[ 2012 ] Fairmont / Sunchaser / Northwynd official thread with lawsuit info!

[Northwynd CC]

We now hear from the other side of the mouth


"We already answered this for you at post #1121. The contract types do not matter. The leasee's have always been responsible for all costs of the resort which was confirmed by Justice Loo."

You may wish to answer the questions without your newly acquired sarcastic verbiage.

We apologize if this came off sarcastic. It was not the intent.

The statement intended to reflect the variation in the contracts has not altered the underlying obligation for all costs. This has been our position throughout this process and is discussed as Misconception #22. Perhaps we should have just referred the owner back to that Misconception again.

 

[Northwynd CC]

Justice Loo's decision is fools gold as she made so many factual errors in it. It will very likely be overturned by the appeal judge.

If Justice Loo's decision really has so many factual errors and is likely to be overturned, why haven't the lawyers presented their legal position? We haven't seen a single post stating anything Justice Loo supposedly got incorrect that hasn't been debunked.


The undecided owners deserve to know the legal position they are being asked to trust. Idle statements by anonymous posters absent evidence reinforce Misconception #15 and #18.

 

[gnorth16]

[2012] New program coming for fairmont, BC 2013?

If there are TS owners who are paying to leave, there will be units that do not have the appropriate renovation funds. (Since NW keeps the departure fee) Where does that share of the reno funds come from?

For example, If 5200 TS owners leave, do 100 rooms not get renovated (buildings torn down), the other 10,000 owners pony up extra or does NW pay the Reno fees?

Are the turned back weeks going to be resold or are lands and buildings going be subdivided and sold for profit?


Tapatalk via iPhone

 

[GypsyOne]

Response to Northwynd

Thanks again Northwynd CC, and I will respond.

Wyndy: “We already answered this for you at post #1121. The contract types do not matter. The leasee's (spelling - sheesh) have always been responsible for all costs of the resort which was confirmed by Justice Loo.”

The contract types do matter considerably as I pointed out earlier. The one is a lease contract the other is a co-ownership contract. The difference is between the rights and responsibilities of tenants vs. the rights and responsibilities of owners. The lease contract does not include capital costs, the co-ownership contract added responsibility for capital costs in Paragraph 11 as I pointed out earlier and for the obvious reasons that I pointed out in my narrative. In brief, the reason for the attempted conversion to Legacy for Life contracts was to shore up the problem in saddling the TS owners with capital costs and capital reconstruction of significant parts of the resort buildings. Justice Loo’s favourable ruling can mean one of two things: It wasn’t really relevant to her decision within the narrow parameters of the Special Case, or she was just plain wrong, which is why the legal system has appeals.

You then go on to imply that the lease is triple net and you say that including all costs is very common. (Meaning the inclusion of capital costs and reconstruction)

Wyndy: “This is very common in triple net leases. Notwithstanding, a lease can say anything (provided its legal of course). You could even have a lease where you paid zero costs but a huge up front fee.”

Firstly, the TS lease is not true triple net (real estate taxes, building insurance, and building repairs in addition to normal operating expenses) because a triple net lease would state it is triple net. But I guess you could argue it is like triple net. However, in all the years I have been involved with real estate in various capacities, I have never seen one lease that included capital costs. Fair to say they do not exist for the simple reason that any tenant that agreed to replace a failing building would need a saliva test. Or any lawyer reviewing a lease and allowing his client to agree to replacing capital structure would be grossly negligent. For the same reason, we can also assume the lawyers that reviewed the TS lease for Fairmont would not have allowed the TS owners to be saddled with the expense of capital replacement.

I will provide excerpts from a standard triple net property lease to illustrate how the industry would handle either inclusion or exclusion of capital costs. The standard triple net lease sets out very clearly the expenses that are included and the expenses that are not included. Under operating costs there will be a list of about 15 items of operating very similar to our TS lease. Then there will be a statement and list of items not included. Eg. (I have to type this because the legal form does not allow me to copy and paste.)

16. Operating costs will not include the following.
b. the costs of any capital replacements
d. structural repair

Under Landlord’s Repairs the lease says:

76. The Landlord covenants and agrees to effect at its expense repairs of a structural nature to the structural elements of the roof, foundation and outside walls of the Building, whether occasioned or necessitated by faulty workmanship, materials, etc, etc.

I’ll speculate that if a tenant ever did agree to capital replacement there would be a specific dollar limitation on the expenditure, because the tenant that agreed to replace the building or parts of it at a potential cost of $millions for the benefit of the landlord would have to be crazy.

I go into this detail, Wyndy, to give you an inkling of the detail and the specifics that would be expected by the industry in a contract if capital costs and reconstruction were to be included. When the cost is potentially in the tens of millions, you don’t bury the item in with the operating costs or expect the miscellaneous catch-all to pick it up.

So moving to the TS lease, Paragraph 9 covers Operating Costs and Reserve for Refurbishing. Operating costs being items of annual expense; refurbishing being items with a somewhat longer life such as carpets and paint. There is a miscellaneous catch-all phrase, “without limiting the generality of the foregoing,”..... Obviously this phrase being in the section with the operating costs is referring to operating costs. And not one word or hint of capital costs. Let’s face it Wyndy, you’re trying to bluff a royal flush while holding a pair of two’s.

