Massachusetts

AG Interprets MA Law as Exemptiong CARES Act Funds From Execution

Massachusetts Attorney General Healey issued a letter on April 13 opining that “under Massachusetts law, all funds provided to Massachusetts residents under Section 2201 of Title II of the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, constitute “public assistance” under G.L. c. 235, § 34. Accordingly, the funds are exempt from seizure, including garnishment, under G. L. c. 235, § 34, and attachment under G. L. c. 223, § 42, and remain exempt after payment regardless of the manner in which the funds are deposited or thereafter held. ” A copy of the letter is available here.

Tolling

On March 13, the Supreme Judicial Court of Massachusetts issued Standing Order 2-20 which tolled all statutes of limitations from March 17 through April 21, 2020. “Unless otherwise ordered by a judge in a specific case, all deadlines set forth in statutes or court rules, standing orders, or guidelines that would otherwise expire before April 21, 2020, are extended to that date.” In addition, orders after an adversarial hearing before March 17, which are set to expire before April 21, 2020, “shall remain in effect until the matter is rescheduled and heard.” The standing order is available here. On April 1, 2020, the SJC issued an order tolling all statutes of limitations “from March 17 through May 3, 2020.” A copy of the order is available here.

Mass. District Court Closes Courthouse

On March 23, the U.S. District Court for the District of Massachusetts closed its courthouse located in Springfield, Mass. because an employee of the clerk’s office reported having symptoms consistent with COVID-19. As a result, all operations at the courthouse were closed pending further order of the Court. The order is available here.

Massachusetts Suspends Most Trials and Hearings 

On March 17, the Supreme Judicial Court of Massachusetts issued Standing Order 3-20 effectively postponing all criminal and civil trials set to commence between March 17 and April 17 to “a date no earlier than April 21, 2020.” The order permits trials in civil matters “otherwise than in person” by agreement of the parties and the court. The order specifically prohibits in-person proceedings except for specified emergency matters.  

On April 27, 2020, the Court issued an Updated Order extending the continuance of all jury trials to a date no earlier than July 1, and bench trials to a date no earlier than June 1.

Mass. AG Adopts Regulation Deeming Most Collection Activity ‘Unfair and Deceptive’

The Massachusetts attorney general has adopted a regulation deeming it illegal for a debt collector to telephone a Massachusetts resident to request payment of a debt or for a debt collector or a creditor to file a lawsuit to collect a debt. The regulation is available here.

The regulation states it is made under the attorney general’s authority to issue regulations interpreting section 93A of the Massachusetts statutes, a general consumer protection statute. It is issued on an “emergency basis” and supplements the attorney general’s existing regulations (available here).

The prohibition extends to “debts” which are defined as:

money or its equivalent which is, or is alleged to be, more than 30 days past due and owing, unless a different period is agreed to by the debtor, under a single account as a result of a purchase, lease, or loan of goods, services, or real or personal property, for personal, family or household purposes or as a result of a loan of money which is obtained for personal, family or household purposes whether or not the obligation has been reduced to judgment.

The scope of the definition is broad and would encompass most past due consumer receivables.

The regulation is effective immediately and will last for 90 days “or until the State of Emergency Period Expires.”

Prohibits Most Legal Activities by Creditors and Debt Collectors

During the period of time the regulations are effective, neither creditors nor their agents may:

  • initiate, file, or threaten to file any new collection lawsuit;
  • initiate, threaten to initiate, or act upon any legal or equitable remedy for the garnishment, seizure, attachment, or withholding of wages, earnings, property or funds for the payment of a debt to a creditor;
  • initiate, threaten to initiate, or act upon any legal or equitable remedy for the repossession of any vehicle;
  • apply for, cause to be served, enforce, or threaten to apply for, cause to be served or enforce any capias warrant;
  • visit or threaten to visit the household of a debtor at any time;
  • visit or threaten to visit the place of employment of a debtor at any time; and
  • confront or communicate in person with a debtor regarding the collection of a debt in any public place at any time.

It excludes actions on mortgage debt or rent. In the case of “telephone, gas, and electric utility companies regulated by M.G.L. c. 164 and the Department of Public Utilities or the Department of Telecommunications and Cable,” such entities can continue to “visit or threaten to visit the household of a debtor at any time.”

Prohibits Debt Collectors from Making any Telephone Calls

Debt collectors are prohibited from making any telephone communication during the effective period of the emergency regulation unless it is made “in response to a request made by the debtor for said communication.” Also excepted are (1) “communications initiated solely for the purpose of informing a debtor of a rescheduled court appearance date or discussing a mutually convenient date for a rescheduled court appearance;” or (2) “(a) any attempt to collect a debt which is, or is alleged to be, owing as a result of a loan secured by a mortgage on real property; or (b) any attempt to collect a debt that is, or is alleged to be, owing by a tenant to an owner, as those terms are defined by 940 CMR 3:01.”

Creditors can continue to make telephone calls, subject to the preexisting regulations.

UPDATE: On April 3, the Massachusetts Attorney General issued FAQs concerning the emergency regulation. The FAQs are available here.

Our Boston office is prepared to assist in providing further guidance. Please contact Don Maurice or Brady Hermann at (617) 861-6035.