Points not transferred

[Matty B13]

I think a big question is "who set the closing date"? If the broker set the date till after the reservation then the broker knew that there was a reservation, if the seller set the date then they probably didn't disclose this. I would think that any good broker would inquire into why a specific date was set as well. If the title company set the date arbitrarily then I think the broker and title company should be left of the hook on this mess up, and put it entirely on the seller for not disclosing it.

 

[ELMC]

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.

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.

I'm sorry, but I don't see how you can realistically equate not knowing about an existing reservation on a timeshare purchase with the fact that (hypothetically speaking) someone was killed in the place where you live, sleep, and raise your family. The two aren't even remotely close and if you equate them in your mind, it definitely colors how I perceive your point on this issue, and perhaps others as well.

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.

I don't think that we can make this assumption. The closing date in contracts is typically three months from the date the contract is produced. As I said in an earlier post, those dates are failsafes and in my experience, every contract I have bought has closed well before that date. Given that timeline, the OP most likely went to contract at the beginning of May, in which case the timeline for this purchase was fairly typical and the existing reservation was almost guaranteed to cause a problem.

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.

Thanks for pointing this out, it's very helpful. The major difference in that in your case, the broker acted on the information as soon as they became aware of it. In this case the broker took no such steps, and even after the fact did not provide any information or assistance to the buyer. That is what I have a problem with, and that is why I feel they are entitled to some sort of compensation.

 

[ziravan]

I'm sorry, but I don't see how you can realistically equate not knowing about an existing reservation on a timeshare purchase with the fact that (hypothetically speaking) someone was killed in the place where you live, sleep, and raise your family. The two aren't even remotely close and if you equate them in your mind, it definitely colors how I perceive your point on this issue, and perhaps others as well.



I don't think that we can make this assumption. The closing date in contracts is typically three months from the date the contract is produced. As I said in an earlier post, those dates are failsafes and in my experience, every contract I have bought has closed well before that date. Given that timeline, the OP most likely went to contract at the beginning of May, in which case the timeline for this purchase was fairly typical and the existing reservation was almost guaranteed to cause a problem.



Thanks for pointing this out, it's very helpful. The major difference in that in your case, the broker acted on the information as soon as they became aware of it. In this case the broker took no such steps, and even after the fact did not provide any information or assistance to the buyer. That is what I have a problem with, and that is why I feel they are entitled to some sort of compensation.

The two concepts are related in this way: Either disclosure should have been expected to affect the sales price and the failure to disclose shouldn't be viewed as no harm no foul to the current deal as written.

I made the analogy and someone immediately replied that the two weren't the same because a killing would materially affect the value of a house. But that was exactly the point I was making: an existing reservation affects the selling price of a timeshare.

Yes. The sellers could have waited until after July 30 to list. But they didn't. By failing to disclose, they tainted the negotiation process. That taints the entire deal.

Honestly, how many of you would offer the same amount on a pending reservation contract as you would on a free and clear one? That's my point.

 

[KAT4DISNEY]

The two concepts are related in this

Honestly, how many of you would offer the same amount on a pending reservation contract as you would on a free and clear one? That's my point.

For a reservation that was so close that a normal closing date would actually been further out? It would've made zero difference to me. It is not the same as buying a contract that has a delayed closing of six months or more. No similarities it all in my opinion.

 

[KAT4DISNEY]

Thanks for pointing this out, it's very helpful. The major difference in that in your case, the broker acted on the information as soon as they became aware of it. In this case the broker took no such steps, and even after the fact did not provide any information or assistance to the buyer. That is what I have a problem with, and that is why I feel they are entitled to some sort of compensation.

There is an assumption that you are making that the broker had knowledge of the reservation which they told OP that they didn't. I have to believe that most reputable brokers are going to follow the requirements, although mistakes do happen, but short of DVC providing evidence that they notified of the reservation there's no way to say that they weren't the ones at fault. In the end, the seller and DVC are the only two parties that definitely had access to info on the reservation. If they weren't sharing then nobody else could have known.

No matter, either way, it's a tiny hiccup to me.

 

[ELMC]

There is an assumption that you are making that the broker had knowledge of the reservation which they told OP that they didn't.

I'm sorry if it came across that way, because I'm trying to be fair to the broker and not make assumptions. What I inferred from your story is that at some point in the process DVC notifies the broker, perhaps that didn't happen in this case. Regardless, even after the fact the OP feels that the broker was not of much help, which is unfortunate.

