[2008] Southcape Resort

[Carolinian]

If you have to go to court, do not forget that almost all states have consumer protection statutes under which you can recover your attorney fees and TREBLE DAMAGES. In North Carolina that applies if the court determines that a business act has been ''unfair or deceptive''. I would look into using such statutes, and whether Outfield and Festiva can be brought in as defendants.

Keep in mind that this case had to go to the NC Supreme Court. So you need to have the resources to fight the battle.

So a simple answer is that they think that the issue is grey enough that they can out lawyer the owners. And these guys know exactly how timeshare associations operate, and that the playing field is slanted in their direction. They are reasonably sure they can extract their investment before this issue would impact them from a legal standpoint.

And as much as I wish it said explicitly that the developer has to pay m/f, it does not say that. Just like the NC law, a court would have to interpret that from the statue. So it is not cut and dry.

Also is it possible that Festiva is providing the loan?

 

[Sou13]

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[CJT]

Hey fellow Southcape owners,
My family has owned a unit for several years. We found this discussion board about 3 months ago after being contacted by Outfield Marketing (we typed "Southfield Scam" into the search area, and this board popped up immediately). Since we live about 7 hours away, we aren't able to come to the meetings, but we've checked the discussion several times to see what's been happening and to see if our thoughts mesh with some of the other owners.
For the record, when Outfield contacted us, they told us they wanted to schedule a meeting to discuss all of the wonderful changes that would occur with the new owners, and to update our account. We agreed, scheduled the meeting. The weekend before, we had a message on our machine reminding us that we both needed to be present, and we needed to be mindful that the salesman was coming from quite a distance. I lost my sweet disposition, called them back, and reminded them that they were the ones insisting on the meeting, not me. I then inquired about the salesman, since I had no idea previously that this was a sales call. I got a little more info, then told them that since they were deceptive in scheduling the appointment, they were not welcome in my home!
I heard nothing further from them until today, when the phone rang and caller id showed it was Outfield. The woman (Amanda) stated that she was calling from Southcape, and since our week was coming up, she wanted to confirm if we were using it and also to update our information since they have a new computer system. I inquired who she worked for, and she said that she was calling for Southcape. I said, but who do you work for, approximately 5 times, and not once did she identify herself as being from Outfield. She wiggled around it, saying that the owner of her company owned Southcape and Sandcastle. I asked if Southcape was paying her salary, and she again wiggled, saying that they have the same owner. I gave her a good deal of questioning, but you know the saying about pinning jello to the wall. Eventually she confirmed that we were coming on our scheduled week, and started to hang up. I stopped her and reminded her that she never asked anything to update my records as her initial statement had implied. She said oh, inquired if my address was still current, I said yes, then asked her (rather sarcastically I admit) if there was anything else. She asked my zipcode and I ended the call.
The long and short of my narrative is that there is no way on God's green earth we are going to give Festiva the privilege of owning our timeshare. I promise to give them a hassle each and every time they contact us!
Thank you to everyone who has been so involved on behalf of all of the owners. We will be checking in regularly to see how things stand and if there is anything we can do. I'll tell you this...there better look like $1.1 million in improvements when we are there!

 

[ecwinch]

Everyone that has received a similar call should click the CAC link provided, and report the occurrence. Be concise, without rhetoric.
Something like:

I am an timeshare owner at Southcape Resort, a timeshare located in Cape Cod, Mass. I have been an owner since xxxx.

On xxx date, I was contacted by telephone by XXXX of Outfield Marketing who said they were an agent of Southcape Resort. They asked to meet with me in my home to discuss changes that have occurred at the resort, and to update our account with Southcape. No mention was made of receiving a timeshare presentation.

However the meeting was nothing more than a timeshare presentation on the Festiva Adventure Club, a timeshare program. In the course of the presentation, the xxx specifically made statements about Southcape that I have since learned are untrue. These inaccurate statements were made in attempt to induce me to surrender my deed at the Southcape Resort in exchange for membership in the Festiva Adventure Club.

Who can I contact to prevent Outfield Marketing from using these deceptive practices to schedule in-home timeshare presentations?

JMO

 

[Sou13]

Welcome, CJT!

I'll tell you this...there better look like $1.1 million in improvements when we are there!

After spending the Memorial Day weekend in unit 8 and noting that the desk telephone has not been replaced and there is no wireless internet access, I notified rcassidy@southcaperesort.com that due to the fact that less than 1/2 of the scheduled improvements have been made, and that renovations to units 1-24 are unnecessary at this time, I am withholding the second 1/2 of the special assessment. I attached the 2009 budget, special assessment breakdown, and trustees' meeting report as evidence that I am aware of where my $1,000 is supposed to be going.

I received a reply from NEVMSLLC advising me that I will be unable to use my week until payment has been made. It was from a new email account and contained this warning:

"Attention: The information contained in this E-mail message is privileged and confidential information intended only for the use of the individual(s) named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please contact the sender by reply E-mail and destroy all copies of the original message. Thank you"

Since I won't be using the remaining four days of my week until Thanksgiving, I see no need to be paying interest on funds that are being collected in anticipation of making these scheduled renovations! However, the renovations to units 1-24 are an unnecessary burden at this time and we need to speak out against this frivolous assessment. Just because the previous manager didn't have good taste in picking furniture and drapes, we should not be told that these units have to be redone, especially if it means that we will be unable to use the units we have reserved!

