Guest Post: See Something, Say Something (Like Bullshit)

Ed. Note: Long time reader and commenter, Patrick Maupin, provides an answer to a question that so many have asked, “what can I do?” He saw the opportunity to be heard and did something. It worked, so I asked him to write a post about it. Thank you, Pat.

Back in July, I received a pre-recorded call on my cellphone. It was a breathless, chirpy female voice, probably Rachel from cardholder service’s little sister:

Hi! We haven’t heard from you after the recent disaster in your area! Call the Wells Fargo Disaster Recovery Team at 1-888-818-9147 if you need financial assistance or need help rebuilding!

In order to look outside and verify that the sun was still shining and the birds were still singing, I had to use my window — the walls and roof of my domicile seemed quite intact, so I wasn’t exactly sure what the disaster was, or what I was supposed to be rebuilding. The whole spiel sounded as bad (or as good) as the IRS calls, so I duly wrote down the number in preparation for explaining to Wells Fargo that they should warn their customers about this scam.

But then when I googled the number, it turned out that it really was a call from Wells Fargo. At the time, I found this quite surprising — why would a big reputable bank use such sleazy marketing tactics?

The surprise didn’t last long. As big and reputable as Wells Fargo was, they had pissed me off multiple times in the past, both with unwanted marketing emails, and with bad accounting math that somehow was always in their favor, so this call pushed me over the edge.

When I complained to Wells Fargo, they conducted an extensive three-week internal investigation that found that they made a mistake and should not have called me because I had previously notified them in writing in no uncertain terms that they were never to contact me unless they didn’t receive my payment they had committed no wrongdoing — a FEMA disaster declaration about a storm seven weeks prior to the call provided the “emergency” necessary to render this an allowed “service-related call.”

I took Scott up on his generous offer to help edit my complaint and discovery questions, and sued in small claims court for a violation of the TCPA. When I filed the lawsuit, the term “cross-selling” was not in the common vernacular, but by the time Wells answered the suit, it probably would have been difficult to find a juror who hadn’t already heard that term in conjunction with “Wells Fargo.”

I always worry about contingencies, and wasn’t really sure if I had a cause of action, or if there was some technicality in the TCPA law or regulation I was missing, but a bit lot of research convinced me that even if I was completely wrong, it would be difficult for Wells to retaliate — in Texas, it appears to be really hard, if not impossible, to screw up a small claims suit so badly that you owe the other side simply for suing them.

Despite my initial reservations, once I took the plunge and plunked down $121.00 to file the suit and serve Wells Fargo, I found the process entirely enjoyable. Wells Fargo contracted with an outside firm to handle the case, and I inundated that firm with research, thoughts, and wishes that Wells pay them handsomely for all the reading they had to do and memos they had to write.

When Wells offered me $500 to settle, I explained that, with all the recent news about cross-selling, the triple damages for “willfully or knowingly” were going to be the easiest part of the jury finding, and they finally settled for the full $1500 I was asking, plus court costs.

So I got an unwanted phone call, I sued, and I’m $1500 richer. If that was the end of it, the title of this post might be “Hear something, sue someone.” (After all, Scott has already admonished us to say nothing when we see something.)

But the real eye-opener during this journey wasn’t hearing Rachel’s sister — it was finding that, after paying $14.5 million to settle a TCPA suit in 2014, and $16.3 million to settle a suit in June, and another $30.4 million for another suit in August (among others), Wells Fargo decided to throw in the towel and stop calling people who didn’t want to be bothered work with their buddies in the Mortgage Banker’s Association to petition the FCC for an exemption that would allow them to bother people with impunity.

That put things into perspective. The last thing I wanted to do was win the battle but lose the war. $1500 would be a small consolation prize if Wells was allowed to call me whenever they want for the next 27 years of my mortgage, so after I saw that, I felt compelled to say something.

Meanwhile, the MBA met with FCC staff (at least twice, something that Wells Fargo themselves had already done multiple times previously), and also sent in a reply comment purportedly replying to all of the comments on the petition.

