FDCPA Violation Complaint - Massachusetts

FDCPA AND CHAPTER 93A COMPLAINT — MASSACHUSETTS

TABLE OF CONTENTS

1. Caption
2. Preliminary Statement
3. Jurisdiction and Venue
4. Parties
5. Conditions Precedent (93A Demand)
6. Factual Allegations
7. Count I — Violations of the FDCPA, 15 U.S.C. § 1692 et seq.
8. Count II — Violations of M.G.L. c. 93A §§ 2, 9
9. Count III — Violations of M.G.L. c. 93, § 49 and 940 CMR 7.00
10. Damages
11. Prayer for Relief
12. Demand for Trial by Jury
13. Reservation of Rights
14. Signature Block
15. Verification
16. Massachusetts Practice Notes
17. Sources and References

1. CAPTION

OPTION A — UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Civil Action No. [________________________________]

COMPLAINT AND DEMAND FOR JURY TRIAL

OPTION B — COMMONWEALTH OF MASSACHUSETTS — SUPERIOR COURT

COMMONWEALTH OF MASSACHUSETTS

THE TRIAL COURT — SUPERIOR COURT DEPARTMENT

[COUNTY] COUNTY, ss.

Civil Action No. [________________________________]

COMPLAINT AND DEMAND FOR JURY TRIAL

2. PRELIMINARY STATEMENT

1. This is an action for actual, statutory, multiple, and injunctive relief brought by Plaintiff against Defendant for violations of (a) the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"); (b) the Massachusetts Consumer Protection Act, M.G.L. c. 93A, §§ 2 and 9 ("Chapter 93A"); and (c) the Massachusetts Attorney General's Debt Collection Regulations, 940 CMR 7.00, the violation of which is a per-se unfair or deceptive act or practice under 940 CMR 3.16(4) and Chapter 93A.

2. Plaintiff seeks (a) statutory damages, actual damages, attorney's fees, and costs under 15 U.S.C. § 1692k; (b) actual damages, double or treble damages for knowing or willful conduct, mandatory attorney's fees and costs, and equitable relief under M.G.L. c. 93A § 9; and (c) injunctive relief restraining further unlawful collection activity.

3. JURISDICTION AND VENUE

3.1. Subject-matter jurisdiction (federal court). This Court has federal-question jurisdiction over the FDCPA claim pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1692k(d), and supplemental jurisdiction over the Chapter 93A and related state-law claims pursuant to 28 U.S.C. § 1367.

3.2. Subject-matter jurisdiction (state court). In the alternative, Massachusetts state courts have concurrent jurisdiction over FDCPA claims and original jurisdiction over Chapter 93A claims pursuant to M.G.L. c. 93A, § 9(1) and M.G.L. c. 212, § 4.

3.3. Personal jurisdiction. Defendant transacts business and engaged in the collection activity at issue within the Commonwealth of Massachusetts and is therefore subject to personal jurisdiction under M.G.L. c. 223A, § 3.

3.4. Venue. Venue is proper because (a) Plaintiff resides in [COUNTY] County, Massachusetts; (b) the unlawful acts occurred in [COUNTY] County; and (c) Defendant transacts business in this District/County. See 28 U.S.C. § 1391(b); M.G.L. c. 223, § 1; M.G.L. c. 93A, § 9(1).

4. PARTIES

4.1. Plaintiff [PLAINTIFF NAME] is a natural person residing at [ADDRESS], [CITY], Massachusetts, and is a "consumer" within the meaning of 15 U.S.C. § 1692a(3) and a "person" entitled to relief under M.G.L. c. 93A, § 9(1).

4.2. Defendant [DEFENDANT LEGAL NAME] is a [corporation / LLC / partnership] organized under the laws of [STATE] with a principal place of business at [ADDRESS], and regularly conducts debt collection activity directed at Massachusetts consumers. For the FDCPA count, plead facts establishing Defendant's status under 15 U.S.C. § 1692a(6). For a 940 CMR 7.00 theory, separately plead facts establishing “creditor” status under 940 CMR 7.03; these classifications are not interchangeable.

5. CONDITIONS PRECEDENT (93A DEMAND)

5.1. On [DEMAND DATE], Plaintiff served Defendant with a written demand letter pursuant to M.G.L. c. 93A, § 9(3), by certified mail, return receipt requested, addressed to Defendant at [DEMAND SERVICE ADDRESS]. A true and accurate copy of the demand letter is attached as Exhibit A.

5.2. The demand letter (a) reasonably described the unfair and deceptive acts or practices complained of; (b) identified the injury suffered; (c) demanded relief; and (d) afforded Defendant thirty (30) days in which to respond and tender a reasonable settlement offer.

5.3. More than thirty (30) days have elapsed since service of the demand letter. Defendant [did not respond / tendered no offer / tendered an unreasonable offer of $______ that Plaintiff rejected as unreasonable].