One more point to be considered. My TS lease is good for fourty years and then expires with zero residual value. So what if me and thousands of other lessees were demanded of say, $20 million dollars in year 38 for structural improvements that extends the life of the building for say another 20 years, as the Special Case has so far ruled can be done. Who gets the value of that $20 million? Certainly not the TS owners whose leases are about to expire in two years time with no residual value. Of course, it’s the real owners and the REIT investors who benefit and the TS lessees get screwed. Can that be right? Of course not. Its one more reason why lessees who have no right to residual value after 40 years are not responsible for capital costs.

Your transparent attempts to somehow have the TS lease include capital replacement or reconstruction of resort buildings at a cost of tens of millions of dollars would be laughable if it weren’t so serious and involve the scamming of thousands of innocent timeshare owners for millions of dollars.

So now that we have put the issue of capital costs to bed once and for all (ha, ha), lets move on:

Wyndy: “You still have the right to sue Fairmont for breach of contract. It just would be pointless because they have no money.”

You’re probably right, suing for damages would be pointless. You’re also probably right that overturning a court decision would be a tough slog. But repudiating the contract and just walking away is still on the table. The question then becomes - is there a statute of limitations? To walk away, would we have had to have done it in 2009? My guess is that the courts would take a tolerant view. They would say that TS owners could not possibly have known in 2009 the problems that would become apparent in 2013, and why would they simply walk away from an asset that they paid for and are getting good use from.

Wyndy: “The paragraph 13 buy-back clause in some contracts: This was addressed in the special case and you have already stated the answer. It is a deemed offer which we are under no obligation to accept.”

My point was that once you agree to take back the remaining time share, you ARE accepting the deemed offer. Just that you decided to change the rules from what is written in the contract to a money-grab in the interests of enriching the real owners and the REIT investors.

I also think that my car analogy very accurately depicts the absurdity of your cancellation fee proposal:

To repeat: “The cancellation fee agreement you have devised results in the ridiculous situation that I pay about $16,000 to acquire the timeshare, then I pay you another about $4,000 to take it back from me, plus another year of maintenance for which I get no value, for a total cost of about $21,000 and I am conned out of about 27 years of timeshare. It would be like if I bought a car for $16,000 cash and for some reason I have to return it to the dealer. But I not only have to return the car for no reimbursement, I also have to hand over $4,000 as well. But we’re not done yet. I also have to pay $1,000 for the next year’s gas, oil, and repairs on the car I no longer have. Tell me, if someone offered you that deal, what would be your response? Yeah, me too.”

If, or when, the legitimacy of the cancellation fee is again put before the courts where our side is not restricted by the narrow parameters of the Special Case, it would be interesting to see how the court rules. I’m sure the issue of proportionality of justice would come up. In other words (the judge or jury might ask), would it be reasonable justice in our day to day lives that someone should pay $16,000 for a car, give it back to the dealer for no compensation, plus also give the dealer $4,000, plus $1,000 for operating expenses for the next year. To a person they would say, “but that is absurd, we would never allow that to happen in our own lives.” Then they might ask, “Well, what would be reasonable compensation? Oh yeah, its spelled out right here in the lease in Paragraph 13 covering defaults.” I don’t think we’ve heard the last of Paragraph 13.

Wyndy: “TS owners have "never had a voice in management.”

Oh, so its another TS owner’s right spelled out in the contract, but to be ignored if its inconvenient and suits management to ignore it. You’re right though, it would be difficult to deal simultaneously with 14,500 owners. But there are other options. For example, if 14,500 owners each put up $10, that would provide $145,000 to pay a lawyer or chartered accountant to sit in on certain board and management meetings, represent our interests, and report back to the TS owners.

Wyndy: “We stand by our statement. You are looking at the issue from your point of view as someone who no longer wants their timeshare. There are thousands of owners who disagree with you. Allowing the resort to collapse when it is perfectly capable of continuing would be hugely unfair to them.”

I am looking at what is fair and just and according to the lease contract I signed in year 2000 that promised 40 years of quality vacation experiences. I am under no obligation, materially or morally, to contribute to maintaining the resort for other TS owners who may wish to continue, but more likely are taking the path of least resistance. I should have the right to spend my vacation dollars as I see fit, and spending it on a timeshare where the rules have been changed from when I bought in, is certainly not in my best interests.

Thanks, and I do commend you for communicating with the TS owners.

GypsyOne

 

[Spark1]

When we first saw the posts starting by our Customer Care Representative herein after referred to as (CCR) we felt perhaps we may see some truthful and honest information. They did not appear to be hiding their intent as they appeared to be forthright regarding where they were going with their musings.
We have in the past had great service from the CCRs we dealt with over the years especially the ones located in Fairmount. Since the closure of those we have had to deal with voices based in Calgary who for the most part have been pretty informative and willing to help especially when taking credit card information for payment of some form or other.

We now hear from the other side of the mouth


"We already answered this for you at post #1121. The contract types do not matter. The leasee's have always been responsible for all costs of the resort which was confirmed by Justice Loo."

