Planet Hollywood TS [We are suing Westgate for breach of contract]

[MalibuMike]

Owned by Lantern. Hilton owns a piece of this foreclosed former planet Hollywood Tower, that was supposed to be towers by Westgate.

Property location is awesome. Top floors 50 and up fantastic.
After 5 years of Misery We are suing them:

Feb. 10, 2014, Las Vegas Nevada, 9am in Federal Court,
Fuoroli v. Westgate Planet Hollywood Las Vegas, LLC

Yes, we are suing Westgate on the above date for breach
of contract. You are all invited to attend. See one of the
many complaints listed below:

Presently before the court is plaintiffs', Michael C. Fuoroli and Tiffany S. Fuoroli, motion for partial summary judgment. (Doc. # 62). Defendants Westgate Planet Hollywood Las Vegas, LLC and Central Florida Investments, Inc. have filed an opposition (doc. # 66). Plaintiffs filed a reply. (Doc. # 68). In denying a partial summary judgment motion this court held that “[t]he facts of this contractual dispute are highly disputed.” (Doc. # 59). That is still true. On August 30, 2009, plaintiffs entered into a contract with defendant Westgate for the purchase of a timeshare condominium at Planet Hollywood located on the Las Vegas strip. (Doc. # 62, Ex. 1). The plaintiffs contend that one of the primary motivations for their purchase was to ensure a vacation destination during the New Year. As explained by the plaintiffs: “The right for the Fuorolis to enjoy New Year's Eve in Las Vegas, with a view of the events taking place on the Strip, on the highest four bedroom...

Moderator note : Edited title since this is about Planet Hollywood by westgate and not about the HGVC TS / Bill4728

 

[DeniseM]

I have moved your post to it's own thread and deleted the duplicates - no need to post the same info. multiple times.

Is it possible to post a little more of the complaint? - hard to know what the lawsuit is about.

 

[glypnirsgirl]

This reads like a novel - the introduction

As they gathered more information about the Westgate property, it became the
13 Fuoroli's dream to purchase a timeshare for their family (including their pet beagle, Holly) that
14 they could enjoy each and every New Year's Eve, while overlooking the famous Las Vegas Strip
15 with all its thousands of people and world class fireworks.
16 13. On or about August 28, 2009 the Fuoroli's traveled to Las Vegas from California to
17 see if they could turn their dream into a reality.
18 14. On August 30, 2009, Michael and Tiffany Fuoroli attended a sale seminar put on by
19 the Developer, the end of which they believed they would own their dream vacation getaway.
20 Unbeknownst to them, the couple was about to begin not a dream, but, rather, a nightmare of
21 misinformation, misrepresentations, and deceit that continues to this day.

 

[glypnirsgirl]

The promises

From the onset, everything about the sales experience was a chapter out of a bad
23 book.
24 16. On the floor, in front of the model for the Project was a large digital clock ticking
25 down the short days until the "Grand Opening Day".
26 17. With the clock ticking, Plaintiffs were reminded time and again that only a short
27 period of time remained for them to make their purchase if they wanted to ensure their use for
28 New Year's Eve in 2009.
4
Case 2:10-cv-02191-JCM-GWF Document 1 Filed 12/17/10 Page 5 of 20
1 18. When doubt crept into the conversation between Plaintiffs and Westgate's sales
2 staff, Plaintiffs were reminded of the myriad uses the property could be put. Plaintiffs, could rent it
3 out if they did not want to use it themselves; or Plaintiffs could rent part of it out and use the
4 remaining portion; and best of all, Plaintiffs were advised what a wise investment they were
5 making, one that was sure to increase in value.
6 19. If they could use it as a rental, Plaintiffs were concerned whether the timeshare
7 would have daily maid service for the guests. They were assured by staff that daily maid service
8 was included.
9 20. In fact, as Mike and Tiffany would only later discover, and only then after they had
10 signed the purchase agreement, the only maid service included with the purchase is only a once a
11 week cleaning.
12 21. As the negotiations continued, Mike and Tiffany wanted to be sure that their entire
13 family, including their pet beagle, Holly, would be welcome at their timeshare. They were assured
14 Westgate Planet Hollywood, LLC was a pet friendly environment.
15 22. In fact, and as Plaintiffs would only later discover, and only after slgnmg the
16 purchase agreement, Westgate Planet Hollywood, LLC does not welcome pets.
17 23. Because New Year's Eve is a unique event in Las Vegas, especially considering the
18 throngs of revelers and incredible fireworks displays over the Strip, the Fuoroli's sought to ensure
19 that their timeshare unit would be one that would have a Strip view and thus always be assured of
20 el1ioying those sights. Plaintiffs were assured by sales staff, and worksheet documents reveal, that
21 Plaintiffs were to be sold a fixed unit.
22 24. The right for the Fuoroli's to enjoy New Year's Eve in Las Vegas, with a view of the
23 events taking place on the Strip, on the highest four bedroom floor available was at the very heart
24 of the agreement the Fuoroli's desired to enter into with Westgate.

