Full title: Kevin CAVEY, individually and on behalf of all others similarly situated, Plaintiff, v. MARKETPRO HOMEBUYERS, LLC, Defendant.
Court: United States District Court, E.D. Virginia, Alexandria Division.
Date published: Jun 7, 2021
Facts
Plaintiff asserts class action claims under the VTPPA on behalf of individuals who received unsolicited text messages from Defendant MarketPro. Am. Compl. ¶ 1. Defendant brokers real estate transactions between residential property owners and prospective investors and, to entice homeowners to sell their property through MarketPro, it also offers certain services to homeowners such as the handling of paperwork related to the sale and closing of the transaction, cleaning the property, and helping the homeowner move, and also provides a cash payout to the selling homeowner. Id. ¶¶ 2, 14. MarketPro typically does not keep the property itself; rather, it acquires the right to buy the property from a homeowner, then markets the property for sale to prospective third-party buyers through its website and may also make properties available through in-person showings. Id. ¶ 16. In its contracts with homeowners, MarketPro reserves the right to unilaterally assign its purchasing rights to a third-party buyer and reserves the right to withdraw from the sale for when it cannot procure a third-party buyer at a price that delivers sufficient profits. Id. ¶ 15. For a third-party buyer to participate in a sale, MarketPro requires that the prospective third-party buyer form a limited liability company and deposit at least $10,000 in earnest money and, on making an offer, supply proof of funds or financing for the amount being offered. Id. ¶ 17. When the sale closes, MarketPro profits on the margin between its offer to the homeowner and the offer it procures from the third-party buyer. Id.
To identify prospective sellers, MarketPro tracks real property transactions and realty websites and maintains information about prospective sellers in databases that it controls. Id. ¶ 3. In September 2020, using a telephone number with the 301 area code for Rockville, Maryland, where MarketPro is headquartered, and the next three digits 368, associated with at least three other telephone numbers that are or have been used by MarketPro, MarketPro (or someone acting at its direction) send this text to mobile telephone subscribers:
Hi. I am with MarketPro Homebuyers, I am a local buyer in DC, VA, MD. I’d like to speak with you about buying [property address] for cash if you might be interested in selling? Reply STOP for opt-out.
Plaintiff alleges the reference to “DC, VA, MD” indicates the text was indiscriminately sent to property owners in Virginia and other states. Id. ¶ 20. MarketPro has told the Better Business Bureau that it maintains a database of prospective sellers and targets them for solicitations. Id. ¶ 21.
To the extent MarketPro inserts property addresses into its text messages, the addresses appear to have been exported using a database or similar automated application. Id. ¶ 21. In October 2020, MarketPro (or someone acting in its direction) send this text to mobile telephone subscribers:
Good morning! This is Ray with MarketPro Homebuyers. A local investor based in Rockville. I’m reaching out to talk about [property address]. Are you interested in selling your property? Reply STOP for opt-out.
The plaintiff alleges that several persons have complained to the Better Business Bureau about MarketPro sending them unwelcome and unsolicited telephone calls and others have posted complaints on Yelp about MarketPro sending similar text messages. Id. ¶ 23. Plaintiff registered his cellular telephone with the Do Not Call Registry in July 2003 to limit harassing telephone calls and also believed that it would limit harassment from unwelcome text messages. Id. ¶¶ 25, 26.
In late September 2020, Plaintiff received the following text from 301-368-****:
Hi. I am with MarketPro Homebuyers, I am a local buyer in DC, VA, MD. I’d like to speak with you about buying [property address] for cash if you might be interested in selling? Reply STOP for opt-out.
Id. ¶ 27. This text was unwelcome and annoying to Plaintiff who felt it was intrusive and interfered with his use and enjoyment of his telephone. Id. ¶ 29. Plaintiff claims that by not fully identifying itself as the sender of the message, MarketPro evades responsibility for its unwelcome messages and impedes efforts to monitor and prevent unwelcome messages from those senders and, by not fully identifying itself, it inflicted direct harm against Plaintiff and interfered with efforts to investigate and prevent unwelcome texts from being sent to his phone. Id. ¶ 31.
Plaintiff, who resides in Reston, Virginia, and is a citizen of Virginia, is one of the recipients of these unsolicited text messages and he brings this action individually and on behalf of the following two classes pursuant to 28 U.S.C. § 1332(d)(2), as the parties are diverse, all class members are citizens of Virginia, and the amount in controversy exceeds $5 million.
Plaintiff seeks (1) class certification under Fed. R. Civ. P. 23 and appointment of Kristi Kelly of Kelly Guzzo PLC as class counsel; (2) damages in an amount to be determined at trial; (3) all damages and relief authorized by statute of law, including attorney’s fees and costs; (4) special damages under the VTPPA up to $5,000 per violation; (5) any other relief the Court deems just and equitable; and (6) a trial by jury.
Issue
Decision
Plaintiff has adequately alleged Article III standing to bring his claim, but has failed to adequately allege that Defendant is a “telephone solicitor” who made a “telephone solicitation call” in violation of either Va. Code §§ 59.1-514(b) or 59.1-512. Accordingly, it hereby
ORDERED that Defendant’s Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) be, and the same hereby is, DENIED; and it is further
ORDERED that Defendant’s Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) be, and the same hereby is, GRANTED; and this action is DISMISSED.