Her ruling is being challenged so let us wait and see.
Unless you can prove that all the leases entered into prior to 2009 were modified upon the conclusion of the CCAA to be equivalent to the latter two(2) versions, you are SOL
Here is part of the decision made by Justice Romaine

'
"It was also noteworthy that the roughly 5000 registered time-share
owners in the Fairmont Group would not be affected by the offer
and would continue to have the rights granted to them under their
original timeshare agreements (other than with respect to certain
alleged inducements or undocumented additional rights that were
repudiated during the course of CCAA proceedings). Many of the
full time employees would be retained by Northwynd]"

If you can as our CCR who's salary is paid by 15% of lessees fees show us delinquent owners that these leases had either alleged inducements or undocumented additional rights that were repudiated during the course of the CCAA proceedings. Please come up with proof that the original contracts were modified during that conclusion.

You have modified your tune since you first started posting from offering salient and helpful information as a CCR to now being one of calling us delinquent and taking a approach of an intolerant mentor.

You may wish to answer the questions without your newly acquired sarcastic verbiage.

The only people that are delinquent are Northwynd and Northmont same Money hungry get rich idiots. You know the average age of the owners of this resort. Now put yourself in the timeshare owners shoes and you are living off of static retirement income they are. Then you receive the freedom to choose package in the mail. Most of these timeshare owners do not have 3100 for one week of cancellation not alone three weeks. They were struggling to pay the high increases with the maintenance fees as it is. Now Northwynd expects them to take out a mortgage to pay for the Reno or cancellation. Northwynd calls us owners that signed leases up to 2009 delinquents because we are protecting the agreements that we signed with Fairmont villas. They are totally wrong about our agreement. Every timeshare owner that bought up to 2009 knows that the replacement reserve fund which was a separate bank account set up by our trustee was to be used for replacing what ever according to what was in the fund.This did not mean replacing the whole Resort at once. I read this agreement over when I bought and I know what this agreement means. The agreement that Justice loo ruled on was not this agreement in whole. This is not what the timeshare owners expected and if we all knew this,none of us would of bought. I am working with Service Alberta and they went through the package I took to them. They also read over your cancellation agreement and said to me you are not canceled. Two hours after I met with them everything was moved to the RCMP. A few days later I got a call from a agent stating that nobody can change the agreement that you signed with Fairmont Villas. That means anybody including Supreme Court Judges. I will meet with Service Alberta again to discuss our agreement. The other concern I have is,us timeshare owners hope you have hired contractors at the resort that are independent from you bond holders.

 

[Hotpink]

Justice Loo BOO BOO

The following is a quote from her judgment pages 4 & 5

B. Vacation Interval Agreements
[4] Fairmont leased vacation intervals or time shares in the resort. There are
basically two types of vacation interval agreements: (a) agreements entered into prior to 2009 by which vacation interval owners acquired a 40-year leasehold interest; and (b) agreements entered from 2009 forward which create co-ownership interests. Since 2009 vacation interval owners who had leasehold interests, were given the option of entering into a co-ownership interest agreement. There are approximately 18,950 time share vacation intervals registered in the name ofowners who have each executed standard forms of vacation interval agreements that have changed over time. Each agreement sets out particulars of the owner’s interest, including:
(a) the type of vacation property or villa, including the number of bedrooms;
(b) whether the agreement is an annual or biennial arrangement; and
(c) the “season” of the time share interest, that is, whether it is “prime”, “prime golf”, “golden” or “leisure” season.
[5] Each agreement contains a floating option by which the vacation interval
owner surrenders the right to use and occupy the specified vacation interval
interest in return for a floating option on the same villa type in the same season.Each agreement also contains a right of unilateral change in favour of the Fairmont, and now Northmont.
[6] Although there have been various forms of vacation interval agreements
over the years, the owners (including Fairmont, and now Northmont, to the extent that it is also the owner of vacation interval agreements) are subject to a yearly maintenance fee to cover the budgeted cost for maintenance of the resort.
[7] During the hearing, the vacation interval owners were sometimes referred to as “owners” and at other times “leaseholders” or “co-owners”, depending I
suppose, on their respective interests. I will refer to them as owners, as that is the term most frequently used, and nothing in this proceeding turns on which term is used

Obviously Ms Loo has misinterpreted sections 37 and 38 of the older contracts contract as per her statement in section 5. The newer contracts do not give Northmont or FRP any unilateral change capabilities in their favour (sections 44 & 45)

From page 7
"E. Current State of the Resort
[13] Fairmont never established or maintained a reserve or replacement fund to deal with long term anticipated repairs, such as roof replacement, deck
replacement, and similar repairs that are generally referred to as capital repairs because they occur less frequently than regular day to day maintenance."
This is untrue . We have a copy of the audited statement from Dec 31 2003that shows a replacement reserve fund of $978424.00 after expenses. We also have a statement from Fairmont signed by Chris Van Der deen dated Dec4 2008 which shows a projection of the refurbishing fund to be 1,217,400.00 for 2008 with an increase of projected for 2009 to be increased by $57,600.
Since then what we have received from Northmont is a 2013 operating budget signed by Sol Olivas showing a budget of an income of $1,045,440.00 to the refurbishment fund and similar numbers for 2014.
SO who is lying to whom?? And where have these funds gone??