Furthermore, we did not request to be added to the Festiva Family of Resorts and did not give Outfield Marketing permission to contact us. And why did NEVS take out a $2.5 million mortgage when the sale price was $1.2 million?

We need consumer protection and we need it now!

 

[Fig]

And why did NEVS take out a $2.5 million mortgage when the sale price was $1.2 million?

Maybe 'cause it included Sandcastle units too? Just wondering who they paid the money to...Barth and Woods and some folks at Sandcastle? How I wish Festiva was public, then we could look at their financial statements. Just wondering how a company that sells points is doing in this economy when deeds on redweeks are selling for a fraction the cost of Festivas points program.

 

[Fig]

Festiva and Southcape

What is interesting is if you look up Outfield Marketing and Festiva Resorts in Massachusetts Sec of Commonwealth's office, Festiva recently regiestered to develop and sell timeshare in MA, Outfield did not...and yet Outfield is doing the selling. Outfield a third party or part of Festiva? Click the link and type in the names to get documents.

http://corp.sec.state.ma.us/corp/corpsearch/corpsearchinput.asp

 

[Sou13]

Can anyone view this declaration of trust?

There is a 91-page "Declaration of Trust" on file at https://72.8.52.132/ALIS/WW400R.HTM...&W9CTLN=00213&WSKYCD=B&W9IMID=B08269AA.AB4#go which I am unable to view. Is there anyone viewing this discussion who is able to view this document? This might be the "confidential" agreement to which NEVMSLLC was referring in
http://www.tugbbs.com/forums/showthread.php?t=84127&page=10

According to the Barnstable Patriot the $1.2 million was for all the assets included in the developers' rights to Sandcastle and Southcape:

Town:
MASHPEE 950
Address:
FALMOUTH RD
Price:
$1,200,000
Seller:
BARTH, VINCENT J; WOODS, ROBERT P; SOUTHCAPE TRUST; ACQUISITIONS INC; SOUTHCAPE RESORT & CLUB COMMUITY ASSOCIATION INC; JEC PROPERTIES INC; SAND CASTLE NOMINEE TRUST; ROYAL COACHMAN CONDOMINUM TRUS, T; SAND CASTLE CONDOMINIUM TRUST
Buyer:
NEW ENGLAND VACATION SERVICES, LLC
Date:
2008-09-04 00:00:00

What troubles me most about this transaction, and what I'm suggesting may warrant an AG investigation, is that the Southcape Resort & Club Community Association, Inc. is included as one of the sellers. There are currently nearly 1000 non MF-paying weeks, of which NEVS owns 550+ and the remaining weeks should be owned by us deeded weeks owners, not NEVS. There are more than 50 weeks on record that were deeded back to the association in 1992, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, and 2008. It's hard for me to come up with the exact count, but did NEVS acquire these weeks and if so, why?

 

[Sou13]

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Now that I've downloaded the page it looks as though this isn't the route to take after all!

Everyone that has received a similar call should click the CAC link provided, and report the occurrence. Be concise, without rhetoric.
Something like:

I am an timeshare owner at Southcape Resort, a timeshare located in Cape Cod, Mass. I have been an owner since xxxx.

On xxx date, I was contacted by telephone by XXXX of Outfield Marketing who said they were an agent of Southcape Resort. They asked to meet with me in my home to discuss changes that have occurred at the resort, and to update our account with Southcape. No mention was made of receiving a timeshare presentation.

However the meeting was nothing more than a timeshare presentation on the Festiva Adventure Club, a timeshare program. In the course of the presentation, the xxx specifically made statements about Southcape that I have since learned are untrue. These inaccurate statements were made in attempt to induce me to surrender my deed at the Southcape Resort in exchange for membership in the Festiva Adventure Club.

Who can I contact to prevent Outfield Marketing from using these deceptive practices to schedule in-home timeshare presentations?

JMO

 

[ecwinch]

File the Complaint with the Mass AG

Given the nature of the problem, and the fact that most people reporting here would not be able to claim damages (since they did not buy FAC), I would agree that the local mediation services provided by CAC would not be my first choice.

I would do the following:

Make a complaint to NEVS by e-mail, phone, mail, or fax. The form would be similar to what I outlined, but with a request that they stop contacting owners under false pretenses and that they fully disclose that the owner will be receiving a timeshare presentation.

Then I would file a complaint with the Mass AG. Here is the link:

Mass AG Consumer Complaint Information.

Mass AG Consumer Complaint Form

It is a fillable Adobe PDF document that can be filed on line. It has a section where it asks what outcome you want. I would put something like what you suggested NEVS stop doing.

 

[Sou13]

Office of the Attorney General

MARTHA COAKLEY

ATTORNEY GENERAL

April 16, 2009 - For immediate release:

Attorney General Martha Coakley Obtains Temporary Restraining Order Against Former Owner of Cape Cod Time-Share Who Allegedly Scammed Consumer Out of Millions

BOSTON – Attorney General Martha Coakley’s Office has obtained a temporary restraining order against Robert Reposa, the former owner of the Navigator Beach Club (Navigator) and LSC Associates (LSC), the time-share’s developer and managing entity, who collected over $1.5 million from consumers in exchange for time-share intervals at the Navigator which were never made available for use. In a lawsuit filed yesterday in Suffolk Superior Court, the Attorney General’s Office allegesthat the defendants’ conduct violated the Massachusetts Consumer Protection Act and the Massachusetts Real Estate Time-Share Act in connection with the construction and development of the Navigator as well as the marketing and sale of the time-share intervals. The temporary restraining order prohibits Reposa and LSC from collecting monies from consumers for any time-share intervals in Massachusetts.
“The defendants in this case took well over $1 million in deposits from consumers for Navigator time-share intervals, yet failed to ever complete construction on the time-share resort or even record the time-share licenses,” said Attorney General Martha Coakley. “Time-share developers cannot mislead consumers by making sales pitches that promise what they cannot deliver in order toobtain hard-earned money from consumers.”

According to the complaint, from 2005 through 2008, Reposa and LSC targeted and deceived over 100 consumers, including dozens of senior citizens, in connection with the sale of time-share intervals for the Navigator, a time-share resort located in Dennisport. The defendants gave consumers false assurances that the resort was financially sound and would be completed by 2007. The defendants took significant payments from consumers for time-share weeks, but never recorded the individual time-share licenses, or completed the construction on the project beyond installation of some rough plumbing and electricity in Navigator’s pre-existing buildings. As part of their sales strategy, Reposa and LSC also falsely represented that the Navigator would be part of a time-share exchange network, which would allow consumers to exchange their time-share week at the Navigator for a week at a different resort, but evidence suggests that any membership the Navigator had in an established time-share network was quickly revoked.

According to the complaint, prices for the time-shares ranged from $10,900 up to $54,900. By at least as early as the summer of 2006, however, Reposa and LSC allegedly knew that the Navigator was experiencing financial problems and that construction would not be completed by its target date. In an effort to quickly acquire as much cash as possible from consumers, the defendants allegedly induced consumers into paying off their entire remaining balances by offering an “early payment” discount.

The complaint further alleges that Reposa and LSC violated the Massachusetts Real Estate Time-Share Act by failing to record consumers’ time-share licenses with either the Barnstable County Registry of Deeds or the Barnstable County Registry District of the Land Court, thereby leaving no record of consumers’ time-share interval ownership.

Under the temporary restraining order issued April 15, 2009, by Judge Christopher Muse, the defendants are prohibited from forming a business to manage or develop a time-share resort in Massachusetts, destroying records that relate to their personal and business finances and disposing of any of their assets. As part of this lawsuit, the Attorney General’s Office is seeking restitution, penalties and costs, including attorney’s fees from the defendants. A hearing for a preliminary injunction is scheduled for Tuesday, April 21, 2009 at 2:00 p.m. in Suffolk Superior Court.

This matter was handled by Assistant Attorney General Shannon Choy-Seymour and Paralegal Lois Martin of Attorney General Coakley’s Consumer Protection Division with assistance from Dean Bates of Attorney General Coakley’s Investigations Division.

 

[Sou13]

AG Urges Consumers to Beware of Time-Share Re-Sellers

MARTHA COAKLEY

ATTORNEY GENERAL

May 06, 2009 - For immediate release:

CONSUMER ADVISORY: AG Urges Consumers to Beware of Time-Share Re-Sellers

BOSTON- Today, Attorney General Martha Coakley’s Office urged consumers to beware of individuals making unsolicited offers to them to re-sell their time-share. Recently, the Attorney General’s Office has received many complaints about this practice, particularly about re-sellers who offer to sell or buy a consumer’s time-share as long as the consumer pays them some upfront fee to cover the transaction costs. The Attorney General’s Office advises consumers to be aware of each of the following red flags which may indicate you have encountered a time-share resale scam:

• You receive an unsolicited telephone call or other unsolicited contact, offering to sell or buy your time-share;
• The “re-seller” claims that it has a buyer for your time-share, even though you may not have listed it for sale;
• The re-seller claims that an offer received for your time-share is more than your asking price if you have listed the property;
• The re-seller claims that it has a special relationship with your time-share company;
• The re-seller represents that you must pay for a resale closing in advance, or pay taxes in advance, or other fees such as a “listing” or “appraisal” fee;
• The re-seller states that it can trade your property for another;
• The re-seller requests your bank account or credit card information;
• The re-seller expresses a need to complete the sales transaction quickly.
• The re-seller offers to pay you for your time-share, but tells you that when you receive the check, you will need to send back a portion to a third party. Be aware that the check or other payment may be fraudulent, and if the check bounces, your bank will look to you for repayment.

If you receive an unsolicited offer to re-sell your time-share, you should ask the following questions;

• Who is the re-seller?
• Is he or she a licensed real estate broker in his or her state; does he or she need to be?
• Does the broker or real estate company have any complaints on file with the Attorney General’s Office, Better Business Bureau or the state licensing board for real estate brokers?
• If the re-seller has claimed to have a “special relationship” with your time-share company, does the management company know them?

