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Laws & Resources => TCPA => Topic started by: username_taken on September 24, 2017 04:53:28 PM

Title: Quick Rundown on my TCPA Attempt
Post by: username_taken on September 24, 2017 04:53:28 PM
 I got to looking at this and similar boards after deciding to fight Midland Finance in court and when I started getting texts from 3 different numbers with the same messages, "a homeowner in X needs her bathroom remodeled", (4 past 9 p.m. local). Replied STOP. Texts continued. Just started taking screen shots after that. Before it started making me mad, I deleted quite a few, so I ended up with 6 texts. Found the company, verified all the numbers were indeed associated with them and sent an ITS email followed up with a printed one sent CMRR.
The CEO emailed an I'm sorry, we won't do it again. Yeah. Not gonna work. In those 6 texts, I'm hopeful I can get treble award; three texts after telling them to stop, (the text even said, "we'll stop texting but there's a homeowner in X.....), a text at 9:39 p.m., 9:59 p.m., and 10:30 p.m.
 Their lawyer called and followed up with an email on Friday and wants to set up a call for next week so he can "get a little more detail about what happened". I've got my ducks in a row,a and although I know everyone says treble is hard to get and your phone isn't proof, I'm pretty confident that what documentation I have is enough for a few grand.
Title: Re: Quick Rundown on my TCPA Attempt
Post by: kevinmanheim on September 24, 2017 05:32:06 PM
Forget about treble. You will not get it in court without a fight that will take more time than the win will be worth.

They want to talk so they can determine how skilled you are, and how well you could do in court. Size you up.

I would make a lot of talk about the treble damages, but be prepared to settle for a max of $500 per call.

Considering it's a small number of calls, I would look to settle for $2,500.
Title: Re: Quick Rundown on my TCPA Attempt
Post by: fisthardcheese on September 24, 2017 08:28:01 PM
Forget about treble. You will not get it in court without a fight that will take more time than the win will be worth.

They want to talk so they can determine how skilled you are, and how well you could do in court. Size you up.

I would make a lot of talk about the treble damages, but be prepared to settle for a max of $500 per call.

Considering it's a small number of calls, I would look to settle for $2,500.

Kevin is right, you will likely only be able to settle for $500 per call/text.

If this were me, I would email the attorney my screen shots of the 6 texts and let him know that I currently have preserved 6 texts and 3 were after a request to stop.  I would tell him that I know of X more texts that I did not preserve but will recover through phone records and his clients records during discovery, however if he wishes to settle prior to my filing in court, that I will agree to settle for $6,000 representing the 6 texts I currently have preserved with 3 of them being trebled for willful violations after asking to stop.

I would then expect him to come back with a lowball offer and bat numbers back and forth with hopes of meeting around $2500 - $3000.
Title: Re: Quick Rundown on my TCPA Attempt
Post by: username_taken on September 24, 2017 09:47:13 PM
Kevin is right, you will likely only be able to settle for $500 per call/text.

If this were me, I would email the attorney my screen shots of the 6 texts and let him know that I currently have preserved 6 texts and 3 were after a request to stop.  I would tell him that I know of X more texts that I did not preserve but will recover through phone records and his clients records during discovery, however if he wishes to settle prior to my filing in court, that I will agree to settle for $6,000 representing the 6 texts I currently have preserved with 3 of them being trebled for willful violations after asking to stop.

I would then expect him to come back with a lowball offer and bat numbers back and forth with hopes of meeting around $2500 - $3000.

I did just that, along with a chronological timeline of what calls by which numbers.
Even if a business doesn't know about the TCPA and what it entails, everyone knows you aren't allowed to contact past 9 p.m. and that's pretty willful. Even if I can't, it's only cost me a few hours of time and $6 to send the ITS.
Title: Re: Quick Rundown on my TCPA Attempt
Post by: aaabbb on September 24, 2017 10:46:59 PM
There is no reason not to seek treble damages. Receiving calls after 9pm is as strong of an argument that can be made in favor of treble damages. Violations like that are almost unheard of and there's no excuse for them. If the texts are actually autodialed and you can prove it they will lose and you should ask for $3,000 per call; $1,500 for section (b) and $1,500 for section (c).