 

[glypnirsgirl]

Things begin to go awry

Contrary to Plaintiffs' intent to enter into a timeshare purchase contract for a fixed
26 unit, with a view of the Las Vegas Strip, on each and every New Year's Eve, Defendants, either
27 individually or in concert with one another, created and then substituted a contract the terms of
28 which neither a fixed unit, a view of the Las Vegas Strip, nor the right to reserve any unit on New
1 Year's Eve.
2 26. Because the contract drafted and presented by Defendants was materially different
3 than the terms upon which Plaintiffs and Defendants had agreed during the sales presentation,
4 there was no meeting of the minds as to the terms of the purchase contract signed by Plaintiff and
5 Defendants and, therefore, no contract was formed between Plaintiffs and Westgate.
6 27. During the sales presentation, Plaintiffs were encouraged repeatedly to purchase the
7 timeshare because of its potential as an investment property.
8 28. Supervisor, Denise Chen, illustrated numerous creative ways the Fuoroli's could
9 configure their four bedroom unit (which consisted of three separate and adjoining units) so as to
10 simultaneously occupy a portion while renting the remainder.
11 29. Defendants, acting either individually or in concert with one another, involved
12 Plaintiffs in an elaborate game of bait and switch: promise anything during the sales presentation
13 only to provide a contract with little to none of the agreed-to terms and conditions upon which
14 Plaintiffs' assent was given.
15 30. The deceit practiced by Defendants, individually and acting in concert with one
16 another, during and after the sales presentation has continued to rob Plaintiffs of their quiet use
17 and enjoyment of their property.
18 31. On August 30, 2009, Plaintiffs closed on what they believed was their dream family
19 getaway spot that would bring many years of enjoyment.
20 32. What Plaintiffs have "enjoyed", instead, has been nearly five hundred days of
21 misinformation, disinformation, buck-passing, stalling, rudeness, deceit, confusion,
22 misrepresentation, loss of income, loss of family time, loss of sleep, and emotional and physical
23 stress, each as a result of Defendants' unprofessional, unethical and deceptive practices.
24 33. Five days after closing, believing they had not gotten that for which they had
25 bargained, Tiffany contacted Paul Sciacca and inquired how long Plaintiffs had to cancel their
26 contract under Nevada State law. Mr. Sciacca informed Tiffany that Nevada had a three day
27 cooling off period for timeshare purchases, and, thus, her time to cancel was well past.
28 34. In fact, this was not the first time Tiffany had inquired of Mr. Sciacca as to the