Remember, that “if it sounds too good to be true, it probably is.” If there are other units for sale at your time-share, you should question why a potential buyer would pay a high price for yours. You should never give your bank account or credit card information to someone who has contacted you unsolicited, even if they tell you they just want to “verify” your information. Ask for materials and documents evidencing any transaction in writing, and review them with a trusted advisor. And, finally, do not send money or your deed to anyone without knowing who you are dealing with — you may never get them back.

If you believe you have encountered one of these scams, contact the Attorney General’s Public Inquiry & Assistance Center Hotline at 617-727-8400. You can also file a complaint online at www.mass.gov/ago/consumer_complaint.

 

[Betty]

Should We Contact the AG?

Hello Everyone,

We have been owners at Southcape Resort for five years. We have been following this discussion with much interest, because we are very concerned that our ownership at this resort is in jeopardy.

We would like to file a complaint with the AG in the hope that an investigation would be started into what is happening at Southcape (and Sandcastle, too, since they are in a similar boat). However, I don't know how to go about it, because we don't have an actual complaint against Festiva, since we never actually spoke with anyone about the Festiva AC other than the initial telephone call we received late last fall from a young woman, who I assume was representing Outfield Marketing, although I can't remember how she introduced herself.

She said she was calling to set up a meeting in our home with someone who would call on us to tell us about all the great changes that were taking place at Southcape and what wonderful things were in store for us as owners. My husband recognized better than I that it sounded too much like a marketing ploy, so we refused to make an appointment. To say the young lady was incredulous that we weren't taking advantage of this wonderful opportunity is an understatement. Unlike many others, we were never contacted again. Even when we visited the resort in March, no one approached us. Guess we're just lucky.

While at the resort, I met with Rosaleen Cassidy and requested a copy of the owners' list. She told me she'd been told (by Cliff Hagberg I believe) that she couldn't provide that to owners as it was confidential in order to protect the owners' privacy. Does anyone know if federal privacy laws take precedent in this situation over the Mass. GLs that clearly state that I should have been able to get a copy? I guess Outfield Marketing was entitled to the list, because they have a 75% ownership at the resort. How else would they have access to everyone's phone numbers?

My dilemma is what would our actual complaint to the AG be other than to make a request for an investigation into what is happening at the resort based on what we have heard others say about being coerced, pressured and downright lied to to convince them to give up their deeds for membership in the Festiva Adventure Club without them perhaps fully understanding that from that point on they would no longer have any say in what happens at the Southcape Resort, because they would no longer be owners there. And to boot, it was going to cost them over $3000 to do that.

Perhaps we could complain that we feel the special assessment may be illegal, because it was arbitrarily set by people who were never elected by all the owners to make such decisions; that the new owners, New England Vacation Services, LLC, have taken over the role of developer and as such say they do not have to pay maintenance fees and special assessments. What gives them developer's rights? I thought the resort was fully developed already and that they were just the owners of the unsold inventory. Why does that make them different from other owners except that they own way more weeks than the rest of us? Shouldn't they have to pay MFs and SAs like all owners do? What automatically makes them the only members of the board that makes all decisions for the rest of us without the rest of us having any representation?

We're not complaining about the need for the special assessment per se, or even the additional money that was requested to start a reserve fund, which every well run resort needs. It's the way it came about and the manner in which it was requested that bothers us. That, and the fact that NEVSLLC feels they are exempt from paying these fees, is what bothers us and seems totally wrong and possibly illegal. We can't help but feel that, even though we know the resort needed the repairs that have been made thus far to keep it from deteriorating further, these updates will not only help NEVSLLC sell their unsold inventory and make a profit at no additional cost to them, but that it was done on the backs of the other owners who have solely born the brunt of these expenses. Cliff will argue that all owners benefit in the long run from a well run resort that is in great physical and fiscal shape, but who has the most to gain here? Me thinks it is NEVSLLC, especially since they can do as they please with no representation on the Board of Directors by other owners at the resort. The by-laws clearly state that we should have representation. How do we go about getting it when we can't even get a list of our fellow owners?

So again I ask, should we even bother to contact the AG? And if so, what points should we make, so they will hopefully begin an investigation into the unscrupulous things that are happening at both Southcape and Sandcastles?

Has anyone out there contacted the AG, and if so, what was their response if any?

Thanks for listening. There are so many other things to mention that I really don't even know if I've touched on the most important ones. Please share your thoughts and ideas. We will be eternally grateful since we don't know where to begin.

Al & Betty

 

[JackB62]

Contact the AG!

Al & Betty,

I'm glad to see new participants in this board. We of like mind should keep in touch and do everything we can to stop what's going on at Southcape.

Martha Coakly is the Mass. AG. Please write her. The more letters she gets, the more interested she'll become. You will get a response of some sort.

I agree w/ you on your issues: interval owners are not represented on the Board; the new "management company" gets away with no maintenance fees or special assessments; by raising fees to a breaking point, more owners may walk away and then NEVS will own it all for virtually no investment.

I don't like pirates stealing from me. Let's not tolerate this!

 

[CIC3]

Board Elections

Hello everyone,

Does anyone else recall that as timeshare owners we did elect members to the Southcape board at one time? This was probably back in the 1980s. I recall receiving a letter from them in which we had to check off the names to elect members to the board to represent us. Then at some point, we no longer received the election letter.

