# Wyndam/Pahio KEK exercised ROFR



## talkamotta (Mar 14, 2008)

I bought a 2 bedroom every year at KEK for $1850 before Christmas. I was informed today that Wyndam is exercising thier ROFR.  I asked for the orignal deed/closing contract/CC&R's  anything that gives them that right.  I would like to see that "right" in writing.  I also said that I dont think they have that right if the unit was orignally purchased before June 2005.  Wyndam can not just add it.   

The original closing company American Timeshare Closing Company refers all thier Hawaii closing to Charity Closing so I sent emails to both.  I dont know if they will even respond to my emails?????   I bought this through Ebay and IA Vacations (maybe a postcard company?).  I havent had a very good response when I have emailed them before so Im sure they wont help either. I definitely wont buy through them ever again (even if this closed).    

I already own at Pahio KEK an eoy 2 bedroom and cant see any mention of ROFR in my paperwork.  Thought it would be nice to be able to spend 2 weeks every other year or invite more people.  It makes me mad now because they had my money for 3 months but if it doesnt work out, I'll get over it.  After they downgraded the rating it might not be a bad thing.  I will be looking for Hawaii but with eoy at KEK, ey at SOK, a timeshare on the Big Island (Kona Coast) might be better for me.  Wyndam just makes me angry.


----------



## teepeeca (Mar 14, 2008)

If this was a phase II timeshare, they have NO ROFR !!! It is was a phase III, "probably" the DO NOT have a ROFR. (I think all phase III units  (from the developer) were sold prior to mid-2005, so NO ROFR exists. !!!

Immediately contact the closing company, and tell them that the ROFR is
 "erroneous/bogus", AND, that you want them to continue with the closing and disregard "any" ROFR, unless the Pahio can "prove" that they have that right.

Tell the closing company that they "are working" for YOU, and that you expect them to do a "proper" closing.  (Hint---LAWSUIT @ the closing company !!!)

Tony


----------



## tombo (Mar 14, 2008)

I sold a Pahio KBV recently, and the buyer (who is also an owner at Pahio KBV) said that I had to give the resort the right to buy it at his price from what he understood of ROFR. Thanks to TUG I knew that wasn't true. I would have received the same money on the sale either way, but my buyer set the price and deserved to own the week. If Pahio had offered to buy my week for a good price before I had a buyer, I would feel different.

I told the closing company that Pahio said they had ROFR but that they didn't on contracts entered into before the early 2000's. I faxed them my deed and showed that the original contract was set in 1984 even though the week had sold several times. I told the closing company to call Pahio, tell them that they didn't have the right to ROFR on this contract from 1984 per the owner. Pahio e-mailed them back today and said that they didn't have ROFR on this week and to go ahead with the sale.

The closing company was surprised, and I was told that I knocked weeks to months off of the closing time thanks to no ROFR. The lady at the closing company said she thought I was mistaken when I said to inform them that they had no right to ROFR, but when she challenged Pahio they folded immediatelly. This happened in March 2008, so Pahio is only bluffing when they claim to have ROFR and they currently know they can't enforce their bogus ROFR.

Thanks to TUG, we can stop Pahio from using a false ROFR to steal weeks from us and our buyers. If I am not mistaken it was Cindy who told me that the ROFR was bogus. Anyway my buyer and myself thank TUG.


----------



## rickandcindy23 (Mar 14, 2008)

talkamotta, they don't have ROFR on KEK, and I would be angry, too.  

Jack of jacknsara gave me really good info when we battled ROFR on a 3 bedroom unit at Bali Hai that was originally purchased by the seller in December of 2004.  I never saw the seller's original contract, but I found out from the resale company that the owners purchased it before the magical date of July of 2005.

I would doubt the seller of your week would have ROFR in the contract.  3 bedrooms are some of the newest additions to PAHIO resorts.  

You should fight it, and you should make sure the closing company looks after YOUR interests, otherwise you have suffered damages because PAHIO is doing this and the closing comany is going along with it.  

Where are the TUG lawyers?  We need one!


----------



## tombo (Mar 14, 2008)

Cindy, myself and my customer thank you. I sold 2 weeks previously that Pahio ROFR'd, and you told me that I shouldn't have let them bluff me because they actually didn't have ROFR. This time I got the closing company to call their bluff and Pahio folded. I typed someone's name other than yours in my previous post to thank, and I have corrected my mistake. Thanks again and keep spreading the word, Tom


----------



## talkamotta (Mar 15, 2008)

Thanks for all your replies.  This is the email I sent to the closing company.  Thanks for the wording.

