Welcome to this weeks Tuesday Slot, today Irene Parker looks at what constitutes proof when making a complaint, this is something Inside Timeshare has heard from the many readers who have reached out with their “Nightmares on Timeshare Street”, “you have no proof”. Attorney Mike Finn also gives his view on the subject, as usual his contribution is clear and concise.
Some Timeshare Regulators Respond: You have no proof
What is Proof? Strength in Numbers
By Irene Parker
Tuesday January 15, 2019
Rule 406 – Habit; Routine Practice
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
There are volumes of timeshare complaints and a sizeable timeshare exit industry created by the lack of a secondary market and by the practice of “pitching heat” which is defined by the industry as the practice of unfair and deceptive timeshare sales practices. It is a term well known and unique to the timeshare industry.
Why do some state Attorneys General pursue complaints based on a volume of complaints, while Florida’s timeshare division, the Department of Business & Professional Regulation (DBPR) and Nevada’s Real Estate Division (NRED) dismissed all of our readers’ complaints with, respectively, “Verbal representations are hard to prove” and in Nevada, “You have no proof.”
Not all Attorneys General turn a blind eye. Outgoing Connecticut Attorney General George Jepsen recognized the problem in Connecticut, nowhere near the hotbed of timeshare sales as Florida or Nevada. Still, any regulator speaking up to support the reduction of unfair and deceptive sales practices in the acquiring or the disposing of a timeshare is appreciated. Timeshare complaints rank second on the list of complaints at the Connecticut Attorney General’s office.
So what does constitute proof?
After hearing from 659 timeshare members, including 94 veterans or active duty service members, the best item of proof I can determine from the illustration above is probable cause: facts and circumstances that would lead an ordinary person to believe. We have compiled a summary report of 71 highest loyalty timeshare members who all describe how they were up-sold into insolvency, believing sales agents who told them that by buying additional points they could sell points or be able to pay maintenance fees. These programs did not exist. I find it hard to believe anyone with an ounce of common sense could read this 135 page report and not conclude these previously loyal members had been duped. I have sent this report to Senators, but they seem to feel “They signed a contract” suffices. Influential lobbyists likely play a part.
I asked attorney Mike Finn about proof. According to Mike, proof is anything that a trial judge receives from the witness stand or by the introduction of a document. “It is up to the judge to decide what is relevant – the testimony can be either oral or documentary. A judge may or may not deem the testimony allowable as evidence, but don’t undersell oral testimony,” Mike explains. “As stated in Rule 406 above, is the evidence presented of a common theme or is there a consistent pattern of complaints? It may still be hearsay, which makes it less reliable or relevant, but a summary report from 71 high loyalty timeshare members, all testifying that they purchased for similar reasons, reasons that did not exist, may very well be credible. Trial judges have a lot of discretion or latitude to render a decision over what is relevant or not relevant. Oral proof can serve as proof.”
One obstacle is that about half of the 71 highest loyalty timeshare members signed a non-disclosure agreement. Does that mean they cannot share their experience in a court of law? According to Mike, “There are times when a disclosure can be made despite the witness having signed an NDA. Even if a subpoena cannot overcome an NDA, the fact that all of these people filed claims and prevailed after signing a confidentiality agreement, would present a common intent, plan, scheme or motive that encouraged unfair and deceptive sales practices. It becomes more relevant when the practice has been reported time and time again. Everything is possible, but may not be probable. Not all judges see things the same way, but common intent does follow the rules of evidence. Rules of evidence are reliable and courts use them.”
In Florida, a two party state, both parties must be aware of an in-person recording, making proof even more difficult to come by. In Nevada, only one party must be aware of an in-person recording. Members should consider recording their sales session in states where this is legal.
It seems we keep circling back to the court of public opinion. Let the timeshare buyer be informed that all complaints that begin with, “The sales agent said” will be dismissed with, “You signed a contract.” Then at least the timeshare buyer would know they cannot believe a word a timeshare sales agent says. That at least would be fair and not deceptive, a level playing field.
There seems to be in the timeshare industry a corporate culture that promulgates deceit. The sales agent deceives, the company responds, “You signed a contract” and when this response is seconded by the state regulator, there is, in effect, no regulation. One former timeshare sales agent described this process as a hamster wheel of recycled inventory, leaving the young, the old, veterans and active duty service members in the wake of timeshare foreclosure. Families are financially and sometimes physically devastated. Many seniors have reported weight loss, inability to sleep, and in one case, a heart attack, when questioned about the financial harm caused by buying a timeshare. It is ironic that vacation plans are supposed to reduce stress.
Another question raised is whether the buyer signed under duress, after hour’s long sales sessions, provided only a 20 minute signing period for a buyer to review a document that the best lawyer could not review in less than a few hours.
Where do we go from here?
Strength in numbers – Keep sharing your stories.
We hope regulators, lawmakers and Wall Street will not turn a blind eye. We have heard form 659 readers, and these are only the readers we have followed along with resolution or lack of. There are thousands of Better Business Bureau complaints, lawsuits and Attorneys General investigations involving thousands of timeshare buyers. Let’s hope greater awareness will at least alert the consumer, the deck is stacked against them.
Self-help groups we feel are not industry influenced:
Thank you Irene and also a very big thanks to Attorney Mike Finn, Inside Timeshare is sure this article will help to explain to our readers the problems that many of them face when filing complaints. This is a huge problem not just in the US but also in Europe and the rest of the world. The one thing that can be said is that Spain has brought in laws to regulate the sale of timeshare, the industry had plenty of time to get their house in order, but as we know they thought they were above the law. Now they are finding the full wrath of the law and it is costing them millions.
For those who purchased timeshare in Spain, they now have the courts and judges on their side, no longer can the sales agents use misleading tactics to gain a sale. We are also seeing a very significant drop in the sale of timeshare, with many sales decks being closed down. The unfortunate side effect of this are the number of bogus claims companies getting on the bandwagon, using the law to dupe the unsuspecting owners. Many of these have been set up by former sales agents and managers and in many cases using stolen data of their former clients to “scam” them out of yet more money.
Whether you attend a presentation for a timeshare, receive a call about claiming or relinquishing or even find a company on the internet or advert in a publication, the advice is always the same, do not commit to anything until you have done your homework.