Need advice on a big mess

[madxxdog]

My parents bought a time share four or five years ago at the Ellington at Wachesaw Plantation in S.C. They paid cash after reaching an agreement that there would be no maintenance fees, ever. They have a contract that lists maint. fees of zero. Three years ago while using the facility current management discovered they were not paying maint. fees. By the end of the day they were told they would have to pay maint. fees or leave. My dad was furious so they decided to leave and have not been back. After contacting the resort later to try and clear things up they got nowhere. They received in the mail a copy of the contract they originally signed but now the maint. fee section has been altered and instead of zero there is now an amount (around 700) in that spot.
My parents then contacted the S.Carolina A.G. office but received a reply that the resort had done nothing illegal by altering the contract. My parents are in their 70's and can't afford to pay the fees which now total almost 3 grand. I'm guessing there is no way anyone is going to buy this thing until the fees are paid up. They just got a notice that the timeshare company is going to foreclose in 30 days.
They are pretty upset that people are so dishonest. I'm just glad they didn't sign their entire life savings to these thieves.
Any advice I can relay to them would be appreciated.
The salesmen that peddled this thing were all fired for selling it with no maint. fees and the attorney who processed the original documents is dead.

 

[DeniseM]

Their alternatives are to to hire an attorney, or let it go into foreclosure.

Can they afford to hire an attorney?
Can they afford to take a hit to their credit rating if it goes into foreclosure?

BTW - Even if it was paid off, they probably couldn't sell it. Most timeshares are selling for 0-10% of original retail today and they'd probably be lucky to give it away.

 

[1950bing]

WOW ! That is just so wrong.

 

[Passepartout]

<snip>
They received in the mail a copy of the contract they originally signed but now the maint. fee section has been altered and instead of zero there is now an amount (around 700) in that spot.

<snip>
The salesmen that peddled this thing were all fired for selling it with no maint. fees and the attorney who processed the original documents is dead.

First- what the TS resort did is FRAUD! This should be pointed out to the SC AG by a SC based attorney. Submit the copies of the fraudulent new contract as well as copies of the ones signed at the time of the sale. Should be easy to prove.

And second- whether or not the salesman is still there or not, he acted as an agent of the TS company, and they are bound by the contract.
Other than this little detail, I concur with Denise- your parents have to decide if it's worth pursuing. Unless this is an ocean front, really deluxe unit, it probably has little if any value, and letting it go to foreclosure may be the best way out if they can avoid collection and a credit rating hit.

Welcome to TUG. We wish you well.

Jim Ricks

 

[RX8]

Did the AG fully understand the situation? Generally, a contract CAN be altered IF the change is initialed. Was the alteration adding $700 initialed by your parents? If no, then it certainly LOOKS like fraud. If your parents have a contract that is signed by all parties and lists ZERO for maintenance fees and is NOT initialed then I do not know how they can say THEIR altered contract is the correct one. If that is the case, I would think the resort would LOVE to take the deed back with NO RECOURSE to your parents. The alternative is potentially losing in court which would allow your parents to have FREE weeks forever.

I think the resort may be playing hard ball and the quicker they can foreclose, leaving you with a huge debt and credit issues, the quicker they may think that this "fraud" will be swept under the rug. If this is truly fraud, you should be able to at a minimum get them to do a deed back with your parents owing nothing.

 

[ttt]

Something just doesn't sound right. I never heard of an inducement to purchase that includes never paying maint. fees.

 

[madxxdog]

I can only add what my parents have told me. I live in Michigan and they live in Kentucky. My dad said that when this thing was first agreed to there was a big argument between people at the time share office because the contract was written up with no maint. fees. For me that would have been a red flag but they didn't know any better. That's why the elderly get cheated so often. Anyway after all was said and done they left the timeshare with a signed contract for no maint. fees.
My dad said he sent the documents to the A.G. for S.C. and the reply he received was no wrong was committed. I believe he also called an attorney in the area of the timeshare but was told there was nothing that could be done. For all I know it was someone who does legal work for them(timeshare resort).
My parents have little money left. Dad has had open heart surgery and recently a small stroke and mom is no better. The medical bills have taken a toll. They can't currently travel and I really don't think they can afford an attorney. Given my opinion of S.C. legal hospitality how can we find one that's honest?
This whole deal was bad from the start. I wish I had known about it sooner but there is still nothing I could have done to prevent this.