When we write the Mass AG, I'm wondering if we should point out the requirements in the Master Deed that the new management company is not following, in addition to the unscrupulous sales practices that might have caused some owners to switch to points because they were scared into thinking that, financially, that was their only option to avoid higher maintenance fees and special assessments. At the very least, it could give these owners who did switch the opportunity to rethink their decision once they know all the facts.

In terms of Outfield Marketing, we experienced the same situation as others here in the group. Except that my wife called them back to confirm that it wasn't a sales call and we were assured it wasn't. So we met with the Outfield Marketing representative and the first thing the gentlemen asked is whether we had received any contact from timeshare resellers? He showed us some direct sales pieces and we told him we hadn't. Then he proceeded to explain that they were scams and actually showed us names of people on a printout of who were scammed and the amount they paid to be scammed. He then went on to tell us about how our maintenance fees for the 2 weeks we own are going to skyrocket because of the poor condition of Southcape and the need for a new sewage system. He told us that Southcape is being switched to points and if we took his deal that day, we would receive more points than those who come on board later, our maintenance fee would decrease because it’s being divided by all the owners under all the Festiva Resorts, and we wouldn't need to worry about paying a special assessment, because it would come from the money in the operating fund of all Festiva Resorts. However, we had to pay $3,300 to switch to points. In looking at the Festiva Resorts timeshare book, I found that with the points we would be given, we would only be able to take 1 week vacation during the red demand time, rather than the 2 weeks we currently exchange and receive red weeks for. So the deal was definitely not to our benefit. In short, we would actually be paying $3,300 to give up one week of vacation.

We are going to Southcape the week of July 4, and I plan to check into why we no longer elect people to the board and to request a tour of the upgrades that were outlined in the maintenance fee and special assessment letters to be sure they were completed. If anyone would like me to check on anything else or ask any additional questions, let me know.

We are also working on our letter to the Mass AG!

We’ll let you know how we make out at Southcape and when we hear from the AG office.

Joe, Ginny and Mimi

 

[Sou13]

Where are all the happy Festiva converts?.

Welcome, CIC3, and thank you for your post and willingness to help!

I've been searching for "happy" Festiva converts and haven't found one yet. The only happy FAC member I've found is happy because he got a special deal, didn't have to give up a deeded week, and got bonus points as part of a special deal. He has stayed at only one Festiva resort and has done all his trades through I.I. which means he has to pay to belong to I.I. after the first year, and has to pay an exchange fee for every exchange. But because he got bonus points, he was able to get good exchanges. No wonder he's happy!

But he didn't give up or own a deeded week at Southcape. For tales from unhappy Southcape converts, go to Festiva takes over resort ( 1 2 3 4 5 ... Last Page) where I'm sharing their experiences.

 

[ChrisH]

I am trying, by reading the MGL, UGHHH! to find out what constitutes the Association as described in the NEVS, OM, and Festiva papers and if it even applies to weeks owners who are not affiliated with Festiva.

I am THINKING (bad idea) - that all their F***ing rules apply to FESTIVA ADVENTURE CLUB MEMBERS, and if you are a WEEKS OWNER and NOT a POINTS MEMBER, then the rules that apply to US (weeks member) would be different??? because we have our own timeshare agreements, filed waaayyyyy back when

and the Points Members are the only ones that fall under the Festiva, NEVS agreements because we are not members of that group.

Still reading, still searching. Don't understand how they can apply Association Rules to us, because we are not members of their Association but are the greedy, "I will not give up my deed to you no matter what" members.

Anybody got any thoughts on this?

ChrisH (Sandcastle)

 

[Sou13]

Complain to the AG!

From what I'm reading about complaints in other states, it takes a lot of complaining to get any action.

Here's what happened in Missouri:

An Equivest/Peppertree owner received the information from the Missouri Attorney General in the mail. Here is a recap:


State of Missouri v Festiva Resorts, LLC / A Nevada Limited Liability Company.

The first few pages include the Introduction; Parties; Venue; Jurisdiction; etc., and the complaint was raised under that State's Merchandising Practices Act.

The report goes to identify the specifics of that Act which were violated.

Specifically,

a, It was considered that Festiva falsely promised consumers that Defendant would sell consumers' currently owned time share at a different resort to induce consumers to purchase a time share from Defendant;

b, Misrepresenting to consumers that Defendant would sell consumers' currently owned time share at a different resort to induce consumers to purchase a time share from Defendant;

c, Falsely promising consumers that if they purchased a time share from Defendant, Defendant would assist consumers in renting the purchased time share at the Cabins at Green Mountain thus inducing consumers to purchase a time share from Defendant;

d, Misrepresenting to consumers that if they purchased a time share from Defendant, Defendant would assist consumers in renting the purchased time share at the Cabins at Green Mountain thus inducing consumers to purchase a time share from Defendant;

e, Falsely promising consumers that Defendant would "take back" consumers time share at Cabins at Green Mountain if consumers were not satisfied to induce consumers to purchase time share from Defendant;

f. Misrepresenting that Defendant would "take back" consumers time share at Cabins at Green Mountain if consumers were not satisfied to induce consumers to purchase time share from Defendant;

g, Giving consumers the false impression that if they purchased a time share from Defendant they could easily book condominiums in desirable locations at desirable rates when same was not true.

