westgaters

[timeos2 Senior Member Find all posts View Profile Close timeos2]

But what proof

Mike - If it were that easy 3/4 of all retail timeshare contracts would be canceled. What proof could this buyer offer of what the sales weasel said a year ago? You know they would deny it and a written contract trumps anything said orally. It's not a winnable case and no attorney would touch it. They own the week after the rescind period ended unless they hold a piece of evidence to prove deception of some type.

[mshatty Super Moderator Find all posts View Profile Close mshatty]

Mike - If it were that easy 3/4 of all retail timeshare contracts would be canceled. What proof could this buyer offer of what the sales weasel said a year ago? You know they would deny it and a written contract trumps anything said orally. It's not a winnable case and no attorney would touch it. They own the week after the rescind period ended unless they hold a piece of evidence to prove deception of some type.

John,

I agree that it is a very hard case with only he said she said. As I previously posted, these type of cases have to start with a letter of notice. Most people will often send the notice letter and see what happens.

But you are wrong in that the written contract would not trump a deceptive trade practice act violation. Most of these type of causes of action have an underlying signed contract. It is the representation of deception that is actionable; that is separate from the contract.

[dougp26364 Senior Member Find all posts View Profile Close dougp26364]

John,

I agree that it is a very hard case with only he said she said. As I previously posted, these type of cases have to start with a letter of notice. Most people will often send the notice letter and see what happens.

But you are wrong in that the written contract would not trump a deceptive trade practice act violation. Most of these type of causes of action have an underlying signed contract. It is the representation of deception that is actionable; that is separate from the contract.

But the underlying problem still exists. You must PROVE that they were lied to. Unless Westgate is up to admitting the lie there is no PROOF that it occured. Without proof of the lie, then the case goes nowhere.

Anyone can say they were told something or promised something. It's another thing to actually prove what said. Oral contracts can be the most difficult to enforce and, in this case, it will be impossible to prove that Westgate told them there was no rescinsion period unless Westgate can not produce the signed right of recsinsion form. If they can provide that, the OP has no PROOF of what was said and thus has no case.

Now, if you can get a large enough group of people with the exact same complaint, then perhaps you have a case. But just one person saying this is like shouting in a hurricane. You can do it but no one is liable to hear you.

[mshatty Super Moderator Find all posts View Profile Close mshatty]

But the underlying problem still exists. You must PROVE that they were lied to. Unless Westgate is up to admitting the lie there is no PROOF that it occured. Without proof of the lie, then the case goes nowhere.

Anyone can say they were told something or promised something. It's another thing to actually prove what said. Oral contracts can be the most difficult to enforce and, in this case, it will be impossible to prove that Westgate told them there was no rescinsion period unless Westgate can not produce the signed right of recsinsion form. If they can provide that, the OP has no PROOF of what was said and thus has no case.

Now, if you can get a large enough group of people with the exact same complaint, then perhaps you have a case. But just one person saying this is like shouting in a hurricane. You can do it but no one is liable to hear you.

Again, you're wrong about trying to tie in the fact that there is a signed contract into this cause of action. The underlying contract has NOTHING to do with a violation of a deceptive trade practices act cause of action. It will not and cannot trump a DTPA violation. Most such violations are based on oral acts. I never said that it is an easy case to prove. Each case is dependent on the facts.

If the consumer has enough consistent facts to support his case, he/she has a very good chance to succeed. One of the good things about a lawsuit, there is discovery against the violator. That will normally make or break a lawsuit.

[tonyg Goomba & Super Moderator Find all posts View Profile Close tonyg]

The fact that this was brought up now over what happened about a year ago certainly seems to hurt any case that can be made.

[dougp26364 Senior Member Find all posts View Profile Close dougp26364]

I can agree that the only way the OP stands a chance of rescending is to get an lawyer. I can also agree that an oral contract is binding and can be upheld in a court of law. The only thing I'm really saying is that I have very serious doubts that the OP can actually prove in a court of law what he tells us he was told. In absence of proof of what was said AND with proof of what was written by Westgate (assuming they actually have a signed recsinsion statement), then all I'm saying is the OP will never be able to prove their case.

I am not trying to argue the validity of an oral contract. Only the ability of the OP to prove there actually WAS an oral contract.

[mshatty Super Moderator Find all posts View Profile Close mshatty]

Doug,

I'm not talking about an oral contract vs. written contract. That isn't the issue. The only issue on a deceptive trade practice act violation is the fact that a false misrepresentation was made about the ability to rescind. No contract gets involved.

Having pursued and defended these types of lawsuits for more than 20 years, I can tell you if there is a witness that can verifiy what the OP said, there's a viable chance of recovery.

[timeos2 Senior Member Find all posts View Profile Close timeos2]

It's not viable to fight it

And I assume you'd want to be paid to take the case, right? And the court is near the resort, not near the buyers home area. So they risk even more money and time to get told they have no case by a judge? It isn't worth the effort and Westgate depends on that along with many other expectations of human nature. You can't out slime them easily as they are very near the bottom of the pond.