Hi Tracie and Lisa:

You are the closing company that should be representing me, not Wyndam.  That is your responsibility. ROFR on any property that was purchased prior to June 2005 is   "erroneous/bogus", AND, I  want you to continue with the closing and disregard "any" ROFR, unless Wyndam/ Pahio can "prove" that they have that right.

  If I have to get a lawyer to represent us, I will.  

Thanks 
LouAnn


----------



## rickandcindy23 (Mar 15, 2008)

LouAnn,

Email Lori Nishimoto at PAHIO.  Call PAHIO's main number first and ask for her direct line so you can leave a message.  

1.  You will need to write a letter saying how much you want to own at the resort.  Send a copy of the letter via email to Lori (faxing it is no guarantee), and then copy the letter to the closing company.

2.  Be sure the closing company doesn't make more money from the sale by casually mentioning your purchase price, not the total price with closing costs and transfer fees.  This way, the closing company isn't going to get by with getting the fees (including the resort's transfer fee of $250) without doing any of the work.

3.  Follow up often, until Lori gets tired of hearing from you.   

The nagging step is really necessary because our last purchase took months, from March of 2007 through December, when it finally closed!  This was a frustrating wait for us because David Walters took over 2 months to change his mind about ROFR.  It was ridiculous!  

It bugs me that Timeshare Transfer was going to allow PAHIO to take the week back originally. :annoyed:  I think a transfer company ought to be watching out for the client, not the big business developer, and I was very disappointed that TT kept saying that PAHIO does have ROFR, when I knew they don't.   

I wonder if any closing companies will go to bat for the person paying, without allowing this hassle.


----------



## talkamotta (Mar 15, 2008)

These are the two replies I have received this morning: 


I'm afraid all Pahio properties have Right of First Refusal and the developer has decided to exercise that right,  your file is not the only one we have had them exercise on in the last few weeks, their have been about close to 20 0thers. I will be more than happy to fax you a copy on Monday if you will provide me with a fax number so you may read it for yourself if you would like? 
Best regards,

Lisa

This email was sent after I used the harsher language in my earlier post:

Yes Charity Group is handling the transfer and our company is holding escrow we submitted the ROFR on the property like we were supposed to, but maam we cannot proceed with closing because they have chosen to exercise their Right on this property, if we attempted to proceed it will be rejected with the recoder, land court, the resort cannot own the property and you as well, that for one would not be clear title nor would it be legal I'm afraid, I cannot just disregard the Right of First refusal and their choice to exercise, I am sorry and in regards to representation we do not "represent" the buyer of the seller that would be a conflict of interest we just facilitate. If you have any questions please feel free to contact our office or you can contact Stacy at IA Vacations, and I am truly sorry they have exercised on the property.

With kindest regards,

Lisa 

I will want a copy of the ROFR.


----------



## jacknsara (Mar 15, 2008)

rickandcindy23 said:


> ...  It bugs me that Timeshare Transfer was going to allow PAHIO to take the week back originally. :annoyed:  I think a transfer company ought to be watching out for the client, not the big business developer, and I was very disappointed that TT kept saying that PAHIO does have ROFR, when I knew they don't. ...


Aloha Cindy,
Tia at timeshare transfer was very helpful in our first rofr clash two years ago.  
http://www.tugbbs.com/forums/showthread.php?t=20294
Who did you deal with?
Jack


----------



## talkamotta (Mar 15, 2008)

*this is the latest communication with title company*

This is the latest communication with the title company.  Im trying to keep you informed of the steps so this might help others.  As timeshares in Hawaii get cheaper, it might be possible that other developers will jump on this bandwagon.  There are pluses and minuses with ROFR but they favor the developers so much more than the buyers/sellers that its not right.  So we will see how far this goes.  


From: LOU ANN  Sent: Saturday, March 15, 2008 4:22pm
To: lisa@americantimeshareclosing.com
Subject: Re: Carlson - Pahio Ka Eo Kai


Lisa:

Thanks,  I will email the number you can fax the copies of the ROFR  on Monday.  I am a current owner   in Phase III of KEK and I have checked all my papers and there is no mention of ROFR anywhere.  I wanted this unit so I could either spend an additional week or have 2 units at the same time for additional family members. It will be interesting to see where this is written.  I bought my unit for only 2 years ago there was no mention of any ROFR and it was as good as buy as this is.  Of course, Pahio not Wyndam owned it at that time.  

