Massachusetts Division of Banks clarifies that a written request from the consumer would not be necessary to initiate an obligation of response.

September 8, 2014

The Massachusetts Division of Banks clarified in a July 18, 2014 written opinion that a debt collector’s receipt of an oral request for records is sufficient to trigger the “five business day” period set forth in the Division’s validation of debt rule in Section 18.18(3).

Section 18.18 of the Division’s Conduct of the Business of Debt Collectors and Loan Servicers regulations governs validation of debts. Section 18.18(1) and (2) generally align with the federal Fair Debt Collection Practices Act requirements set forth in Section 1692g(a) and (b). Section 18.18

(1) Requires a debt collector to provide the required response to a consumer within five days after the initial communication with a consumer. Under Section 18.18

(2), if a consumer disputes the debt, the debt collector must cease collection activities and take additional actions to validate the debt upon receipt of written notification from the consumer. Section 18.18

(3) Provides that a debt collector must provide to a consumer or any attorney for a consumer, within five business days, certain information set forth in the regulation, but does not specify whether a request for the information must be in writing or when the five-day period begins.

In interpreting the regulation, the Division looked to the plain language of Section 18.18(3), which does not require a written request. This is in contrast to Section 18.18(2), which explicitly requires that the consumer’s notice to the debt collector of the disputed debt be in writing. Also, the Division did not find any indication in Section 18.18(3) that oral notice was to be considered ineffective.

In addition to the plain language of the regulation, the Division said that it was guided by what it termed the well-established principle that inclusion of particular language in one part of a statute and omission of the same language in another is deemed to be an intentional and purposeful act by the legislature.

Because the Division that drafted Section 18.18(3) was aware of the oral notice and writing requirements of the previous 2 sections, the Division’s opinion concludes that exclusion of an expressed writing requirement indicates that written notice is not necessary. Thus, the opinion states that under Section 18.18(3), the debt collector’s receipt of an oral request for records from the consumer, or the consumer’s attorney, is sufficient to trigger the debt collector’s obligation and may serve to commence the five business day period in which the required response must be returned to the consumer.

This entry is to be considered informational only and should not be interpreted as legal counsel. Collection agencies operating in Massachusetts are advised to consult with their own legal counsel for interpretation of the regulation.

Lex Patterson, CEO DAKCS Software SystemsLex Patterson joined the DAKCS team in 1988. In 2006, he was named President and has worked to cultivate new markets, enhance product offerings, connect people, cut costs, and further DAKCS’ legacy of delivering astonishing customer service. He has a deep interest in technology and the ARM business, but understands that the relationships developed through interaction with people are really how business gets done. An avid fly fisherman, photographer and motorcycle enthusiast, Lex enjoys the great Utah outdoors.

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