Are you being harassed by real estate investor phone calls or text messages?

Are you being harassed by real estate investor phone calls or text messages?

Tons of people in Washington State and Oregon are being harassed by real estate investors begging to buy your property. Below market value of course! And many of them won't stop calling even when asked.

They often believe they are beyond the reach of the Telephone Consumer Protection Act because in their mind they aren't "selling anything" even though we all know they are calling to earn themselves a profit just as surely as any other telemarketer.

How to attack this reasoning

Telemarketers have abused the heck out of this loophole and Courts are increasingly becoming wise to the fact that for-profit businesses are initiating these calls to make money.

How to attack this reasoning

For example, in Raven3 Home Buyers LLC, the defendant argued that they did not advertise the commercial availability or

quality of any property, goods, or services, but rather sought to “gauge whether the Plaintiff was interested in selling her home to Defendant. Nothing more.”

The court clapped back:

"Plaintiff alleges that Defendant provides “real estate services to consumers” and used the calls to generate sales and consumer leads for its salespeople. Specifically, Defendant offers house-buying services to homeowners. Defendant refers to itself in its website as a “real estate company that buys houses” and a “house-buying business.” (See Raven3 About Us Webpage). 4 Defendant’s website further states that it “mak[es] the selling process easy, giving each and every client great service, fair dealing and quick turnaround,” “work[s] with . . . the seller . . . to find a solution that works,” and “can eliminate the paperwork, time, and fees required to sell a house through a real estate agent.”"

See also McMorrow v. Core Props., a lawsuit where the plaintiff alleged the defendants sent him multiple text messages that "asked about his willingness to sell his real property for the purpose of encouraging Plaintiff to purchase Defendants' services related to selling his home." Of course the defendants used the old saw "the text messages are not solicitations nor telemarketing because their purpose was simply to gauge Plaintiff's interest in selling his real property and/or to offer to purchase Plaintiff's home."

The McMorrow court boiled the dispute into one sentence "is whether the text messages sent to Plaintiff constitute “solicitations” or “telemarketing,” i.e., was the purpose of the text messages to encourage Plaintiff to purchase Defendants' property, goods, or services."

After a lengthy analysis of the arguments for and against, the court finds the inescapable conclusion:

"Regardless of the amount of revenue Growth Development earns from selling the properties that it purchases to third-party purchasers or from charging third-parties assignment fees, it is still charging the seller an effective fee for its services. Defendants enthusiastically deny that Growth Development charges as much for these services as Plaintiff contends. But, again, the issue is not how much Growth Development earns from sales to third-party purchasers or through charging assignment fees. Rather the question is: are homeowners who sell their homes to Growth Development charged a fee for the use of Growth Development's services? The Court is persuaded that they are in the form of the effective fee . . . the Court finds that the text messages were sent for the purpose of encouraging Plaintiff to purchase Growth Development's services related to selling Plaintiff's home."

Touched on in McMorrow, the FCC weighted in the issue of real estate agents calling people advertising real estate for sale:

"We find, however, that calls by real estate agents who represent only the potential buyer to someone who has advertised their property for sale, do not constitute telephone solicitations, so long as the purpose of the call is to discuss a potential sale of the property to the represented buyer. The callers, in such circumstances, are not encouraging the called party to purchase, rent or invest in property, as contemplated by the definition of “telephone solicitation.”"

The implication (by omission) is that calling people who are not advertising their real estate would be telephone solicitations.

For those of you lucky enough to live in the Fourth Circuit, the appeals court handed down Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC in 2023. About faxes, the defendant argued and the district court agreed that promoting a free digital book wasn’t an advertisement:

“holding that the plaintiff had not alleged that the fax, which tendered a product for free rather than for sale, was sufficiently commercial to bring it within the statutory prohibition on "unsolicited advertisements." We disagree. At this early stage of the litigation, we conclude, the plaintiff has adequately alleged that the fax offer had the necessary commercial character to make it an "unsolicited advertisement" under the Act.”

Carlton appealed and the Fourth Circuit saw right through PDR Network:

“we have not just profit, but also a pitch: PDR Network's fax touts the virtues and "quality" of the eBook, and if that pitch is successful, PDR Network profits by way of commission. It is that combination, we conclude, that makes the fax in question sufficiently commercial to qualify as an "advertisement" under the TCPA.”

PDR's "free" book faxes were a tool to earn a profit and everything in the Carlton analysis should apply to real estate investors calling and texting offers to buy real estate. But for the profit motive these investors would not be dialing your digits.

The Carlton holding is a logical extension of Fober v. Mgmt. & Tech. Consultants.

"The TCPA aims to curb a particular kind of call: a call that a person does not expect to receive" Fober.

Further, a 2018 Ninth Circuit case Romero has not been leveraged enough. I hope to see this commonly cited in district courts and expounded upon again by the ninth circuit. I know a case coming along that could do that.

“The TCPA is not limited to telemarketing calls; Congress recognized unsolicited contact as a concrete harm regardless of caller or content, and this harm is similar in kind to harm that has traditionally been redressable by courts.”[1] See also[2]

[1] Romero v. Dep't Stores Nat'l Bank, No. 16-56265, 3 (9th Cir. Feb. 28, 2018).  Emphasis added. 

[2] Gross v. GG Homes, Inc., 3:21-cv-00271-DMS-BGS, 12 (S.D. Cal. Jul. 8, 2021)

Bypassing the Argument

Like every other business, real estate investors often offer additional services such as moving and storage, selling you a house they already own, or real estate agent services to look for another house. I document all of these additional services they offered as they help bypass the "we only offered to buy" argument - those additional services either come with additional costs, or are being paid for by additional discounting of the sales price of the home.

Are telemarketers harassing you in Washington, Oregon, or Montana? We can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State telemarketing attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice and do not create an attorney client relationship between the reader and him or his firm. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.