That said, it sounds like they might not be using an autodialer to send the text messages. When you say they responded to your request to stop, it sounds like they sent a custom worded response. If that's the case, some or all of the texts may have been sent "manually".

If that's true, you can't sue them under section (b) of the TCPA but you can still sue under section (c) if the calls are telemarketing calls, and it sounds like they are. Section (c), however, is quite a bit more lenient on callers than the autodialer restrictions are under section (b) because it gives callers an extra defense; due care. Telemarketers won't be held liable for violating section (c) if they have implemented policies and procedures with due care to abide by the FCC regulations. The Defense will argue that they have the proper policies and procedures in place, and you should argue that they have not implemented them (or exercised due care) because they called you three times after 9pm and three times after asking to stop.

If I were you, I would get a recorder and call the company (a number that connects you with a low level telemarketing agent) and ask to be mailed a copy of their policies and procedures for maintaining a do not call list. Hopefully their employee will have no clue what you are talking about. This recording can then be used as additional evidence that they have not effectively implemented their policies and procedures with due care.

Section (c) also provides a "reasonable time" defense to stop calling. This time period cannot exceed 30 days. If the calls stopped before 30 days after you asked to stop, then they can argue that they are not liable because they stopped calling within a "reasonable" period of time. This defense will not help them on the calls that occurred after 9pm, though.
Title: Re: Quick Rundown on my TCPA Attempt
Post by: username_taken on September 24, 2017 11:33:53 PM
There is no reason not to seek treble damages. Receiving calls after 9pm is as strong of an argument that can be made in favor of treble damages. Violations like that are almost unheard of and there's no excuse for them. If the texts are actually autodialed and you can prove it they will lose and you should ask for $3,000 per call; $1,500 for section (b) and $1,500 for section (c).

That said, it sounds like they might not be using an autodialer to send the text messages. When you say they responded to your request to stop, it sounds like they sent a custom worded response. If that's the case, some or all of the texts may have been sent "manually".

If that's true, you can't sue them under section (b) of the TCPA but you can still sue under section (c) if the calls are telemarketing calls, and it sounds like they are. Section (c), however, is quite a bit more lenient on callers than the autodialer restrictions are under section (b) because it gives callers an extra defense; due care. Telemarketers won't be held liable for violating section (c) if they have implemented policies and procedures with due care to abide by the FCC regulations. The Defense will argue that they have the proper policies and procedures in place, and you should argue that they have not implemented them (or exercised due care) because they called you three times after 9pm and three times after asking to stop.

If I were you, I would get a recorder and call the company (a number that connects you with a low level telemarketing agent) and ask to be mailed a copy of their policies and procedures for maintaining a do not call list. Hopefully their employee will have no clue what you are talking about. This recording can then be used as additional evidence that they have not effectively implemented their policies and procedures with due care.

Section (c) also provides a "reasonable time" defense to stop calling. This time period cannot exceed 30 days. If the calls stopped before 30 days after you asked to stop, then they can argue that they are not liable because they stopped calling within a "reasonable" period of time. This defense will not help them on the calls that occurred after 9pm, though.

 I believe, and based on wording and how their texts are worded that they have an auto-reply feature. They are an app-based business that sells leads for construction contractors. I haven't delved into the TCPA and auto-reply texts, but if it can auto-reply, I'm betting it has the capacity to store and so on.
 I don't think they have a policy. I requested one but the fella hemmed and hawed around. I'll be sure to ask his attorney to provide that for me.
 My thought is, ask for $6k, set my basement for $3500, and if they don't want to play ball, I file in state court in Missouri. Heck of a drive from California.
Title: Re: Quick Rundown on my TCPA Attempt
Post by: aaabbb on September 25, 2017 12:58:52 AM
Quote
I'll be sure to ask his attorney to provide that for me.
Whatever you do, don't do this. If they don't have a policy and you ask the attorney, they will suddenly have a policy. Instead, ask a low level employee and record their clueless response. Don't even bring this up unless you go to court.