h, Misrepresenting the ability and ease with which consumers would be able to obtain various travel services after purchasing a time share from Defendant;

i, Misrepresenting the prices or terms at which consumers would be able to obtain travel services after purchasing a time share from Defendant;

j, Engaging in the unfair practice of failing to give the consumers adequate time to examine the material and documents related to the time share prior to the consumers purchase of the time share;

k, Employing the unfair practice of imposing an extremely short time limit on consumers' purchasing decisions, such as requiring a decision before the consumer left the sales presentation, thereby creating an artificial sense of urgency. When coupled with Defendants' high pressure tactics, this practice has the effect of causing consumers to be likely to make a hasty decision on a major purchase;

In conclusion, As a direct result of Defendant's Merchandising Practices Act violations consumers have sustained in excess of $200,000.00 in damages in out of pocket losses which Defendant Festiva Resorts, LLC has converted to its own use and benefit, and, if not enjoined will convert funds of other victims in Missouri and nationwide using the same forbidden merchandising practices. Defendant's actions also taint the reputation of the Branson area and damage to reputable time share vendors in the Branson ares.

So there you have it. The representatives of Festiva promised the sun, the moon and the stars and told every kind of lie they could think of at the time to make a sale.

This entire document is about 25 pages long.

 

[Sou13]

Chapter 183b. Real Estate Time-shares

CHAPTER 183B. REAL ESTATE TIME-SHARES


Chapter 183B: Section 53. Exchange programs; information; promotional literature; liability


Section 53. (a) If a purchaser may participate in any exchange program, the developer, agent of a developer or person in the business of selling real estate for his own account shall, except as provided in subsection (b), deliver to the purchaser at the time of delivery of the public offering statement required by section thirty-seven, written information regarding said exchange program and the purchaser shall certify in writing to the receipt thereof. Said information shall include the following:

(1) the name and address of the exchange company;

(2) the names of all officers, directors, and shareholders owning five per cent or more of the outstanding stock of the exchange company;

(3) a statement indicating whether the exchange company or any of its officers or directors has any legal or beneficial interest in any developer or managing entity for any time-share plan participating in the exchange program and, if so, the name and location of the time-share property and the nature of the interest;

(4) unless the exchange company is also the developer or an affiliate of a developer, a statement that the purchaser’s contract with the exchange company is a contract separate and distinct from the contract of sale;

(5) a statement indicating whether the purchaser’s participation in the exchange program is dependent upon the continued affiliation of the time-share plan with the exchange program and the readmission fees, dues and other charges which shall be required to be paid by the purchaser if he initially becomes a member of the exchange program, allows the membership to lapse and then seeks reinstatement or readmission;

(6) a statement indicating whether the purchaser’s membership or participation in the exchange program is voluntary or mandatory;

(7) a complete and accurate description of the terms and conditions of the purchaser’s contractual relationship with the exchange company and the procedure by which changes thereto may be made;

(8) a complete and accurate description of the procedure to qualify for and effectuate exchanges;

(9) a complete and accurate description in boldface type of all restrictions, limitations or priorities employed in the operation of the exchange program and the manner of application thereof, including, without limitation, any restrictions, limitations or priorities based on seasonality, unit size, or levels of occupancy;

(10) a statement indicating whether exchanges are arranged on a space-available basis and whether any guarantees of specific requests for exchanges are made by the exchange program, and if so, the nature thereof;

(11) a complete and accurate description of the circumstances, if any, in which a time-share owner may lose the use and occupancy of his time-share in any properly applied for exchange without being provided with substitute accommodations by the exchange company;

(12) the fees for participation by time-share owners in the exchange program, a statement whether any such fees may be altered by the exchange company, and the circumstances under which alterations may be made;

(13) the name and location of each time-share property, accommodation or facility participating in the exchange program;

(14) the number of units in each property which qualify for participation in the exchange program and which are available for occupancy expressed within the following numerical groupings: 1-5; 6-10; 11-20; 21-50; and 51 and over;

(15) with respect to each time-share plan or other property the number of owners who are eligible to participate in the exchange program expressed within the following numerical groupings: 1-100; 101-249; 250-499; 500-999; and 1,000 and over; and the criteria used to determine current eligibility to participate in the exchange program;

(16) the disposition made by the exchange company of time-shares deposited by eligible owners with the exchange program and not used by the exchange company in effecting exchanges;

(17) a statement indicating the following information, which, except as provided in subsection (b), shall be independently audited by a certified public accountant or accounting firm and reported for each year no later than July first, of the succeeding year:

(i) the number of the time-share owners enrolled in the exchange program, the number of said owners who are fee paying and the number of said owners who are enrolled gratuitously;

(ii) the number of time-share properties, accommodations or facilities eligible to participate in the exchange program categorized by those having a contractual relationship between the developer or the association and the exchange company and those having a contractual relationship between the exchange company and time-share owners directly;

(iii) the percentage of confirmed exchanges, which shall be the number of exchanges confirmed by the exchange company divided by the number of exchanges properly applied for, together with a complete and accurate statement of the criteria used to determine whether an exchange request was properly applied for. An exchange shall be confirmed when an eligible time-share owner applies for and receives the right to occupy an exchanged time-share for a time period during the year reported;

(iv) the number of exchanges confirmed by the exchange company during the year;

(v) the number of time-shares for which the exchange company has an outstanding obligation to provide an exchange to a time-share owner who relinquished a time-share during the year in exchange for a time-share in any future year;

(18) a statement in boldface type that the percentage described in subclause (iii) of clause (17) of subsection (a) does not indicate a purchaser’s or owner’s probabilities of being confirmed to any specific choice, as availability at individual locations may vary.