I have to believe that most reputable brokers are going to follow the requirements, although mistakes do happen, but short of DVC providing evidence that they notified of the reservation there's no way to say that they weren't the ones at fault. In the end, the seller and DVC are the only two parties that definitely had access to info on the reservation. If they weren't sharing then nobody else could have known.

We're in total agreement on this.

No matter, either way, it's a tiny hiccup to me.

What is a tiny hiccup to you is on par with murder to others.

 

[piccolopat]

I don't own DVC and likely never will but I do have a question. When you buy a contract like this, does it say "all 2016 points" or "100 2016 points"? If I were to buy, I would want the contract to spell out exactly what points were included for the current use year, what was banked or borrowed, etc. If the contract said all 2016 points and by definition that would include 2015 points banked to 2016, then I would expect them all to be available at closing if not otherwise disclosed. If the contract said 100 points but the user had another 25 points banked from 2015, I wouldn't expect them because I was buying based on the 100 points. How that contract was worded makes a difference IMHO.

 

[ELMC]

The two concepts are related in this way: Either disclosure should have been expected to affect the sales price and the failure to disclose shouldn't be viewed as no harm no foul to the current deal as written.

I made the analogy and someone immediately replied that the two weren't the same because a killing would materially affect the value of a house. But that was exactly the point I was making: an existing reservation affects the selling price of a timeshare.

Yes. The sellers could have waited until after July 30 to list. But they didn't. By failing to disclose, they tainted the negotiation process. That taints the entire deal.

Honestly, how many of you would offer the same amount on a pending reservation contract as you would on a free and clear one? That's my point.

I agree with you that the two are the same in that there are failure to disclose issues. I also agree that I would be less likely to make an offer on a contract that has a pending reservation, regardless of the date.

However, you simply cannot draw any kind of analogy between a reservation on a timeshare purchase and a murder. The level of (insert your adjective here...anger, distress, rage, disappointment) should not be the same in these two situations for any rational human being.

 

[KAT4DISNEY]

I'm sorry if it came across that way, because I'm trying to be fair to the broker and not make assumptions. What I inferred from your story is that at some point in the process DVC notifies the broker, perhaps that didn't happen in this case. Regardless, even after the fact the OP feels that the broker was not of much help, which is unfortunate.

Yes, it did come from DVC to the broker in my case (although I had also disclosed the the broker even if they didn't notice) but DVC has also made mistakes with things per reports in the past so I just couldn't assume they did or did not do something this time. They should have but that doesn't mean they did.

What is a tiny hiccup to you is on par with murder to others.

A slight difference in importance.

 

[KAT4DISNEY]

I don't own DVC and likely never will but I do have a question. When you buy a contract like this, does it say "all 2016 points" or "100 2016 points"? If I were to buy, I would want the contract to spell out exactly what points were included for the current use year, what was banked or borrowed, etc. If the contract said all 2016 points and by definition that would include 2015 points banked to 2016, then I would expect them all to be available at closing if not otherwise disclosed. If the contract said 100 points but the user had another 25 points banked from 2015, I wouldn't expect them because I was buying based on the 100 points. How that contract was worded makes a difference IMHO.

Any contracts I've had state the number of points and are not a generic reference. Only OP could say but it would be unusual in my experience for it not to be specific.

 

[ziravan]

I agree with you that the two are the same in that there are failure to disclose issues. I also agree that I would be less likely to make an offer on a contract that has a pending reservation, regardless of the date.

However, you simply cannot draw any kind of analogy between a reservation on a timeshare purchase and a murder. The level of (insert your adjective here...anger, distress, rage, disappointment) should not be the same in these two situations for any rational human being.

I didn't make a moral equivalence there. I used an example where it's obvious that failing to disclose isn't just some no harm no foul technicality regarding value in order to make the same point here.

I never said or implied that holding a reservation is equal to murder. That's silly. But even you agree that both could materially affect the value of a contract. That was my point.

If the OP believes the aggravation isn't worth the hassle, they should let it go.

At a minimum, the potential aggravation of a reservation pending contract is worth bidding less. In this case, the OP got all the aggravation and none of the negotiation strength that aggravation would otherwise yield.

