Re-sale gone wrong - Sellers lied - What do I do?

[dbs1228]

I think you are making a wise decision, and good luck! Keep us posted and I hope DVC will allow you to keep the 3/20 date - especially if the sales price is changed.

Keep us posted.

 

[Mississippian]

I am livid right now, with the sellers, Fidelity, and Disney.

We had an offer accepted, re-sale through Fidelity, and submitted to Disney for ROFR on 3/14. All 2010 points were to be banked.

I just got an e-mail from Fidelity telling us that not all 150 points were available to be banked, only 42 points were left from 2010.

WHAT?!?!?!?!?!?!?!?!?

In the e-mail, Rachel at Fidelity said that they just found this out from Disney and the sellers, and that the available points had changed between the original listing and ROFR. So the sellers just forgot to mention this when they signed our agreement? The agreement clearly said that all 150 points were to be banked. There is NO WAY the sellers weren't fully aware that they were lying when they accepted our offer.

So, what happens now? Fiedlity sent an amendment for us to sign if we want to go through with the purchase. Does that make ROFR start over? And is it considered a new submission (now, after the 3/20 change)? What if we renegotiate the asking price (which I think is clearly warranted in this case)? Do we start ROFR again?

Any thoughts or advice would be greatly appreciated!

It is my opinion that you are entitled to subtract the value of the missing points from the purchase price, and if the sellers refused to go through with the transaction you can sue them for specific performance and attorney's fees. Threaten to sue, and if necessary, sue.

 

[lilpooh108]

Your choice of course. In this case it appeared the contract was listed correctly and the owner later used points or the contract wasn't as reported initially. All Fidelity can do is list the info their given. They can't be held responsible for usage they had no control or knowledge of and the "captain of the ship" issue would not apply. That they may or may not have made a mistake in another case is irrelevant unless you believe that they are lying about the reasons for the current differences.

Nor should they until it goes into the closing process.

Fidelity actually RELISTED the same listing (after we backed out of the contract) a week later with the SAME incorrect banked point information. With numerous people reporting the same problem, it's possible that Fidelity is just not as thorough as other brokers.

 

[KAT4DISNEY]

Fidelity actually RELISTED the same listing (after we backed out of the contract) a week later with the SAME incorrect banked point information. With numerous people reporting the same problem, it's possible that Fidelity is just not as thorough as other brokers.

I've had that happen with TTS as well. I think they all can have their mistakes.

 

[Dean]

It is my opinion that you are entitled to subtract the value of the missing points from the purchase price, and if the sellers refused to go through with the transaction you can sue them for specific performance and attorney's fees. Threaten to sue, and if necessary, sue.

The questions is whether you could legally do this. without submitting for ROFR with the new terms, you're likely violating the contractual agreement with DVC regarding ROFR. By closing with different terms, that's likely a violation of the RE laws in FL. That's why, when I suggested exploring this route in my first post, DVCconvert questioned the suggestions. However, I felt that the OP should explore all options and I was hoping that DVC would semiofficially look the other way in this situation. They cannot afford to violate the cutoff date no matter how much they might want to in this situation.

While a lawsuit is possible, and one might win, the cost and aggravation would certainly not be worth it. However, there is really no actual loss, only a potential loss and one the buyer could have backed out on likely up to a year later.

Fidelity actually RELISTED the same listing (after we backed out of the contract) a week later with the SAME incorrect banked point information. With numerous people reporting the same problem, it's possible that Fidelity is just not as thorough as other brokers.

My defense was only and limited to the fact that in this case it was reported they listed it correctly and the owner used the points later. The other point is that it seems some are taking the stance that they should get weekly points accountings. Anything more than initially and at closing is unreasonable. If you chose to assume it was their fault due to other experiences, that's your prerogative.

 

[sweetdana]

So basically you're saying that the retail option is worth around $1500-2000, which is roughly the cost difference in this situation when you compare the points lost and the lower value of the contract.

To me it would be. Not to use for cruises, but Disney set a line in the sand. If they add tiered bennis there is not reason they cannot make them based on only new points. If it turns out to be discounts on 40 yrs of regular park passes, or discount on the dining plan, or an extra hour call time in the AM for 11 month window on Christmas.. I would be devistated later. I realize it may just be this, but I would not gamble with say 2K on a 15K purchase. ..But maybe that is what they want us to think..