She also makes consistent mention of acknowledging that the resort will be diminished in size Pages 14 & 15
"36. A critical step in the Resort Realignment will be for Northmont to direct
the Trustee to transfer to Northmont fee simple title to the portions of
the Resort on which villas that will not be refurbished are located. It is
not economically feasible for Northmont to allow Vacation Intervals
Owners to cancel their agreements if it cannot remove the excess villas
created by the cancellations from the Resort.
37. Upon consolidation of Vacation Interval Agreements belonging to
Northmont in villas which are not to be refurbished, those villas,
associated lands and the Vacation Interval Interests previously
attributable thereto, will no longer form part of the Resort for purposes
of the Trust Agreement and it will be the intention of Northmont to apply
for subdivision approval allowing those portions of the Resort to be
separately titled in the name of Northmont or its nominee.
38. Northmont regards the refurbishment of villas and the exclusion of
surplus buildings from the Resort as a net benefit to all remaining and
future Vacation Interval Owners because, without such a program, the
villas and amenities at the Resort will prematurely reach the end of their
useful life and the Resort will fail. In contrast, a refurbishment and
reduction in the Resort size, coupled with proper budgeting for future
repairs and replacements, as envisioned in the Resort Realignment, will
ensure continued viability of the Resort for the foreseeable future.


We believe they want to get as much from us as is possible and eventually sell off the resort to the benefit of the unit holders and themselves. So much for the TS lessees and particularly the businesses that are located in the valley and rely on the patronage of TS group. I can't say this is unscrupulous but it certainly is odiferous.
Looking forward to hearing the appeal

 

[DarkLord]

Occam's razor taught me the simplest explanation is usually the correct one.

We know that Northwynd lost money on investment and tried to repaid angry institutional investors.

We know that Northwynd scammed the Mexico Rancho Banderas TS owners with exactly the same cash call tactic before.

We know that Northwynd fooled some original TS owners into converting into Legacy To Life when the resort was in dire financial state.

We know that Northwynd bankrupted the legendary Rafter Six Ranche.

We know that Northwynd defaulted on the Hawaii properties.

That's all that I can remember but I'm sure there's more.

Therefore, the simplest explanation to all these renovation cash call and Justice Loo's faulty decision notwithstanding is that Northwynd is trying to scam the Fairmont TS owners. Plain and simple.

 

[no_more]

one more DarkLord - costa maya resort in Belize ... resort closed, and people having their timeshare lease transferred up to Fairmont ...

 

[no_more]

"Do timeshare owners have any rights at all or are we suppose to shut up and just pay ". that comment from spark1 puts it best and is the crux of many people's concerns, including mine.

my concerns, and why I chose to join one of the legal firms appealing this ...

1. we had no input on the scope, cost or timing of the renovation - it was sprung on us with no warning a year ago, and tight deadlines to decide with little information. and then when we asked questions we were stonewalled. I have no doubt the renovation is genuine based on what I've seen on the website and heard from people visiting the resort , but ...

2. the work was not bid out to multiple contractors via a request for proposal, so how do we know the work is being done for a competitive price. there are no controls or oversight on what northwynd is doing ... with my professional background and experience, I can only think the worst in the absence of information ...

3. the controls and oversight by owners / lessees over northwynds operation are poor - an annual audit published within 3 months after the calendar year is over, I'm sorry that's not an effective control.

4. no owners association in place to represent our interests and foster understanding between both parties

5. the choose to leave contract is so complicated, why ? can't it just say an unconditional release of all obligations by both parties in exchange for a fee? am I missing something here ?
Northwynd, comments please ?

6. no clarity on how the resort downsizing would work, which buildings would be remediated, what are the criteria for selection ... would this come out in the next petition to the court ?
Northwynd, comments please ?

7. how are the interests of the bondholders balanced against the interests of the timeshare lessees / owners ? It sure looks like we are being used to fund improvements to the resort and increase its value, for the benefit of the bondholders. and ... if I was a bondholder, I'd sure be wanting some return on my original investment which went into bankruptcy proceedings.
Northwynd, comments here ?

and ... another bankruptcy is not going make the problem go away - I think most people with some business knowledge knows that ... somebody will own the resort ...

sincerely, no_more

Northwynd, I accept your answer about the tendering process and the awarding of the contract to the general contractor VVE ... same thing with the leaving contract - fair enough.

we can agree to disagree about advance communication about the renovation plan for the resort - there's no point debating this further ...

however, you did not address points 6 and 7 above .. maybe I missed them - and both questions go to the skepticism about your future plans for the resort and where the timeshare owners stand compared to the trust unit holders,
sincerely, no_more

 

[GypsyOne]

Hotpink on J Loo's Boo Boo (Sounds like something from Dr. Suess)

We believe they want to get as much from us as is possible and eventually sell off the resort to the benefit of the unit holders and themselves. So much for the TS lessees and particularly the businesses that are located in the valley and rely on the patronage of TS group. I can't say this is unscrupulous but it certainly is odiferous.
Looking forward to hearing the appeal

I also was puzzled by her statement on Page 5, "Each agreement also contains a right of unilateral change in favour of the Fairmont and now Northmont." She is only looking at part of the paragraph in the Agreements, which makes her statement inaccurate. Could it be true that the good Justice committed another boo boo, or is at best biased?

