National Car Cure Files Motion to Dismiss Extended Warranty Robocall Lawsuit
Complaint filed by Plaintiff Craig Cunningham alleges warranty robocalls violated TCPA
Posted by Tony Russell
June 12, 2020
On June 11, 2020, Defendant National Car Cure, LLC filed a motion in United States District Court for dismissal of case 4:19-cv-00896, Cunningham v. Matrix Financial Services, LLC et al. The lawsuit alleges the Defendants violated the TCPA by placing illegal robocalls to sell extended warranties.
The 16 page filing accuses Plaintiff Cunningham as being a professional plaintiff who is "in the business of accepting telemarketing and other commercial phone calls for the express purpose of eliciting information in an attempt to cultivate a claim, and he then files suit for personal profit."
National Car Cure's motion states that "Cunningham's suit against National Car Cure is another frivolous attempt that lacks any theory of recovery whatsoever. Cunningham has done nothing more than paraphrase the relevant legal standards for the so-called claims listed in his Amended Complaint."
A copy of National Car Cure's motion to dismiss can be downloaded here.
The Warranty Informer will provide additional updates on this case as they occur.
A copy of our original post can be found below:
On May 4, 2020, Plaintiff Craig Cunningham filed an amended complaint in his Telephone Consumer Protection Act (TCPA) lawsuit against Defendant Matrix Financial Services, LLC. The initial complaint, filed in early December 2019, alleged that Cunningham received robocalls from the plaintiffs attempting to sell him an extended car warranty. The latest filing adds additional robocall allegations to the mix.
The Plaintiff’s credit card was charged by a familiar party to the action National Car Cure, LLC and contained the same identical parties Matrix, and Sing For Service, indicating that despite being on notice that the Plaintiff didn’t want to recieve unsolicited telemarketing calls and that National Car Cure was engaged in illegal telemarketing efforts by being served with a copy of the original complaint, both Matrix and Sing For Service continued to do business with Defendants Matrix and National Car Cure
Matrix Financial Services
According to the suit, Matrix is an extended car warranty administrator headquartered in Texas. Regulatory filings state that Matrix Financial Services, LLC is a Wyoming limited liability corporation which was incorporated in 2017. Jay Tuerk, Joel San Antonio, and Brandon San Antonio are listed as officers of the company.
Plateau Casualty Insurance Company
The lawsuit lists Plateau Casualty Insurance Company as Matrix's obligor on the service contract, and states that Plateau is a "vicariously liable party" because "Plateau Casualty was paid as a result of Defendant Matrix gaining the Plaintiff as a customer through illegal robocalls."
Additional Defendants listed in the amended complaint are:
• National Car Cure, an extended warranty telemarketer in West Palm Beach, FL
• Sing for Service d/b/a Mepco of Chicago, IL
• Wolf Marketing, LLC, a defunct Florida corporation
• Vincent Yates, and
• Jeremy Valentino
The Telephone Consumer Protection Act of 1991
The Telephone Consumer Protection Act, known as TCPA, the law was enacted in 1991 as a response at the time to consumer outrage against telemarketers. A provision of the TCPA is to make it unlawful "to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service."
In addition, it is a violation of the TCPA to "initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes, is made solely pursuant to the collection of a debt owed to or guaranteed by the United States, or is exempted by rule or order." The law also requires that telemarketers have a do-not-call policy available on demand.
Spoofed extended warranty robocalls
Altogether, Cunningham claims to have received at least 140 robocalls soliciting him for a car warranty. According to the complaint, Cunningham received multiple calls from a variety of spoofed caller ID’s that contained a pre-recorded message and were initiated using an automated telephone dialing system. The calls were on behalf of the named defendants. The calls had a delay of 3-4 seconds of dead air before the pre-recorded message began indicating the calls were initiated using an ATDS."
The Plaintiff purchased two extended warranties from Matrix, which were sold through National Car Cure, the second was purchased after the initial lawsuit was filed in December, with Sing for Service/Mepco as another party listed in the provided documentation.
Mepco Finance Corporation
Per the lawsuit, "Defendant MEPCO is a vicariously liable party as they knew that Matrix and National Car cure were engaged in illegal telemarketing based on the Plaintiff’s original complaint, served on February 20, 2020 and despite this notice, MEPCO did not sever business ties with these companies and continued to ratify the conduct by continuing to accept customers generated from Defendant Matrix and Defendant National Car Cure."
National Car Cure
The suit claims that Gus Renny, William Finneran, and National Car Cure, "directed and contracted with Wolf Marketing to place illegal telemarketing calls to the Plaintiff’s cell phones in order to generate leads and sales to National Car Cure in order to sell vehicle service contracts issued by Defendant Matrix."
When Cunningham asked National Car Cure for a copy of their do-not-call policy, it was not provided to him.
Cunningham's amended complaint claims that Wolf Marketing, LLC was the party who actually made the illegal robocalls. Wolf Marketing "initiated the illegal calls to the Plaintiff’s phone numbers in this case in order to generate leads and sales to National Car Cure in order to sell vehicle service contracts issued by Defendant Matrix," the complaint states.
Texas Business and Commerce Code
Cunningham, in addition, claims that the defendants calls were a violation of the Texas Business and Commerce Code 305.053 by both placing automated pre-recorded calls to a cell phone, as well as spoofing the caller ID on those calls.
The suit asks for statutory damages of $3,000 for each of 30 calls claimed to be in violation of TCPA, and an additional $1,500 per call statutory damages for 47 calls the Plaintiff claims were in violation of the Texas and Business Commerce Code 305.053, as well as costs and attorney's fees.
The complaint was filed in US District Court in the Eastern District of Texas, case 4:19-cv-00896-ALM-CAN, Cunningham v. Matrix Financial Services, LLC et al.
A copy of the amended complaint can be found here.
Read more at PacerMonitor