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Debt Collection Attorneys Subject to Massachusetts Consumer Protection Act, Says Appeals Court


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In the case, a Massachusetts homeowner sued attorneys for his condo association after they charged illegal fees. The homeowner sued the attorneys under a state law, Chapter 93A, and under a federal law, the Fair Debt Collection Practices Act (the FDCPA).

After a trial in the U.S. District Court for the District of Massachusetts, the lower court ruled that although the attorneys violated the FDCPA, their actions did not rise to the level of a Chapter 93A violation because they were not intentional. The court also said that attorneys who are merely representing their clients, as these attorneys were, are not engaged in “trade or commerce,” a requirement for liability under Chapter 93A.

The Court of Appeals reversed the trial court, and held that the attorneys are liable under both the FDCPA and Chapter 93A.

Why? It’s somewhat complicated. Chapter 93A is modeled on a similar federal consumer protection act called the Federal Trade Commission Act, and both laws prohibit unfair and deceptive business practices. A violation of the FDCPA is an automatic violation of the Federal Trade Commission Act. Since Chapter 93A is based on the Federal Trade Commission Act, a violation of one is a violation of the other. Therefore, when the lawyers violated the FDCPA, they automatically violated Chapter 93A.

The reasoning, however, is not as important as the outcome. Since the lower court made its now-overturned ruling, collection lawyers have repeatedly argued that they are not subject to Chapter 93A. They often won. But this decision puts collection lawyers on guard that they are subject to liability under both Chapter 93A and the FDCPA. This is significant because Chapter 93A has a four-year statute of limitations, but the FDCPA only has a one-year statute of limitations, so consumers have a longer time to assert their rights.

The decision is available here: McDermott v. Marcus, Errico, Emmer & Brooks, P.C.

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