 

[ClanMac]

Selective answers and a condescending demeanor

It has been interesting plowing through all the popular misconceptions we delinquents are allegedly plagued with; particularly when we are chastised by Big Brother, NCC, for not getting it. Getting what? Your statement of facts and that's the way it is; that's what the law says about contracts, that's what your stuck with and that's the way it is. Oh by the way, we really do care about you and we really wanted to be fair, and we protected you from the mean old unit/former bond holders who would have stuck it to you big time; and look what happened to the poor old woman on a fixed income who wouldn't listen and paid a lawyer 600+, and now she's out that plus; oh I didn't mention the 3/4 + grand we already put the screws to her for. But we're the good guys and no one wins except the lawyers with a fight, and we don't want that, we really want to help.

Makes me want to puke!!!!! Don't underestimate who you are dealing with. In the old days we used to call people like you 'paper hangers'. A lot of it is now electronic but the same old crap. Start with a basic legitimate premise, build on it a bit, and then start piling up the files and building one shell after another, shifting management and responsibility this way and that; but creating lots of distance and room. At least enough to give you ample warning when the first layers of straw on the outermost shells starts to collapse; and then some of you run because you don't have the guts to hang in there when you can smell it. Some with omnipotent egos who refuse to accept that anyone is smart or crafty enough to get them see the opportunity from the scraps that are left by the rats who already cleared out. Hey, we can even take over their offices. There's a lot more money to be made here, and we have a cash cow that overall is vulnerable to threats and doesn't have the courage or will to put up a fight.

Lets put up a wall of logical game playing; throw in a lot of litigation constructs associated with civil and contract law; call on previous judiciary decisions that are largely irrelevant, and when the last of the holdouts realize they are few in number, either they will cave or we won't have much to worry about. But better make sure we don't get a bad court decision before then because the precedent will have been set and then we're screwed.

Who the hell is naive enough to think that a court proceeding is strictly black and white; and that all a judge has to do is look at whats written and how it is being presented by the big guy with all the guns and it becomes as clear as a crystal ball? You have to have been there enough to learn that it isn't as simple as that. It is an adversarial process, much is open to interpretation, and the judge seeks fairness. In fact this is what is inherent in the basic premise of what a contractual agreement is predicated upon. You think you can have some poor naive soul sign a contract that says they will pay you for the better part of their life to the point they can no longer take care of themselves and are rendered to a state of helpless suffering as a result. Give your head a shake.

You are scared man! Intellectualization is a form of psychological defensiveness often used by those who believe they are more intelligent than anyone else; and like the shell game they play with their fraudulent business activities; perhaps if you baffle them enough with your bull they will eventually buy it.

You don't want to discuss what went on with the transition and restructuring. You want us to buy the crap that there was no carry over. You don't want to talk about the securities swap and the creation of an unlimited amount of units that diluted the existing debt on a property that was falling apart and no one wanted to buy into. Hey just say Northwynd didn't sell anything, after all the unit holders can sell them all they want using whatever assets they have in their portfolio as additional security, and we can pretend that we don't know what debt security transactions are all about (even though IIROC has all kinds of rules and regulations dealing with just that). All we have to do is manage the trust and keep bleeding the TS cash cow to keep the property the original mortgage was based upon afloat. We can even tell them that once an accredited auditor submits our financial statements for the property, that in itself means all is well.

I'm so cocky I'll play my cards out in an online forum and challenge Geldert to play his. Oh maybe I was too brash or didn't consult with more experienced legal counsel who would have told me no experienced lawyer worth his weight is going to get sucked into that game. What a lousy poker player you are. As my gambling friends say, you have an easy "tell" to spot.

Oh yeah, lets not answer any questions as to why the proposals that were laid out during the restructuring that led to Judicial approval in 2010 never materialized; or why the change in management in 2012 where the CFO who knew where all the money was going and who was dealing what with who now is the CEO; and hey, everything is better and brighter in the future. None of this was approved.

Anyways, nice to vent. Would love to meet you face to face in front of a good judge. Try to scare us with massive small claims and how easy it is for you to arrange that via a collector, and how expensive it will be and how much the court costs are going to be overwhelming (by the way it will be about $250 to $300, and even if you were to win that doesn't mean the burden of the costs are on the defendant).

Nice to put the screws to the guild you were supposed to build and protect hey big guy. You're not as smart as you think.

 

[BWcantri]

Cancellation Agreement

Hi all,

I have been away working and just got out all the papers and trying to figure out what's going on here.

I have spent the last few hours reading this forum and have one very unanswered question.

Has anyone had closure with the cancellation agreement.

We honestly want out and hope that some of the units get sold to raise monies for repairs and to keep the maintenance fees down for the ones that decide to stay. We just can't do this anymore. As with a lot of us it was suppose to be something to sell off at a later date (thinking it would be worth something) or to pass onto the kids but we sure don't want to saddle them with this kind of financial burden. Timeshares are becoming a thing of the past. I hope we don't have to fake our deaths to get out of it.

Best of luck to you all in this mess... Cheers

 

[GypsyOne]

Hi all,

I have been away working and just got out all the papers and trying to figure out what's going on here.

I have spent the last few hours reading this forum and have one very unanswered question.

Has anyone had closure with the cancellation agreement.

We honestly want out and hope that some of the units get sold to raise monies for repairs and to keep the maintenance fees down for the ones that decide to stay. We just can't do this anymore. As with a lot of us it was suppose to be something to sell off at a later date (thinking it would be worth something) or to pass onto the kids but we sure don't want to saddle them with this kind of financial burden. Timeshares are becoming a thing of the past. I hope we don't have to fake our deaths to get out of it.

