In April 2019, Tustin, California, homeowner Jorge Valdes filed a lawsuit seeking class-action status against Realogy subsidiaries Coldwell Banker and NRT, alleging they violated the Telephone Consumer Protection Act (TCPA) which prohibits making unsolicited autodialed calls to consumers without their consent, including calls to consumers registered on the national Do Not Call registry. Valdes put his cell number on the DNC list in 2010.
After Valdes’s former agent withdrew his listing from the multiple listing service without the home’s sale on May 15, 2018, Valdes received unsolicited, autodialed calls from three different Coldwell Banker and NRT agents to his DNC-listed cell number, according to the complaint. Valdes filed an amended complaint in August 2019 removing NRT as a defendant.
Now it appears that Coldwell Banker and Valdes have settled. On Jan. 26, the two parties filed a voluntary joint stipulation to dismiss the case, informing the court that the plaintiff no longer wished to pursue his claims. The next day, the court dismissed the case with prejudice, or permanently, as to Valdes’s individual claims but left the door open to any other member of the broad classes of people Valdes had sought to represent to bring claims.
The National Association of Realtors has identified TCPA lawsuits as one of the major legal issues its members should keep in mind in the near term, noting that a lot of “trolling” law firms see violations of the TCPA as “low-hanging fruit.” These suits are coming up at a time when agents hope to take advantage of every technology tool available to them while consumers are rebelling against frequent interruptions from telemarketers.
NAR advised its members to obtain written consent from consumers before texting them, to avoid using autodialers without consent and to scrub phone numbers in their contact database against the DNC registry.
The TCPA prohibits anyone from contacting consumers for commercial purposes using an autodialer without consumers’ prior written consent and carries statutory damages of $500 per violation or willful damages of $1,500 per violation — fines that can add up to millions depending on the size of the class.
And now another homeowner, David W. Kaznecki of Palm Beach County, Florida, has filed a lawsuit seeking class-action status against Coldwell Banker Real Estate under the TCPA for “standardized SPAM campaign calls placed to cellular telephone numbers.”
The Jan. 30 complaint alleges that Kaznecki received at least four phone calls on Jan. 1, 5, and 15, 2021 at a number he says he registered on the DNC list in 2008. At least three of the calls allegedly came from Coldwell Banker agent Kimberly DeSocio, who on Jan .5 inquired if Kaznecki wanted to sell his house.
According to the complaint, Kaznecki told DeSocio his number was on the DNC list and DeSocio apologized but then called him two more times 10 days later. The complaint also alleges that Kaznecki received additional phone calls he believes were from Coldwell Banker.
“At no time did Plaintiff provide Plaintiff’s cellular number to Defendant through any medium, nor did Plaintiff consent to receive such unsolicited calls,” the complaint said. “Plaintiff has never signed-up for, and has never used, Defendant’s services, and has never had any form of business relationship with Defendant.”
The complaint alleges that Coldwell Banker’s calls damaged Kaznecki.
“In addition to using Plaintiff’s residential cellular data, phone storage, and battery life, his privacy was wrongfully invaded, and Plaintiff has become understandably aggravated with having to deal with the frustration of repeated, unwanted calls, forcing him to divert attention away from his work and other activities,” Kaznecki’s attorneys wrote.
“Not only did the receipt of the calls distract Plaintiff away from his personal activities, Plaintiff was forced to spend time investigating the source of the calls and who sent them to him.”
Kaznecki purports to represent a class consisting of anyone in the U.S. who, in the past four years, was called at least twice within a 12-month period by or on behalf of Coldwell Banker for the purpose of selling Coldwell Banker’s products or services and whose phone number had been listed on the National Do Not Call Registry for at least 30 days and whom Coldwell Banker did not obtain prior express written consent to call.
An attorney for Kaznecki declined to comment for this story. Realogy, DeSocio and an attorney for Valdes did not respond to emailed requests for comment.
Read the complaint: