IMPORTANT: Kauai Beach Villas December Special Election

[ecwinch]

And before someone jumps in with their "your not a lawyer" refrain, Hawaii is pretty clear on this matter.

§414D-102 Special meetings. (a) A corporation with members shall hold a special meeting of members:

(1) On call of its board, or the person or persons authorized to do so by the articles or bylaws; or

(2) Unless the articles or bylaws provide otherwise, if the holders of at least five per cent of the voting power of any corporation sign, date, and deliver to any corporate officer one or more written demands for the meeting describing the purpose or purposes for which it is to be held.

(b) The close of business on the thirtieth day before delivery of the demand or demands for a special meeting to any corporate officer shall be the record date for the purpose of determining whether the five per cent requirement of subsection (a) has been met.

(c) If a notice for a special meeting demanded under subsection (a)(2) is not given pursuant to section 414D-105 within thirty days after the date the written demand or demands are delivered to a corporate officer, [regardless of] notwithstanding the requirements of subsection (d), a person signing the demand or demands may set the time and place of the meeting and give notice pursuant to section 414D-105.

(d) Special meetings of members may be held in or out of this State at the place stated in or fixed in accordance with the bylaws. If no place is stated or fixed in accordance with the bylaws, special meetings shall be held at the corporation's principal office.

(e) Only those matters that are within the purpose or purposes described in the meeting notice required by section 414D-105 shall be conducted at a special meeting of members.

So that is what Hawaii says about special meetings. Perhaps Brian can drop by and tell us the legal meaning of the word "shall"....

 

[ecwinch]

Eric, first of all - you are not an attorney, (nor am I) so this is just your opinion.

Obviously, the owner's group and GPR do have real attorneys and they disagree with your opinion, and Wyndham.

And Denise... having just read the BoD's filed complaint against GPR.... I would say the facts on the special meeting are pretty clear.

And in regard to GPR "involvement" in the SaveKBV.org effort, I think there is a lot more to this tale than is being discussed here.

 

[CO skier]

I am not an owner here, but can tell you from my experience as a Worldmark owner that Denise is absolutely spot on. Wyndham will pack the Board with their lackeys and all decisions will be made with Wyndham's bottom line as the primary driver.

My experience as a WorldMark and Club Wyndham owner is completely different.

At the beginning of 2016, the WorldMark Board of Directors updated the Grouped reservation rule to eliminate the ability of a few owners to use grouped reservations to disadvantage all other owners who read the Guidelines and expected the next available date to remain available until 13 months according to the rules. How did this benefit Wyndham? Quite the opposite. Wyndham sales was using this loophole to sell more credits to owners to “beat the 13-month booking window.”

In 2017, the BOD restricted the ability of megarenters to rent in an unlimited number of credits. Result? Reduction of 60 million credits in the first year chasing the best reservations. Result? More prime reservations for owners to reserve for their personal use. How did this in any way benefit Wyndham?

In 2018, WorldMark owners were allotted 1 complimentary guest certificate per 10,000 credits for non-owner usage of an account (rounded-up; i.e. an owner of 12,000 credits was allotted 2 GC). The perennial Negative Nellies could easily characterize this as a “money grab.” The fees contributed directly to WorldMark revenues at no expense to owners. Wyndham, like any other timeshare manager, is owed a certain percentage of expenses as a management fee. Even with this non-owner “money grab” Wyndham is earning a lesser percentage than other timeshare managers. If this gap is to be closed, I Much prefer it to be done on the backs on non-owners who have not invested in a WorldMark ownership.

In 2015 and 2016, the entire WorldMark bylaws were presented to owners for an update. Fortunately for WorldMark, owners voted by more than 80% in favor of the By-laws update in 2016 to bring WorldMark into the 21 century, in complete repudiation of the perennial negative Wyndham Nellies.

There are three members of the five WorldMark Board of Directors who have never had any affiliation with Wyndham. This makes the WorldMark BOD independently controlled, but the Negative Nellies do not want to acknowledge this undeniable fact, just because it does not comport with their distorted views.

On the Club Wyndham side, Wyndham agreed years ago to purchase all deeds in default and pay up to $2,000 for foreclosure costs at my resort. A sweet deal for my HOA, and one that Wyndham is apparently offering to KBV owners. KBV owners who are smart, instead of brainwashed against Wyndham, will see the value in that kind of a deal (and who wouldn't), especially since there appears to be no viable option otherwise.