Best of luck to you all in this mess... Cheers

The cancellation agreement is an abomination. Here is my opinion of the cancellation fee from post #1154 directed to Northwynd CC:

To repeat: “The cancellation fee agreement you have devised results in the ridiculous situation that I pay about $16,000 to acquire the timeshare, then I pay you another about $4,000 to take it back from me, plus another year of maintenance for which I get no value, for a total cost of about $21,000 and I am conned out of about 27 years of timeshare. It would be like if I bought a car for $16,000 cash and for some reason I have to return it to the dealer. But I not only have to return the car for no reimbursement, I also have to hand over $4,000 as well. But we’re not done yet. I also have to pay $1,000 for the next year’s gas, oil, and repairs on the car I no longer have. Tell me, if someone offered you that deal, what would be your response? Yeah, me too.”

If, or when, the legitimacy of the cancellation fee is again put before the courts where our side is not restricted by the narrow parameters of the Special Case, it would be interesting to see how the court rules. I’m sure the issue of proportionality of justice would come up. In other words (the judge or jury might ask), would it be reasonable justice in our day to day lives that someone should pay $16,000 for a car, give it back to the dealer for no compensation, plus also give the dealer $4,000, plus $1,000 for operating expenses for the next year. To a person they would say, “but that is absurd, we would never allow that to happen in our own lives.” Then they might ask, “Well, what would be reasonable compensation? Oh yeah, its spelled out right here in the lease in Paragraph 13 covering defaults.” I don’t think we’ve heard the last of Paragraph 13.

Don't count on proceeds from sale of units going towards building repairs or keeping maintenance fees down. Now that Northwynd has court approval, pending appeal, they will be using the TS owners as their own personal ATM money machine. 800 REIT investors want to recoup losses from a bad investment with Fairmont.

 

[GypsyOne]

Legacy for Life owners

One of the side effects of pointing out the two types of Vacation Villa Agreements, namely lease agreement and co-ownership agreement, is that the owners with the Legacy for Life co-ownership agreements may feel they are being thrown under the bus. Those with the lease agreements have no choice but to vigorously point out that there is no possible way that responsibility for paying capital costs is included in the lease agreements. As much as Northwynd would try to convince you otherwise, there is not one word mentioning capital costs or capital replacement in the lease agreements. On the other hand, those who bought into the Legacy for Life agreements had the phrase “to pay the costs of capital improvements” added to the new agreements. And of course, that is the very reason for the blitz to convert to the co-ownership agreements. Northwynd knew they were on shaky ground in asking the leaseholders for reconstruction money. The legacy for life, by the way, is a legacy of paying for the re-construction of failing buildings for life.

The LFL owners would seem to have a different challenge, and that is to prove misrepresentation in the lease to ownership conversion. I did not attend the sales session so I don’t know exactly how they were conducted, but I’ve heard from several who did attend. They report variously: No information given about changes to the expense obligation; no verbal information given about the state of the buildings, Poly B plumbing, etc.; some report that CD’s were given to take home to view that may have had disclosure information; chatty salespersons who distract you with conversation when you try to read the agreement; pressure to sign immediately in order to get the “sweetheart” deal.

The British Columbia Real Estate Association requires that its members complete a Property Disclosure Statement for real estate transactions. The questionnaire asks very specific questions about structural problems of various components of the building. Holders of Legacy for Life Agreements should check to see what disclosures they were given and whether any consumer protection laws were violated.

 

[Northwynd CC]

however, you did not address points 6 and 7 above .. maybe I missed them - and both questions go to the skepticism about your future plans for the resort and where the timeshare owners stand compared to the trust unit holders,
sincerely, no_more

Hi no_more.

For the realignment, the best answer is just to quote one of the questions from the frequently asked questions on our website.

http://sunchaservillas.ca/wp-content/uploads/2013/02/Sunchaser-FAQ-November-2013.pdf

Q – I like building XXXX, will it be removed from the resort?

A – We cannot provide a definitive order that buildings will be removed from the resort because it is dependent on a number of variables including:
• The total number of buildings to be removed
• Future operational efficiency
• The number of Terrace Owners (as there are no Terrace units in Riverside or Riverview)
• New information learned during the renovation. For example, one building is on “watch” for possible foundation issues (similar to building 7000). Should those issues prove to exist, it will go from being a good building to a bad building.

In general, the objective is to reduce the resort in a cost effective manner. However, cost effective is not just which is the most expensive to renovate but also where the building is in relation to other buildings, long-term operational costs, unit mix, etc.

In 2014, units will be offline to reflect the smaller size but the actual final approval and removal of units from the trustee will probably not be until late in the year.

As for balancing the needs of the unitholders with the needs of the timeshare owners, we refer you back to our post #1138 with the section that starts "We want to address this right away" near the top.

We have worked very hard to strike a compromise in this process between the three distinct groups: our unitholders, our timeshare owners who want the resort to continue, and our timeshare owners who want to leave.

We believe our cancellation program and renovation program does that. However, we respect that our view is not held by all.