Thanks 
LouAnn 



Ms. Carlson,

Great I will fax that asap! And actually this is something we've seen more here lately than ever before, Pahio was actually one of the easier ones we have dealt with, most Hawaii properties exercise on their properties anyway, but Pahio we never had a whole lot of problems with, but in the last few weeks we have submitted close to 20 and they have exercised every single one and I do mean every single last one, it's been very discouraging and to be honest were losing money, but the developer has decided to exercise on these, I've heard they are building/updating the property, I'm not sure. If their is something you can do to get them to waive it let me know and get me the waiver, but I'm afraid until then I have to proceed as is. Get the fax number Monday and I will afx it over ASAP! If you have any questions please don't hesitate to contact me, again I will be working all weekend and will be in the office a little late on Monday, probably around 11, so if you need to reach me by phone try around 11.

Thanks

Lisa


----------



## rickandcindy23 (Mar 15, 2008)

jacknsara said:


> Aloha Cindy,
> Tia at timeshare transfer was very helpful in our first rofr clash two years ago.
> http://www.tugbbs.com/forums/showthread.php?t=20294
> Who did you deal with?
> Jack



It was Joyce, but I am really not going to complain about her TOO much because I was very insistent about PAHIO's not having ROFR, and I think I gave her a bit of a headache.  :rofl:

I would definitely use Joyce again.

LouAnn, she is going to fax you PAHIO's letter, which is no proof.  You need to take action and write a letter to Lori Nishimoto, or you need to write to David Walters through his assistant Marjorie.  I posted threads below that outline what BMWGuy wrote, which is a great example of a good letter.  

No one on TUG has EVER been denied the ability to purchase a PAHIO week.  Time to fight the fight and win that battle.


----------



## rickandcindy23 (Mar 15, 2008)

*Another thread*

http://www.tugbbs.com/forums/showthread.php?t=61774

http://www.tugbbs.com/forums/showthread.php?t=66341

Another one..... there are others.


----------



## DaveNV (Mar 15, 2008)

As the buyer in some of the above-mentioned threads, I strongly encourage you to challenge PAHIO/Wyndham's claim of ROFR on any purchases you're trying to make.  It worked for me, and all I had to do was ask them to prove they truly had ROFR.  They didn't, and immediately backed off.

Like so many things in life, silence equals acceptance.  Don't sit there and complain that you got taken advantage of.  Make them prove they truly have ROFR.  If they don't, there is no reason why you shouldn't be allowed to buy the interval.

I think their attitude toward the escrow companies is strong enough, that the escrow companies just ASSUME the ROFR is for real.  And since few people put up a fuss, they get what they want.  So it's "ROFR by intimidation."  Informing your escrow company is important, perhaps it should be done at the outset of the deal, so they'll know how to proceed if/when PAHIO/Wyndham says they're exercising ROFR on the deal.

Good luck with all of this.  I'll be curious to see how it works out.

Dave


----------



## talkamotta (Mar 18, 2008)

*Update On Rofr*

Sent out the email (referred to in earlier post) to both closing companies.  

The first closing company talked to her personally. She was very sweet when I talked to her and she tried to give me some names to call/email from Pahio.  She said that they had 20 Wyndam properties right now and they were all getting the ROFR.   She sent me an Updated Estoppel which said they had the right.  Emailed her back and said I needed something other than that, updated estoppel didnt count wanted original contract.  

Came home from work feeling a little down, thought how far was I going to fight with this?

The other closing company that was actually doing the paperwork sent me the following emails in reply to my email: 

My email:
You are the closing company that should be representing me, not Wyndam.  That is your responsibility. ROFR on any property that was purchased prior to June 2005 is   "erroneous/bogus", AND, I  want you to continue with the closing and disregard "any" ROFR, unless Wyndam/ Pahio can "prove" that they have that right.


1st reply:I will look into this and let you know.

2nd reply:Good morning,

I don't have the seller's original contract when they purchased.  But, I'm
looking into this.  I will let you know.

Thank you, 

3rd reply:
LouAnn,

I have requested documentation from the Resort to establish their ROFR on
this unit.