 

[madxxdog]

reply

And...I appreciate all the replies. Wish they had called me before buying this thing. I'm glad I found TUGG. It has answered lots of questions already.Thanks again.

 

[ace2000]

What else are you wanting to learn? Why not just let it foreclose and be done with it? It sounds like they have no use for it anyway.

 

[Passepartout]

My parents have little money left. Dad has had open heart surgery and recently a small stroke and mom is no better. The medical bills have taken a toll. They can't currently travel and I really don't think they can afford an attorney. Given my opinion of S.C. legal hospitality how can we find one that's honest?
This whole deal was bad from the start. I wish I had known about it sooner but there is still nothing I could have done to prevent this.

It is a shame how many elderly are taken for a ride, but from what you say, they may very well be 'judgement proof'. No entity will sue them for the arrears if there's no hope of collecting anything. Let 'em foreclose and be done with it. What they spent is unfortunately in this market water under the bridge.

You could seek an attorney reference from the SC Bar Assn (google it) if you want to, but it's prolly not worth the effort/trouble.

I'm sorry they were taken, but if it's any small comfort, they were no the only ones.

Jim

 

[DeniseM]

I'm not an attorney, but if all the details you have provided are correct, I'd just let it go into foreclosure.

The timeshare has NO VALUE, and they can't travel, so they aren't losing anything by letting it go.

You may have to convince them that it has no resale value - here are some ebay listings for Diamond Resort Points (this timeshare is in that system). People are listing them for $1 on ebay - and still aren't getting any bids-
http://www.ebay.com/csc/Timeshares-...=Timeshares&LH_PrefLoc=0&_fsct=&LH_Complete=1

 

[madxxdog]

reply

I'm trying to convince them to just let it go. It's difficult for them to accept that the thing has no resale value. I think their main concern now is someone trying to take another 3 or 4 grand from them after foreclosure through collections. Hopefully it's more trouble for the timeshare than it's worth. I guess we just wait and see what happens down the road.

Thanks again for your input.

 

[DeniseM]

Here is some info. about how "collections" works - http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre18.shtm

A debt collector does not have the power to just take the money from them - that would take a court order.

Here is a quote from the article above:

Can a debt collector keep contacting me if I don’t think I owe any money?

If you send the debt collector a letter stating that you don’t owe any or all of the money, or asking for verification of the debt, that collector must stop contacting you. You have to send that letter within 30 days after you receive the validation notice. But a collector can begin contacting you again if it sends you written verification of the debt, like a copy of a bill for the amount you owe.

If they are contacted by a debt collector they should respond as above, with a copy of their original contract.

I personally had this experience when I was turned over to collections for a debt I paid in full, and they did stop contacting me immediately, when I provided the proof.

If it continues, they could pay an attorney $100 to write a letter to send with the contract, to the collection agency.

 

[djs]

Since the original contract states that there are to be no maintence fees, would that provision transfer over to a new owner were the TS to be sold/given away?

 

[nightnurse613]

This is soooo wrong. As someone else said-I am not a lawyer nor do I play one on TV but, generally speaking one party cannot unilaterally change a written contract. If the contract your parent's have says NO Maintenance Fees (ever) then it cannot be altered without the approval of both parties. You might want to contact AARP and get a referral for legal advice. While the State AG might be unwilling to intercede in this private matter (some of them are appointed, some are elected). As I see it, this is water over the dam; it sounds like your parents have no use for this property, if no one is willing to help them then let them foreclose and try to collect. I would love to see the look of horror when your parents show up in court to fight the debt. Maybe the company will decide to pay them back what they paid in order to keep this kind of activity out of the public eye - or maybe you should contact a local TV that does investigative work. We have several in our town that contact businesses and help resolve issues like this. Tell them you're going to call Channel 3!!