1 cooling off period. During the closing, when asked how long they had to cancel their purchase,
2 Mr. Sciacca evaded the question and merely stated that if they were already thinking of cancelling
3 the contract, that they should not close the purchase.
4 3S. Nevada has a five (S) day cancelation period for timeshare purchases, meaning that
5 had the Fuoroli's been properly informed, they could easily have met the cut off period and
6 cancelled the contract if not for Mr. Sciacca's deceit and fraud.
7 36. Rather than the standard financing package available to other buyers (monthly
8 payments of $2,600 for 120 months at 19% interest, or, 100% cash-out in the first 120 days at 0%
9 interest) Plaintiffs were offered a financing package that was alleged to be designed specifically
10 for them: 24 months, at 0% interest if an additional 40% payment was made on the principal
11 within 90 days of close of escrow, bringing their total down payment to SO% (10% was paid at
12 close of escrow.)
13 37. Plaintiffs were promised by Denise Chen and by Mr. Sciacca, acting in concert with
14 one another, that Plaintiffs' financing package meant that after the SO% down payment was
15 completed, Plaintiffs would not have to make any further payments for twenty-four months.
16 38. The twenty-four month due date made such an impression on Tiffany that she made
17 the calendar entry of "Pay $77" for November IS, 2011 on her cellular phone.
18 39. As time progressed it became evident that neither Mr. Sciacca nor Ms. Chen actually
19 understood the payment plans as subsequent events reveal contradictions between what Mr.
20 Sciacca and Ms. Chen promised and what the Fuoroli's were ultimately required to pay.
21 40. Four weeks after closing Plaintiffs had not received the financing package which, at
22 closing, Paul Sciacca had promised would arrive within one week.
23 41. Upon due inquiry, Plaintiffs learned that, in fact, their payment was due immediately
24 and was accruing interest at 19%, not the 0% they had been promised, the 90 day waiting period
25 promised by Ms. Chen and Mr. Sciacca was in actuality, allegedly, only 30 days.
26 42. Upon further inquiry, in or about September 26, 2009, Plaintiffs were informed that
27 they could still secure the special financing if they would pay an additional sixty-two thousand
28 seven hundred and sixty ($62,760.00).

1 43. Plaintiffs authorized the withdrawal, and were told it would occur in two or three
2 days. In fact, the withdrawal took place within twelve (12) hours, subjecting Plaintiffs to possible
3 insufficient fund charges.
4 44. Since then, Plaintiffs have been required to make continuous monthly payments so
5 as to retain their "special financing", this despite promises to the contrary by Mr. Sciacca that no
6 installments would be required before the two year term.
7 45. By this time two months had passed and Plaintiffs were excited and looking forward
8 to staying at Westgate for the Grand Opening that was made so much of during the sales
9 presentation.
10 46. Once again, Plaintiffs were misled. At Grand Opening, Plaintiffs were not allowed
11 to stay at the Project but were accommodated instead at Flamingo Bay Hotel.
12 47. Upon further inquiry, the Fuoroli's learned that their plan to spend New Year's Eve,
13 2009, in their brand new timeshare, would likewise not be a reality; the property would not be
14 completed as promised.
15 48. Westgate's method of compensating the Fuoroli's was to "allow" them to bank the
16 week for future use, and for which the Fuoroli's would then be charged and additional fee of one
17 hundred and thirty five dollars ($135.00) to actually book the date!
18 49. After it was confirmed that Mike and Tiffany would not be allowed to enjoy their
19 purchase of New Year's Eve in 2009 because of the delayed opening, Tiffany immediately set
20 about confirming a reservation for the following New Year celebration

 

[glypnirsgirl]

the frustration

In a reservation statement dated January 12,2010, Westgate confirmed the Fuoroli's
22 reservation for the dates of December 24,2010 to December 31,2010, dates which meant that,
23 once again, the Mike and Tiffany Fuoroli would be denied the use and enjoyment of their dream
24 vacation unit during the biggest event of the year in Las Vegas: New Year's Eve.
25 51. Thinking there must be some kind of mistake, phone records reveal that Tiffany
26 made nearly thirty (30) phone calls in an attempt to clear up the obvious misunderstanding that her
27 purchase did not include New Year's Eve.
28 52. What was made clear to Tiffany by Westgate employees was that her purchase did
8
Case 2:10-cv-02191-JCM-GWF Document 1 Filed 12/17/10 Page 9 of 20
1 not and would not include the right to reserve her four bedroom timeshare unit for New Year's
2 Eve, irrespective of what she intended to have negotiated for.
3 53. Perplexed, but still wanting to enjoy the coming New Year with her family, Tiffany
4 attempted, on January 21, 2010, to use her banked week from 2009 to reserve the dates from
5 December 26, 2010 to January 2, 2011, thus affording her family the right to spend New Year's
6 Eve at the resort.
7 54. Tiffany was informed at that time that she was five days too early and would have to
8 call back no sooner than January 26, 2010 to make her reservations for December 26, 2010.
9 55. At that time, Tiffany attempted to confirm whether her four bedroom unit would be
10 available but was told there was no way Westgate could know that information.
11 56. As instructed, Tiffany called the Westgate reservation department on January 26,
12 20 I 0 and attempted to make her reservation.
13 57. Once again, Tiffany was informed that no reservation could be made. This time,
14 Tiffany was told that no reservation could be made before eleven months from the LAST DAY of
15 the intended reservation, meaning Tiffany would have to wait until February 2, 2010.
16 58. Once again, Tiffany sought to confirm whether or not her unit would be available,
17 she was unable to do so.
18 59. Two days later, on January 28, 2010, Tiffany called Westgate