 

[geist1223]

How many of the 3 "nonaffiliated" Members of WMTC BOD would be re-elected with Wyndham support if they started voting against the proposals put forth by Wyndham. What outside (non-Wyndham) advice does the WMTC BOD receive - zero. Even Wyndham employees decide which complaint emails directed to the WMTC BOD get before the BOD in a very summarized fashion.

The GC monies should be deposited into MF Account. That is the only way to make sure that the GC income actually benefits the Members/Owners.

 

[CO skier]

The GC monies should be deposited into MF Account.

Guest Certificate revenue IS deposited to the same account as maintenance fees collected from WorldMark members. It is all revenue to the Club.

 

[ecwinch]

Today, the court granted KBV-IOA's motion to shorten the time to hold a hearing on the preliminary injunction against GPR holding the meeting after being expressly instructed in writing on three occasions to not do so.

The hearing is scheduled for Dec 17 at 1:00pm.

 

[ecwinch]

And even though the hearing is scheduled for next Tuesday, apparently GPR has decided to stand-down from their initial position that they had to unilaterally respond to the owners petition and could ignore the direction of the BoD. Obviously this communication is far more measured than the previous communication from GPR, and probably is what should have been sent in the first place.

Re: Retraction of Notice of Special Meeting of the Members of Kauai Beach Villas; December 18, 2019

December 13, 2019

Dear Kauai Beach Villas Owner,
Grand Pacific Resorts (GPR), the Plan Manager for Kauai Beach Villas (KBV), is writing in regard to the Special Meeting of the Members of KBV, currently set for December 18, 2019.

After GPR received the petition and sent the November 25, 2019 Notice for Special Meeting, the Board of Directors of KBV directed GPR to send a retraction of the notice of the meeting for the following reasons:

• the Association did not receive a petition containing signatures that complied with Chapter 414D, Hawaii Revised Statutes;
• the petition is not valid as it is not supported by verifiable signatures;
• under the Bylaws, only the Board can select the location of a meeting;
• if properly requested the Board will set a special meeting;

The Notice of Special Meeting dated November 25, 2019 is hereby retracted, and the December 18 2019 Special Meeting is canceled. Neither the Association nor GPR will acknowledge the results of any meeting held on December 18, 2019 as valid.


Aloha,

Nigel Lobo
Chief Operating Officer

 

[ecwinch]

From looking at the court record, it appears the GPR communication was preceded by a change of the lead attorney (same firm) on the case. I think in legal parlance this is known as "bringing in the big guns":

Christian P. Porter
Partner

Christian P. Porter brings over 30 years of knowledge and experience to the firm. Working with community association boards and other related entities, he specializes in the areas of condominium and community association law, and commercial litigation. He provides legal guidance in all aspects of association law, including the review of governing documents and the enforcement of association rules and covenants, preventing client disputes from proceeding to court when feasible. Additionally, he practices real estate litigation, construction litigation and arbitration, bankruptcy law and litigation, and foreclosure law. As a partner of PMKC and previously Porter Tom Quitiquit Chee & Watts, Porter has successfully managed countless clients’ legal matters with the support of his dedicated staff.

He is a member of the Hawaii State Bar Association, American Bar Association, and the U.S. Federal Court of Claims.

Serving on the Legislative Action Committee of the Community Associations Institute, Porter advocates state legislation that favorably impacts local condominium and community associations. He also shares his wealth of knowledge at educational seminars in Hawaii. As a board member of the Condo Council of Maui, he educates condominium owners and association directors on changing community laws by coordinating speaking engagements, and presenting at seminars.

Based on the recommendations from the legal community, the respected legal source Martindale-Hubbell awarded Porter a “BV distinguished” rating for his exceptional ethical standards and legal abilities. For the fifth (2016 – 2020) consecutive year, his work in real estate litigation was also recognized by his peers in the 26th edition of “The Best Lawyers in America.”

 

[Aurelius]

This should be interesting. So will the SaveKBV folks hold an unsanctioned meeting in California still or not?

 

[Aurelius]

*crickets*

 

[CO skier]

From looking at the court record, it appears the GPR communication was preceded by a change of the lead attorney (same firm) on the case. I think in legal parlance this is known as "bringing in the big guns":

Looking at it from the peanut gallery and how the prior advice took GPR completely off-track , I would say more like "bringing in someone who maybe knows what he is doing."

