Points not transferred

[ziravan]

I did not read anything in OP's post that they weren't getting all the points they expected to. The reservation is using points that were not mentioned in the sale as I understand it.

Doesn't matter.

The seller essentially attempted to hide the existence of those other points from the buyer.

Since it's those points at issue, an equivalent replacement of those points should be the starting point of a remedy.

 

[ziravan]

It doesn't matter what the buyer originally committed to buying. Since the seller committed a fraudulent act of omission, whether accidental or on purpose, the contract isn't valid.

It's subject to renegotiation.

I would demand those points. Since it's too late to avoid holding on the actual reservation, the broker needs to pony up the points as a transfer.

(I bet the seller won't accidentally forget to take the trip.)

 

[KAT4DISNEY]

Doesn't matter.

The seller essentially attempted to hide the existence of those other points from the buyer.

Since it's those points at issue, an equivalent replacement of those points should be the starting point of a remedy.

Of course it matters. I'm not certain how one can argue that not getting more points than you signed an agreement for requires compensation.

 

[KAT4DISNEY]

It doesn't matter what the buyer originally committed to buying. Since the seller committed a fraudulent act of omission, whether accidental or on purpose, the contract isn't valid.

It's subject to renegotiation.

I would demand those points.

Now that may be true, but it's also possible for the seller to just walk away if the contract is deemed invalid - and the OP doesn't get it. They are going to get all that they originally signed up to get, including closing within the closing date and all the points expected. Principal may be upheld but the DVC contract agreed upon lost.

 

[ziravan]

Now that may be true, but it's also possible for the seller to just walk away if the contract is deemed invalid - and the OP doesn't get it. They are going to get all that they originally signed up to get, including closing within the closing date and all the points expected. Principal may be upheld but the DVC contract agreed upon lost.

The seller might walk away, but then the broker will still have to deal with a valid complaint to the state.

At this point, how the broker deals with the seller is a separate issue from how the broker needs to deal with the buyer.

The broker needs to make this right.

That's the cost of doing business. When a mistake this big gets made, you make it right.

So far, it sounds like the broker's position is that it's no big deal.

If I were the buyer, I'd beg to differ.

Loudly.

 

[Dean]

Doesn't matter.

The seller essentially attempted to hide the existence of those other points from the buyer.

Since it's those points at issue, an equivalent replacement of those points should be the starting point of a remedy.

I don't think we can say that. The buyer is getting what they bought and the close by date has not yet passed and is after the reservation in question. The buyer is not deserving of those points and getting them would be outside their contract.

It doesn't matter what the buyer originally committed to buying. Since the seller committed a fraudulent act of omission, whether accidental or on purpose, the contract isn't valid.

It's subject to renegotiation.

I would demand those points. Since it's too late to avoid holding on the actual reservation, the broker needs to pony up the points as a transfer.

(I bet the seller won't accidentally forget to take the trip.)

For it to be fraud it would have to be purposeful and it would have had to have the intent to deprive the buyer of something they're not getting, neither are the case as it's posted. I agree with the broker's apparent reaction, it's really not a big deal and there's no reason I can see to make it a big deal. I can see complaining about the delay but that's the only reasonable complaint.

 

[ziravan]

I don't think we can say that. The buyer is getting what they bought and the close by date has not yet passed and is after the reservation in question. The buyer is not deserving of those points and getting them would be outside their contract.

For it to be fraud it would have to be purposeful and it would have had to have the intent to deprive the buyer of something they're not getting, neither are the case as it's posted. I agree with the broker's apparent reaction, it's really not a big deal and there's no reason I can see to make it a big deal. I can see complaining about the delay but that's the only reasonable complaint.

The seller negotiated a better deal than they otherwise would have likely received by omitting a key feature of the contract, that it was encumbered.

The buyer did lose something key by this omission, the ability to negotiate with all known issues related to the contract divulged.

Simply put, it almost certainly wouldn't have been the same contract for the same price if this had been disclosed. No matter the buyer. Accidental or intentional, by not disclosing, the seller likely got a better deal.

And that's a problem.

But. I'll defer continuing to express my opinion on the matter until the OP comes back to comment. I'd like to know if the OP would have still bid on this contract at the same price if he/she had known it had a trip booked on it through 7/30.