 

[glypnirsgirl]

the unraveling

Two days later, on January 28, 2010, Tiffany called Westgate reservations and asked
19 to speak to a supervisor. She was told there were none.
20 60. On the appointed day of February 2, 2010, Tiffany was informed by "Maria" at
21 Westgate reservations that only reservations for 20 I 0 were being accepted.
22 61. On that same day, Tiffany was further informed that all deposit week (their banked
23 week) reservations must be made via the Planet Hollywood website, a policy, which, she was told,
24 had been in place for over a month.
25 62. Tiffany then attempted to make the reservation utilizing the site provided by Maria.
26 63. Finding the Planet Hollywood reservation website unable to handle her reservation,
27 Tiffany called Westgate reservations depart and, once again, spoke with Maria, who then informed
28 Tiffany that she could not make the reservation because it involved a date after 2010, i.e., Tiffany
9
Case 2:10-cv-02191-JCM-GWF Document 1 Filed 12/17/10 Page 10 of 20
1 could not make a reservation because she was trying to book New Year's Eve and a date
2 subsequent, which was past 2010.
3 64. Tiffany was then instructed to call back in March.
4 65. After, once again, being told there was no supervisor with whom to speak, Tiffany
5 ended the phone call.
6 66. A short time later, Tiffany called Westgate reservations once again, and asked for a
7 supervisor. She was transferred to Ingrid Rivera.
8 67. Ms. Rivera informed Tiffany that she had been misled III regards to all the
9 information she had been given over the last weeks regarding reservations.
10 68. Ms. Rivera informed Tiffany that had she booked a reservation utilizing the Planet
11 Hollywood website provided by Maria, that Plaintiff would have been placed at a different resort
12 (Flamingo Bay Hotel), and not Planet Hollywood.
13 69. Confused and exhausted from the continual run-around they had been experiencing
14 since purchasing their timeshare, Plaintiffs drove from California to Las Vegas, and on or about
15 March 29, 2010, met in person with Toby Williams, a senior deed closing officer at Westgate.
16 70. During the course of the meeting between Toby Williams and Plaintiffs, Mr.
17 Williams acknowledged, and later verified via email, that Plaintiffs had, indeed, purchased the
18 right to occupy their timeshare on N ew Year's Eve, each and every year.
19 71. Toby Williams informed Plaintiffs that New Year's Eve was referred to by Westgate
20 as "New Year's Eve Event Week." Mr. Williams further acknowledged that when it came to
21 major holidays like New Year's Eve, people purchased events, not dates.
22 72. Mr. Williams further informed Plaintiffs that theirs was not the only such scenario
23 he had handled, and that he would correct their documentation.
24 73. Plaintiffs received two subsequent emails from Toby Williams indicating he was
25 working on and nearly finished resolving their problem, but in fact, Mr. Williams never
26 accomplished anything on behalf of the Fuoroli' s.
27 74. On March 22, 2010, Plaintiffs wrote a letter to and seeking the assistance of David
28 Siegel, CEO for Westgate.