A retraction of a special meeting is just embarrassing, but maybe the new guy can put GPR and saveKBV on the right track.

 

[ecwinch]

Knowledge is power as the saying goes.

What makes the KBV TUG experiment unique is an open forum where owners (and non-owners) can chime in. That format naturally prevents the "echo chamber" effect of only listening to people who think and believe what you do.

Some people dont want to hear opinions that challenge their world view or listen to concerns that dont resonate with them.

 

[Aurelius]

So did the unsanctioned recall/election happen? Is there an alternate board in here place? The vocal group of owners is suddenly not sharing any information.

 

[sjsharkie]

So did the unsanctioned recall/election happen? Is there an alternate board in here place? The vocal group of owners is suddenly not sharing any information.

There is an update on savekbv.org on what the owner's group is doing. Best to go there -- not sure you will get any more factual information than that. I think everyone is tired of the squabbling -- people have taken sides and it is what it is.

I have no dog in this fight any longer as I sold my 2.5 intervals during the fall. I couldn't stomach going back to a Wyndham controlled board -- and I felt the costs whatever the outcome might impact maintenance fees at the resort. FWIW I did support the owners group while I was an owner -- I never think it is a good idea for affiliated board members (not all, but some were either employed or affiliated with Wyndham) to vote and make decisions favoring Wyndham (i.e. electing them as management company). To me, this is wrong as directors that cannot be independent in appearance should abstain in voting on those decisions where those conflicts can cause their judgement.

Anyway, wish everyone luck regardless of views and happy holidays.

-ryan

 

[ecwinch]

Ryan... thanks for pointing that out. And in terms of Wyndham "affiliated" directors, I guess you are referring to Danielle Ramos.

Move to direct President Warner to sign the Management Agreement Between PAHIO Resorts Inc. and PAHIO at Kauai Beach Villas Interval Owners Association by George Keeney.
Seconded by Charles Mark Twardzicki. Unanimously approved with Director Danielle Ramos abstaining due to conflict.

Have a happy holidays....

 

[sjsharkie]

Ryan... thanks for pointing that out. And in terms of Wyndham "affiliated" directors, I guess you are referring to Danielle Ramos.

Move to direct President Warner to sign the Management Agreement Between PAHIO Resorts Inc. and PAHIO at Kauai Beach Villas Interval Owners Association by George Keeney.
Seconded by Charles Mark Twardzicki. Unanimously approved with Director Danielle Ramos abstaining due to conflict.

Have a happy holidays....

I'm also referring also to Linda Kolstad -- who AFAIK was/is board member and president. I also do not know if any other board members have employment or affiliated relationships with Wyndham. Given that I'm no longer an owner, I am not interested in researching further -- however, when I was an owner, this was concerning along with the smoking gun letter where she was included as a required participant. Was this fabricated -- I don't think so as Wyndham has never denied that this email is factual so owners can come to their own conclusions.

Here is her Linkedin profile where it states she is employed by Wyndham as "Director of Association Governance, Hawaii at Wyndham Vacation Ownership":
https://www.linkedin.com/in/linda-kolstad-1bb2a3a/

Note that the quoted item above is not the only thing the board has voted on that has impacts to Wyndham's management of the property.

It's obvious you've taken a side from the previous posts as have others, and I'm OK with that. I just want to state facts here and not insert conjecture. We can agree to disagree here.

Happy holidays to you as well.

-ryan

 

[ecwinch]

We can alway agree with to disagree, and I share your same desire to emphasize facts more than opinion. Linda Kolstad is not a KBV BoD member. She resigned in March, 2019 and was replaced on the board by Mark Twardzicki:

President Linda Kolstad announced her resignation from the Board, effective immediately. As an owner representative, Linda will continue to serve on the AOAO and KBRA Boards through the current terms and if/when elected in the future. Will also continue to support the Board as requested and as time allows. Larry Warner took over the meeting at 10:41a.m. and entertained nominations to fill Linda’s position. Jack nominated Charles (Mark) Twardzicki. Trish nominated Karen Blackford, but upon learning that Karen had withdrawn her name from the election, Trish withdrew the nomination. Director Warner confirmed that the appointee would fill Linda’s remaining term, which goes to May 2020. Vice President Warner called for the vote. The remaining four (4) Board members voted unanimously in favor of Mark Twardzicki.

