# Taking Exchange Company to small claims court?



## vacation_time (Feb 17, 2006)

For any of you affected by the RCI Cancellations (e.g. Mayan Palace Nuevo Vallarta, Manhattan Club, etc) --- would you consider taking RCI or the offending exchange company to small claims court?

If this happened to us I would be hopping mad after being out an exchange and potentially airfare, car rental and any other pre-booked events that may have been required.  

Or, would you just go ahead on the vacation, rent accomodations (IF POSSIBLE .. may not be anything available for that time/location) and then taking the exchange company to small claims for the amount it cost for accomodations?

I am no lawyer so I don't have any idea how feasible this is.  But, I did see an episode of the People's Court where a woman sued a (small) airline for a botched trip.


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## Gadabout (Feb 17, 2006)

Well, the first thing to do would be to look into your state's laws and your contract with the exchange company. You may have signed something saying you're stuck with binding arbitration.

Even if you are able to go to court, the other issue is where the jurisdiction is. You don't want to waste more money flying out somewhere, staying in a hotel, filing fees, being in court, etc. than the cost of the vacation you're trying to recoup.

Class action (speaking theoretically, as you are), might be a better solution, because it might also result in better operating procedures. Or, better, stop doing business with the offending company and tell your friends. The old saying goes:

"A happy customer tells one person, an unhappy customer tells 10 people."


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## Carolinian (Feb 17, 2006)

RCI's T&C have a choice of venue clause, and the venue is - guess where - Indiana.  While there is a decent argument that the T&C are a contract of adhesion, which may not be enforcible, this would certainly be a potential stumbling block.  There is also an attorney's fee provision, that basically says if you sue RCI and lose, you pay their attorneys fees.

The only way to tackle this goliath is to get a state Attorney General's Consumer Protection Division interested in taking them on, and that is going to take either numerous complaints or the right complaint from a person with the right political connections.  I cannot see any state's courts saying that their own AG has to go to Indiana to sue RCI!


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## e.bram (Feb 17, 2006)

Could they be sued in New Jersey, where Cendant the parent corporation is located?


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## Carolinian (Feb 17, 2006)

The choice of venue provision is specific, and it does not necessarily matter where offices are located.

But again, this is for a member's lawsuit, and should not impact a state AG suing under his state's consumer protection laws.


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## Jimster (Feb 18, 2006)

*Suing*

First of all, examine the agreement between you and RCI and the terms and conditions.  The information is in there!  The boilerplate there looks formidable.  Having said that, it is just boilerplate.  It really comes down to how much you want to spend.  Just because its in their terms and conditions doesn't mean that it must be that way.  It also depends on what you want to do.  Do you want money back or do you just want to make life difficult and/or expensive for someone or something.  Most people are highly unrealistic about all of this.  Often the filing fee alone is over $200- let alone other fees like service of process, motion fees, etc. and then we want to pay our lawyers handsomely!  

Small claims court is generally a joke unless you are a lawyer or represented by a lawyer (permissible in some states and not permissible in others).  Just what do you think will happen if you win?  Win a judgement that is-because you don't win dollars.  You think the other side whips out a check book and pays you off?  Well in rare situations maybe they do.  I certainly would not. Did you ever see anyone on the People's Court count their money at the end?  The point is you have to know how to enforce a judgement and be willing to spend the cash to do so.  Most people are not.  So their "win" is a hollow victory at best.  Now a class action suit is an interesting animal and something that I would be more prone to file.  First, you have to get your class certified and then see what happens.  It can be a real nightmare for one or both parties.  The attorney is generally the winner in these cases or if he fails to get the class certified he is the man/woman that wasted a lot of his/her time.


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## JLB (Feb 18, 2006)

*Which Indiana is That?*



			
				Carolinian said:
			
		

> RCI's T&C have a choice of venue clause, and the venue is - guess where - Indiana.



Is it the Indiana in Indiana, the Indiana in Pennsylvania, or the Indiana in New Jersey?    

If you like jumping through hoops, here's some nice ones.    



(i) Governing Law. These Terms and
Conditions and the RCI Weeks Exchange
Program will be governed by and construed
under the laws of the *State of New Jersey*,
except for its conflicts of law principles.

(ii) Jurisdiction. Member consents and waives
Member’s objection to the non-exclusive
personal jurisdiction of and venue in the
*New Jersey state courts situated in Morris
County, New Jersey and the United States
District Court for the District of New Jersey
for all cases and controversies under these
Terms and Conditions or between RCI and
Member.*

(iii) Waiver. WAIVER OF JURY TRIAL. THE
PARTIES WAIVE THE RIGHT TO A JURY
TRIAL IN ANY ACTION RELATED TO
THESE TERMS AND CONDITIONS OR
THE RELATIONSHIP BETWEEN ANY
INDEMNITEE, ANY MEMBER, ANY
GUEST OF A MEMBER, AND THEIR
RESPECTIVE SUCCESSORS AND
ASSIGNS.