 

[ace2000]

My parents then contacted the S.Carolina A.G. office but received a reply that the resort had done nothing illegal by altering the contract.

I guess this information is key. Why did the A.G. say this?

 

[madxxdog]

reply

Thanks Denise for the information.
I have not seen the contract or the letter from the AG. The info I have provided is what was explained to me over the phone by my dad.
Maybe the contract is worded in such a way that allows changes to the maint. fee in future years. I do know my dad is adamant he was told they wouldn't owe any fees. That was the only way he would agree to purchase it. So I could see the possibility for a deceptive salesman to pull one over on them. And since they relied on the timeshares attorney to check the contract...well it's a double whammy. He thought they were getting a deal but the devil was in the details.
I'm heading down there in a couple weeks for the holidays. I will look the stuff over then and provide an update.
I will pass the info on to them about contacting the AARP and other suggestions made.

 

[madxxdog]

reply

But the fact the timeshare company sent my parents an altered copy of the original contract document is troubling to say the least.

 

[ronparise]

Knowing what I think I know about real estate, condos, and timeshares; there has to be a maintenance fee. How could the housekeepers, desk clerks and maintenance staff get paid without one.

There has to be a maintenance fee. To allow your parents use of a resort without paying one is not fair to the rest of the owners.

Of course you may have a case, and may have the right to use a resort for free

So what to do now, ...Do you fight to keep something you dont want and cant afford, or just let it go?....

If it was me Id try to negotiate a deed in lieu of foreclosure

 

[tschwa2]

You need to see the original contract and the "new" one sent by the resort. If your dad doesn't have the original contract and is going by what he remembers he was told would/should be in the contract, he is out of luck and has no case what so ever. Even if he has a contract signed by both parties with the original terms or no MF (even with use) there would still be a fairly expensive legal battle ahead. I believe parts are managed by Festiva and parts are managed by Diamond and neither are very owner friendly.

The only way I think MF or any additional amenities can or should be included for "free" is if they make it part of the upfront cost. Ex If you are over the age of 70 we will include no MF during your lifetime (non transferable benefit-even to family members) then add $14,000 to the upfront cost. This for MF at the time of sale of $550. Then if the owners die, sell, transfer or are foreclosed before 20 years the resort makes out, if not the remaining owners are on the hook for the fees. This would only work if an escrow for the additional money was set up which doesn't happen. ( I believe this is what Wyndham should be required to do to pay for all the VIP perks but in reality I think Wyndham pockets all the crazy retail buy in fees and lets the regular members pay for the upgrades, additional housekeeping, transaction fees, newspapers, etc. of the VIP's)

 

[Rent_Share]

Let them foreclose

Close any bank accounts previously used for payments

Change Banks

Your defense is the original contract

They breached by changing it's terms

You win you keep the T/S Maintenance Fee Free

You loose (based language in the contract allowing the HOA to change the amount of MF charged) they get a Judgment and the T/S back

BTW if they do get the timeshare back they could also end up with a money judgment for unpaid maintenance fees and the cost of foreclosing

That being said:

Social Security and most retirement assets are exempt from garnishment to satisfy a judgment debt, the primary checking account in most states has an exemption provision, but no sense in making it easy for the attorney which is the reason for moving the checking account to am undisclosed location prior to the litigation.

If he/they own real property that could be encumbered plus post judgment interest, however there is minimal risk that the debtor would invest in the cost of foreclosing to recover, depending on the state homestead exemptions would also kick in, instead waiting until the property goes through probate and collecting (plus post judgment interest) as a cost of transferring the property.

The cleanest solution is a deed in lieu of foreclosure. If it is branded, try to get it escalated within the organization, there may be an issue of trying to bury a rogue salesman's antics that should have been caught in normal document quality control review

 

[Cary]

Their alternatives are to to hire an attorney, or let it go into foreclosure.