So to say I have taken a side I guess that would be a matter of perspective. The SaveKBV.org group has not presented a side aka what they would do to solve any of the myriad of problems that confront KBV.

So I cannot side with a group whose only plan is "not Wyndham" and does not have a viable plan other than hope. Particularly when the leaders of that group are the very same people that are responsible for the current drama.

Because even if the 8% of the members represented by the SaveKBV.org are successful in removing the BoD as desired, nothing changes the fact that Wyndham owns 20% (or more) of the voting power of the resort. Give me a solution that solves that problem and is not based on hope, when I can chose a side.

 

[DeniseM]

Particularly when the leaders of that group are the very same people that are responsible for the current drama.

Interesting perspective - after they rigged the election, many people would say that Wyndham and their co-conspirators were responsible for the current drama. If they hadn't put their thumb on the scale, none of this would have happened. But, I guess when you own 20% of the deeds, it's OK to cheat. My bad.

 

[sjsharkie]

We can alway agree with to disagree, and I share your same desire to emphasize facts more than opinion. Linda Kolstad is not a KBV BoD member. She resigned in March, 2019 and was replaced on the board by Mark Twardzicki:

Fair, but she was a board member while employed by Wyndham. And she clearly shaped the board decisions and board makeup during her tenure while she was employed by Wyndham. To me this is wrong, plain and simple.

But to your point, I do think that the savekbv group desires to turnover the current board to a new team that is free of employment and affiliation with Wyndham. That is the plan, and I can get behind that. Clearly you have taken a side against savekbv and that's OK too. For me if I was still an owner, I would desire the same clean slate of board members so that I could trust that the board was voting with independence. If that clean slate decided Wyndham, I could live with that. Today, we don't have a clean slate to work with.

Yes, Wyndham does own 20+ percent. The 8% supporting the savekbv effort you reference is conjecture and could be more or less -- there could be more that support the effort but choose to not sign petitions or whatnot. The challenge is that Wyndham voting power is much greater than that given that owners have a tendency not to vote their proxies as intended. Not Wyndham's fault, but I do feel for the minority of owners that do vote and take an interest in ensuring an independent board.

-ryan

 

[ecwinch]

Interesting perspective - after they rigged the election, many people would say that Wyndham and their co-conspirators were responsible for the current drama. If they hadn't put their thumb on the scale, none of this would have happened. But, I guess when you own 20% of the deeds, it's OK to cheat. My bad.

Unfortunately the facts do not support that narrative - as the word "cheat" implies that they engaged in illegal conduct. Our by-laws clearly state that that one director must be a resident of Hawaii. This fact was known to both sides and is explicit in our by-laws. And as you have pointed out, Brian Reichel is a practicing attorney and in the run up to the election, stated he had spent extensive time reading our governing documents. I also know for a fact that Jeff was alerted to the residency requirement prior to the election - and apparently failed to comprehend what he was told or simply ignored it.

Because I am pretty certain that if the SaveKBV.org candidate had been elected due to the failed motion that Brian Reichel made from the floor, you would not feel that SaveKBV.org "cheated".

So it might be more accurate to say that SaveKBV.org was outwitted by the single largest shareholder. They both played that game, just one side was outmatched.

Background for those playing at home:
Brian Reichel made a point of order that challenged the eligibility of candidate George Kenney (who was elected) on the basis that he was not a member of the IOA on the record date of the annual meeting.

 

[DeniseM]

Now that's funny - we can just call "cheating" something else, and then it's fine! And then we blame the victims for the "drama."

That Wyndham Kool-Aid must be sweet!

 

[ecwinch]

Just stating the facts. All SaveKBV.org had to do to get a candidate elected was to have them be a Hawaiian resident. Then that candidate would have won by receiving enough votes.

Denise - more than happy to discuss the facts with you, but I will ask that you actually start reading my posts, and stop with the "I am rubber, you are glue". As I clearly bolded for you - both sides played that game.

So are you saying that SaveKBV.org cheated also, and you are fine with that?

 

[Aurelius]

Now that's funny - we can just call "cheating" something else, and then it's fine! And then we blame the victims for the "drama."

That Wyndham Kool-Aid must be sweet!

View attachment 15655

Directors seeking election should have a strong understanding of the bylaws or they have no business running.