 

[DarkLord]

We have worked very hard to strike a compromise in this process between the three distinct groups: our unitholders, our timeshare owners who want the resort to continue, and our timeshare owners who want to leave.

You missed one as the majority of TS leaseholders simply wanted Northwynd to leave.

 

[DarkLord]

Now that Northwynd has court approval, pending appeal, they will be using the TS owners as their own personal ATM money machine. 800 REIT investors want to recoup losses from a bad investment with Fairmont.

That's the gist of this whole thing. Northwynd is committing financial blackmailing of the TS owners. They'll prey on the owners with illigetimate lawsuits and hope they'll pay up.

Justice Loo's questionable decision was based on Northwynd's pre-emptive move. But that's over and done with now with the pending appeal.

Northwynd knows they are on shaky ground after they clear out the easier owners who pay to stay or cancel, they'll just disappear into the dark or morph into another creature.

I really feel sorry to the owners who paid to cancel and moreso the owners who paid to stay.

 

[ClanMac]

Misconception #19

We (NCC) did not cause the problems at the resort. The vast majority of our owners know that we did not cause the problems at the resort.

How can you even begin to go there when you clearly stated Dec. 10, 2012 that you shut down the TS sales and it took you two years to "reign in" normal operations. Did you have to get rid of Fitzsimonds to do so? He was your CEO through the whole proposal and restructuring that occurred with the CCAA plan of compromise (March, 2010), was still trying to pay off some who were all over him with the Fairmont (Southwynd?) Ranchero Banderos RCA conversion fraud, and remained your CEO until the end of 2012, and the "exciting" announcement that the CFO you had replace Kearns after only seven months in from the restructuring was the new CEO. (By the way Fitzsimonds and Kearns were supposed to be Northwynd's management saviours). More than two years of mismanagement and negligence contributed to the decaying state of the resort, and your current CEO was handling all the financial operations.

It's been what now, four years later and you're still putting it all on Fairmont. Blaming them for everything and yet carrying a lot of their employees with you, hell you didn't even have to warm up the office chairs they sat in. You just slid or slithered right in. And your new CEO's "experience comes from outside the timeshare industry" where he was so successful. Wasn't he neck deep in it for the past two years with you, and VP and CFO of a company that also went bankrupt at the end of 2007 (owed more than 2 million and continued to borrow money under a revolving credit agreement with the Canadian Western Bank until a Notice of Intention to Enforce Security occurred). Sounds like a superstar to me. 'All hail the chief'.

Its most hypocritical that you paint all that is wrong on Fairmont and yet wrangled your way through the CCAA process hanging onto their old contracts and making proposals and plans that fell apart under your own mismanagement. You admitted it. It's unbelievable how shallow all this is. Why do you have to leave it up to a judicial process in order to be forced into accepting responsibility for a plan that was ill conceived more than 3 1/2 years ago.

Let me point out one of your misconceptions. Why don't you do a little research on the small claims process. You really want us to believe that it would be a major lawsuit with significant ramifications just short of the public degradation ceremony that occurs with a trial? It is as about as simple as it gets. They call it "small" for a reason, and they developed the procedure specifically so that it would be least costly. You don't even involve a judge until you can't get by an impartial, appointed mediator. The statement of defense is simply filled in on the paper that is attached to the statement of claim, and the cost for filing is minimal; costs you more to have the claim served/delivered appropriately. You don't end up in court unless you want to take it that far. You're in a boardroom; and if you want your lawyer(s) there it will cost you more than the entire process from start to finish. You have to travel because this is BC based, most likely Cranbrook Law Courts. I can go into a lot of the finer details because I've been there and done it, and on the far bigger stages you don't want to go anywhere near.

I'm going to ask you nice; as your rep. likes to state: "without prejudice". I'll even go further: "without malice aforethought". As I believe you were already asked: why don't you try to compromise with a reasonable proposal for a solution that doesn't force anyone, including yourselves into a 'lose lose' situation.

 

[Spark1]

We (NCC) did not cause the problems at the resort. The vast majority of our owners know that we did not cause the problems at the resort.

How can you even begin to go there when you clearly stated Dec. 10, 2012 that you shut down the TS sales and it took you two years to "reign in" normal operations. Did you have to get rid of Fitzsimonds to do so? He was your CEO through the whole proposal and restructuring that occurred with the CCAA plan of compromise (March, 2010), was still trying to pay off some who were all over him with the Fairmont (Southwynd?) Ranchero Banderos RCA conversion fraud, and remained your CEO until the end of 2012, and the "exciting" announcement that the CFO you had replace Kearns after only seven months in from the restructuring was the new CEO. (By the way Fitzsimonds and Kearns were supposed to be Northwynd's management saviours). More than two years of mismanagement and negligence contributed to the decaying state of the resort, and your current CEO was handling all the financial operations.

It's been what now, four years later and you're still putting it all on Fairmont. Blaming them for everything and yet carrying a lot of their employees with you, hell you didn't even have to warm up the office chairs they sat in. You just slid or slithered right in. And your new CEO's "experience comes from outside the timeshare industry" where he was so successful. Wasn't he neck deep in it for the past two years with you, and VP and CFO of a company that also went bankrupt at the end of 2007 (owed more than 2 million and continued to borrow money under a revolving credit agreement with the Canadian Western Bank until a Notice of Intention to Enforce Security occurred). Sounds like a superstar to me. 'All hail the chief'.