I will notify you once I hear from them.  

4th reply:
LouAnn, 

Good news!  I just got a letter retracting the ROFR.  I'm so glad you notified me.  

So, I will be notifying ==== at =======Closing of this and we will proceed as normal. 

I will be sending out the Deed for recording.   I will email you once the Deed has been recorded.  At that time, I will send to the resort for them to make the transfer.
*************************************

Good for me     Thanks to all of you for your support. 

I hope this helps others.  I know that there are a few other Pahio timeshares that are popping up on ebay.  One does have the ROFR (Shearwater) in the listing but the others dont.  One didnt have any bids and the Shearwater went for $600.  

I got my week for a good price.  MF's are high as alot of Hawaii MF's are. Buying low is an offset of these mfs.  My thoughts are that I would rather have all units sold. I dont care what they originally paid for the week but I want the owners to be people that will love them and pay thier mfs. My credit rating is too valuable to risk it on a timeshare.  So my 2 mfs will be paid, on time, every year.  If someone is willing to sell thier unit at a fraction of the original price its because they cant afford the mfs, bad health, age, loss of income, whatever, I dont think the ding on thier credit is a high priority.  Who will pay it, who pays if Wyndam own it, it will be other owners.  One way or another.    

Thanks again for all your help.   AAAAGGGGGAAAAIIIIIINNNNN


----------



## ragtop (Mar 18, 2008)

A different take on this:  I have heard of someone who didn't want his Pahio week any longer and tried to surrender it to Pahio.  But noooo, Pahio wouldn't take it back.  So he then put a bona fide deal together with a third party and submitted that to Pahio for ROFR.  Snap!  Pahio took it back and paid him this time.


----------



## DaveNV (Mar 19, 2008)

talkamotta said:


> Good for me     Thanks to all of you for your support.
> 
> I hope this helps others.
> 
> Thanks again for all your help.   AAAAGGGGGAAAAIIIIIINNNNN




Congratulations, LouAnn!  I knew they'd fold when you forced the issue.  They did the smae thing with my purchase.  More buyers need to force things, so PAHIO will back off.  But if people DON'T stand up, PAHIO exercises non-existent ROFR, and buyers lose the properties they really want to own.

Enjoy your vacation.  You've earned it!

Dave


----------



## rickandcindy23 (Mar 19, 2008)

Congratulations, LouAnn.


----------



## SDKath (Mar 19, 2008)

This is a great thread!  Thank you for posting this for everyone to see.  It just shows us how much misinformation is out there.

Interesting that the closing CO is saying they are "losing money" on the ROFR.  To the seller, exercising the ROFR should be transparent to their profits.  Someone will pay them no matter what -- so why would they be losing money.

But that's just an aside.  I am glad it worked out!  Gotta LOVE TUG!  Katherine


----------



## talkamotta (Apr 17, 2008)

*Challenge Rofr Challenge Rofr Challenge Rofr*

I thought I would bring this up to the top.  

I want to give everyone the confidence to challenge ROFR's by Wyndam.  Everyone was so wonderful to me and I want to "Pay it Forward".


----------



## talkamotta (May 12, 2008)

It took almost 6 months, but my timeshare finally closed.  

Thanks to all of you.....


----------



## lprstn (May 12, 2008)

*Whahoo! There is hope!*

Mine is still going through the process...2 months down...4 months to go...


----------



## Tia (May 13, 2008)

BMWguynw said:


> .... But if people DON'T stand up, PAHIO exercises non-existent ROFR, and buyers lose the properties they really want to own.
> .....Dave




This is _sooooo_ dishonest on the part of Wyndham :annoyed:  and it is being done purposely as it only backs down when asked to prove it has the right it is claiming.


----------



## Carol C (May 13, 2008)

ROFR at Wyndham...never encountered it! But it took me forever to close too...bought both via Holiday and via ebay seller. I think my avg closing time was 4 months. How about others? How long to close and who was your reseller?


----------



## rickandcindy23 (May 13, 2008)

Carol, it is PAHIO and David Walters, the developer, that is exercising ROFR.  Wyndham doesn't approve of the process Walters puts buyers through, according to the salespeople at the resort.  He insists on keeping control of the resort, but if anyone pushed it with the Hawaii Real Estate Commission, Walters would stop.


----------



## rifleman69 (May 13, 2008)

It's not actually David doing it, but his brother.   I imagine they're having a tough time selling anything over there right now.