I found that reply comment infuriating, and used some bad words in my own hastily-written reply comment, which the FCC blandly and succinctly characterized as “Patrick Maulpin argues that despite MBA’s focus on live communications facilitated through a robocall, MBA intends the exemption to allow for pre-recorded calls and that the specified exemption conditions do not sufficiently protect consumer’s privacy.”

I don’t care about the microaggression of getting my name wrong, and I have no idea if my comments helped or not, but I was one of only nine commenters writing in opposition to the petition, and the FCC denied the petition, so I’m feeling pretty empowered right about now.

Occasionally an issue will strike a nerve, be publicized and result in thousands of identical “click on this link to tell the government what you think” comments. There are several examples of this in the FCC comment database. Nevertheless, the small number of comments the FCC received on this particular issue is not really surprising — the sheer number of laws being passed and regulations being implemented make it impossible to keep up with all of them. I only noticed and commented because it was an issue that I happened to be researching at the time.

The common wisdom is that there is strength in numbers, but if you’re one of ten thousand commenters, you’re generally going to be making much less of a difference than if you’re one of nine commenters.

So the next time you serendipitously notice there is an ongoing decision making process that you could usefully contribute to, do it. If you won’t do it for yourself or to make the world a little bit better place for the rest of us, at least do it to thank me for helping to stop your banker from pretextually calling you.

You’re welcome.

16 thoughts on “Guest Post: See Something, Say Something (Like Bullshit)

  1. Jim Tyre

    Nice, Patrick.

    Except that, if Rachel’s little sister sounds anything at all like Rachel, you should have insisted on a date with her.

  2. losingtrader

    Is $1500 the max you can get?
    In any case, if you’re in Vegas, please come by my house. We could make a year’s income from a single week’s calls. All we’ll do is list my expensive home for sale then take it off the market. I think the ensuing 5000 calls from agents looking to sell me their listing services would qualify. If not, 90% of my other inbound calls violate the Do Not Call list, and the response is always, “Oh, you’re on that list? I’m sorry”

    And I was just about to get rid of my home phone before I realized what a money-maker it could be.

    1. Patrick Maupin

      $1500 is the max possible for a single TCPA violation, and it’s only $500 if not knowingly or willfully. Unfortunately, most realtors have enough time to actually dial the number and talk to you live, so those wouldn’t be violations anyway.

      As far as the rest of your business plan goes, you should consider asking Melody Stoops how her lawsuit against Wells Fargo went before you spend a lot of energy on this.

  3. losingtrader

    Sorry I took so long to respond, but the 5000 (actually more like 250) real estate agents would seem to be “solicitors” not honoring the national Do Not Call registry. At least I’m hoping it’s actionable because it’s driving me crazy.

    I need to pay off my bookie by Thursday if you can help, Pat.

    1. Patrick Maupin

      I think they get one bite at the apple in that case. Which means you have to keep records and hope they call back.

  4. Mike Feldman

    Patrick Maupin and his greedy cheerleaders make me want to throw up. Haven’t seen grotesque profiteering and gouging since the Rodney King beating. Rodney, how did that work out for you? Not so great? I’m sorry, can we all just get along?

    1. Patrick Maupin

      Wells Fargo only had my number because I gave it to them so they could call me if there was a problem with the loan.

      I made probably 1/10 or less of my usual hourly rate pursuing this lawsuit. If you think it was about the money (from my side), you’re wrong. If you don’t think the call from Wells Fargo to me was about the money (cross-selling from their side) you’re wrong. If you equate me (after having told them in writing multiple times not to call me or bother me unless they didn’t get payment) suing them with looting, you’re wrong. If you equate them calling me, even after being told not to, with innocuous behavior, you’re wrong.

      If you think me and similarly-situated people are the greedy bastards, you’re wrong. If you think that “getting along” means I have to turn the other cheek when greedy bastards waste my time, you’re wrong (in at least this instance).

      Not that that will keep you and your own greedy bastard friends from trying to remove the protections of the TCPA, but you’re still wrong. If you really want to just “get along,” then stop being assholes. Trust me, it’ll work better.

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