As for me, when I was looking for points, I always dismissed contracts with closing dates after booked trips. If you're selling then sell. If you want to have your cake and eat it too, you can do that on someone else's dime. If this were me, I'd be livid. And every party to the transaction from broker to closing company to the State of Florida would know just how upset I was.

 

[Dean]

The seller negotiated a better deal than they otherwise would have likely received by omitting a key feature of the contract, that it was encumbered.

The buyer did lose something key by this omission, the ability to negotiate with all known issues related to the contract divulged.

Simply put, it almost certainly wouldn't have been the same contract for the same price if this had been disclosed. No matter the buyer. Accidental or intentional, by not disclosing, the seller likely got a better deal.

And that's a problem.

But. I'll defer continuing to express my opinion on the matter until the OP comes back to comment. I'd like to know if the OP would have still bid on this contract at the same price if he/she had known it had a trip booked on it through 7/30.

As for me, when I was looking for points, I always dismissed contracts with closing dates after booked trips. If you're selling then sell. If you want to have your cake and eat it too, you can do that on someone else's dime. If this were me, I'd be livid. And every party to the transaction from broker to closing company to the State of Florida would know just how upset I was.

There's no damage here. I don't see any difference in a negotiation given that the closing date was August. Maybe this buyer would have skipped it but I sincerely doubt it in this situation. The ONLY damage to the buyer is losing the 2.5 weeks that are before the closing date that they might have been in the system. Had the seller simply delayed sending in the info, which they almost certainly would have done if it was an intentional act, we wouldn't be having the discussion. IMO this is a mountain out of a mile hill. Regardless, the buyer will have no recourse and the state of Florida will not see it as an issue if the specifics are as posted and include they are getting what was contracted and getting in the system by the required closing date.

 

[ELMC]

I agree that we cannot assume fraud or ill intent by either the seller or the broker. We simply don't know and it's unfair to make that statement. Dean states that there's no damage and I don't necessarily agree with that, but I will say that it is difficult to quantify the damage. The potential issues I see are 1) possible lost reservation during that 2-3 week time frame. 2) Aggravation of not being able to close when you expected to (the dates in contracts are super conservative and regarded more as failsafes than actual projected closing dates). 3) The possibility of a lower price due to the lower demand for a contract that has an upcoming reservation, which does actively dissuade some buyers.

The problem is, each of these elements are hard to prove and even harder to quantify in terms of dollars and cents. The general swing I would take is that this was not a traditional process, the broker messed up (either by not disclosing or not knowing), and I would ask for some nominal credit to compensate me for the aggravation. I think it's a fair approach that could be viewed as an easy settlement for the broker.

 

[ELMC]

The broker may not have known and I suspect didn't.

I agree, but it is their responsibility to know. It's a bit of a gray area but one could argue that they are in violation of Section (c) of Florida statues regarding transaction brokers that states that they are required to operate with skill, care, and diligence. A case can be made that they were neither diligent or careful if they were unaware of an existing reservation.

Again, this is a gray area and I think the level that this should rise to is "I'm upset, what can you do for me?" I wouldn't take it to the levels that others have suggested, and that's saying a lot as I am typically one who is not very good at letting things go.

Here's the link to the law for those interested:

http://www.leg.state.fl.us/Statutes...ute&URL=0400-0499/0475/Sections/0475.278.html

 

[Minniesgal]

I can see how if the seller were selling 2016 points onwards and were using 2015 points it slips through the net shouldn't have but things happen.

If you are getting all the points you contracted on i think the path of less resistance would be to wait the extra two weeks and let it close

 

[ziravan]

I agree, but it is their responsibility to know. It's a bit of a gray area but one could argue that they are in violation of Section (c) of Florida statues regarding transaction brokers that states that they are required to operate with skill, care, and diligence. A case can be made that they were neither diligent or careful if they were unaware of an existing reservation.

Again, this is a gray area and I think the level that this should rise to is "I'm upset, what can you do for me?" I wouldn't take it to the levels that others have suggested, and that's saying a lot as I am typically one who is not very good at letting things go.