(b) The information required by subsection (a) shall be accurate as of a date which is not more than thirty days prior to the date on which the information is delivered to the purchaser, except that the information required by clauses (2), (3), (13), (14), (15) and (17) of subsection (a) shall be accurate as of December thirty-first of the preceding year if the information is delivered between July first and December thirty-first of any year; information delivered between January first and June thirtieth of any year shall be accurate as of December thirty-first of the year prior to the preceding year. All references in this section to the word “year” shall mean calendar year.

(c) In the event an exchange company offers an exchange program directly to the purchaser or time-share owner, the exchange company shall deliver to each purchaser or time-share owner, prior to such offering or the execution of any contract between the purchaser or time-share owner and said company the information set forth in subsection (a). This section shall not apply to the renewal of any contract between the purchaser or time-share owner and the exchange company offering the exchange program.

(d) Each exchange company offering an exchange program to purchasers in the commonwealth shall include the statement set forth in paragraph (18) of subsection (a) on all promotional brochures, pamphlets, advertisements or other materials which contain the percentage of confirmed exchanges described in subclause (iii) of clause (17) of subsection (a) and which are disseminated by the exchange company.

(e) No developer shall have any liability arising out of the use, delivery or publication by the developer of written or printed information or audio-visual materials provided to it by the exchange company pursuant to this section. Except as otherwise provided in this subsection, no exchange company shall have any liability with respect to (i) any representation made by the developer relating to the exchange program or exchange company, or (ii) the use, delivery or publication by the developer of any information relating to the exchange program or exchange company. An exchange company shall be liable for written or printed information or audio-visual materials provided to the developer or to a purchaser or time-share owner by the exchange company. The failure of the exchange company to comply with the provisions of this section, or the use by it of any unfair or deceptive act or practice in connection with the operation of the exchange program, shall constitute a violation of this chapter.

 

[Sou13]

AG action in Missouri

Under state law, timeshares are defined as merchandise and fall within the guidelines of Missouri's Merchandising Practices Act, Chapter 407, Missouri Revised Statutes.

Use of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or concealment of fact by a person in connection with the sale of timeshares is subject to civil and criminal penalties that may be brought by the Attorney General.

Major provisions of a state law protecting buyers are:

• A five-day right of recision. If a consumer signs a contract to buy a timeshare and then changes his mind, he has five days to cancel. The cancellation must be in writing, and cancellation is effective when the letter is postmarked. According to state law, the seller must give the buyer an 18-point, boldface printed notice of the right to cancel at the time of purchase.

• Follow through on promotional offers. The name of the business entity and all timeshare operations involved in the promotion must be included in promotional literature. This material also must contain the deadline by which all prizes are to be awarded, the odds of winning each prize and the manufacturer' s suggested retail price for each prize.

• Delivery of promised gifts. When the seller uses free offers or other promotions when soliciting, the seller must deliver any promised gifts or an acceptable substitute gift or cash in an amount equal to the retail value of the gift offered within 10 days of when promised. The seller also must make available to the public a list of names and addresses of all winners. If the seller fails to provide the buyer with a promised gift, the buyer can sue.

• Explanation of timeshare exchange plans. Exchange plans usually involve trading a vacation at one timeshare facility for a vacation in another location. Limitations, restrictions or priorities regarding exchange programs must be outlined for the buyer. For example, the timeshare operator must tell a buyer if a Lake of the Ozarks vacation can be exchanged for an Alaska vacation only during December.

Complaints range from disappointment with a prize and high-pressure sales tactics to outright deception and fraud. Typical complaints include:

• Not informing consumers they must listen to a lengthy sales pitch before receiving their "prizes."
• Misrepresenting the facility's physical condition.
• Misrepresenting the facility's market value.
• Misrepresenting the facility's resale or exchange potential.
• Making oral promises that were omitted from the written contract.
• Including fees and obligations in the contract that never were
mentioned orally.

 

[Carolinian]

What is interesting is if you look up Outfield Marketing and Festiva Resorts in Massachusetts Sec of Commonwealth's office, Festiva recently regiestered to develop and sell timeshare in MA, Outfield did not...and yet Outfield is doing the selling. Outfield a third party or part of Festiva? Click the link and type in the names to get documents.

http://corp.sec.state.ma.us/corp/corpsearch/corpsearchinput.asp

I would report this to the relevent authorities. In NC, it would be the state Real Estate Commission.

 

[Sou13]

I am trying, by reading the MGL, UGHHH! to find out what constitutes the Association as described in the NEVS, OM, and Festiva papers and if it even applies to weeks owners who are not affiliated with Festiva.