Can they afford to hire an attorney?
Can they afford to take a hit to their credit rating if it goes into foreclosure?

BTW - Even if it was paid off, they probably couldn't sell it. Most timeshares are selling for 0-10% of original retail today and they'd probably be lucky to give it away.

I am not an attorney, but I would get a Quit Claim Deed, copy the exact legal description that was on the original document have a notary witness the signatures an send it back to the resort with a signature required from the resort that they received it. I would probably include a letter with a copy of the original deed showing "no fees" and mention fraud on the resorts part and you do not expect to hear from them in the future.

I would then forget about it. It's done. Onward.

This is my opinion only as one way not to worry anymore but I would keep the original documents

 

[theo]

I respectfully disagree...

I am not an attorney, but I would get a Quit Claim Deed, copy the exact legal description that was on the original document have a notary witness the signatures an send it back to the resort with a signature required from the resort that they received it. I would probably include a letter with a copy of the original deed showing "no fees" and mention fraud on the resorts part and you do not expect to hear from them in the future.

I would then forget about it. It's done. Onward.

This is my opinion only as one way not to worry anymore but I would keep the original documents

No personal offense intended, but I regard this suggestion as uniquely bad advice...

One cannot just unilaterally name an unknowing and unsuspecting "grantee" in any deed and expect that deed to hold up under any subsequent scrutiny as actually being vaild. Absent the clearly required legal component of acceptance, such a deed could (and likely would) simply be regarded as invalid at best --- and fraudulent at worst.

It would be much better, imho, to seek a "cleaner", final ownership exit which involves the full knowledge and overt participation of the resort, however deceitful the practices of long-departed sales weasels or incompetent attorney(s) may have been in the past. Why create a potential estate issue for later when it can likely be more easily and conclusively resolved now?

If the original (unaltered) contract documents are still available and legible to compare to any improperly altered later copies, the resort should be very clearly advised of that fact. That would seem (...to me, anyhow) to constitute considerable leverage to "strongly encourage" the resort's willing acceptance of a deedback. In any event, the original purchase money is almost certainly water under the bridge and won't be recovered, either in whole or in part, in any imaginable likely scenario. That may well be the toughest pill of all for the "elders" to swallow (...that and /or the fact that the timeshare likely has no current resale market value at all).

Personally, I'd be inclined to approach the facility to request their willing acceptance of "deed in lieu of foreclosure", making very clear and very specific reference to the current possession of both the (authentic) original and later (unilaterally altered) purchase documents. In view of those past questionable practices, the resort might be inclined to accept the deedback as a much less painful and much less expensive alternative to potentially being named as "respondent" (...if civil) or as "defendant" (...if criminal) in public legal proceedings. If the resort won't willingly accept "deed in lieu of foreclosure", then let them go ahead and foreclose (and so inform them when they decline to accept the "deedback").

But believing that the unilateral preparation of a quit claim deed to an unsuspecting and unwilling grantee somehow actually brings closure and / or creates a legitimate basis on which to "just move on" is, I must respectfully submit, both quite naive and legally incorrect.

Just my personal opinion, but one surely worth at least what you've paid me for it...

 

[bogey21]

The way I read the suggestion is for the owner of the Week to send a notarized quit claim deed to the Resort who would decide whether or not to record it. The acceptance would be if/when the Resort recorded the deed.

George

 

[theo]

A big gamble --- and I don't like those "odds" AT ALL...

The way I read the suggestion is for the owner of the Week to send a notarized quit claim deed to the Resort who would decide whether or not to record it. The acceptance would be if/when the Resort recorded the deed.

George

Personally I'm not a believer in leaving important legal details to chance (...nor to thieves or incompetents). Accordingly, I would never choose (or advise) to leave the deed recording option in the resorts' hands. If they never record the (unsolicited and unwelcome) deed, take a wild guess who still owns that timeshare...

"If / when" does not appeal to me at all if trying to conclusively resolve a legal matter like this one. YMMV.