5.4. All conditions precedent to the bringing of this action have been satisfied, performed, waived, or excused.

6. FACTUAL ALLEGATIONS

6.1. The Alleged Debt. On or about [DATE], Plaintiff allegedly incurred a financial obligation to [ORIGINAL CREDITOR] in the amount of approximately $[AMOUNT] (the "Alleged Debt"). The Alleged Debt arose from a transaction in which the money, property, or services were obtained primarily for personal, family, or household purposes within the meaning of 15 U.S.C. § 1692a(5).

6.2. Placement with Defendant. On or about [DATE], the Alleged Debt was placed with, sold, assigned, or transferred to Defendant for collection.

6.3. Initial collection contact. On or about [DATE], Defendant made initial contact with Plaintiff regarding the Alleged Debt by [mail / telephone / email / text].

6.4. Course of collection conduct. From [START DATE] through [END DATE], Defendant engaged in collection activity that included, without limitation:

a. [Telephone calls — list dates/times if known. Note: 940 CMR 7.04(1)(f) prohibits more than two (2) telephone communications in any seven (7) day period to the debtor's residence, cellular telephone, or other personal number per debt, AND more than two (2) such communications in any 30-day period at any other number, per debt.];

b. [Calls before 8:00 a.m. or after 9:00 p.m. local time at the consumer's location — 15 U.S.C. § 1692c(a)(1)];

c. [Communications with third parties prohibited under 15 U.S.C. § 1692c(b) and 940 CMR 7.04 / 7.05 / 7.06];

d. [Continued collection after written cease communications request — 15 U.S.C. § 1692c(c), if Defendant is an FDCPA debt collector];

e. [Failure to provide a complete written validation notice within five (5) days of initial communication — 15 U.S.C. § 1692g(a) and 940 CMR 7.08];

f. [False, deceptive, or misleading representations — character, amount, or legal status of the debt; threats of litigation or wage garnishment that Defendant did not intend to take or could not legally take — 15 U.S.C. § 1692e];

g. [Unfair or unconscionable means to collect — 15 U.S.C. § 1692f; 940 CMR 7.07];

h. [Other: ____________________________].

6.5. Specific instances. By way of example and not limitation:

• On [DATE] at [TIME], Defendant [describe specific unlawful contact].
• On [DATE] at [TIME], Defendant [describe specific unlawful contact].
• On [DATE] at [TIME], Defendant [describe specific unlawful contact].

6.6. Cease-communication request (if applicable). On [DATE], Plaintiff sent Defendant a written request directing Defendant to cease further communications. Defendant nonetheless continued to communicate with Plaintiff thereafter on [DATE(S)].

6.7. Harm to Plaintiff. As a direct and proximate result of Defendant's conduct, Plaintiff suffered actual damages including, without limitation, emotional distress, anxiety, sleep disturbance, embarrassment, loss of time taken to address Defendant's contacts, [out-of-pocket charges, e.g., overdraft / NSF fees], and harm to Plaintiff's credit standing.

7. COUNT I — VIOLATIONS OF THE FDCPA, 15 U.S.C. § 1692 ET SEQ.

7.1. Plaintiff realleges and incorporates Paragraphs 1 through 6.7 as though fully set forth herein.

7.2. Defendant is a "debt collector" and Plaintiff is a "consumer" within the meaning of 15 U.S.C. § 1692a.

7.3. Defendant violated the FDCPA, including without limitation:

• 15 U.S.C. § 1692c(a)(1) — communicating at unusual or inconvenient times or places;
• 15 U.S.C. § 1692c(b) — communicating with third parties about the debt;
• 15 U.S.C. § 1692c(c) — continuing communications after written cease request;
• 15 U.S.C. § 1692d — engaging in conduct the natural consequence of which is to harass, oppress, or abuse;
• 15 U.S.C. § 1692e — using false, deceptive, or misleading representations;
• 15 U.S.C. § 1692f — using unfair or unconscionable means to collect;
• 15 U.S.C. § 1692g — failing to provide a compliant validation notice and/or failing to cease collection upon a timely written dispute.

7.4. Under 15 U.S.C. § 1692k(a), Plaintiff seeks (a) actual damages; (b) such additional damages as the court may allow, not exceeding $1,000 in this individual action; and (c) reasonable attorney's fees and costs.

8. COUNT II — VIOLATIONS OF M.G.L. c. 93A §§ 2, 9

8.1. Plaintiff realleges and incorporates Paragraphs 1 through 7.4 as though fully set forth herein.

8.2. Defendant is engaged in the conduct of trade or commerce within the meaning of M.G.L. c. 93A, § 1.

8.3. Defendant's conduct constitutes unfair or deceptive acts or practices in the conduct of trade or commerce in violation of M.G.L. c. 93A, § 2(a).