I suggest you stop talking to his attorney all together. Give them your evidence and a settlement offer and don't talk to them again unless they are negotiating with you on the settlement offer.
Title: Re: Quick Rundown on my TCPA Attempt
Post by: username_taken on September 25, 2017 01:45:04 AM
That's actually sound advice. Of course, being so green in this stuff, I'm uber-confident in what I have to prove my side and kinda want to say, "yeah. That's right. I got this".  Pride cometh before the fall.
 I totally see what you're saying. I did send him an email basically telling him instead of spending 30 minutes on a phone call where he can transcribe what I'm saying; here's what I got. I sent him transcripts of the texts along with time and originating number, (I did make sure to include the one that shows the 9:30 p.m. text. Although, since sending that email, I did find three more instances on my cell bill of them texting me. Don't know if that changes anything, but now, instead of 9 potential, I have 12. Also, I don't know if this has any bearing on what may be, but isn't it borderline harassment to text 5 times in a hour after being told to cease? Again, in my world, if it ticks me off, it oughta be illegal. If it ticks me off, it's a bit much.
 Should I email him and include the three to bolster what I may have or ......?
 Thanks for the advice.
Title: Re: Quick Rundown on my TCPA Attempt
Post by: CleaningUp on September 25, 2017 02:06:44 AM
If they have an attorney on the case, you are violating at least the ethical part of communication on legal matters.

Once an attorney is handling their matters, you deal with the attorney, not the attorney's client.

As for harassment?  How are you going to prove intent?

As for you getting angry being equal to a violation of law? 

Don't be stupid in your pursuit of a payday!  THAT is pure stupidity coupled with a terminal degree of ignorance.  If you play that card, you assure yourself of not being taken seriously by anyone on their side and the court that you are going to have to ask to resolve your case.

Title: Re: Quick Rundown on my TCPA Attempt
Post by: username_taken on September 25, 2017 02:14:59 AM
I'm pretty sure I qualified my statements. There's a difference between believing it should be and it being so.
Title: Re: Quick Rundown on my TCPA Attempt
Post by: aaabbb on September 25, 2017 06:46:34 AM

As for harassment?  How are you going to prove intent?

As for you getting angry being equal to a violation of law? 

TCPA complaints written by consumer attorneys usually allege both of these things, especially post Spokeo. You will have to plead in such a way that demonstrates some sort of harm so you are not just citing bare procedural violations. Of course, it's better to cite the money spent on wasted minutes or the electricity used to charge a depleted cell battery but the complaints that I have seen, drafted by actual consumer attorneys, have included language about "harassing phone calls".
Title: Re: Quick Rundown on my TCPA Attempt
Post by: fisthardcheese on September 25, 2017 11:10:40 AM
isn't it borderline harassment to text 5 times in a hour after being told to cease? Again, in my world, if it ticks me off, it oughta be illegal. If it ticks me off, it's a bit much.

Looks to me like you have concrete actual, emotional damages here.  If this goes to court, I would detail how frustrated and angry you have been about this harassment of several texts within an hour and multiple texts after 9pm.
Title: Re: Quick Rundown on my TCPA Attempt
Post by: username_taken on September 26, 2017 03:27:27 AM
Looks to me like you have concrete actual, emotional damages here.  If this goes to court, I would detail how frustrated and angry you have been about this harassment of several texts within an hour and multiple texts after 9pm.

I now have a total of 14 "violations" of which their attorney has my documentation. I am not so stupid as to think I can make them all stick or get treble damages, but it's a danged good negotiating position. They're in CA, I'm in MO. Local counsel would cost them what I'm asking. Not to mention the flagrant violations. The last text I received on Aug 21, 2017 at 9:30 p.m. resulted in a reply about this being the 4th time I've asked to stop being contacted and informing the sender that they were in violation of the TCPA. That was the last one from that number, but at 8:26 a.m. the next morning, there was another text from the same company. So, I'm pretty confident, given what I have vs what they will have to try and disprove, that I'm in the proverbial catbird seat. Not cocky, but when they hand it to you with a ribbon, you take it.