1 75. On or about April 23, 2010, Plaintiffs received an email from Janet Javier at
2 Westgate corporate office, indicating that she had been assigned as liaison to resolve Plaintiffs'
3 complaints.
4 76. In her email of April 23rd
, Ms. Javier confirmed, inter alia, that Plaintiffs had,
5 indeed, purchased the New Year's Eve event week for each year, and, further, that Plaintiffs were
6 guaranteed their use of the week until Plaintiffs chose to forego that use in any given year.
7 77. Ultimately, the Fuoroli's have yet to enjoy a single New Year's Eve celebration in
8 their very expensive timeshare, and, a check of availability for New Year's Eve 2011 reveals that
9 trend will continue as their unit cannot be reserved for that event under the Purchase Agreement as
10 written.
en 11 78. Simultaneously with the foregoing events, Westgate initiated a renumbering of its
12 property allegedly requiring Plaintiffs to sign a new deed reflecting the newly assigned unit
13 numbers. Plaintiffs repeatedly refused to sign the proposed deed based on Westgate's refusal
15 to answer repeated requests regarding whether the new unit numbers would change the actual units
16 Plaintiffs understood they had purchased. Of particular concern to Plaintiffs, was whether they
17 would retain their Strip view unit for which they had contracted and retain the highest possible
18 floor.
19 80. During this same time, Plaintiffs were repeatedly harassed to pay home owners
20 association fees and taxes, expenses for which they had been assured they would not be liable until
21 they could occupy their unit. Repeated requests by Plaintiffs for clarification and for Defendants to
22 cease this harassment went unaddressed.
23 81. In regards to home owner association fees, Plaintiffs were further misled by
24 Westgate representatives that home owner association fees would only decline over time as more
25 units were sold.
26 82. In 2009 homeowner association fees for Plaintiffs timeshare were assessed at
27 $999.00; for 2011, homeowner association fees for Plaintiffs timeshare were assessed at
28 $1800.00, nearly double the 2009 assessment.

1 83. Plaintiffs have exercised admirable patience in attempting to resolve their issues
2 with Westgate.
3 84. For its part Defendants have responded to Plaintiffs' numerous complaints and
4 requests for clarification with the same indifference and lack of attention to detail that has
5 epitomized the entire transaction between the parties.
6 85. Because the Fuoroli's were assured by sales personnel for Westgate that the
7 Fuoroli's were purchasing the right to reserve and use a four bedroom timeshare unit with a view
8 of and facing the Las Vegas Strip, each and every New Year's Eve as Plaintiffs saw fit, when, in
9 fact, all of the foregoing variables were true, and in fact, had the possibility of never being true,
10 Plaintiffs and Defendants did not have a meeting of the minds at the time they entered into the
11 timeshare purchase and sale agreement, and, therefore, the purchase and sale agreement is voidable.

 

[glypnirsgirl]

Mr. Fuoroli - you have an excellent attorney. His pleadings are riveting and expressive of the frustration you must feel.

Good luck on your trial.

elaine

 

[Dc3drivr]

Suit

Yes, the best of luck! Hope you take them to the cleaners.

 

[DeniseM]

Elara [We are suing Westgate for breach of contract]

To the person who reported this post, this resort is now managed by Hilton.

To the OP - the level of criminal deception in you situation is appalling - go get'em!


Sent from my iPhone using Tapatalk

 

[Fern Modena]

I'll be the devil's advocate here...did these people actually READ the contract they signed? I mean before four or five years had passed?

I know they were promised the world, verbally, but this is (evidentally) not what they had contractually signed.

I believe that they didn't even scan the contract, but instead relied on verbal contact with people. When they decided they wanted to rescind, they called somebody, who they now say/know deceived/lied to them. Their contract, by law, would state what the legal recission period would be and the manner in which it needed to be done. Had they at least scanned the contract they signed in the first three or four days they would have been able to rescind in a timely manner and the contract would have been cancelled, and their money refunded. That's the law.

Good luck with your lawsuit. You are going to need it. Next time, don't trust in verbal assurances.

Fern Modena

 

[jackio]

Good luck to you; I hope it is resolved in your favor.

 

[TUGBrian]

wish you the best of luck.

would also like to know if the items promised were anywhere in the contract.

I am curious to see the outcome of this, as it would be a great example for folks who were lied to in a presentation to see!

 

[Passepartout]

It appears Mike's attorney has his ducks in a row. We wish them every success. It's high time someone spanks Westgate's hinder for the misleadings, lies and damned lies they tell, to get people to buy with no intention to give them what they promise.

I hope the judge gives them attorney's fees and punitive damages as well.

Go get 'em!

Jim

 

[presley]

It's really long and I won't read the whole thing. It looks like the couple bought a timeshare to use for NYE every year and their purchase agreement shows that they can book their unit every year. In fact, the week is held for them and unless the call to give it up, it is theirs. Meanwhile, they have never been able to stay in their unit for NYE because it is always full.