8.4. Defendant's violations of the FDCPA are independent unfair or deceptive practices actionable under Chapter 93A. See 940 CMR 3.16(4) (failure to comply with applicable federal consumer protection statutes is an unfair or deceptive act).

8.5. Defendant's violations of 940 CMR 7.00 are per-se violations of M.G.L. c. 93A, § 2 pursuant to 940 CMR 3.16(4) and the regulatory mandate of M.G.L. c. 93A, § 2(c).

8.6. Plaintiff served the demand letter required by M.G.L. c. 93A, § 9(3) more than thirty (30) days before commencement of this action, and Defendant failed to make a reasonable written settlement offer in response.

8.7. Defendant's conduct was knowing and willful, entitling Plaintiff to double or treble damages, but in no event less than two times actual damages, pursuant to M.G.L. c. 93A, § 9(3).

8.8. Plaintiff is entitled to mandatory reasonable attorney's fees and costs pursuant to M.G.L. c. 93A, § 9(4), regardless of the size of any actual damage award.

9. COUNT III — VIOLATIONS OF M.G.L. c. 93, § 49 AND 940 CMR 7.00

9.1. Plaintiff realleges and incorporates Paragraphs 1 through 8.8 as though fully set forth herein.

9.2. M.G.L. c. 93, § 49 prohibits a creditor from collecting or attempting to collect a debt in an "unfair, deceptive or unreasonable manner." A creditor violates § 49 when, among other things, it uses harassing or threatening communications, contacts the debtor at unreasonable hours, or contacts the debtor's place of employment after being requested not to.

9.3. If Defendant meets the applicable actor and debt definitions, its collection conduct violated M.G.L. c. 93, § 49 and the AG regulations at 940 CMR 7.00, including:

• 940 CMR 7.04(1)(f) — initiating more than two (2) telephone communications in any seven (7) day period to the debtor's residence, cellular telephone, or other personal telephone number, per debt;
• 940 CMR 7.04(1)(g) — telephone calls at times known to be outside the debtor's normal waking hours, or, if those hours are unknown, outside 8:00 a.m. to 9:00 p.m. Eastern time;
• 940 CMR 7.04(1)(h) — calls to the debtor's place of employment after being requested not to do so;
• 940 CMR 7.05 — unauthorized contact with persons residing in the household of the debtor;
• 940 CMR 7.06 — improper contact with third parties (employers, neighbors, family members beyond statutorily permitted location-information inquiries);
• 940 CMR 7.07 — false, deceptive, or misleading representations or means;
• 940 CMR 7.08 — failure to comply with written validation and disclosure obligations.

9.4. The violations of M.G.L. c. 93, § 49 and 940 CMR 7.00 are independent unfair or deceptive acts and supply additional bases for relief under Count II.

10. DAMAGES

10.1. Actual damages in an amount to be proven at trial, including emotional distress, lost time, out-of-pocket expenditures, and credit harm.

10.2. FDCPA additional damages. Plaintiff seeks such additional damages as the court may allow, not exceeding $1,000 in this individual action, under 15 U.S.C. § 1692k(a)(2)(A).

10.3. Chapter 93A multiple damages — double or treble damages, but not less than two times actual damages, for Defendant's knowing or willful violations per M.G.L. c. 93A, § 9(3).

10.4. Attorney's fees and costs — under both 15 U.S.C. § 1692k(a)(3) and (mandatorily) M.G.L. c. 93A, § 9(4).

10.5. Pre- and post-judgment interest as allowed by law (M.G.L. c. 231, §§ 6B–6C).

10.6. Equitable relief including a permanent injunction restraining further unlawful collection.

11. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully demands that the Court enter judgment in favor of Plaintiff and against Defendant for:

• A. Actual damages in an amount to be determined at trial;
  Such additional damages as the court may allow, not exceeding $1,000 in this individual action, under 15 U.S.C. § 1692k(a)(2)(A);

• C. Double or treble damages but in no event less than two times actual damages under M.G.L. c. 93A § 9(3);

• D. Mandatory reasonable attorney's fees and costs under M.G.L. c. 93A § 9(4) and 15 U.S.C. § 1692k(a)(3);
• E. Pre- and post-judgment interest;
• F. Permanent injunctive relief barring further unlawful collection conduct;
• G. Such other and further relief as the Court deems just and proper.

12. DEMAND FOR TRIAL BY JURY

Plaintiff hereby demands a trial by jury on all issues so triable as a matter of right pursuant to the Seventh Amendment to the United States Constitution, Federal Rule of Civil Procedure 38, and Mass. R. Civ. P. 38.

13. RESERVATION OF RIGHTS

Plaintiff reserves the right to amend this Complaint to assert additional claims or to add parties as discovery may reveal, including but not limited to claims under the Telephone Consumer Protection Act (47 U.S.C. § 227) if telephonic violations are confirmed, and claims under the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) if Defendant has furnished inaccurate information to a consumer reporting agency.

