Well the TCPA cases continue to pour in post-Facebook and just as we predicted they are focused primarily on pre-recorded calls.
Interestingly the mortgage vertical has really been hit hard by these suits recently–likely due to an effort to push financing in light of recent low rates.
First California Financial is the latest lender to get hit. According to its website its an “Orange County, California mortgage broker providing home loan refinance services and purchase loans.”
Hey, I live in Orange County.
According to the Complaint the company sent the following pre-recorded call to a consumer without express written consent:
“just wanted to give you a follow-up call on mortgage interest rates, currently we’re at 2.75% with 0 points, so if you’re interested give me a call back 714 606 8400 and I’ll be happy to go over the options with you. Have a great day.”
A couple of things stand out to me about this. First, the phrase “just wanted to give you a follow-up” suggests that there may have been a previous interaction–and perhaps FCF is even servicing an existing loan for Plaintiff (I don’t know this.) Also the Complaint does not allege that Plaintiff lacks a business relationship with Plaintiff–just a lack of express written consent. Plus there’s no DNC claim.
You put all of this together–and again, I am only speculating here–and it may be that FCF thought it was safe making an outreach to this consumer for “informational” purposes–i.e. that rates were low. That’s not going to fly in all likelihood, however. This feels like a dual purpose call–which means express written consent is going to be needed for a pre-recorded voice call even if the Plaintiff was an existing customer. (See my flowchart for more info.)
The Complaint–found here Ofiteru complaint–asserts a claim on behalf of All persons in the United States who, within four years prior to the filing of this action, (1) were sent a prerecorded message by or on behalf of Defendant, (2) regarding Defendant’s goods, products or services, and (4) for which Defendant failed to secure the called party’s express written consent.
It remains to be seen whether these allegations have any merit.
The takeaway here is clear– steer clear of pre-recorded calls and voicemails unless you have valid PWEC folks. These claims are perfectly viable post-Facebook.
We’ll keep an eye on this one.