Is that correct? If so, I hope they get a LOT of punitive damages. How many years worth of vacations have already been ruined?

 

[ricoba]

It's really long and I won't read the whole thing. It looks like the couple bought a timeshare to use for NYE every year and their purchase agreement shows that they can book their unit every year. In fact, the week is held for them and unless the call to give it up, it is theirs. Meanwhile, they have never been able to stay in their unit for NYE because it is always full.

Is that correct? If so, I hope they get a LOT of punitive damages. How many years worth of vacations have already been ruined?

+1, it's too long and I am too lazy, can someone give me the Readers Digest version!

 

[pedro47]

Good luck to you and your attorney.

 

[gnorth16]

+1, it's too long and I am too lazy, can someone give me the Readers Digest version!

It's riveting and I couldn't put it down. There will be a book deal and movie to follow...Tom Hanks is rumored to be cast in the lead role!!!

 

[CO skier]

The plaintiffs have my sympathies. They deserve the timeshare that they purchased.

Salespeople exaggerate and lie, and Westgate has been down this road many times before.

The story would play well for a jury trial. If the lawsuit is heard only before a judge, then it is not about who is "right" and who is "wrong"; it is about who has the law on their side.

The following excerpts from the summary judgment order http://ia601203.us.archive.org/17/items/gov.uscourts.nvd.78311/gov.uscourts.nvd.78311.69.0.pdf do not sound encouraging:

"Additionally, the court notes that this is a partial summary judgment, and response in opposition, regarding a contractual dispute. In the argument sections of the brief, neither party even makes an argument to the court regarding the language of the contract. Worse still, the exhibits attaching the disputed contract are illegible. This is in addition to the rest of the exhibits not being properly authenticated under Orr v. Bank of America, 285 F.3d 764 (9th Cir. 2002)."


"Defendant Westgate argues that Ms. Chen was not an authorized agent to contract on behalf of Westgate. Ms. Chen admitted as much in her deposition. (Doc. # 66, Ex. E at 50-57). Additionally, Ms. Chen was not present during the closing and signing of the contract. (Id.). Finally, Ms. Chen's supervisor, Victor Curry, appears to have approved the contract and there is no deposition testimony or any evidence regarding his actions or statements at the closing. Defendant Westgate also points out that Tiffany Fuoroli admitted in her deposition that the strip facing aspect was subject to availability. (Doc. # 66, Ex. A at 126-127 & Ex. B).

The court agrees with defendant Westgate that plaintiffs have failed to show a breach of contract. There are many disputed, material facts--an essential one being if the contract guaranteed a strip facing condo. Additionally, there is no evidence that Ms. Chen was an authorized agent of Westgate. Cf. Mueller v. Payroll Solutions, Inc., 2012 WL 1911871, at *1 (Nev. 2012) ("Under agency law, an agent must have actual authority, express or implied, or apparent authority to bind the principal."). The plaintiffs have not met their burden of establishing that defendant Westgate breached the contract as a matter of law."


"Defendant Westgate does not even respond to the plaintiffs' arguments for a breach of good faith and fair dealing. In any event, their arguments on the breach of contract claim cover the breach of good faith and fair dealing claim. Defendant Westgate agrees that plaintiffs are entitled to a four bedroom condo on New Year's Eve. The amendment by defendant even corrected a scheduling/computer quirk that eventually could have led to scheduling issues on New Year's Eve before Planet Hollywood was even open for its first New Year's Eve. The material facts are disputed, and the undisputed facts cannot show that defendant breached the duty of good faith and fair dealing by performing in a manner unfaithful to the purpose of the contract. Plaintiffs have not shown as a matter of law that defendant Westgate breached the covenant of good faith and fair dealing."



My concern is that the plaintiffs are being taken twice, first by Westgate, then by an attorney looking for billable hours.

 

[csxjohn]

It's really not that long of a read and as I read it I feel so bad for the thousands of people out there who go through similar situations.

Ron Parise always says in these kinds of posts that for there to be a valid contact there must be a meeting of the minds as to what you are buying.

The OPs attorney apparently feels the same way and I wish him and his clients he best of luck.