Here's the link to the law for those interested:

http://www.leg.state.fl.us/Statutes...ute&URL=0400-0499/0475/Sections/0475.278.html

Dean stated making a big deal out of this would be making a mountain out of a molehill. I think that's very subjective to the buyer. I don't think the seller or broker get a say about that.

If I were the buyer, I'd think it was a mountain.

I thought a little while about why this would upset me so much if I were the buyer. Spending so much on a luxury purchase, I think it's important to get a good deal, or a deal that you're comfortable with the outcome.

If I were the buyer and this was sprung on me at the last minute, it would be very difficult for me to avoid the conclusion that I was snookered. And I do believe that that would taint my enjoyment of the purchase.

The analogy that I keep thinking about is if an owner waited until after closing to disclose that a murder had happened in the house you just bought. You might indeed have still gotten the same deal you originally bargained to get but to suggest that there's no harm as a result misses the point. There's a reason why such things must be disclosed up front, and there would be unfair advantage to the seller for failing to disclose, an advantage that couldn't be dismissed as accidental, whether it was or not.

I think that's a fair analogy because in both cases, for me at least, such a disclosure would taint my enjoyment of the purchase to the breaking point.

 

[Wakey]

As I understand it, OP is getting contracted points with closing in contracted period. If that is the case, there are no comebacks or claims, or even complaints. The contract was not 'encumbered' it can complete delivering what was promised within the promised period. If seller for some reason was wanting to keep this quiet (no reason to do so), they could have just delayed returning closing docs.
If the seller has however used points that were agreed to be sold, most contracts have a contractual resolution for this drafted within them. To be deducted from the monies paid on closing and refunded to the purchaser by the title company is a sum per point - usually $18-$20 for every point that is not transferred. That is quite an expensive breach for the seller.
There are no legal issues currently that are either breach of contract or not dealt with by a contractual resolution.

 

[Wakey]

Dean stated making a big deal out of this would be making a mountain out of a molehill. I think that's very subjective to the buyer. I don't think the seller or broker get a say about that.

If I were the buyer, I'd think it was a mountain.

I thought a little while about why this would upset me so much if I were the buyer. Spending so much on a luxury purchase, I think it's important to get a good deal, or a deal that you're comfortable with the outcome.

If I were the buyer and this was sprung on me at the last minute, it would be very difficult for me to avoid the conclusion that I was snookered. And I do believe that that would taint my enjoyment of the purchase.

The analogy that I keep thinking about is if an owner waited until after closing to disclose that a murder had happened in the house you just bought. You might indeed have still gotten the same deal you originally bargained to get but to suggest that there's no harm as a result misses the point. There's a reason why such things must be disclosed up front, and there would be unfair advantage to the seller for failing to disclose, an advantage that couldn't be dismissed as accidental, whether it was or not.

I think that's a fair analogy because in both cases, for me at least, such a disclosure would taint my enjoyment of the purchase to the breaking point.

Your analogy of a murder in a house is a poor one. In the case of these points, it looks like the points promised are being sold when promised. In the case of a murder in a house, certainly in the UK a buyer has a duty to disclose anything adverse and latent about a property if asked the question pre contract. A murder could potentially affect the value and resaleability of that house. The fact the seller of these points has a vacation booked on points they had never agreed to sell, which does not affect the agreed closing deadline, in no way affects the value of those points.

 

[ziravan]

As I understand it, OP is getting contracted points with closing in contracted period. If that is the case, there are no comebacks or claims, or even complaints. The contract was not 'encumbered' it can complete delivering what was promised within the promised period. If seller for some reason was wanting to keep this quiet (no reason to do so), they could have just delayed returning closing docs.
If the seller has however used points that were agreed to be sold, most contracts have a contractual resolution for this drafted within them. To be deducted from the monies paid on closing and refunded to the purchaser by the title company is a sum per point - usually $18-$20 for every point that is not transferred. That is quite an expensive breach for the seller.
There are no legal issues currently that are either breach of contract or not dealt with by a contractual resolution.

All of that assumes that the same contract terms would have been reached had the disclosure occurred.

I don't think you can make that assumption. Encumbered contracts typically sell for less. Accidental or not, the lack of disclosure served to give an unfair advantage to the seller during the negotiation process. Accidental or not, the lack of disclosure was self-serving to the seller.

