Giving back timeshare without maintenance fee

[chidado]

Hi. We're trying to exit our TMVC (Marriott Vacation Club). We bought Vistana a while back before they were acq by Marriott. The loan's paid off, and we now are dealing with some outstanding maintenance fees. Any advice on how to negotiate down the outstanding $? Ideally would like to pay nothing but would take any advice for any tactics to lower it. Thanks.

 

[Hindsite]

Selling it on or giving it back to them when you are not up to days with maint fees won't work.
Depending on what you actually own it may have some resale value, check redweek, so it may be worth paying the MFs.
Depending on your financial position and how much you owe, you can just continue to avoid paying and let the foreclosure process play out, they may do deedback in lieu of foreclosure at some point, but probably after a lot of letters threatening legal action.

Whatever you do, don't use an exit company, they can't do anything that you can't do and will charge you a lot of money to have you end up in the foreclosure process anyway.

 

[andre10056]

Hi. We're trying to exit our TMVC (Marriott Vacation Club). We bought Vistana a while back before they were acq by Marriott. The loan's paid off, and we now are dealing with some outstanding maintenance fees. Any advice on how to negotiate down the outstanding $? Ideally would like to pay nothing but would take any advice for any tactics to lower it. Thanks.

Assuming your Vistana is the only one that I know of, the one in Orlando, you may be in luck.

Here's an amazing review of timeshare laws that Grammarhero posted about five years ago:

tugbbs.com/forums/threads/links-to-official-state-timeshare-laws-and-guides-manuals.298554/

According to Grammarhero, an attorney and fellow timeshare owner, if the timeshare is in Florida:

"FL, inaction or non-objection results in estate, anti-deficiency foreclosure, but objection leads to judicial, deficiency action"

As I understand it, in Florida, if the timeshare entity wants to foreclose, its only option is to do a non-judicial foreclosure UNLESS YOU OBJECT. Since no judgment arises from a non-judicial foreclosure, and since Florida does not allow for recovery after such non-judicial foreclosure, you're off scot-free, baby! No deficiency judgment for non-payment of anything can ever be entered against you.

However, if you object to their prospective non-judicial foreclosure ("you crooks lied to me and I'll sue you back", "I don't owe as much as you say", etc.), then a judge needs to be called upon to review all aspects of the case. Judicial involvement means judgment and potential deficiency judgment for unpaid mortgage, unpaid maintenance fees, unpaid late and other administrative fees, attorney's fees, etc.

So, you can do what you like, but if it were me, I would call them and say "my financial situation has changed and I can't afford to pay my maintenance fees. I'd be willing to sign the deed back over to you". And see what they say. If they start threatening you, you might make them aware that you were told that all they can do in Florida is get the timeshare back, which you're willing to do without the resort having to go through legal proceedings.

They might be a tad negotiable at that point.

Of course, this all assumes that Grammarhero's research was spot on (as it appears to me to have been) and that the law hasn't changed from five years ago. Even if the law has changed, it shouldn't have changed for owners who bought prior to then. After all, you bought with the thorough knowledge of Florida timeshare law at the time, and that's why you bought in the first place.

 

[dioxide45]

Even if the law has changed, it shouldn't have changed for owners who bought prior to then. After all, you bought with the thorough knowledge of Florida timeshare law at the time, and that's why you bought in the first place.

It is also possible they bought before Florida went to non-judicial foreclosure laws. That said, it doesn't matter. It isn't what the law was when you bought, it is what it is at the time of foreclosure.

 

[alwysonvac]

Oops.. missed the part of outstanding Maintenance Fees. That has to be paid first before giving it away

You can post your Vistana week for free on TUG's Free Timeshare Forum (link) asking the buyer to pay all closing cost.

Free listing examples

2 Units in Marriott's Cypress Harbour - Orlando, Fl , special season 1-17, 51-52

Marriott's Cypress Harbour - Orlando, Fl Amazing resort with great location near Sea World 2 Units available Unit: 2 bedroom, 2 bath, sleeps 8, full kitchen Special Season (weeks 1-17, 51-52) Maintenance Fee: 2025 has to be paid by buyer : $1,805.71 for each unit, due date 2025-01-16 Usage...

tugbbs.com

Harborside at Atlantis -1BR Platinum Season/ Floating week including - Free Closing! holidays!

Harborside Resort Phase II at the fantastic Atlantis in Nassau, Bahamas with access to miles of stunning beach, pools, an amazing waterpark, and restaurants and amenities galore. Annual Contract - Floating Platinum Season - Weeks 1-17 & 50-52 (Xmas holiday!) with daily access to Atlantis...

tugbbs.com

 

[andre10056]

It is also possible they bought before Florida went to non-judicial foreclosure laws. That said, it doesn't matter. It isn't what the law was when you bought, it is what it is at the time of foreclosure.

Under all circumstances of which I'm aware, parties who did something under a certain statutory regime are often "grandfathered in" so that new changes don't apply to them. And that's because you arguably took whatever action you took (like buying something or building or renovating something a certain way) because of those laws or whatever.

