Missouri Rescission confusion...Any Ideas?

[tipkid]

Ok, we bought a property in Branson 12/2/2011...Searched for rescission period and found several sites on web stating "7 Business Days" so postmarked rescission letter 5 Business days later on 12/9/2011 to be safe. Received call from Resort that our letter was postmarked after rescission period. Called Missouri Atty Generals office and was directed to revised statute 407.620 which states "5 days" and no specification of "business" days.

My question is this, "How can 5 days not be consider or inferred or implied to be "business" days? Would this not create a burden on the buyer if this is straight 5 calendar days? What if the 5th Day falls on a Holiday such as December 25th which coincidentally happens to be on a Sunday? Would this not burden the buyer to perform in 4 days instead of the called out "5 Day" period. If we make this argument then the only reasonable way to satisfy the ability to perform in any situation in a calendar year requires us to define "5 days" or the word "day" to mean "Business Day", otherwise a party cannot perform in all situations under the "5 day" stipulation.

Any advice?

 

[ronparise]

I would think 5 days is 5 calendar days unless somehow otherwise qualified, ie 5 business days. Would this create a burden on the buyer? Of course it does, but any rescission period puts the burden on the buyer to act within a certain time period

What does it say in your contract? It ought to be spelled out there. My Florida contract (Wyndham) says in a paragraph directly above my signature. "You may cancel this Agreement....within 10 calendar days..."

It sounds like you are stuck if the developer holds you to the letter of the law.

You are in good company here, lots of us have purchased from developers, some more than once, but most have learned (or are learning) how to use what we bought and we like it

 

[RX8]

Here is the exact MO statute

"407.620. In addition to any other remedy by which such an agreement may be rescinded or otherwise voided, a purchaser of a time-share plan or time-share property has five days after the day of purchase to cancel the purchase. Printed notice of this right to cancel shall be given to the purchaser in writing with the use of 18-point boldface type in the following manner: NOTICE YOU HAVE THE RIGHT TO CANCEL THIS AGREEMENT WITHIN FIVE DAYS AFTER THE DATE OF THIS AGREEMENT. CANCELLATION MUST BE IN WRITING AND IF SENT BY MAIL, ADDRESSED TO THE OTHER CONTRACTING PARTY AS SHOWN ON THIS AGREEMENT, CANCELLATION WILL BE ACCOMPLISHED AT THE MOMENT THE LETTER IS POSTMARKED. IF SENT BY MAIL, THE LETTER MAY BE CERTIFIED WITH A RETURN RECEIPT REQUESTED. YOUR RIGHT TO CANCEL CANNOT BE WAIVED."

My guess is that the OP's contract states EXACTLY what is in CAPS and is EXACTLY 18 pt boldface type. You can be sure they will not make any mistakes that will jeopardize the validity of the contract.

 

[Passepartout]

Welcome to TUG!

Looks like you are a new timeshare owner. Sorry your rescission letter didn't get off in time. So now the thing to do is learn how to make the most of your purchase. Start with the newbies section and go on to the forum for whatever system you bought in to. Then there's exchanging and the travel forums.

Good luck and enjoy your new vacation lifestyle- whether you planned it or not.

Jim Ricks

 

[tipkid]

my point exactly from the Missouri statute..."a purchaser of a time-share plan or time-share property has five days after the day of purchase to cancel the purchase" There is no way a purchaser has 5 days after day of purchase, if Day 5 falls on a Holiday or non-business day which postmark is not available...so is it safe to say in order to comply with Missouri statute to allow 5 days, one must conclude these are business days?

just asking

 

[sfwilshire]

Interesting argument. Have you run it by your lawyer?

No doubt you signed an agreement to the statement and even if it is ambiguous, you agreed to it. The resort developer probably has lots of highly paid lawyers to defend their position. Do you?

Sorry to be negative and it's always worth a try if you have the money to fund it and the energy. Be sure to come back and report if you prevail.

Sheila

 

[Passepartout]

Tipkid, it is pretty clear that the statute allows a 5 calendar days for rescission. It could have been worse: Massachusetts allows 3. From your first post: the resort states that your letter was postmarked after the rescission period. There's no reason to assume the resort would give you any more time than the law allows. You seem to be a timeshare owner as of 12/8/11.

Welcome!

Jim

 

[MULTIZ321]

TipKid,

Welcome to Tug!

You should have a copy of the Purchase Agreement Papers that you signed. Somewhere in that document should be a clause about your rescision rights and the date that the recision period ends. The clause should also specify what rules must be followed to rescind.

Good Luck.

Richard

 

[JM48]

Isn't the rescission period determined by the state laws where the documents are signed ?

But as stated above it should be clearly stated in the paper work.

JM

 

[riverdees05]

You might try talking with a Missouri Lawyer that deals with real estate, they might be able to help you. But my guess it that it means 5 calendar days after living in Missouri for 50 years.

 

[Talent312]

I suspect that this issue has been litigated and there is caselaw interpreting the Missouri statute. I also suspect that the seller or their attorneys are well-aware of any such caselaw and know that they are on solid ground.

But if you want to do your own legal research, you might try to access Missouri Statutes Annotated at a law school library -- each statute has a brief summary of rulings which cite the statute. Alternatively, you should consult a lawyer licensed to practice in Missouri. Many lawyers offer a low or no-fee initial consult.

As much as you'd like us to say, and as much as we'd like to say, that you are right and they are wrong, relying on a bunch of armchair quarterbacks on TUG for half-baked opinions will not be of much help.

 

[Ron98GT]

Isn't the rescission period determined by the state laws where the documents are signed ?
But as stated above it should be clearly stated in the paper work.

JM

NO! State Law/Statutes where the Real Property is located dictate the rescission period.

At least in Nevada it is clearly stipulated calendar days: "The purchaser of a time share may cancel, by written notice, the contract of sale until midnight of the fifth calendar day following the date of execution of the contract."

 

[e.bram]

Since the law specifies that the letter MUST be postmarked one could implicitly infer that the days are days the Post Office is open. If the venue is local to your residence you could go pro se. The amount of money won't attract a high priced lawyer from the developer and the worst you could do is lose. If you do nothing you lose anyway.
Talent: A judge is not bound by case law in low value cases. ie who is going to appeal?

 

[Passepartout]

my point exactly from the Missouri statute..."a purchaser of a time-share plan or time-share property has five days after the day of purchase to cancel the purchase" There is no way a purchaser has 5 days after day of purchase, if Day 5 falls on a Holiday or non-business day which postmark is not available...so is it safe to say in order to comply with Missouri statute to allow 5 days, one must conclude these are business days?

just asking

In your case, days 2&3 were weekend days, and day 5 was a Wednesday. If you got it postmarked on Friday the 9th, that was 2 days late. If, using your example quoted above, day 5 falls on a weekend, you can't get it postmarked anyway.

IMO, you own a timeshare. Congratulations. Many TUGgers fall into the category of having bought at least their first- unwittingly- from a developer. Heck, some have bought several. You are in good company.

Best to start learning how to get the best use from it. There is no better place than TUG.

Jim

 

[tipkid]

UPDATE!!!!!!!!!!!!!!!,

Well, The timeshare salesman left a voicemail and said he needed a reason for our rescission and wondered "what went wrong". With this response, We are assuming we met the rescission criteria as this is his 3rd attempt to discuss the issue with us... Sound reasonable to you pros out there?


Now that we have possibly prevailed, where should we go to find the best TS deals, and should we purchase property, points, combination..etc?

Thx

 

[theo]

My $0.02 worth...

Well, The timeshare salesman left a voicemail and said he needed a reason for our rescission and wondered "what went wrong". With this response, We are assuming we met the rescission criteria as this is his 3rd attempt to discuss the issue with us... Sound reasonable to you pros out there?

Now that we have possibly prevailed, where should we go to find the best TS deals, and should we purchase property, points, combination..etc?

With all due respect, you quite clearly did not meet your state's time criteria for contract rescission; you were actually too late by several days. That said, perhaps the "Christmas spirit" has nonetheless prevailed and the developer sales weasels have voluntarily decided to let you out of the executed contract anyhow. You are never required to provide a reason to rescind; you are only required to enact your rescission within the time frame identified by pertinent state law. The sales weasel might like "a reason", but you are not in any way legally obligated to provide one. A developer allowing a "too late" rescission seems both highly unusual and quite improbable to me, but I hope that you are right in your optimistic interpretation. If so, you've certainly received a great Christmas "gift"...

Frankly, my recommendation would be to forget about purchasing for right now and to instead invest the time to read and learn for several months. TUG is a great resource of knowledge and experience for you to tap into and explore. Then read and learn for several more months. There is simply far too much information and far too many details and nuances about far too many very different and completely unrelated systems to jump into those waters prematurely, armed only with enthusiasm when what you really need is knowledge.

Once you learn a whole lot more about the many different timeshare products, systems, options and "flavors", what might work best for YOU will likely begin to evolve and become more clear to you. In the meantime, there is no simple "25 words or less" recommendation for anyone to give you. Once you develop and clarify your own picture of what you seek to achieve, you can then scour TUG, eBay, RedWeek, MyResortNetwork and other resale sites to hunt down a good deal that fits and fulfills your objectives.

I assume that you have already learned one crtically important point --- only buy resale.

 

[Rob&Carol Q]

No rush dude...finish the fight you are in before you go looking for another monster to slay. I too, hope the game has turned your way.

Best thing for you is to read...and absorb what you are reading. This website is a fine place to start. There are others but this one has folks that will answer questions in a timely fashion.

Absolutely no rush on ownership. Just about any person who regularly visits this board will tell you that. Learn the system before you buy into it. Shoot, the standard recommendation here is to wait at least six months and then rent a vacation to the TS you are considering...oh, and stay away from weasel presentations.

 

[Passepartout]

Tipkid, I agree with the foregoing posts. Cool your jets. Wait til your down payment gets credited back to you, then take a deep breath and thank the stars of Christmas that they allowed you to rescind. They didn't have to (see #14). The only reason the salesman is trying to call you is to talk you out of rescission and to sweeten the pot.

Meanwhile, read through the newbies forum, and whichever system sub-forums that interest you. You might peruse the TUG classifieds and Buying, Selling, Renting and Bargain Deals to see if any of the offerings catch your eye. EBay is also worth looking at- though now, the worthwhile ones there are drawing some bids and the real good ones will need a snipe to catch.

I'd recommend that you rent a week at whatever resort(s) you are thinking of buying into. The good deals are not going away. You can often rent for less than a years' MF, so don't sweat buying your own.

Best wishes...

Jim

 

[tipkid]

WE WON!!!Just Received Downpayment---rescission Accepted!!!

Now we need to find a resale that meets our needs.. We do not need a "Home Resort". We will never use this, we need something with a points system.... Any suggestions...thx. And Thx again for everyone's support here..

Feels like family :whoopie:

 

[DeniseM]

Congratulations!

Here are some questions for you to answer to help focus your goals, and help us make recommendations:

1) Where do you want your home resort to be?

2) Do you want to visit your home resort at least half the time, or do you want to trade more than half the time?

3) What are your 5 top trade destinations?

4) How many people do you usually travel with?

5) Can you travel any time, or are you locked into the school schedule?

6) Can you make firm plans 12 or more mos. in advance?

7) Can you vacation for a full week at a time?

8) What level of accommodations do you prefer on a scale of 1 to 5 stars?

9) How much can you afford to spend upfront, without financing?

10) How much can you afford to spend every year for a maintenance fee that will come due right after Christmas, and increase each year?

11) Are you a detail oriented planner?

12) Do you understand that once you buy a timeshare, it may be very difficult to sell or give away, and you are responsible for all fees, until you do?