BTW, about the frustrated and angry part, my wife works in TN and I'm in MO. (awesome job offer, couldn't pass it up). I go to bed at 9 and get up at 4:30 a.m. cause we have a small farm. Everyone who knows me knows not to call or text past 9. Anything beyond that is an emergency. Honestly, I've been getting this stuff for 5 years because we are an LLC. This one pushed me over the edge. I usually just deleted and went on, but this one ticked me off. In 24 hours I got 9 texts from these people. Sick of it.
 So, if anyone feels like holding a newbies hand through this, I can take criticism, so long as it constructive. Not really interested in anyone who just wants to tell me how wrong I am. I got a wife for that.
Title: Re: Quick Rundown on my TCPA Attempt
Post by: kevinmanheim on September 26, 2017 03:48:45 PM
Most companies, when schooled by a consumer about consumer-protection laws, take that schooling as an indication the consumer doesn't know what they are doing.

Stop trying to school your opponent. They know the TCPA and all other consumer statutes.

They also know you are unlikely to actually sue.

They also know that, if you do sue, you are unlikely to know how to obtain ADMISSIBLE evidence to prosecute your claims.

They don't need to disprove your claims. You need to prove them. Your records are not proof of TCPA violations.

In the meantime, they continue to listen to you spout off, waiting for you to do something that will destroy your case.

If you feel they owe you money for TCPA violations, why are you yelling at them to stop running the TCPA meter? Each extra call is $500-1,500.

Be quiet. You already told them to stop calling.

Sue. Before you do, learn how to obtain admissible evidence.
Title: Re: Quick Rundown on my TCPA Attempt
Post by: CleaningUp on September 26, 2017 05:39:20 PM
If you don't like the advice that you are being given, hire your own lawyer.

At least the know what the Rules of Evidence require to be able to get the evidence admitted at trial.

Title: Re: Quick Rundown on my TCPA Attempt
Post by: ghost on September 27, 2017 12:25:09 AM
Kevin is giving you good, honest advice. Just sue them. Stop talking about what you are going to do and go to the courthouse and do it.
Title: Re: Quick Rundown on my TCPA Attempt
Post by: CoffeeCupRunnethOver on October 30, 2017 06:32:49 PM
First, I just want to say good luck.  It's not as easy as it sounds especially with so few violations.  I've learned that Judges are becoming more hostile towards the TCPA and that even with over 300 violations on a few occasions, couldn't care less and wanted nothing to do with these types of cases.

I find it's best to know as much as you can and to take all advice into consideration.  There are some cases where Defendants wanted to settle quickly without discovery exchange and others that wanted to "teach me a lesson" spending tens of thousands on unnecessary legal expenses.

If you document too much, they view you as peculiar and too little and you'll definitely have a weak case.  In cases where I had over 400 calls, settled for peanuts; while cases with 6,10, and 15 calls, I did setttle for the "treble damages", so it's really a bizarre realization.

Your best bet to maximize your chances of "winning" is to be cordial, non-combative, yet firm with opposing counsel because they hate TCPA/FDCPA cases.  Another lesson I found is that in the majority of cases the facts do not matter.  I only discussed the "number of calls" or the "autodialer" question with less than half of the cases I pursued.  I prefer to save time and settle quickly.  The less work I have to do will allow me to move on to th next case.

Since the TCPA will be modified, either by limiting the SOL to one year or exempting debt collectors or something just as restrictive, I feel like every year that goes by the payouts are reflecting that wind of change.  So yes, good luck.
Title: Re: Quick Rundown on my TCPA Attempt
Post by: flaccito on October 30, 2017 09:32:13 PM
First, I just want to say good luck.  It's not as easy as it sounds especially with so few violations.  I've learned that Judges are becoming more hostile towards the TCPA and that even with over 300 violations on a few occasions, couldn't care less and wanted nothing to do with these types of cases.

I find it's best to know as much as you can and to take all advice into consideration.  There are some cases where Defendants wanted to settle quickly without discovery exchange and others that wanted to "teach me a lesson" spending tens of thousands on unnecessary legal expenses.

If you document too much, they view you as peculiar and too little and you'll definitely have a weak case.  In cases where I had over 400 calls, settled for peanuts; while cases with 6,10, and 15 calls, I did setttle for the "treble damages", so it's really a bizarre realization.

Your best bet to maximize your chances of "winning" is to be cordial, non-combative, yet firm with opposing counsel because they hate TCPA/FDCPA cases.  Another lesson I found is that in the majority of cases the facts do not matter.  I only discussed the "number of calls" or the "autodialer" question with less than half of the cases I pursued.  I prefer to save time and settle quickly.  The less work I have to do will allow me to move on to th next case.