Its most hypocritical that you paint all that is wrong on Fairmont and yet wrangled your way through the CCAA process hanging onto their old contracts and making proposals and plans that fell apart under your own mismanagement. You admitted it. It's unbelievable how shallow all this is. Why do you have to leave it up to a judicial process in order to be forced into accepting responsibility for a plan that was ill conceived more than 3 1/2 years ago.

Let me point out one of your misconceptions. Why don't you do a little research on the small claims process. You really want us to believe that it would be a major lawsuit with significant ramifications just short of the public degradation ceremony that occurs with a trial? It is as about as simple as it gets. They call it "small" for a reason, and they developed the procedure specifically so that it would be least costly. You don't even involve a judge until you can't get by an impartial, appointed mediator. The statement of defense is simply filled in on the paper that is attached to the statement of claim, and the cost for filing is minimal; costs you more to have the claim served/delivered appropriately. You don't end up in court unless you want to take it that far. You're in a boardroom; and if you want your lawyer(s) there it will cost you more than the entire process from start to finish. You have to travel because this is BC based, most likely Cranbrook Law Courts. I can go into a lot of the finer details because I've been there and done it, and on the far bigger stages you don't want to go anywhere near.

I'm going to ask you nice; as your rep. likes to state: "without prejudice". I'll even go further: "without malice aforethought". As I believe you were already asked: why don't you try to compromise with a reasonable proposal for a solution that doesn't force anyone, including yourselves into a 'lose lose' situation.

ClanMac you have a lot of very valuable information about these Northwynd bandits and I was forwarding a lot of this information to Geldert Law. We are out of the country until later this spring and I am hoping you are sending Geldert Law and Cox Taylor this material. Our Lawyers need all the help they can get because we seen the one sided decision with the first go around.

 

[No longer a TS owner]

BWCantri cancellation question

BWCantri - I'm not sure how to reply directly to a post so hopefully you see this. My wife and I decided to submit the cancellation papers last September. Northwynd cashed the cheque a few days after we sent the docs and a few weeks later they sent back signed copies of the agreement. It pained us deeply to pay their extortion fee, but we decided to pay the $1600 cancellation fee rather than getting stuck with the 2014 maintenance fees (and ever-increasing ones for the next 28 years). I hope the rest of you who decide to stick with the battle are successful.

 

[Late2Game]

Like that cancellation agreement? Getting out now?? Not so fast!!

According to recent posts, Northwynd would have you believe they are acting as an "impartial mediator”, balancing the interests of three parties: TS leaseholders wanting out; TS leaseholders wanting the reno; and 800 bond unit holders. This is the three corners of the triangle they reference.

But this is not a triangle. . .Northwynd is NOT without a dog in this fight! They have a significant financial interest, and responsibility in all aspects of this outcome but the seem to want to obfuscate this fact.

Do you like the agreement you have with Northwynd today? If so, then by all means sign up on one of the two proposed agreements for some more of the same!

BUT . . .the reality is EVERYONE owes it to themselves to get independent legal advice on this matter before they take ANY action. Get someone working for YOU that will represent YOUR interests!!

Are you still undecided? Well, you can read these TUG blogs forever if you’d like, or you can call one of the two law firms noted in recent pages and get the straight goods on where you stand. I did, and believe me I feel a whole lot more enlightened than I did one week ago.

I can hardly wait until the supposed “deadline” passes and we go to appeals court!

.

 

[Tacoma]

BW Cantri

I have friends who paid the cancellation last May and got the paperwork that says they are out of their lease by around early October. Hopefully that paperwork is worth more than their original leases which said if we defaulted they would pay us money to take back the leases. Just remember though that all people who pay to get out the money goes directly to northwynd and they are using it to fight the rest of us. Also we do not believe that they are paying maintenance fees on anything they have taken over so the maintenance fees to people still in just keep increasing.

Joan

 

[no_more]

well said late2game - to remind people and keep the legal firms names up front and centre for new readers - they are geldert law in Vancouver, and cox taylor in Victoria. both have websites with their contact information.

Geldert law continues to take clients from both Canada and the US.

don't pay these people another cent, as Joan says - your cancellation fees are used to fight the rest of us, and your future is even worse if you pay to stay - as you have a minimum of 17 years more misery with these people - assuming they don't force you out of the resort earlier as they get free title to more and more of the lands.

 

[GypsyOne]

We have worked very hard to strike a compromise in this process between the three distinct groups: our unitholders, our timeshare owners who want the resort to continue, and our timeshare owners who want to leave.

We believe our cancellation program and renovation program does that. However, we respect that our view is not held by all.

Still flogging the meme that you're the white knights come to rescue the resort for the TS owners, huh. Once again - the Vacation Villa Leases do not contain one hint of being responsible for capital costs. Lessees/tenants would never agree to underwriting the replacement of capital structure at a potential cost of tens of millions for the benefit of the lessor/owners. It just doesn't happen. The only way it could happen is for a friendly judge to give a favourable ruling.

And paying a total of about $21,000 for timeshare, cancellation fee, and one year's maintenance and losing around two thirds of the timeshare is reasonable? Come on!

 

[ClanMac]

Hey lets get it straight, it's not Legacy for Life, rather Leg Irons for Life!