts has granted a request from ACA International for a temporary restraining order, enjoining the attorney general of that state from enacting emergency regulations that barred collectors from, among other things, being able to initiate phone conversations with individuals who have unpaid debts.
A copy of the ruling in the case of ACA International v. Maura Healey can be accessed by clicking here.
“While I laud the Attorney General’s desire to protect citizens of Massachusetts during a time of financial and emotional stress created by the Covid-19 pandemic, I do not believe that the Regulation adds anything to their protections that the existing comprehensive scheme of law and regulation already affords to debtors, other than an unconstitutional ban on one form of communication,” Judge Richard Stearns of the District Court for the District of Massachusetts wrote in his ruling.
ACA International sued Healey, the Attorney General of Massachusetts last month, alleging she overstepped her authority in enacting regulations that, among other provisions, prohibited collection agencies from initiating phone conversations with individuals, unless the individual sought the call in the first place. Initiating a phone conversation without the individual’s consent constitutes an unfair or deceptive act under Massachusetts law for the duration of the state of emergency because of the coronavirus pandemic.
“I couldn’t be happier with the decision,” said Roger Weiss, president of ACA International. “This protects two way communications with consumers which will empower consumers to make more informed decisions. ACA members will continue to deliver timely financial information to consumers, serve as a resource and a communication conduit to consumers, and provide valuable options to help consumers weather the crisis and find solutions that meets the needs of all parties involved. Professional debt collectors remain as potentially the consumers’ most vital resource in debt resolution through any personal crisis including COVID.”
ACA International’s argument against the emergency regulations is that they violate the First Amendment by prohibiting only one type of calls — those from third-party debt collectors. The emergency regulations are a content-based restriction on free speech and is thus unconstitutional, the association alleges.
“The best that can be said for the Regulation is that it decreases incrementally the number of times that a phone might ring in a debtor’s home with a wanted or unwanted call from one species of debt collector – although in this day and age of cell phones and caller ID the option of simply not answering the phone or placing it in silent mode is a viable alternative for consumers,” Judge Stearns wrote. “I say incrementally because the prior supplanted regulation had already imposed a limit of two calls per week by debt collectors. The Regulation does not insulate a home dweller from debt collection efforts – mortgagors, landlords, and nonprofit entities, among others are excepted from the ban – rather it singles out one group debt collectors and imposes a blanket suppression order on their ability to use what they believe is their most effective means of communication, the telephone. If what the Attorney General meant to accomplish by way of the Regulation was a strict liability ban on all deceptive and misleading debt collection calls, the Regulation is redundant as that is already the law, both state and federally.”
The ruling means, for the moment, that the regulations enacted by the AG are nullified and no longer able to be enforced.