Accidental or not, the seller's lack of disclosure was self-serving. That's not right and the broker should fix it. Since it seems obvious that the broker's preferred solution is to run out the clock, if I were the OP, I'd disabuse them of that notion.

 

[Dean]

I don't think that we can make this assumption. The closing date in contracts is typically three months from the date the contract is produced. As I said in an earlier post, those dates are failsafes and in my experience, every contract I have bought has closed well before that date. Given that timeline, the OP most likely went to contract at the beginning of May, in which case the timeline for this purchase was fairly typical and the existing reservation was almost guaranteed to cause a problem.

I think we can. Had closing happened more like it was a few months ago, by the time it closed, got recorded, got to DVC and DVC set up the account, it would have been a full month from now even with the date it did close and were DVC not moving faster than before, it would likely have been an extra month before closing occurred anyway.

Honestly, how many of you would offer the same amount on a pending reservation contract as you would on a free and clear one? That's my point.

For a reservation within the window it's generally taken to get through the system, I don't think it would or should have made any difference for reasonable people. Certainly for something that would truly delay a reasonable closing, that's different and is 100% not the case here. Likely what the seller should have done and could have done legally, would be to simply have delayed sending it back a couple of weeks and if it came up, explain why.

For a reservation that was so close that a normal closing date would actually been further out? It would've made zero difference to me. It is not the same as buying a contract that has a delayed closing of six months or more. No similarities it all in my opinion.

For something so close, it should not have made a difference to anyone. The ONLY way it might have possibly made a difference was for 2 or more essentially identical contracts where the buyer was deciding between them. And who's to say the buyer didn't get a better deal because of this, we simply don't know and never will unless the seller pops in and addresses the issue.

 

[sndral]

What troubles me about this situation is not so much the breach of contract by the seller/broker's failure to disclose the antecedent condition & it's clear that there was a breach of contract in this case. It's rather that the buyer's remedy has been removed. Typically the remedy for a failure to disclose is buyer voids the contract. Which in this scenario means that buyer notifies the broker and escrow co. and their funds are returned. In this case, however, OP states that the deed was recorded on 6/26, which means that the escrow co. dispersed the funds to the seller and filed the deed. It is DVC that is refusing to allow OP access to the points which are lawfully theirs and which they have a legal right to use, I'm not talking about the ones the seller may have used to make this one last trip w/, I'm talking about the points the OP bargained for & cannot now use. I'd call DVC and ask to speak to their legal department for an explanation as to why I was not being given access to what was lawfully mine. I'd have concerns as well that I would receive the points I was promised. If DVC is keeping this contract in the previous owner's name what's to stop the previous owner from using more points? DVC has always canceled all existing reservations when title changed & that hasn't happened here.
It would be a different scenario if the deed hadn't recorded and buyer wasn't the legal owner, and typically the contract doesn't close or record until after seller's last trip happens - but here it's recorded, so it has closed, it's DVC that for some reason is allowing the previous owner to use these points and in order to accomplish this are wrongfully depriving the legal owner of access to their points.

 

[ziravan]

I think we can. Had closing happened more like it was a few months ago, by the time it closed, got recorded, got to DVC and DVC set up the account, it would have been a full month from now even with the date it did close and were DVC not moving faster than before, it would likely have been an extra month before closing occurred anyway.

For a reservation within the window it's generally taken to get through the system, I don't think it would or should have made any difference for reasonable people. Certainly for something that would truly delay a reasonable closing, that's different and is 100% not the case here. Likely what the seller should have done and could have done legally, would be to simply have delayed sending it back a couple of weeks and if it came up, explain why.

For something so close, it should not have made a difference to anyone. The ONLY way it might have possibly made a difference was for 2 or more essentially identical contracts where the buyer was deciding between them. And who's to say the buyer didn't get a better deal because of this, we simply don't know and never will unless the seller pops in and addresses the issue.

Your explanation makes it worse to me.

1. If closing had gone like they used to go, this wouldn't have been discovered.

That would suggest a strategy to maximize selling during prime summer seller market while taking a vacation during the same time and trying to avoid being penalized financially for doing both. It would also suggest purposefully withholding a material condition of the contract.

2. The seller could have waited to sign but didn't. And by not disclosing, the closing already happened. They jammed up the buyer and broker (and closing agent and DVC) by trying to ride it out.

3. At this point, it doesn't matter when the closing was promised; it's already happened. At issue isn't the already transferred title, but the transfer of the account by DVC.