I actually thought that as I was reading this and got to the part where they drove to Vegas and had a face to face someone was going to the hospital and someone to jail. I'm glad that didn't happen.

I thought this summed up everything I've heard and read about Westgate.

"What Plaintiffs have "enjoyed", instead, has been nearly five hundred days of
21 misinformation, disinformation, buck-passing, stalling, rudeness, deceit, confusion,
22 misrepresentation, loss of income, loss of family time, loss of sleep, and emotional and physical
23 stress, each as a result of Defendants' unprofessional, unethical and deceptive practices."

 

[heathpack]

The plaintiffs have my sympathies. They deserve the timeshare that they purchased.

Salespeople exaggerate and lie, and Westgate has been down this road many times before.

The story would play well for a jury trial. If the lawsuit is heard only before a judge, then it is not about who is "right" and who is "wrong"; it is about who has the law on their side.

The following excerpts from the summary judgment order http://ia601203.us.archive.org/17/items/gov.uscourts.nvd.78311/gov.uscourts.nvd.78311.69.0.pdf do not sound encouraging:

"Additionally, the court notes that this is a partial summary judgment, and response in opposition, regarding a contractual dispute. In the argument sections of the brief, neither party even makes an argument to the court regarding the language of the contract. Worse still, the exhibits attaching the disputed contract are illegible. This is in addition to the rest of the exhibits not being properly authenticated under Orr v. Bank of America, 285 F.3d 764 (9th Cir. 2002)."


"Defendant Westgate argues that Ms. Chen was not an authorized agent to contract on behalf of Westgate. Ms. Chen admitted as much in her deposition. (Doc. # 66, Ex. E at 50-57). Additionally, Ms. Chen was not present during the closing and signing of the contract. (Id.). Finally, Ms. Chen's supervisor, Victor Curry, appears to have approved the contract and there is no deposition testimony or any evidence regarding his actions or statements at the closing. Defendant Westgate also points out that Tiffany Fuoroli admitted in her deposition that the strip facing aspect was subject to availability. (Doc. # 66, Ex. A at 126-127 & Ex. B).

The court agrees with defendant Westgate that plaintiffs have failed to show a breach of contract. There are many disputed, material facts--an essential one being if the contract guaranteed a strip facing condo. Additionally, there is no evidence that Ms. Chen was an authorized agent of Westgate. Cf. Mueller v. Payroll Solutions, Inc., 2012 WL 1911871, at *1 (Nev. 2012) ("Under agency law, an agent must have actual authority, express or implied, or apparent authority to bind the principal."). The plaintiffs have not met their burden of establishing that defendant Westgate breached the contract as a matter of law."


"Defendant Westgate does not even respond to the plaintiffs' arguments for a breach of good faith and fair dealing. In any event, their arguments on the breach of contract claim cover the breach of good faith and fair dealing claim. Defendant Westgate agrees that plaintiffs are entitled to a four bedroom condo on New Year's Eve. The amendment by defendant even corrected a scheduling/computer quirk that eventually could have led to scheduling issues on New Year's Eve before Planet Hollywood was even open for its first New Year's Eve. The material facts are disputed, and the undisputed facts cannot show that defendant breached the duty of good faith and fair dealing by performing in a manner unfaithful to the purpose of the contract. Plaintiffs have not shown as a matter of law that defendant Westgate breached the covenant of good faith and fair dealing."



My concern is that the plaintiffs are being taken twice, first by Westgate, then by an attorney looking for billable hours.

Aw, that's too bad.

H

 

[DeniseM]

A gentle request - please don't keep reporting this post - it does not violate the TUG posting rules, and when you use the "report problem post function," an email get sent out to EVERYONE who works for TUG.

 

[linsj]

This is the wrong forum. The Westgate units don't belong to Hilton. Even though Hilton bought a lot of units on this property, some still belong to Westgate and its management.

 

[DeniseM]

Timeshares are almost never "owned" by the management company, but isn't all of the resort now "managed" by Hilton?

 

[SmithOp]

I don't think Hilton manages all of the units Denise, don't the original Westgate units still trade through Interval?

I don't mind it being here, lord knows the orphan Westgate owners need somewhere to post, I appreciate you cleaning up the subject to indicate Westgate is the one being sued.


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