 

[Eric B]

All the legal advice you read on the internet should be taken with a grain of salt. It is entirely possible that the Florida State legislature approached things as described in either post above and there could be a provision that makes the current statue on non-judicial foreclosure inapplicable to purchase prior to a specified date. I haven't looked at the statute to see if that's the case and don't plan to unless I'm in a situation for which it actually matters. While I am a lawyer, I am not licensed to practice in Florida and won't pretend to be knowledgeable enough to provide any advice other than to consult someone who is if you have questions on this particular area. I'm not sure I actually follow the thought process that would rely on someone's understanding of the law at the time of purchase freezing that law in place without an express provision made in the law particularly in the area of real estate involving timeshares that is intended to simplify the foreclosure process. It might be just me, but the foreclosures contemplated by the law are to be accomplished by a creditor (the HOA) that wasn't involved in the original sale anyway, which would seem to make that thought somewhat less logical.

 

[dioxide45]

Under all circumstances of which I'm aware, parties who did something under a certain statutory regime are always "grandfathered in" so that new changes don't apply to them. And that's because you arguably took whatever action you took (like buying something or building or renovating something a certain way) because of those laws or whatever.

I believe the Florida non-judicial foreclosure laws on timeshare liens came into being in 2010.

 

[dioxide45]

It might be just me, but the foreclosures contemplated by the law are to be accomplished by a creditor (the HOA) that wasn't involved in the original sale anyway, which would seem to make that thought somewhat less logical.

I would also think it would be based on when the actual deficiency occurred, not necessarily when the person purchased.

 

[Eric B]

I would start out by reading the actual law....

 

[andre10056]

I believe the Florida non-judicial foreclosure laws on timeshare liens came into being in 2010.

Then I guess the argument would be that the timeshare entity, having relied upon the laws at the time, should be allowed the full right of getting a deficiency judgment no matter what (assuming the prior law allowed them that right) as to pre-2010 sales.

But the wrinkle here is that the Florida state legislature, according to something I once read, responded to the complaints of timeshare owners by enacting the current law (assuming that Grammarhero's 2019 law is the current law) as a way to respond to the nightmare experiences of so many timeshare purchasers. So, maybe, the timeshare entities would NOT have been grandfathered in to enjoy the prior "baseball bat to the timeshare owners face" statute. It was made retroactive as a consumer protection mechanism.

 

[andre10056]

consult someone who is if you have questions on this particular area.

You would be amazed if you saw the responses on this board to someone asking about what the timeshare entity may do to them if they "simply walked away".

"They can't do anything. You won't even get a credit hit".

"You might get a credit hit but it's something that everybody will ignore because it's a timeshare credit hit".

Etc., etc., etc.

So I have in the past recommended at the very least a consultation with an attorney in the appropriate jurisdiction so you can better understand the totality of the situation, what you might most likely encounter. Wow! Numerous people would then go straight for my jugular!

"A lawyer is just a waste of money".

"How dare you recommend talking to a lawyer".

People don't like people in your career field.

But I don't see any harm in talking to the timeshare entity and offering them your willingness to sign the deed back to them. In Florida in particular.

 

[dioxide45]

Then I guess the argument would be that the timeshare entity, having relied upon the laws at the time, should be allowed the full right of getting a deficiency judgment no matter what (assuming the prior law allowed them that right) as to pre-2010 sales.

But the wrinkle here is that the Florida state legislature, according to something I once read, responded to the complaints of timeshare owners by enacting the current law (assuming that Grammarhero's 2019 law is the current law) as a way to respond to the nightmare experiences of so many timeshare purchasers. So, maybe, the timeshare entities would NOT have been grandfathered in to enjoy the prior "baseball bat to the timeshare owners face" statute. It was made retroactive as a consumer protection mechanism.

I don't think the law was championed for and by timeshare owners. I believe it was the developers and HOAs that were mostly behind the law to make the foreclosure process cheaper.

 

[TUGBrian]

I don't think the law was championed for and by timeshare owners. I believe it was the developers and HOAs that were mostly behind the law to make the foreclosure process cheaper.

it 100% was...

 

[andre10056]

I don't think the law was championed for and by timeshare owners. I believe it was the developers and HOAs that were mostly behind the law to make the foreclosure process cheap

While it's certainly within the realm of possibility that "making the foreclosure process cheap" may have been done on behalf of developers and HOAs, the "not being able to sue for a dime" and, therefore, not being able to get a deficiency judgment, seems to be 100% a consumer protection mechanism. Whether or not that consumer protection mechanism existed prior to the 2010 "change", it was certainly part of the 2010 law.

Just look at Grammarhero's link to see all the jurisdictions that allow the timeshare entity to get a quick and easy non-judicial foreclosure, but then thereafter allows them to sue the former timeshare owner for everything allegedly still owed.

For example, Georgia:

GA, HOA pursues non-judicial foreclosure and judicial, deficiency judgment afterwards

As well as Hawaii, Maryland, Missouri, New Jersey, New York, and Virginia.

So if anything was done on behalf of developers or HOAs, it sure as heck didn't allow them to get a dime as they would in virtually all other jurisdictions except for California, Florida, or South Carolina.

And, as a timeshare owner, I could care less if they can or have to do a judicial foreclosure or a non-judicial foreclosure. All I care about is whether they can collect and Florida apparently will not allow them to do so. So the 2010 law either continued the law or set out new law that is an extraordinary (and rarely encountered nationwide) consumer protection statute.