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:
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.
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