The Standing Advisory Committee on the Rules of Civil and Appellate Procedure solicits comments on two new proposed rules of civil procedure regarding actions for money damages against individuals arising from credit card debt. The proposed amendments were drafted by an ad hoc working group that was formed to consider rule revisions to address abuses in debt collection cases and difficulties that a defendant may confront when a credit card debt has been assigned and the identity of the original creditor is unclear from the complaint.
Problems in these cases include poorly documented debts, suits commenced after the expiration of the statute of limitations, and lack of notice to defendants. In developing its proposals, the working group considered rules adopted in other states and certain provisions of the Massachusetts Uniform Small Claims Rules. The working group elected to address only cases involving individual credit card debt because anecdotal evidence suggested that most of the problems in debt collection cases involve credit card debt. Given the many kinds of debts involving both personal and real property, the working group focused on credit card debt.
Proposed Mass. R. Civ. P. Rule 8.1 would require plaintiffs to file with their complaints in credit card debt collection cases against individuals additional affidavits and a certification. The first affidavit requires certain specific information about the debt(s) at issue so that defendants can admit or deny the allegations and assert affirmative defenses. The second affidavit regarding address verification is intended to increase the likelihood that defendants receive notice when actions are commenced. The second affidavit is based on the Joint Standing Order on Verification of a Defendant's Address issued by the Boston Municipal and District Courts. The certification that would be required under proposed Rule 8.1 relates to the statute of limitations, and is intended to make it less likely that plaintiffs will commence actions on debt that is time barred. A plaintiff would be required to state the date the cause of action accrued, the length of the limitation period, and to certify that the limitations period has not expired.
Under proposed Mass. R. Civ. P. 55.1, without the required affidavits and certification, defaults and default judgments may not be entered. Where a plaintiff serves the request for default judgment on the defendant by mail sent to the defendant’s residential address, proposed Rule 55.1 requires the plaintiff to use the same address as was verified under proposed Rule 8.1. If the defendant’s residential address has changed, the plaintiff must provide a new verification of address as provided in proposed Rule 8.1.
It is anticipated that the Trial Court will develop model forms that can be used to comply with the affidavit requirements in proposed Rule 8.1.
The proposed new rules appear at the links below. Draft forms for the affidavit regarding debt and for verification of defendant's address required by Rule 8.1 also appear at the links below. Comments should be directed to Christine P. Burak, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston, MA 02108 on or before February 28, 2017. Comments may also be emailed to firstname.lastname@example.org. Comments received will be made available to the public.