----------



## aliikai2 (May 13, 2008)

*Here is the letter we are using,*

you need to write a letter to Lori Nishimoto challenging there right to exercise a non existent right of first refusal .

Her email is  lnishimoto@pahiodevelopment.com

Dear Lori,

We were informed that you told xxx at Timeshare Transfer Inc that you had a Right of first refusal on all Pahio at Ka'Eo Kai weeks. 

We have agreed to purchase these 2 weeks for our own use and enjoyment as we have traded into Pahio at Ka'Eo Kai several times and wish to own our weeks in Phase III from mr/ms xxxx which they purchased in 1991 and 1993, *after looking over all the deeds and sales contracts I can't find anywhere where you have any right of first refusal, *

Please show us exactly where in the POS documentation, any other legally binding documentation and/or deed restrictions dated in 1990 or 1993, filed with the State and given to the original owner ( which were given to Mrxxxx and now in our possession)  has a provision for ROFR. 
*
If you cannot do so you have no claim to such right.*

*Further more, looking at Hawaii law hrs_pvl_514e statute  514-E9 regarding the disclosure statement, you could be held accountable for interfering in the transfer of real property. *

Please send a waiver of ROFR to me and a copy to  timesharetransfer.com
asap. 

Sincerely,


----------



## will565 (May 13, 2008)

*Nothing new*

This same thing happened to me with Pahio KEK 3 years ago, I eventually ended up with the unit, but it was close. We had already owned a unit at KEK (bought in 1992) when they issued the ROFR my wife looked at our old contact and didn't see any ROFR clause, We found out that the sellers had purchased their unit at the same time we did, this led us to challenge the ROFR and they backed out. It bothered me then and still does, I can't see how this can be legal. 
Bill


----------



## timeos2 (May 13, 2008)

aliikai2 said:


> you need to write a letter to Lori Nishimoto challenging there right to exercise a non existent right of first refusal .



I never tire of reading the demand so these shysters don't get away with interfering with owners rights to sell.  Thanks for posting it again.  All owners have to be proactive against these types of interference.


----------



## talkamotta (May 13, 2008)

Im glad it has been clarified who is exercising the artificial ROFR.  When I bought my eoy 2 years ago, no problem, went through in less than 3 months. This closing was a mess.  Paid all my fees 3 days after bid closed in December.  American Timeshare Closing  had the paperwork until March and then referred it to Charity closings. It was actually the girl at Charity that fought for me on the ROFR. ATC was ready to roll over. 

The ebay power seller, Redweeks4less, didnt do anything, just referred me to ATC.  Guess they make thier money no matter what.


----------



## taffy19 (May 13, 2008)

BMWguynw said:


> As the buyer in some of the above-mentioned threads, I strongly encourage you to challenge PAHIO/Wyndham's claim of ROFR on any purchases you're trying to make.  *It worked for me, and all I had to do was ask them to prove they truly had ROFR.  They didn't, and immediately backed off.
> *
> Like so many things in life, silence equals acceptance.  Don't sit there and complain that you got taken advantage of.  Make them prove they truly have ROFR.  If they don't, there is no reason why you shouldn't be allowed to buy the interval.
> 
> ...


I cannot believe how corrupt some of the developers are.  They charge too much the first time around and then they try to steal it away a second time around to make another big profit on a new sale again while they bluff the buyer and seller with an ROFR clause that isn't even in the contract and most people won't challenge them as they have no clue.   

To me, this is a darn good sign that the market may be turning around sooner than we expect as the big developers, most likely, are better informed than the general public is.  I have a feeling that RE prices may be hitting the bottom soon in HI because so many other people want to visit and/or own a little piece of HI besides US Citizens.  This should help timeshares too.  JMHO.  The State of HI cannot let the tourist industry go down the drain so will do anything to keep people coming back.


----------



## aliikai2 (May 14, 2008)

*It does pay to challenge*

Dear Mr. and Mrs. xxxx:



Please be advised that the Right of First Refusal does not apply to the xxxxx's two units purchased in 1991 and 1993.  Thank you!
 


Lori C. Nishimoto

PAHIO Development, Inc.

3970 Wyllie Road
Princeville, HI 96722

Phone:  (808) 826-8164

Fax:  (808) 826-6715

Email:  lnishimoto@pahiodevelopment.com


----------