You say that it's 100% the case that this trip shouldn't affect promised closing, and I guess that's right since the closing already occurred. But it DID affect the transfer of benefits.

The buyer should have been allowed to decide if they wanted to entertain any potential aggravation that a scheduled trip would have - and ultimately did - involve.

And I agree with the above that it bothers me that the disclosure happened after the buyer's most convenient remedy - backing out - has passed. And it bothers me that the broker is leveraging that lack of buyer's remedy to apparently do nothing.

I just don't think the rationale that it's not a big deal because the seller might have gotten away unnoticed with a self-serving contract violation if DVC had just been less efficient is a very convincing justification for the aggravation the OP is currently experiencing.

It reminds me of Scooby Doo, "And we would have gotten away with it too, if it weren't for those meddlingly efficient cast members at DVC!"

 

[ELMC]

What troubles me about this situation is not so much the breach of contract by the seller/broker's failure to disclose the antecedent condition & it's clear that there was a breach of contract in this case. It's rather that the buyer's remedy has been removed. Typically the remedy for a failure to disclose is buyer voids the contract. Which in this scenario means that buyer notifies the broker and escrow co. and their funds are returned. In this case, however, OP states that the deed was recorded on 6/26, which means that the escrow co. dispersed the funds to the seller and filed the deed. It is DVC that is refusing to allow OP access to the points which are lawfully theirs and which they have a legal right to use, I'm not talking about the ones the seller may have used to make this one last trip w/, I'm talking about the points the OP bargained for & cannot now use. I'd call DVC and ask to speak to their legal department for an explanation as to why I was not being given access to what was lawfully mine. I'd have concerns as well that I would receive the points I was promised. If DVC is keeping this contract in the previous owner's name what's to stop the previous owner from using more points? DVC has always canceled all existing reservations when title changed & that hasn't happened here.
It would be a different scenario if the deed hadn't recorded and buyer wasn't the legal owner, and typically the contract doesn't close or record until after seller's last trip happens - but here it's recorded, so it has closed, it's DVC that for some reason is allowing the previous owner to use these points and in order to accomplish this are wrongfully depriving the legal owner of access to their points.

This raises an important question. We've always been told that existing reservations would be cancelled at the time of closing unless otherwise specified. Well according to the buyer he certainly didn't stipulate to keeping the reservation, so why is it allowed to stand?

 

[KAT4DISNEY]

This raises an important question. We've always been told that existing reservations would be cancelled at the time of closing unless otherwise specified. Well according to the buyer he certainly didn't stipulate to keeping the reservation, so why is it allowed to stand?

I was told by my broker that DVC does not automatically cancel reservations when I mentioned I had just left the reservation in case the sale fell thru and that based on info often shared here I thought it would cancel automatically since the contract did not stipulate it remaining with a delayed closing. (I had another contract sale fall thru after ROFR and 2 buyers back out within the 10 day rescission period so I was always skeptical of sales finalizing as there seemed to be a lot of flaky buyers and I intended to just use points if that happened again).

 

[amccu18007]

This whole situation really bothers me. Why would Disney transfer the title and then not give the OP access to said account? Makes zero sense to me. This is the same as buying a car, and then after going to the dmv and transferring the title, the seller says sorry, you can't access what you paid for for a few more weeks. Don't worry about the wear and tear on the car. How many of us would find this acceptable in real life?? NO. ONE.

 

[Dean]

Your explanation makes it worse to me.

1. If closing had gone like they used to go, this wouldn't have been discovered.

That would suggest a strategy to maximize selling during prime summer seller market while taking a vacation during the same time and trying to avoid being penalized financially for doing both. It would also suggest purposefully withholding a material condition of the contract.

2. The seller could have waited to sign but didn't. And by not disclosing, the closing already happened. They jammed up the buyer and broker (and closing agent and DVC) by trying to ride it out.

3. At this point, it doesn't matter when the closing was promised; it's already happened. At issue isn't the already transferred title, but the transfer of the account by DVC.

You say that it's 100% the case that this trip shouldn't affect promised closing, and I guess that's right since the closing already occurred. But it DID affect the transfer of benefits.

The buyer should have been allowed to decide if they wanted to entertain any potential aggravation that a scheduled trip would have - and ultimately did - involve.