I am THINKING (bad idea) - that all their F***ing rules apply to FESTIVA ADVENTURE CLUB MEMBERS, and if you are a WEEKS OWNER and NOT a POINTS MEMBER, then the rules that apply to US (weeks member) would be different??? because we have our own timeshare agreements, filed waaayyyyy back when

and the Points Members are the only ones that fall under the Festiva, NEVS agreements because we are not members of that group.

Still reading, still searching. Don't understand how they can apply Association Rules to us, because we are not members of their Association but are the greedy, "I will not give up my deed to you no matter what" members.

Anybody got any thoughts on this?

ChrisH (Sandcastle)

Are you able to view the deeds? If you are, what can you tell us about the 91-page Declaration of Trust and the partial discharges to Festiva in the $2.5 million mortgage document?

Bk-Pg:23138-185 Recorded: 09-04-2008 @ 3:44:18pm Inst #: 46645 Chg: Y Vfy: N Sec: N


Pages in document: 82
Grp: 1
Type: Mortgage Doc$: 2,500,000.00
Desc: SEE INSTRUMENT

Town: MASHPEE Addr: 950 FALMOUTH RD
Town: PROVINCETOWN Addr: ROUTE 6A

Gtor: NEW ENGLAND VACATION SERVICES LLC (Gtor)

Gtee: COLEBROOK FINANCIAL COMPANY LLC (Gtee)


Ref By: 03-18-2009 Partial Discharge In book: 23537-176
Ref By: 03-18-2009 Partial Discharge In book: 23537-181

Return addr: DUNNING KIRRANE MCNICHOLS & GARNER LLP
REGISTRY BOX # 9
P. O. BOX 560
MASHPEE, MA 02649


Recording Fee: 150.00 State excise: .00 Surcharge: 25.00

 

[ChrisH]

Master Deed/Trust Document

This one is very much like the 'Public Offering Statement' that they provide if you choose to 'become a member' of Festiva by 'paying them $$$$ to take your deeded week."

It was originally set up, I think it started with SC or NC and then every time they add a resort in a different state or county in some states, they update it. So it was used in several different counties in SC, NC, MO, FL, GA etc. and now in MA.
It defines the Declarant (Festiva) and then the Trustees and the Association etc. and lists all the RIGHTs of each. The capacity of the trustee. The voting rights. How the Association has to proceed to remove or change a trustee. The usage limits. The insurance requirements. All the legal stuff. What documents must be available for viewing like budgets and costs etc. The maintenance rules/fees/ points, yadayadayada.
They must be updating it depending on the state and the related timeshare laws for that state. Then I think they have to submit it, for MA under 183B so they can operate.

I've noticed in some of their trust docs that they increase the voting rights of Festiva and or the Trustee, and also increase the number of Association votes required for the Association to do anything.

In the original Master Deed for Sandcastle weeks, if the Association owns 51% or more, they are the majority and any 51% can pass a vote.
This one says 2/3rds required to pass a vote.
In the Festiva POS for Sandcastle the Trustee gets 3 votes for each week/interval held by Festiva and the owners get 1 vote for each week interval - and then I can't remember, I think it takes a 75% vote for something to pass.
I guess with each update they give themselves more and more power. So if they own 20 unused weeks - they get 60 votes.
I think the 'partial discharge' is in relation to them amending some sections or rules. I thought it was paying off part of the mortgage, but I didn't see that although I didn't look at all 91 pages.

 

[ChrisH]

PS It basically is a document that defines, covers or answers the requirements you posted for 183B yesterday.

 

[Fig]

Chris, you write "I think the 'partial discharge' is in relation to them amending some sections or rules. I thought it was paying off part of the mortgage, but I didn't see that although I didn't look at all 91 pages."

I think Sou13 made mention of the fact that they only paid 1.5 million for the property yet took out a 2.5 million dollar loan. Outfield Marketing does not even appear to be a company. They have a shack in Denton that they call their headquarters, but if you look up the deed online I think it is worth about $1500. It's literally a shed.

If you look of the address of their head honcho Tom Franks that is registered with the Commonwealth of MA....there is no such street address in Annapolis
3058 NEMON RD
ANNAPOLIS, MD 21403.

Meanwhile he appears to work as a real estate agent there and does not even appear to own the company he works for.
http://www.incredibleagents.com/rea...ealty-07-Main-St/1921067/Thomas-C-Franks.html

This is the former head of Silver Leaf. How much real estate can he be selling in this ecomony?

How does a real estate agent who lays claim to a shed in Denton TX get to control the bulk of $2.5 million dollar loan, much less get one....maybe he and Cliff went to Papa Festiva and used Festiva's assets to secure the loan and paid Festiva off a million bucks leaving them $1.5 to buy the properties in the hopes that Outfield could do enough pumping of points at $3000 a pop to pay things off?

Again, before Sept, it all made sense...banks were loaning, people were buying. Heck, could even put people on planes to get them to rob owners for points...don't hear that happening anymore. They seem to be preying on owners as they visit the resort....that is the owners who are not in deep financial problems of their own and show up at the resort.

It's just a thought, but if it's true, Outfield Marketing is under a heck of a lot of pressure between the loan and the economy to pump those points.