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What if you just don't pay the developer: legal implications

andre10056

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As most of us know, buying from a developer will invariably lead to untold anxiety and sadness once you realize the enormity of your mistake. That is borne out by a recent TUG post (as one example of perhaps hundreds of thousands over the years):


It's all well and good that those who have spent thousands and thousands of hours on TUG have educated themselves on how to maneuver through the timeshare minefield through reading and writing tens of thousands of posts. Thereafter, of course, they can readily identify resale bargains. But please recognize that that great resale deal allowing you to save some amount of money on future vacations involves your standing on the smoldering carcass of others.

So the buyer in the above cited thread still owes $28,000. What if he just stops paying?

I would expect that he gets threatened with court action. What if he were to hire an attorney and threaten them back by complaining about (and the following is a partial list):

I was told maintenance fees would not go up. They have.

Or perhaps they failed to tell me about maintenance fees altogether such that I thought my tens of thousands in purchase price bought me a lifetime of vacations.

I was told that my winter vacation in "fill in the blank" could be easily traded for upscale resorts during February in Key West or Hawaii. Or Manhattan or Boston during the spring or summer. In actuality, all I've ever been offered in exchange are also winter weeks in places like rural Pennsylvania.

I was not allowed to leave the sales presentation as they kept bringing higher and higher level people to try to convince me that it made no sense that I would NOT choose to buy. That the deal was that good. That they would keep trying to educate me on how great the deal was because they truly would feel badly if my family were not able to enjoy all those future great vacations at such a low cost. I was made to feel so guilty, and I was so exhausted after six hours, I signed.

Like I said, that's just for starters. Perhaps others can add their own developer sales staff horror stories.

If it goes to trial (assuming the developer wants to take it that far), would any jury (or judge for that matter) NOT allow the victim (and he's truly and obviously a victim) to escape? Might he also countersue not only to rescind the contract, but also get money back that he already paid?

Has anyone just stopped paying? What were the implications?
 

CalGalTraveler

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Your thread is not new. There are probably 5 - 7 each week like yours. You need to spend some time on TUG searching and reading threads like the one below. Some states such as California, Florida, South Carolina and others have put in anti-deficiency, non-judicial foreclosure laws because the abuses you cited were so frequent. Consumers are still out the money but at least they can get out. Lawmakers probably don't see addressing sales abuses as a high priority because this is a discretionary luxury item and people don't live in their timeshares.

 

CalGalTraveler

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Excellent CalGal. So by "anti-deficiency" you mean that a foreclosure can only take back the timeshare. That's it. No payment of what might allegedly be owed on the contract?

Correct. They cannot go after you for lawyers fees and backpaid MF or mortgage on your other assets, all they can do is foreclose and get the timeshare back as compensation for their "losses" and ding your credit if you had a mortgage.

Not only do developers get to keep the money you spent upfront, they turn around and resell that timeshare for the same $$$ to someone else - that's not a bad ROI to the developer. They make 2x as much on the same unit! They also can rent out the unit until it is sold. They have an internal finance unit so they can take the write off of the mortgage on their taxes.

So they don't have any significant "losses." With your money, rentals of inventory, and the ability to resell again, they probably make more money than if you had kept and paid MF. They are laughing all the way to the bank.

My hypothesis is that this is why developers don't go heavy-handed after the credit ding. Too much public outcry and there would be more laws...
 
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Fredflintstone

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Not legal advice, just my opinion.

Above the good points that @CalGalTraveler pointed out, the key is what’s in the Contract language that was executed or signed by both parties? You can claim that you had promises not delivered all you like, but are these promises in the signed, written contract?

Many contracts have language such as:

1. You are advised that any promises made during the presentation are in the contract or they have no force. Initial here to acknowledge this point.
2. A common argument from the developer is that you have 2 good legs and no one forced you to stay. You could have got up and walked away at anytime.
3. You are your own Guardian right? That means you can enter into a contract and be bound to the terms.

I have always said buyer and seller counsel requirements is crucial to timeshares sales for precisely the comments the OP outlined. People do not read what they are signing.



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Fredflintstone

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Excellent CalGal. So by "anti-deficiency" you mean that a foreclosure can only take back the timeshare. That's it. No payment of what might allegedly be owed on the contract?

Anti deficiency is only legislated in a few states.


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andre10056

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Correct. They cannot go after you for lawyers fees and backpaid MF or mortgage on your other assets, all they can do is foreclose and get the timeshare back as compensation for their "losses" and ding your credit if you had a mortgage. Not only do they get the keep the money you spent upfront, they then turn around and resell that timeshare for the same amount to someone else, that's not a bad ROI to the developer. They also can rent out the unit until it is sold. So they don't have any significant "losses." They are laughing all the way to the bank.

