Multi-Site POS Revision Dated 01/19/19

[crvetter]

I’m involved in a suit right now that turns on exactly the kind of ambiguity involved with the POS.

Our contention, it’s not ambiguous at all; it says just what we think it says. Or, if it IS ambiguous, their hand held the pen; it must be construed our way.

Heads we should win, tails they should lose.

I think we will see another amendment or that DVC backtrack a bit on the meaning. I hate to be calling them but there is a big difference in the language and what they intended for it to mean. I'll keep people posted when/if I get a call later this week after legal and compliance have a chance to respond to me. If they can't really explain the sentence I guess I'll resort to a letter again for clarifications.

 

[mustinjourney]

I think we will see another amendment or that DVC backtrack a bit on the meaning. I hate to be calling them but there is a big difference in the language and what they intended for it to mean. I'll keep people posted when/if I get a call later this week after legal and compliance have a chance to respond to me. If they can't really explain the sentence I guess I'll resort to a letter again for clarifications.

I don't even think the sentence is ambiguous. I can't even read it another way.

 

[crvetter]

I don't even think the sentence is ambiguous. I can't even read it another way.

Agreed which is why I've been involved in 2 calls over this already. Just waiting for "higher-ups" to call me to explain how I should read the sentence. I've maintained it always meant only one thing and was clear in the reading. I'm in general agreement with everyone on here.

 

[mustinjourney]

Are they trying to make the sentence read "Purchasers who purchase an ownership interest....prior to January 19, 2019, are excluded from the prohibition?"

If so, that is bastardizing the entire sentence, and would effectively require you to remove "from a club member who owned the Ownership Interest" from the sentence entirely. That makes no sense.

 

[crvetter]

If so, that is bastardizing the entire sentence, and would effectively require you to remove "from a club member who owned the Ownership Interest" from the sentence entirely. That makes no sense.

This was precisely my question to them. I said they need to go back to grammar basics and put "from a club member who owned the Ownership Interest" in some sort of call out (parenthesis, commas, etc) to differentiate it. My suspicion is they will just say a comma was missing and the sentence should say:

Purchasers who purchase an Ownership Interest at any DVC Resort, other than Riviera Resort, from a Club Member who owned the Ownership Interest, prior to January 19, 2019, are excluded from the prohibition set forth in this Paragraph 2.

That one comma changes the meaning of the sentence significantly. Then taking out the "from a Club Member who owned the Ownership Interest," leads to a sentence that stands on its own and is very clear in its meaning. But their phrasing is still convoluted and could have been clearer.

 

[ziravan]

“other than Riviera Resort” is completely extraneous in that sentence because no matter how you interpret where “prior to January 19, 2019” applies, that clause by itself eliminates Riviera from consideration here.

 

[crvetter]

Overall they should have just said. "Ownership Interests purchased, prior to January 19, 2019, regardless if purchased from Disney direct or through resale, are excluded from the prohibitions set forth in this Paragraph 2." This seems to describe in more concise manner what they intended. No need to even say except to for Riviera either because it was impossible to even own that resort before January 19, 2019 and still not possible.

 

[mustinjourney]

This was precisely my question to them. I said they need to go back to grammar basics and put "from a club member who owned the Ownership Interest" in some sort of call out (parenthesis, commas, etc) to differentiate it. My suspicion is they will just say a comma was missing and the sentence should say:

Purchasers who purchase an Ownership Interest at any DVC Resort, other than Riviera Resort, from a Club Member who owned the Ownership Interest, prior to January 19, 2019, are excluded from the prohibition set forth in this Paragraph 2.

That one comma changes the meaning of the sentence significantly. Then taking out the "from a Club Member who owned the Ownership Interest," leads to a sentence that stands on its own and is very clear in its meaning. But their phrasing is still convoluted and could have been clearer.

If there is a comma there, it goes from being clear in favor of our interpretation to being ambiguous. My counter for the missing comma would be that it MUST modify the "who owned the ownership interest" b/c to read it otherwise would be to make that portion of the phrase pointless.

Think about it -- why even have "who owned the Ownership interest" in the sentence at all if that is the intent? It's redundant. It's impossible to purchase from a Club Member that didn't have the ownership interest -- so what purpose does it serve adding it into the phrase?

You could easily just say "Purchasers who purchase an Ownership Interest at any DVC Resort, other than Riviera Resort, from a Club Member prior to January 19, 2019, are excluded from the prohibition set forth in this Paragraph 2."

Legal interpretation 101 is to assume that every word is there for a reason, which means that their interpretation should not stand...with or without that comma.

 

[mustinjourney]

Overall they should have just said. "Ownership Interests purchased prior to January 19, 2019, regardless if purchased from Disney direct or through resale, are excluded from the prohibitions set forth in this Paragraph 2." This seems to describe in more concise manner what they intended. No need to even say except to for Riviera either because it was impossible to even own that resort before January 19, 2019 and still not possible.

This is another thing that bothers me about the phrasing -- there wouldn't seem to be a need to even include discussion of Riviera since it is impossible to have owned it prior to January 19, 2019. Why would they add that?

 

[ziravan]

This is another thing that bothers me about the phrasing -- there wouldn't seem to be a need to even include discussion of Riviera since it is impossible to have owned it prior to January 19, 2019. Why would they add that?

They were focused on how this would affect Riviera, and so their legal language reflects their fixation.

I think it’s related to what they actually said instead of what they meant to say — and I think they probably DID mean to say that any resale post 1/19/19 has the new restrictions (even though that’s not what they wrote).

But they were so fixated on “this means Riviera” that they didn’t pay attention to what they were actually saying.