Wyndham used their votes in conjunction with their knowledge of the bylaws to vote for their preferred candidates. Their strategy was successful. The SaveKBV vote was split evenly amongst their preferred candidates, none of which were Hawaii residents as required. Had they consolidated their votes, their candidate wouldn’t have been in last and it would have been a Wyndham Director that was displaced.

Ignorance of the documented rules of the association doesn’t mean that the other side cheated. It just means you lost because you weren’t prepared.

 

[CO skier]

Today, the court granted KBV-IOA's motion to shorten the time to hold a hearing on the preliminary injunction against GPR holding the meeting after being expressly instructed in writing on three occasions to not do so.

The hearing is scheduled for Dec 17 at 1:00pm.

Did the accelerated court hearing at KBV-IOA's request occur, or did KBV-IOA just fold? If Wyndham was "cheating," would it not be reasonable to think KBV-IOA and saveKBV.org would want a court to weigh-in on the matter? Or was KBV-IOA worried about the court finding for Wyndham?

 

[CO skier]

As an outsider, I have been trying to make sense of what happened at Kauai Beach Villas' election. This thread and excerpts from another thread make the results clear to me, in hindsight.

https://tugbbs.com/forums/index.php?threads/kbv-2019-annual-meeting-report.290478/#post-2311866

The Wyndham-oriented Directors on the board connived to take advantage of an obsolete loophole in the ByLaws (I say "obsolete" because the state of Hawaii has eliminated it as a state rule for boards) that says that at least one board member has to be a Hawaiian resident. Knowing that there'd be no competition for Dani Ramos in the room, Wyndham went ahead and put ALL of their votes behind non-owner George Keeney and Larry Warner. Trish Harrington easily came in 3rd, with Brian Reichel having a strong showing. Wyndham's plan was, knowing that there'd need to be a native Hawaiian on the board (with Linda Kolstad gone from the board earlier in the year), that the 3rd place finisher would be automatically removed from the voting and a new vote would need to take place. Rather than give individual owners proper notice to nominate an appropriate individual owner/member, and give time for that person to promote him/herself to the members at large, the parliamentarian insisted that the vote for a Hawaiian resident needed to happen right then and there in spite of numerous protests. A Hawaiian resident from the room finally offered herself up as an opponent to Dani Ramos, but she hadn't prepared any speech or talking points.

A vote was taken ONLY from members in that room. That means that any owner/member who had voted directly (i.e., had not given their vote away for a proxy to vote for them) was disenfranchised, meaning they didn't get to vote or say. Wyndham, having their representative in the room, was able to put all of their votes toward Dani Ramos. EVERYONE ELSE in the room that day placed their vote for the woman who volunteered herself at least minute. Not ONE voted for Dani. Of course, the volunteer got swamped by Wyndham's many votes. What a hit job.

Then to make matters a bit worse, Dani promptly announces she planned to retire in 3 months time (although I'm guessing that Wyndham's people will talk her out of it until Wyndham puts in place their choice of management company that will be decide in the Fall).

Fortunately, we're looking into lawsuits against current individual members of the board for dereliction of duty as well as against various factions of Wyndham.

Jeff

The bolded sentences is where the anti-Wyndham dissidents made their mistakes. By-law are created based on legislative requirements. Changes in the law do not invalidate or automatically modify by-laws, because bylaws revisions require a vote of the members. The change in Hawaiian law did not render the KBV bylaws requirement for at least one board member to be a Hawaiian resident "obsolete."
​

Just stating the facts. All SaveKBV.org had to do to get a candidate elected was to have them be a Hawaiian resident. Then that candidate would have won by receiving enough votes.

That is the way I read the election results. Wyndham did not ignore a supposedly "obsolete" provision of the bylaws.

As to the second bolded sentence, most timeshares have a provision that the members in attendance by proxy or in person, vote on what was noticed to all members for a vote at the annual meeting. Is this how the KBV governing documents read? If so, then the parliamentarian was correct in calling for a vote of those owners present at the meeting, when no Hawaiian resident was elected to the board in the first vote.
​

So it might be more accurate to say that SaveKBV.org was outwitted by the single largest shareholder. They both played that game, just one side was outmatched.

That is how I read the KBV election. So the only question left to answer is, "Was Wyndham really that smart, or did Wyndham just take advantage of the opportunity presented to them?"

jmo​