My hypothesis is that no one is questioning this practice and this is why they don't go too heavily after the credit. Too much public outcry and there would be more laws...
First of all, that's great news for the person in the cited thread who apparently bought in Myrtle Beach, South Carolina (one of the states you specifically mentioned). I linked that thread to this one so he'll hopefully start doing research on this anti-deficiency issue.

Are there any minefields he (or she) should avoid to insure that the developer just takes back the timeshare and nothing else? I've seen something about "make sure you don't respond..." or something like that. What's that about?
 

Fredflintstone

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First of all, that's great news for the person in the cited thread who apparently bought in Myrtle Beach, South Carolina (one of the states you specifically mentioned). I linked that thread to this one so he'll hopefully start doing research on this anti-deficiency issue.

Are there any minefields he (or she) should avoid to insure that the developer just takes back the timeshare and nothing else? I've seen something about "make sure you don't respond..." or something like that. What's that about?

Some states have non judicial, anti deficiency laws where you CANNOT object to them taking the timeshare back. So, one “landmine” is them trying to get you to object so they can go the judicial, deficiency route. That’s why it’s best not to talk to them. Your silence means no objection.


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andre10056

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Some states have non judicial, anti deficiency laws where you CANNOT object to them taking the timeshare back. So, one “landmine” is them trying to get you to object so they can go the judicial, deficiency route. That’s why it’s best not to talk to them. Your silence means no objection.


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Ahhhhhhh. The clouds are gone and the sun is out.

So DO NOT object to their taking back your timeshare. Silence means no objection.

Instead of writing or emailing "they told me this or that. That was a lie. I couldn't blah blah blah when they told me I could". I'm assuming that would constitute an objection.
 

Fredflintstone

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Ahhhhhhh. The clouds are gone and the sun is out.

So DO NOT object to their taking back your timeshare. Silence means no objection.

Instead of writing or emailing "they told me this or that. That was a lie. I couldn't blah blah blah when they told me I could". I'm assuming that would constitute an objection.

Yes, it could be seen that way. That’s why garnering legal advice is best. A good lawyer can maneuver through any land mines.




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Fredflintstone

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Frankly, IMO, arguing fraud and misrepresentation is a difficult and expensive route to go. For example, you say you were lied to and they pull out the contract showing the clause stating everything promised must be in the contract or it is not in force.


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andre10056

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Frankly, IMO, arguing fraud and misrepresentation is a difficult and expensive route to go. For example, you say you were lied to and they pull out the contract showing the clause stating everything promised must be in the contract or it is not in force.


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Thank you Fredflintstone. You cavemen know your stuff.

And I agree. Well worth (actually, essential) getting legal advice to maneuver around the landmines rather than attempting to do this yourself.

My only concern would be that the attorney know all about this. Hopefully, a real estate attorney in whatever state would.
 

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Here is a typical response from a developer when folks claim they were lied to... This example was taken from the Vacation Village Resort bbb.org site. The responses from them are the same.

Vacation Village Resorts Response
02/27/2019
***Document Attached*** Re: BBB Case ********* (the "Complaint") filed by ****** and **** ******* (the "Consumers") regarding the purchase of a timeshare interval from Eldorado Resorts Corp., (the Developer") under Contract No. 4107101 (the "Contract"). To whom it *** concern: Thank you for sending us the communication from the Consumers named above. I have reviewed the Complaint from the Consumers along with the file for the Contract at issue. After an evaluation of all relevant information, I wish to inform you that the Developer denies the allegations made in the Complaint. As background information, on June 8, 2018, the Consumers entered into an agreement to purchase a Timeshare Interval at Sunrise Ridge Resort with usage beginning in 2019. The Developer provided the Consumers with financing (the "Loan") for the purchase of the Timeshare Interval. The Consumers have made zero payments and are currently in default of their financial obligation under the Loan. The Developer is properly registered in all jurisdictions requiring registration and all required documents have been submitted to and approved by the governing regulatory authority. Likewise, all employees receive educational as well as practical on-site training, and all sales employees are properly licensed, where required. The Developer and its sales representatives exercise great care in educating each prospective purchaser about what they are purchasing. The closing process is divided between a Sales Representative and a Verification Officer. This split process is deliberate and serves to eliminate any possible confusion that the Consumers *** have had. The Developer makes a concerted effort to assure that each prospective purchaser makes an informed and educated decision as to whether or not to purchase. All of the terms, fees and costs associated with the purchase are documented in writing for mutual protection. The Consumers participated in the entire sales and closing process and had the full opportunity to ask any and all questions before signing any documents and making the payment of the deposit. The Consumers also had the opportunity to simply decline the offer. In addition, the Consumers were entitled to rescind the Contract during the statutory cancellation period. The cancellation period is disclosed within the documents that they signed and received. Specifically, it is disclosed in bold print on the Contract for Purchase and Sales. The cancellation period is clearly stated in bold print directly above the Consumers' signature on this document; copies of these documents are attached for your reference. Once the rescission period expires, as it has in this case, the Contract cannot be rescinded and the Consumers cannot unilaterally decide not to be bound by the terms to which they already agreed. The Consumer were informed that their Timeshare Week will always be available to them at their home resort provided that their maintenance fees and taxes are paid current and they reserve their week in advance. All exchanges are handled by Resort Condominium International ("RCI") and are always subject to availability however; availability at any given resort is constantly changing. The Developer and RCI have thousands of owners who are able to successfully utilize their timeshare week because they are flexible and they understand how the program works. While, from time to time, a consumer *** be dissatisfied or confused about their purchase, we are fortunate to have thousands of happy owners who enjoy their vacation ownership with their families every year. It is our sincere hope that you and your family will enjoy your vacation ownership. To that end, we remain committed to assisting you in utilizing the many benefits available to you with your timeshare ownership. If you need any assistance in scheduling your next vacation, please call our Concierge Service Department at X-XXX-XXX-XXXX or email them at: *********@vacationvillageresorts.com. We have a dedicated team of Concierge Specialists ready to assist you Monday through Friday from 8:30 AM to 5:00 PM EST. Our Concierge Specialists can answer any questions that you *** have and they can even help you book your next vacation. Thank you for your time and assistance in this matter. Very truly yours, ** ** **** Corporate Relations Manager