Four corners cannon of law: Courts try to figure out the intent of the parties as it’s actually expressed in the four corners of the document. It doesn’t matter what you actually meant to say unless you actually wrote it into the document that way.

 

[ziravan]

I was telling my DW that they’ll probably try to let this go and if anybody actually does sue over this, quietly grant them an exception.

DW said, “Oh no, this will be a class action suit and the resale companies have just the clientele and incentive to push it forward.”

 

[crvetter]

Their interpretation is garbage b/c in order to read it their way, the "from a club member who owned the Ownership interest" clause HAS ABSOLUTELY NO USE BEING IN THE SENTENCE. There's no reason for it to even be in the sentence.

I think they added it (and forgot the comma after it) to clarify that this was a restriction on resales. By having it there they have shown it was for resale owners only. It is important for future down the road so DVC can say we never have limited the direct buyers but only those that bought resale. So I think the intention of the change is material so I can understand why they left it.

If there is a comma there, it goes from being clear in favor of our interpretation to being ambiguous.

If the comma was misplaced, then we can assume the true meaning of the sentence exists without the items in the comma. So removing "from a club member who owned the Ownership interest, " we get the following sentence: "Purchasers who purchase an Ownership Interest at any DVC Resort, other than Riviera Resort, prior to January 19, 2019, are excluded from the prohibition set forth in this Paragraph 2." That sentence is very explicit on their intentions. When a part of a sentence in this general format, it is to act as a specifier/detailed information. It generally isn't needed to support the main idea.

To go one further you can remove "other than Riviera Resort" and end up with "Purchasers who purchase an Ownership Interest at any DVC Resort, prior to January 19, 2019, are excluded from the prohibition set forth in this Paragraph 2." Which again stands on its own and is explicit. As for detailing Riviera it is important because this specific section on Restrictions that is new in the BVTC is resort specific. So they wanted the sentence to remain specific to Riviera.

Also the order in which you remove either of those phrases don't matter. So all in all I expect them to modify it by correcting the comma placement.

The stuff in commas is meant to answer questions 1) What DVC Resort? Any, other than Riviera Resort and 2) Who did the purchasers purchase from? From a club member who owned the Ownership Interest. Even one further: When did the purchaser purchase? Prior to January 19, 2019.

 

[mustinjourney]

They really should just say
"Purchasers who purchase an Ownership Interest prior to January 19, 2019 at any DVC Resort, other than Riviera Resort, from a Club Member who owned the Ownership Interest, are excluded from the prohibition set forth in this Paragraph 2."

But that still seems clunky to keep the "who owned the Ownership Interest" in the sentence. Of course you purchased from someone who owned the interest. it's impossible to purchase something from someone if they don't have it.

 

[crvetter]

They really should just say
"Purchasers who purchase an Ownership Interest prior to January 19, 2019 at any DVC Resort, other than Riviera Resort, from a Club Member who owned the Ownership Interest, are excluded from the prohibition set forth in this Paragraph 2."

But that still seems clunky to keep the "who owned the Ownership Interest" in the sentence. Of course you purchased from someone who owned the interest. it's impossible to purchase something from one someone if they don't have it.

That sentence and the modified one with correct commas are identical in their meaning and about as clunky. Plus I think "prior to January 19, 2019" technically belongs in commas.

Really I think if they should just modify that one sentence. Because as it stands they have defined it differently:
1) What DVC Resort? Any, other than Riviera Resort, 2) Who did the purchasers purchase from? From a club member who owned the Ownership Interest prior to January 19, 2019 and 3) When did the purchaser purchase? They provide no specificity to this question in their current structure.

 

[ziravan]

They really should just say
"Purchasers who purchase an Ownership Interest prior to January 19, 2019 at any DVC Resort, other than Riviera Resort, from a Club Member who owned the Ownership Interest, are excluded from the prohibition set forth in this Paragraph 2."

But that still seems clunky to keep the "who owned the Ownership Interest" in the sentence. Of course you purchased from someone who owned the interest. it's impossible to purchase something from one someone if they don't have it.

They’re trying to distinguish from buying direct.

 

[TexasChick123]

I think it should just say this: “Purchasers who purchase an Ownership Interest at any DVC Resort, prior to January 19, 2019, are excluded from the prohibition set forth in this Paragraph 2.” I’m agreeing with @crvetter on this one. I agree with both of you that they’re trying so hard to make it about Riviera, but with that being the main focus, the meaning was lost. The wording, as it currently stands, is downright wrong. They can deny this until they are blue in the face, but it’s wrong. What it says is that if you buy from any owner who purchased prior to 1/19, then the restrictions don’t apply to you. They need to change it, put a new effective date, and move on if that’s not their intent. As I keep saying, to refuse to change the wording is just shortsighted and opening them up to legal action in the future.

 

[TexasChick123]

They’re trying to distinguish from buying direct.

It’s unnecessary though. They already talked about direct earlier in the paragraph when they were talking about the new restriction. If you purchase resale after 1/19, no Riviera for you. If you purchase direct, you still get Riviera. Anyone, direct or resale, who bought prior to 1/19 doesn’t have this restriction. There’s no reason at all to mention direct versus resale in the last sentence.

 

[ziravan]

It’s unnecessary though. They already talked about direct earlier in the paragraph.

Agreed. But the entire sentence is convoluted. They made it so convoluted that they themselves couldn’t accurately read what they actually wrote.

 

[TexasChick123]

Can we have a moment of silence for the fact that we are doing DVD's legal analysis for them free of charge?!?

 

[drusba]

I am kind of way beyond the point where I concluded the clause means what it says it means. I am at the stage now wondering whether Holland & Knight, DVD's long time timeshare counsel, still has a job.