(iv) Legal Fees. If any legal action is initiated by
a Member or guest or by RCI pertaining,
directly or indirectly, to these Terms and
Conditions or RCI in general, and RCI
prevails, that Member or guest shall, without
limitation, pay all costs incurred by RCI in
defending such action, including reasonable
attorneys’ fees, paralegal fees and court
costs.

(v) Special Acknowledgments. Member
acknowledges the following statements
to be true and correct as of the date
Member signs the Enrollment
Application, and to be binding on
Member.

(A) No Representation. Neither RCI nor
any person acting on RCI’s behalf
has made any oral or written
representation or promise to Member
on which Member is relying to
execute the Enrollment Application
that is not written in these Terms and
Conditions. Member releases any
claim against RCI or RCI’s agents
based on any oral or written
representation or promise not stated
in these Terms and Conditions.

(B) Entire Agreement. These Terms and
Conditions constitute the entire
agreement between the parties hereto
with respect to the subject matter set
forth herein and supersede all previous
communications, representations, or
agreements, either oral or written,
between the parties relating to such
subject matter.


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## Carolinian (Feb 18, 2006)

I guess I need to look at the online version of RCI's T&C before commenting.
These apparently have changed.  I had not looked at these since I did so to respond to a question on this issue some time ago back on the old TUG BBS.
The choice of venue provision is still there, but the state has changed.

With computers it is so easy to make a change online, and of course they never publiscize such changes, like adding ''rentals'' to the uses they could make of exchange deposits.


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## kwilson (Feb 18, 2006)

Carolinian said:
			
		

> RCI's T&C have a choice of venue clause, and the venue is - guess where - Indiana.



If EVERY complaint against RCI was filed with the Indiana AG they would eventually feel pressure to investigate. So if you feel you have a legitimate complaint send it here.

Indiana Attorney General’s Office
Consumer Protection Division
302 W. Washington St., 5th Floor
Indianapolis, IN 46204
1-800-382-5516
www.in.gov/attorneygeneral


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## Carolinian (Feb 18, 2006)

kwilson said:
			
		

> If EVERY complaint against RCI was filed with the Indiana AG they would eventually feel pressure to investigate. So if you feel you have a legitimate complaint send it here.
> 
> Indiana Attorney General’s Office
> Consumer Protection Division
> ...



It had been a while since I looked at the RCI T&C on that issue, and they have now changed the choice of venue provision to specific New Jersey as pointed out by JLB.


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## kwilson (Feb 18, 2006)

Carolinian said:
			
		

> It had been a while since I looked at the RCI T&C on that issue, and they have now changed the choice of venue provision to specific New Jersey as pointed out by JLB.



O.K.,

File all complaints here...

http://www.state.nj.us/lps/ca/ocp/ocpform.htm

I repeat.....If EVERY complaint against RCI was filed with the (Indiana) now New Jersey AG they would eventually feel pressure to investigate. So if you feel you have a legitimate complaint send it here.


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## Gadabout (Feb 18, 2006)

Jimster said:
			
		

> Small claims court is generally a joke unless you are a lawyer or represented by a lawyer (permissible in some states and not permissible in others).  Just what do you think will happen if you win?  Win a judgement that is-because you don't win dollars.  You think the other side whips out a check book and pays you off?  Well in rare situations maybe they do.  I certainly would not. Did you ever see anyone on the People's Court count their money at the end?  The point is you have to know how to enforce a judgement and be willing to spend the cash to do so.  Most people are not.  So their "win" is a hollow victory at best.  Now a class action suit is an interesting animal and something that I would be more prone to file.  First, you have to get your class certified and then see what happens.  It can be a real nightmare for one or both parties.  The attorney is generally the winner in these cases or if he fails to get the class certified he is the man/woman that wasted a lot of his/her time.



Well, those on People's Court and other such venues are actually paid by the show's producers (it's in the small print at the end of each show) not out of the other's pocket. Not everyone who goes on those shows is stupid (l really like Judge Joe Brown and Judge Jerry Sheindlin (Judy's husband) when he did People's Court for a while, since both of them take the time to explain the law), and you occasionally get people who get a "lightbulb moment" and come to a reasonable accomodation. Sometimes that's all it takes, a neutral party to put things into perspective.

As to enforcing small claims judgements, it depends on whom you're winning against. When one is suing a deadbeat, sometimes the best you can do is make sure judgements get on the credit record and pay attention just in case they win the Lotto. Reasonable people, and entities (with reasonable people in charge) with money, will generally pay to get it over with once judgement has been rendered, although I think the person who didn't bring the action if they were ruled against can take it back to court if they wish (some states anyway). 

Some people/entities, once they get to the court and realize this is serious, will settle prior to court. It just depends.

For this sort of thing with a larger company, it just would make more sense to file a class action.


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## Jimster (Feb 18, 2006)

*small claims*

Yes, the people on the People's court are paid by the producers.  Personally I assume that's the reason they put up with the abuse.  But you still don't see them counting their money.  I bet they have to wait for a paycheck like everyone else.