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Fredflintstone

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Thank you Fredflintstone. You cavemen know your stuff.

And I agree. Well worth (actually, essential) getting legal advice to maneuver around the landmines rather than attempting to do this yourself.

My only concern would be that the attorney know all about this. Hopefully, a real estate attorney in whatever state would.

Yes, but if it was me, I would get a timeshare lawyer located in the state the TS is located. It’s good to have general legal information so you can steer the lawyer to how you want the matter concluded.


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LannyPC

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Frankly, IMO, arguing fraud and misrepresentation is a difficult and expensive route to go. For example, you say you were lied to and they pull out the contract showing the clause stating everything promised must be in the contract or it is not in force.

Yes, that's one reason why, when people come on here asking about suing the developer or sales people who sold them the TS based on lies, we caution them against it.

Apparently (this is what I've heard so take this at face value), some jurisdictions have laws stating essentially that whatever the sales person told you is what counts and the sales people or developer cannot hide behind the contract that states "This contract is what counts, not what was said". Even in cases where such laws exist, the complainant has to prove that the sales people said such and such. That is hard to do.
 

andre10056

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Here is a typical response from a developer when folks claim they were lied to... This example was taken from the Vacation Village Resort bbb.org site. The responses from them are the same.

Vacation Village Resorts Response
02/27/2019
***Document Attached*** Re: BBB Case ********* (the "Complaint") filed by ****** and **** ******* (the "Consumers") regarding the purchase of a timeshare interval from Eldorado Resorts Corp., (the Developer") under Contract No. 4107101 (the "Contract"). To whom it *** concern: Thank you for sending us the communication from the Consumers named above. I have reviewed the Complaint from the Consumers along with the file for the Contract at issue. After an evaluation of all relevant information, I wish to inform you that the Developer denies the allegations made in the Complaint. As background information, on June 8, 2018, the Consumers entered into an agreement to purchase a Timeshare Interval at Sunrise Ridge Resort with usage beginning in 2019. The Developer provided the Consumers with financing (the "Loan") for the purchase of the Timeshare Interval. The Consumers have made zero payments and are currently in default of their financial obligation under the Loan. The Developer is properly registered in all jurisdictions requiring registration and all required documents have been submitted to and approved by the governing regulatory authority. Likewise, all employees receive educational as well as practical on-site training, and all sales employees are properly licensed, where required. The Developer and its sales representatives exercise great care in educating each prospective purchaser about what they are purchasing. The closing process is divided between a Sales Representative and a Verification Officer. This split process is deliberate and serves to eliminate any possible confusion that the Consumers *** have had. The Developer makes a concerted effort to assure that each prospective purchaser makes an informed and educated decision as to whether or not to purchase. All of the terms, fees and costs associated with the purchase are documented in writing for mutual protection. The Consumers participated in the entire sales and closing process and had the full opportunity to ask any and all questions before signing any documents and making the payment of the deposit. The Consumers also had the opportunity to simply decline the offer. In addition, the Consumers were entitled to rescind the Contract during the statutory cancellation period. The cancellation period is disclosed within the documents that they signed and received. Specifically, it is disclosed in bold print on the Contract for Purchase and Sales. The cancellation period is clearly stated in bold print directly above the Consumers' signature on this document; copies of these documents are attached for your reference. Once the rescission period expires, as it has in this case, the Contract cannot be rescinded and the Consumers cannot unilaterally decide not to be bound by the terms to which they already agreed. The Consumer were informed that their Timeshare Week will always be available to them at their home resort provided that their maintenance fees and taxes are paid current and they reserve their week in advance. All exchanges are handled by Resort Condominium International ("RCI") and are always subject to availability however; availability at any given resort is constantly changing. The Developer and RCI have thousands of owners who are able to successfully utilize their timeshare week because they are flexible and they understand how the program works. While, from time to time, a consumer *** be dissatisfied or confused about their purchase, we are fortunate to have thousands of happy owners who enjoy their vacation ownership with their families every year. It is our sincere hope that you and your family will enjoy your vacation ownership. To that end, we remain committed to assisting you in utilizing the many benefits available to you with your timeshare ownership. If you need any assistance in scheduling your next vacation, please call our Concierge Service Department at X-XXX-XXX-XXXX or email them at: *********@vacationvillageresorts.com. We have a dedicated team of Concierge Specialists ready to assist you Monday through Friday from 8:30 AM to 5:00 PM EST. Our Concierge Specialists can answer any questions that you *** have and they can even help you book your next vacation. Thank you for your time and assistance in this matter. Very truly yours, ** ** **** Corporate Relations Manager