Maybe the seller could have waited a few weeks and sold a contract that wasn't encumbered.

But they didn't.

 

[Wakey]

All of that assumes that the same contract terms would have been reached had the disclosure occurred.

I don't think you can make that assumption. Encumbered contracts typically sell for less. Accidental or not, the lack of disclosure served to give an unfair advantage to the seller during the negotiation process. Accidental or not, the lack of disclosure was self-serving to the seller.

Maybe the seller could have waited a few weeks and sold a contract that wasn't encumbered.

But they didn't.

Something is only encumbered if it cannot deliver what it is contractually agreed to deliver. It looks like this one can, I personally would not be concerned.

 

[Dean]

Dean stated making a big deal out of this would be making a mountain out of a molehill. I think that's very subjective to the buyer. I don't think the seller or broker get a say about that.

But reasonable people can judge the situation, IMO, to be overly concerned about this is not being reasonable. Were the buyer not getting EVERYTHING contracted, I'd take a different stance. The ONLY reason this is an issue, or even came to light, is that DVC is moving more quickly that the were. A few months ago it might have been late August or Sept before they could be in the system. If we were talking months and this made using the points difficult, that might be different but even then it might not be if it met the terms of the contract as this does.

 

[CarolMN]

If I were in this situation, the most I would do is to let the broker know that I am not happy that the existing reservation was not disclosed and that I expect to close on or before the date in the contract. I might also file a complaint with the appropriate Florida enforcement agency and/or submit an internet review or two. But that would be it. A few more weeks of waiting for my points, while disappointing, would just not be worth more of a hassle than that to me.

OP - Sorry this happened to you. Hope the closing goes perfectly and that while you're waiting, you can focus on the many years you'll have to enjoy your membership.

 

[miTnosnhoJ]

Dean stated making a big deal out of this would be making a mountain out of a molehill. I think that's very subjective to the buyer. I don't think the seller or broker get a say about that.

If I were the buyer, I'd think it was a mountain.

I thought a little while about why this would upset me so much if I were the buyer. Spending so much on a luxury purchase, I think it's important to get a good deal, or a deal that you're comfortable with the outcome.

If I were the buyer and this was sprung on me at the last minute, it would be very difficult for me to avoid the conclusion that I was snookered. And I do believe that that would taint my enjoyment of the purchase.

The analogy that I keep thinking about is if an owner waited until after closing to disclose that a murder had happened in the house you just bought. You might indeed have still gotten the same deal you originally bargained to get but to suggest that there's no harm as a result misses the point. There's a reason why such things must be disclosed up front, and there would be unfair advantage to the seller for failing to disclose, an advantage that couldn't be dismissed as accidental, whether it was or not.

I think that's a fair analogy because in both cases, for me at least, such a disclosure would taint my enjoyment of the purchase to the breaking point.

Think a better analogy in this case is if the owner waited until after closing to disclose that the purchaser would not be getting the keys to the house at closing. Rather, his son couldn't move out of the house for another month.

 

[KAT4DISNEY]

I agree, but it is their responsibility to know. It's a bit of a gray area but one could argue that they are in violation of Section (c) of Florida statues regarding transaction brokers that states that they are required to operate with skill, care, and diligence. A case can be made that they were neither diligent or careful if they were unaware of an existing reservation.

Again, this is a gray area and I think the level that this should rise to is "I'm upset, what can you do for me?" I wouldn't take it to the levels that others have suggested, and that's saying a lot as I am typically one who is not very good at letting things go.

Here's the link to the law for those interested:

http://www.leg.state.fl.us/Statutes...ute&URL=0400-0499/0475/Sections/0475.278.html

However what I didn't fully get into is that the only entity that could have/should have disclosed the existing reservation is DVC. Brokers have no more access to a persons account to check for reservations than anyone else so if an owner either forgot about or withheld info they are not going to know without DVC telling them. Back when I sold one contract I had an existing reservation that yes, I told the broker about, and told them I would cancel all written out in the paperwork. When they were verifying the contract with DVC that reservation was disclosed to them. Now the broker ignored the paperwork and came back hard at me for having it until I pointed out that it had been disclosed so I know that they did not get it from the paperwork, but instead from DVC. This was at the point of just going under contract.