14. SIGNATURE BLOCK

Date: [DATE]

Respectfully submitted,

[PLAINTIFF FULL LEGAL NAME],

By Plaintiff's Attorney,

[________________________________]

[ATTORNEY NAME], BBO No. [####]

[LAW FIRM NAME]

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

15. VERIFICATION

COMMONWEALTH OF MASSACHUSETTS

COUNTY OF [COUNTY], ss.

I, [PLAINTIFF NAME], being duly sworn, depose and state that I am the Plaintiff in the foregoing action; that I have read the foregoing Complaint; and that the factual allegations therein are true to my own knowledge except as to those matters stated upon information and belief, and as to those I believe them to be true.

[________________________________]

[PLAINTIFF NAME]

Sworn to and subscribed before me this [____] day of [_______________], 20[____].

[________________________________]

Notary Public

(My Commission Expires: [_______________])

16. MASSACHUSETTS PRACTICE NOTES

• 30-DAY 93A DEMAND LETTER IS A PREREQUISITE. Under M.G.L. c. 93A § 9(3), a written demand identifying the claimant, reasonably describing the unfair or deceptive act, and stating the injury must be served at least 30 days before suit. Slaney v. Westwood Auto, Inc., 366 Mass. 688 (1975); Entrialgo v. Twin City Dodge, Inc., 368 Mass. 812 (1975). The demand requirement does NOT apply to (a) actions under § 11 (between businesses), (b) counterclaims, or (c) cases where the prospective respondent has no place of business or assets in Massachusetts.
• 940 CMR 7.00 — creditor scope and contact frequency. Check whether Defendant is a “creditor” within 940 CMR 7.03 before pleading a violation of 940 CMR 7.04. Subsection 7.04(1)(f) limits initiated telephone, text, or recorded-message communications to two per seven-day period at a debtor's residence, cell, or other provided personal number, and two per 30-day period at other numbers, per debt; it excludes a creditor's response to a debtor-requested communication. FDCPA debt-collector status alone does not establish this regulation's creditor status.
• Rejection of reasonable offer caps recovery. Under § 9(3), if Plaintiff rejects a written settlement offer that the court later finds reasonable in relation to actual injury, recovery is capped at the offer amount and post-rejection attorney's fees are barred. Carefully evaluate any 30-day response.
• Attorney's fees are mandatory on any 93A liability finding — even nominal damages — per M.G.L. c. 93A § 9(4); fees are calculated under the lodestar method. Linthicum v. Archambault, 379 Mass. 381 (1979); Fontaine v. Ebtec Corp., 415 Mass. 309 (1993).
• Statutes of limitations. FDCPA: one (1) year per 15 U.S.C. § 1692k(d). Chapter 93A: four (4) years per M.G.L. c. 260, § 5A.
• Forum considerations. Federal court is available on federal-question grounds and offers nationwide service of process; Superior Court is preferred where substantial 93A multiple damages are anticipated and Massachusetts juries are favored.
• Tracking notice. Superior Court complaints require a Civil Action Cover Sheet (Standing Order 1-88) and tracking-order assignment; in District Court (BMC), include the Statement of Damages.
• Fee-shifting interplay. Where both FDCPA and 93A fees are awardable, courts typically award the larger lodestar without double counting; allocate hours by claim if necessary.

17. SOURCES AND REFERENCES

• 15 U.S.C. § 1692 et seq. (Fair Debt Collection Practices Act): https://www.law.cornell.edu/uscode/text/15/chapter-41/subchapter-V
• M.G.L. c. 93A § 9 (Consumer remedies): https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter93A/Section9
• M.G.L. c. 93A § 11 (Business remedies): https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter93A/Section11
• M.G.L. c. 93, § 49 (Unfair debt collection practices): https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter93/Section49
• 940 CMR 7.00 (AG Debt Collection Regulations): https://www.mass.gov/regulations/940-CMR-700-debt-collection-regulations
• 940 CMR 3.16(4) (federal-statute violation as per-se 93A): https://www.mass.gov/regulations/940-CMR-300-general-regulations
• Slaney v. Westwood Auto, Inc., 366 Mass. 688 (1975) (demand letter requirement)
• Entrialgo v. Twin City Dodge, 368 Mass. 812 (1975)
• Linthicum v. Archambault, 379 Mass. 381 (1979) (mandatory fees)
• Mass. AG Sample 30-Day Demand Letter: https://www.mass.gov/info-details/30-day-demand-letter
• Mass. AG Consumer Advocacy & Response Division: https://www.mass.gov/orgs/office-of-attorney-general-maura-healey

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. A Massachusetts-licensed attorney must review and customize this document before filing. Laws, citations, and court rules change frequently; verify all authorities before use.