[gjw007 Member Find all posts View Profile Close gjw007]

Doug,

I'm not talking about an oral contract vs. written contract. That isn't the issue. The only issue on a deceptive trade practice act violation is the fact that a false misrepresentation was made about the ability to rescind. No contract gets involved.

Having pursued and defended these types of lawsuits for more than 20 years, I can tell you if there is a witness that can verifiy what the OP said, there's a viable chance of recovery.

But the case for deceptive trade practice is based on an oral versus written contract. I would think that the strongest case would be made if there were a class action suit with multiple individuals who can verify that they were told something orally and based on that, made the decision. I think it would be difficult for a single party to win but a stronger chance for a class action suit.

[timeos2 Senior Member Find all posts View Profile Close timeos2]

Here's your $5. Use it by the second tuesday of next week

Oh yes, the beloved Class Action suit. I just threw away all the paperwork I would have had to submit by November 15, 2006 to get $5 (yes, $5!) in coupons for future purchases of Microsoft software thanks to one of those ever-so-valuable suits. I guess that sure straightened Microsoft out, didn't it? No more price gouging, forced pre-loads or upgrades from them in the past few years since they settled is there? There were 8 pages to fill out with every product name and code, serial number, date and place of purchase and more for $5 per title all of which cost hundreds of dollars. Not cash mind you but a credit toward more of the same crap software. Looking around it's doubtful that the current RCI suit will even have that level of "success" and now maybe we can go after another devious group - Westgate - with yet another class action? Don't plan on any money from this owner for that fiasco. I don't need a $100 toward the future purchase of retail priced Westgate property.

[mshatty Super Moderator Find all posts View Profile Close mshatty]

But the case for deceptive trade practice is based on an oral versus written contract.

No, this is where you are off track.

It is a completely separate type of case than a contract case. It is normally statutory cause of action that if someone commits what the statute defines as a deceptive act, you are entitled to damages, rescission of contracts, and other remedies. The statute will normally say if you do X and you do X, you are in violation of the statute, irrespective of whether there is a contract.

[mshatty Super Moderator Find all posts View Profile Close mshatty]

And I assume you'd want to be paid to take the case, right? And the court is near the resort, not near the buyers home area. So they risk even more money and time to get told they have no case by a judge? It isn't worth the effort and Westgate depends on that along with many other expectations of human nature. You can't out slime them easily as they are very near the bottom of the pond.

You are mostly right. The OP would have to tell his story to an attorney who is experienced in these types of actions. That attorney would have to evaluate the risks. That's why I recommended seeing if he could find someone in the state where the resort was that had sued Westgate. At least the OP would have someone local there to help him.

I would bet there are some attorneys out there who have sued Westgate.

These type of laws do allow recovery of attorney fees but that's way down the road in this type of process.

It is difficult to sue anyone anywhere. No doubt about that. It is probably one of the most difficult and stressful thing that a person can do.

[dougp26364 Senior Member Find all posts View Profile Close dougp26364]

After all of this, I still say in absence of written proof, the best thing for the OP if to accept that they screwed up, bought something for a price that was far to high and now learn how to use it and get the most enjoyment out of it. Anything else is just going to be throwing good money after bad.

At this point, there is no more sence in debating the point. I'll let the rest of you have the last word.

[gjw007 Member Find all posts View Profile Close gjw007]

Oh yes, the beloved Class Action suit. I just threw away all the paperwork I would have had to submit by November 15, 2006 to get $5 (yes, $5!) in coupons for future purchases of Microsoft software thanks to one of those ever-so-valuable suits. I guess that sure straightened Microsoft out, didn't it? No more price gouging, forced pre-loads or upgrades from them in the past few years since they settled is there? There were 8 pages to fill out with every product name and code, serial number, date and place of purchase and more for $5 per title all of which cost hundreds of dollars. Not cash mind you but a credit toward more of the same crap software. Looking around it's doubtful that the current RCI suit will even have that level of "success" and now maybe we can go after another devious group - Westgate - with yet another class action? Don't plan on any money from this owner for that fiasco. I don't need a $100 toward the future purchase of retail priced Westgate property.

I never said that the results would be totally in your satisfaction but if it become a he-said, she-said, which is more likely to believed - one where it is one word against another or one where there are multiple individuals who make the same claim? I hope that you aren't suggesting that people should not attempt to right a wrong.

As far as Microsoft, yes, do you think the European $653 million fine for its practices was really not worth the effort? I think it did get Microsoft's attention but it has moved beyond. I do think that it should have given cash rather than Microsoft products in some of its U.S. litigation results but that was a judge's decision, not mine.

[mshatty Super Moderator Find all posts View Profile Close mshatty]

After all of this, I still say in absence of written proof, the best thing for the OP if to accept that they screwed up, bought something for a price that was far to high and now learn how to use it and get the most enjoyment out of it. Anything else is just going to be throwing good money after bad.

At this point, there is no more sence in debating the point. I'll let the rest of you have the last word.

Agreed.