Since the TCPA will be modified, either by limiting the SOL to one year or exempting debt collectors or something just as restrictive, I feel like every year that goes by the payouts are reflecting that wind of change.  So yes, good luck.

Interesting observations, but I doubt much will change given how slowly the gears of the system turn. As far as I know, the only actual "change" made in recent memory was the government exempting itself from liability for calls placed on behalf of the government.

As for judges seeming "hostile", isn't that always the case with us pro se's / non-attorneys? On the other hand, I've heard through the grapevine of someone recently settling one of these cases for over $40k and someone else settling his for "well over $100k", the latter guy signed an NDA so obviously couldn't give specifics. These are people who used attorneys, so maybe that helped with their results.

It seems these types of cases are settling just the same as they always have, same with FDCPA. I guess personal perceptions can vary though.
Title: Re: Quick Rundown on my TCPA Attempt
Post by: CoffeeCupRunnethOver on October 31, 2017 10:16:12 PM
From colleagues who go to court every other week for TCPA related hearing, they have had judges refuse to hear their motions, say that they hate TCPA cases and otherwise place deadlines that are impossible for both sides.  They just want these off their dockets.  I have settled pro-se for "over $100k", but that was years ago, now that same case and facts I doubt would get me anything because attorneys want Plaintiffs to prove up their dialing systems, or they want to fight it and bring in some much needed revenue for their firm.  Case and point, one settlement was only $15,500 for 40+ calls a few years ago in arbitration.  This Defendant wanted to spend another $30,000 on attorney fees to "set a precedent" and the Arbitrator told her that that was "unnecessary".  She got the hint, put her ego aside and settled. 

So, compared with today, where a recent settlement of over 100 calls and texts in arbitration, I barely got $4000, but the large corporation spent over $38,000 in attorney's fees and fought to the bitter end.

Anecdotal for sure, but what makes the difference is that companies are more willing to fight litigants, especially "professsional litigants", and law firms are able and willing to fight a losing battle because they know the arbitration is business-biased and arbitrators are ignorant.

Another consideration is that businesses are also refusing to pay fees in arbitration, knowing/hoping the consumer won't get a lawyer.  They know that lawyers will only take cases with high volume of calls and those cases with a few calls, lawyers would prefer to pursue class actions only to find Plaintiff has an arbitration clause.  Can't win for trying.   :vbfrown:
Title: Re: Quick Rundown on my TCPA Attempt
Post by: flaccito on November 01, 2017 12:12:24 AM
From colleagues who go to court every other week for TCPA related hearing, they have had judges refuse to hear their motions, say that they hate TCPA cases and otherwise place deadlines that are impossible for both sides.  They just want these off their dockets.  I have settled pro-se for "over $100k", but that was years ago, now that same case and facts I doubt would get me anything because attorneys want Plaintiffs to prove up their dialing systems, or they want to fight it and bring in some much needed revenue for their firm.  Case and point, one settlement was only $15,500 for 40+ calls a few years ago in arbitration.  This Defendant wanted to spend another $30,000 on attorney fees to "set a precedent" and the Arbitrator told her that that was "unnecessary".  She got the hint, put her ego aside and settled. 

So, compared with today, where a recent settlement of over 100 calls and texts in arbitration, I barely got $4000, but the large corporation spent over $38,000 in attorney's fees and fought to the bitter end.

Anecdotal for sure, but what makes the difference is that companies are more willing to fight litigants, especially "professsional litigants", and law firms are able and willing to fight a losing battle because they know the arbitration is business-biased and arbitrators are ignorant.

Another consideration is that businesses are also refusing to pay fees in arbitration, knowing/hoping the consumer won't get a lawyer.  They know that lawyers will only take cases with high volume of calls and those cases with a few calls, lawyers would prefer to pursue class actions only to find Plaintiff has an arbitration clause.  Can't win for trying.   :vbfrown:

I see in your sig that you have "Pending: 20+ TCPA claims/actions, FDCPA", maybe that's why your judge "hates" your cases and seems "hostile"?  :vbconfused: Someone with that many cases would certainly draw attention and possibly come across as a "professional litigant".

I agree with you though on the part about "they are fighting consumer cases harder these days".