Category: Other sites - law - cases

Friday, November 04, 2005

Ben Livingston’s Seattle TCPA and SPAM small claims site

Very funny - if it only was so easy!

Ben’s cases

Note all the “not received” notations with many of the judgments.  His “experiences” page is also very helpful. 

Last updated in 2004, but there’s some good stuff on WA law and small claims.  Of course that’s of interest to me because many of my faxes go to WA.

Dan hates SPAM - California spam suits

Dan’s small claims page

Dan also has a page on Superior Court suits with the link to the complaint, very cool!

A great site with lots of current info pertaining to suits AFTER the CAN SPAM Act.

Monday, March 28, 2005

Mortgage companies buying leads ARE liable

It gets really old to have the brokers whine that they didn’t know about the faxes.  And 99% of the times they knew exactly what was going on.

I was actually looking for something else, but ran across this real interesting excerpt from the Junkfax.org Q & A:

“Q. The mortgage company says they aren’t guilty...they just buy leads. They don’t know how they are generated.

A. They know because they signed a contract with fax.com in advance, before they got the leads. Say there are 100 companies signing up for leads. Then fax.com sends out a “generic” fax and qualifies the person who calls. The lead is transferred to the company with the best fit based on qualifying questions (or on a random basis depending on how many leads they contracted for).

Here’s what I wrote to Bridge Capital’s attorney:

For the benefit of your client, I’d recommend you discuss the meaning of agency law. Your client ratifies the acts of his agent by buying leads that were generated by junk faxes.

If you client wishes to not to be sued in the future, they should acqure leads that were legally generated. If and when you client decides to do that, please let me know and as a professional courtesy, I will let the FCC and other interested parties know.

Until then, I believe your client can be held liable for ANY unsolicited mortgage faxes sent by “fax.com” since liability is joint and several.

In other words, if 100 advertisers buy leads from Live Leads Corp. aka “fax.com”, and fax.com sends out 1 fax, then the sender of that one fax is arguably the group of 100 advertisers, rather than the advertiser that actually gets the referral on the call. This is because the sender must be determinable at the time the fax was sent, rather than after the damage is done.

This lack of knowledge about what is going on is known as “the Sergeant Schultz Defense” which is the successor the Duck Test. Here’s the citation:

No matter how many times this Court reviews the factual essence of this case, one cannot resist a comparison between the Defendants’ professed ignorance of unlawful conduct, and perhaps the most memorable refrain of Hogan’s Heroes, a popular television situation comedy of the 1960’s. For those too young to remember, each episode featured a scene in which Sergeant Schultz, always unmindful of the clandestine activities of the irrepressible Colonel Hogan and his men, would be found to explain away his incompetence to his superior, the irascible Colonel Klink, by saying, “I know n-oth-i-n-g, I see n-oth-i-n-g, I do n-oth-i-n-g.”

This dialogue, which each week delighted television viewers across the country, somehow resurfaced once again, this time in my courtroom.

Ortho Pharmaceutical Corp. v. Sona Distributors, Inc., 663 F. Supp 64, 66
n.1 (S.D. Fl. 1987).”

Too funny!

It seems like every time I look at this page it got longer and I find new great stuff.

Tuesday, February 08, 2005

2002 Los Gatos, Cal. Small Claims ruling: $1,500 per fax

Every time I go to http://www.junkfax.org I find new very cool info.  So I decided to repost some of the things I find most helpful with my comments and hopefully I’ll find it quickly when I need it.

I’m seriously considering suing in Cal. small claims rather than battling attorneys in AZ for the next two years.  Maybe I can combine the court hearing with a trip to Mexico?

This is a very good decision by Judge Pro Tem Sutton:

Fenerty v. Cedar Mortgage

Steve Kirsch thinks it’s best to stay away from pro tems and I also had a very bad experience with a pro tem once, but there are always exceptions, as this case shows.

The plaintiff had NOT opted out after receiving the first fax, but instead sent his settlement offer for $1,500.  Cedar Mortgage responded by assuring him that his number was removed from their database and refused to pay.

He sued, and they sent him ANOTHER fax. He amended his complaint to ask for $3,000 - he didn’t include any header violations.

The ruling explains the jurisdication is in state court, there is no right to commercial free speech at the expense of the plaintiff and the plaintiff has no duty to call the opt-out number.

While Cal. law allows faxing as long as an opt out number is provided, federal law provides for minimum standards.

Ceder Mortgage officer Mrs. Nagosek claimed that they hired a 3rd party to do the faxing with no intention of violating the law, which the court believed.  However, the law requires only willful or knowing sending of unsolicited faxes to allow for treble damages.

The plaintiff had submitted the 1999 FCC letter to Robert Biggerstaff explaining “willful or knowingly” and that “knowingly” has been interpreted as “knew or should have known.”

The judgment is for $3,028, $1,500 for each fax and the filing and serving fees.

However, mileage and other costs are apparently not allowed.

The junk fax is also NOT compliant with California real estate law and plaintiffs should always submit those faxes to the DRE for disciplinary action against the broker. There is no money to be made, but I believe it might be more effective in actually getting brokers to stop the junk faxing or buying leads than having to pay a few thousand dollars.

Keep in mind that just ONE California loan can easily bring in $5,000 to $20,000 or MORE in loan commission.