Maybe more  people are "reasonable" in your area Gadabout but I don't see too many losing parties reaching for their checkbook.  Once you get the judgement nothing happens that you don't make happen. The judgement may not even get entered if you are not persistent.  As an attorney, I like to go in to small claims court when I have dead time at the court house.  It's better than watching a circus. People just don't know what they are doing when it comes to this.  Many times defendants will simply not appear believing that if a judgement is rendered for a substantial amount that it can be vacated and a real trial occur at a later date.  According to a PBS special dealing with this internationally, the same is true almost everywhere there are these kinds of "People's Courts."

BTW Gadabout, you are right if you wish to contest the judgement within the proper timeframe of a small claims court, in most states you can simply procede to the next higher level.


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## Gadabout (Feb 18, 2006)

Jimster said:
			
		

> Maybe more  people are "reasonable" in your area Gadabout but I don't see too many losing parties reaching for their checkbook.  Once you get the judgement nothing happens that you don't make happen. The judgement may not even get entered if you are not persistent.  As an attorney, I like to go in to small claims court when I have dead time at the court house.  It's better than watching a circus. People just don't know what they are doing when it comes to this.  Many times defendants will simply not appear believing that if a judgement is rendered for a substantial amount that it can be vacated and a real trial occur at a later date.  According to a PBS special dealing with this internationally, the same is true almost everywhere there are these kinds of "People's Courts."



I don't think some defendents don't appear because they don't think it's a real court (especially if they are served by a Sheriff's deputy at their place of work), it's often because they're too busy trying to get out of town. With landlord/tenant stuff, I'm sure most landlords know they don't stand a really good chance of collecting anything when they go in, but they do go to court to keep someone else from getting stuck with a bad tenant in future.

Even the Nolo.com website says that most people/companies who are solvent will pay: 

http://www.nolo.com/article.cfm/Obj...B-B8AD-43EB-BE4B39DA5E65686B/104/308/191/ART/

I like the concept of small claims court, think it should be used more, and the limits adjusted for inflation, but I think part of the problem is that people don't know what they're supposed to do or how to behave. One would think that on the summons they could print "Go to the library and watch the "What Happens in Small Claims Court" video before you show up." They have such videos at our library. Maybe not check it out, but be able to watch it in a quiet room (like where they used to have the typewriters for people to use in the library).


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## JLB (Feb 18, 2006)

Or pick an AG who is already on your side.  For Missouri complaints,file here:

ag@ago.mo.gov




			
				kwilson said:
			
		

> O.K.,
> 
> File all complaints here...
> 
> ...


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## JLB (Feb 18, 2006)

On second thought, let's go with Judge Alex or Judge Joe Brown.

RCI can be the Ho and we all can be the Ho's boyfriend.


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## Jimster (Feb 19, 2006)

*Nolo*

Gadabout-Of course Nolo would say that most people will pay.  Their whole idea is legal self-help.  Don't get me wrong.  I like Nolo and I am in favor of self-help, but they may be a bit self serving here.  I'll still stand by what I said though and that is most people expect the payment and have no idea how to enforce a judgement.  Maybe they get paid and maybe they don't.  The ones that don't sure get surprised and frustrated.  The number in that category is substantial and it is unfortunate because people then blame the legal system.  Again, don't get me wrong.  I think that the rules necessary to enforce judgements are absolutely critical and must be followed to the letter.  We don't want people being unjustly deprived of their property.  The rules are there to insure that.  It's like when someone rich dies.  It's amazing how many relatives they had and didn't know about.  Again the rules are there to insure people are not unjustly deprived or enriched.  Personally, I like arbitration better for small cases.  There again, even arbitration has rules and a smart person can use the rules to their advantage.


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## Gadabout (Feb 19, 2006)

Jimster said:
			
		

> Gadabout-Of course Nolo would say that most people will pay.  Their whole idea is legal self-help.  Don't get me wrong.  I like Nolo and I am in favor of self-help, but they may be a bit self serving here.  I'll still stand by what I said though and that is most people expect the payment and have no idea how to enforce a judgement.  Maybe they get paid and maybe they don't.  The ones that don't sure get surprised and frustrated.  The number in that category is substantial and it is unfortunate because people then blame the legal system.  Again, don't get me wrong.  I think that the rules necessary to enforce judgements are absolutely critical and must be followed to the letter.  We don't want people being unjustly deprived of their property.  The rules are there to insure that.  It's like when someone rich dies.  It's amazing how many relatives they had and didn't know about.  Again the rules are there to insure people are not unjustly deprived or enriched.  Personally, I like arbitration better for small cases.  There again, even arbitration has rules and a smart person can use the rules to their advantage.



I understand what you're saying, but if people are surprised, then they're not doing their homework, and they would undoubtedly be just as surprised and frustrated if a lawyer told them the same thing (that they couldn't get any money). Small claims court is not rocket science, but it doesn't have to be a circus, either (like it seems to turn into more often than not on TV). 

But I still think in this particular issue it would be better to turn it into a class action, if possible.


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## Bootleg (Feb 19, 2006)

I have a better idea - Haul them up in front of Judge Judy - She'll sort 'em out!


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