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I got it.

The accusation: the developer was (and is) demonically evil, perhaps the most demonically evil entity imaginable. (My assessment: probably true)

The response: We're as pure as the driven snow. We're downright angelic. (My assessment: likely false).

Hopefully, the complainants did not jeopardize their anti-deficiency opportunity.
 

CalGalTraveler

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Another landmine is if the debt collectors call and you or someone in your household acknowledges the debt on the phone (they record these calls), "I am not paying you any more..."...or worse you pay even a $1 toward the loan. They can use that to reset the statute of limitations for the debt.
 

andre10056

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Another landmine is if the debt collectors call and you or someone in your household acknowledges the debt on the phone (they record these calls), "I am not paying you any more..."...or worse you pay even a $1 toward the loan. They can use that to reset the statute of limitations for the debt.
So even saying, "I'm not paying you any more..." is acknowledging the debt which would reset the statute of limitations. Wow! And I'm assuming that would apply to any alleged debt, credit card debt, whatever.

It would probably be a good idea to screen all your calls via an answering machine so that you never even have the opportunity to slip up when you talk to those people (in many cases, quote unquote "people").
 

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So even saying, "I'm not paying you any more..." is acknowledging the debt which would reset the statute of limitations. Wow! And I'm assuming that would apply to any alleged debt, credit card debt, whatever.

It would probably be a good idea to screen all your calls via an answering machine so that you never even have the opportunity to slip up when you talk to those people (in many cases, quote unquote "people").

As my mom always said, “Silence is golden”


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CalGalTraveler

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That's why I would consult a lawyer even before approaching on a deedback. If you tell them, "if you don't deed this back, I am going to walk..." perhaps that is acknowledging the debt but the SOL timeclock hasn't started yet so maybe it doesn't matter.
 

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Yes, that's one reason why, when people come on here asking about suing the developer or sales people who sold them the TS based on lies, we caution them against it.

Apparently (this is what I've heard so take this at face value), some jurisdictions have laws stating essentially that whatever the sales person told you is what counts and the sales people or developer cannot hide behind the contract that states "This contract is what counts, not what was said". Even in cases where such laws exist, the complainant has to prove that the sales people said such and such. That is hard to do.

Exactly,

And how do you prove you were lied to by sales staff when it’s your word against theirs? Again, I really hate these sales room back office sign offs. It leaves the developer exposed to allegations and puts the buyer at risk too.

They really need to legislate that all timeshare real property transactions have to go through counsel. It protects the developer and buyer. It ensures that whatever has been promised is in the Contract and ensures no misunderstandings by either party.

After all, we cannot rely on commissioned sales staff to protect both parties. All they are interested in is making moola.


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CalGalTraveler

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What I like about what @Grammarhero and @Fredflintstone have done is given foundational legal information that a person can bring into a legal consultation so the lawyer understands the context and can readily advise on the best approach without spending time (aka your money) trying to find this information.
 

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What happens if a person stopped making MF payments on a RTU (no mortgage) TS that is located outside of the US (ie: Caribbean or Mexico) but they have an office that handles the payments in the US? Besides the collection calls to they have any other recourse?
 
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