And I agree with the above that it bothers me that the disclosure happened after the buyer's most convenient remedy - backing out - has passed. And it bothers me that the broker is leveraging that lack of buyer's remedy to apparently do nothing.

I just don't think the rationale that it's not a big deal because the seller might have gotten away unnoticed with a self-serving contract violation if DVC had just been less efficient is a very convincing justification for the aggravation the OP is currently experiencing.

It reminds me of Scooby Doo, "And we would have gotten away with it too, if it weren't for those meddlingly efficient cast members at DVC!"

I think the chance that this was planned and calculated is almost zero. If they had planned this, they would likely have been aware enough to do it differently. And the buyer it getting everything they contracted within the time frame promised, it's just happening in a round about way. While I know DVC has threatened cancelations, I don't think they can if the buyer doesn't have rights to those points. Remember this is simply because of how DVC choses to transfer the contract. They could fix it if they wanted but I suspect they see this as a minor issue as do I. Realistically let's say the buyer decided they wanted to cancel so they sign back over to the seller who sends the funds back to the title company. Even if they don't have to go back through ROFR as a new sale, the buyer still has to fight with the title company for their fees and with the broker for their's. I realize there are possible consequences such as a shorter time period to reserve and possibly reduced or lessor reservation choices. But the buyer might also get some advantage. I'd bet DVC would be willing to be flexible such as banking already banked points and the like, priority wait lists and the like.

 

[Matty B13]

I understand that DVC might not think this is a big deal, but I'm sure the "Current Owner" of the Deed thinks that it is. Once the Deed is closed and recorded, the "Property" (points) is the person recorded on the Deed and should have access to the "Property", unless stipulated in the Contract.

 

[mustinjourney]

What troubles me about this situation is not so much the breach of contract by the seller/broker's failure to disclose the antecedent condition & it's clear that there was a breach of contract in this case. It's rather that the buyer's remedy has been removed. Typically the remedy for a failure to disclose is buyer voids the contract. Which in this scenario means that buyer notifies the broker and escrow co. and their funds are returned. In this case, however, OP states that the deed was recorded on 6/26, which means that the escrow co. dispersed the funds to the seller and filed the deed. It is DVC that is refusing to allow OP access to the points which are lawfully theirs and which they have a legal right to use, I'm not talking about the ones the seller may have used to make this one last trip w/, I'm talking about the points the OP bargained for & cannot now use. I'd call DVC and ask to speak to their legal department for an explanation as to why I was not being given access to what was lawfully mine. I'd have concerns as well that I would receive the points I was promised. If DVC is keeping this contract in the previous owner's name what's to stop the previous owner from using more points? DVC has always canceled all existing reservations when title changed & that hasn't happened here.
It would be a different scenario if the deed hadn't recorded and buyer wasn't the legal owner, and typically the contract doesn't close or record until after seller's last trip happens - but here it's recorded, so it has closed, it's DVC that for some reason is allowing the previous owner to use these points and in order to accomplish this are wrongfully depriving the legal owner of access to their points.

It's not clear to me that there is a breach of contract.

what contractual obligation did the seller breach?

The OP is getting all of the points identified in the contract by the agreed upon closing date.

I don't see how this would be considered fraud in the inducement or fraud in the factum. The seller didn't make any affirmative false statements. Is there fraud by omission? Perhaps -- but the OP would have to prove that the defendant knew that keeping silent would mislead the OP and there are monetary damages. It also has to be a material fact. Not sure that this would be considered a material fact. We would need to know when the contract was listed.

There's also no real monetary harm here. Yes, the OP has to wait 2.5 weeks...and it sucks. I've been there myself last year b/c the international sellers took FOREVER getting the paperwork notarized. I was actually past my contractual closing date, and I let them know that if things weren't sped up, I would be exercising my option to void the contract. In the end, I stuck with the contract since it didn't make sense to go back to ROFR all over again over another week or two delay.

It's true that the price per point might have been slightly lower had the "delayed" closing been noted in the original listing, but in order to prove that, you'd have to call in expert witnesses to go over all of the data and literally spend thousands of dollars (probably more) in hopes of proving up a loss of what is likely a few hundred dollars. Not to mention the OP would have to start all over. Nevermind even if you could prove money damages, it's not easy to collect on those.

Voiding the contract would truly be cutting off your nose to spite your face. Life is too short to worry over what is likely a small amount of money. I get standing on principle, but it's just not worth the stress and aggravation.