HomeXpress Mortgage Unwanted Text Messages TCPA Class Action

The Telephone Consumer Protection Act (TCPA) is intended to protect consumers from unwanted telemarketing calls. However, the complaint for this class action alleges that HomeXpress Mortgage Corp. uses telemarketing to solicit business in ways that violate the provisions of that law. At issue here are unwanted text messages to consumer cell phones.

Congress passed the TCPA in 1991, at a time when the increasing availability and capabilities of automated telephone equipment were allowing businesses to bother more and more consumers every day.

Of particular concern were calls to consumer cell phones, because cell phone owners typically pay for incoming as well as outgoing calls.

As it currently exists, the law prohibits non-emergency calls to consumer cell phones, using automated telephone dialing equipment, unless the consumers have given their prior express written consent to receive the calls.

In this case, plaintiff Jordan Beal began receiving messages from HomeXpresss on her cell phone in October 2020. The messages included advertising or promotional offers meant to get Beal to use HomeXpress’s products and services.

The complaint quotes from one such text message: “NonQM – Got Fall Out? This is Ira with HomeXpress Mortgage Corp. As NonQM lenders disappear, HomeXpress stays strong and [is] continuously expanding products. Jumbo loans now up to $3M LTV up to 85% DTI 50% Max Gift funds OK. We’ll help you score for your Borrower! Call or Text me now!” The lines of this message were peppered with a half-dozen check marks whose functions were unclear.

According to the complaint, the text message was sent to Beal’s cell phone through the use of HomeXpress’s SMS Blasting Platform, which the complaint alleges is an automatic telephone dialing system (ATDS). The message was not for emergency purposes.

The complaint alleges that Beal never gave HomeXpress her prior express consent to receive telemarketing text messages.

In addition, Beal’s number has been on the National Do Not Call Registry 2003.

The complaint defines two classes for this action.

• The ATDS Class is all persons in the US who received telemarketing calls from HomeXpress on their cell phones, between December 29, 2016 and the date of class certification in this case, which were made through the use of an automatic telephone dialing system or an artificial or prerecorded voice, where the persons had not given their previous consent to receive such calls, or who revoked such consent.
• The DNC Class is all persons in the US whose numbers had been registered on the National Do Not Call Registry for at least thirty days, who had not given HomeXpress their prior express consent to receive such calls and who did not have a prior established business relationship with HomeXpress, who received more than one call within any twelve-month period, which were made by or on behalf of HomeXpress that promoted its products or services, between December 29, 2016 and the date of class certification in this case.

Article Type:
Topic: Privacy
Tags: Called Number on Do Not Call Registry, TCPA, Unsolicited Cell Phone Calls, Use of Automatic-Capable Dialer