 

[Dean]

To me it would be. Not to use for cruises, but Disney set a line in the sand. If they add tiered bennis there is not reason they cannot make them based on only new points. If it turns out to be discounts on 40 yrs of regular park passes, or discount on the dining plan, or an extra hour call time in the AM for 11 month window on Christmas.. I would be devistated later. I realize it may just be this, but I would not gamble with say 2K on a 15K purchase. ..But maybe that is what they want us to think..

It's already started, yes, it is exactly what they won't potential buyers to think. With that line of thinking, a possible alternative would be to buy resale then add on retail. It would give you access to discounts and the like but not to exchanges other than the added on points. Of course I think there's a good chance going forward that DVC applies the min initial buy in levels for those with non qualified points. I also think it's very likely that they quit combining resale and retail contracts at some point. The other question is whether DVD gives members the potential to cross over at any point with a retail purchase.

 

[TisBit]

It's already started, yes, it is exactly what they won't potential buyers to think. With that line of thinking, a possible alternative would be to buy resale then add on retail. It would give you access to discounts and the like but not to exchanges other than the added on points. Of course I think there's a good chance going forward that DVC applies the min initial buy in levels for those with non qualified points. I also think it's very likely that they quit combining resale and retail contracts at some point. The other question is whether DVD gives members the potential to cross over at any point with a retail purchase.

Dean, I think in a couple of years you very will might see a time that Disney does offer to reinstate privileges for a fee. They will obviously wait and see what the resale market looks like over the next 2-3 years and then do some market research to see what someone would be willing to pay in order to get those privileges.

 

[JimMIA]

I've had that happen with TTS as well. I think they all can have their mistakes.

I had a contract listed with TTS, and after listing I reconsidered some upcoming vacation plans and canceled the DVC portion. I notified TTS by email, and within minutes, my listing had been changed to reflect the additional points available.

I'm sure all brokers have their challenges with both sellers and buyers, but we hear far more complaints (especially about sloppiness) regarding Fidelity.

Being "nice people" is great, but it's not really what real estate brokers are all about. They are acting in an intermediary position between buyers and sellers, and both sides depend on their integrity and competence.

Brokers have several important legal and ethical obligations to their clients, and one of the most important is to exercise "due diligence." Falling short on due diligence is not just an easily-excused "oops."

We can all make excuses for anything, but lack of due diligence is a failure in one of the most important responsibilities of a broker.

 

[JimMIA]

Dean, I think in a couple of years you very will might see a time that Disney does offer to reinstate privileges for a fee. They will obviously wait and see what the resale market looks like over the next 2-3 years and then do some market research to see what someone would be willing to pay in order to get those privileges.

There are a lot of other models out there in the timeshare world for them to look at, so the concept is pretty well-established. The pricing would be the important thing, and as we saw with the OKW extension fiasco, DVC has been known to set these kinds of prices far higher than common sense would dictate.

However, I'd be surprised if they didn't allow some kind of after-the-fact buy-in as an option -- either as an incentive for a direct add-on, or just a "VIP status for pay" plan...or both. It would be popular with a segment of their ownership, would be "found money" for DVD, and would harm noone.

 

[KAT4DISNEY]

I had a contract listed with TTS, and after listing I reconsidered some upcoming vacation plans and canceled the DVC portion. I notified TTS by email, and within minutes, my listing had been changed to reflect the additional points available.

I'm sure all brokers have their challenges with both sellers and buyers, but we hear far more complaints (especially about sloppiness) regarding Fidelity.

Being "nice people" is great, but it's not really what real estate brokers are all about. They are acting in an intermediary position between buyers and sellers, and both sides depend on their integrity and competence.

Brokers have several important legal and ethical obligations to their clients, and one of the most important is to exercise "due diligence." Falling short on due diligence is not just an easily-excused "oops."

We can all make excuses for anything, but lack of due diligence is a failure in one of the most important responsibilities of a broker.

Oh yes, I agree that Fidelity does have a lot more complaints which really factored in when we were looking at a contract just before the deadline. If it had been one of the other main brokers we hear about I believe I would have gone ahead but I just didn't have the confidence with Fidelity AND especially not after learning they weren't going to be working at all on the weekend. Actually I also knew the contract we were looking at wasn't up to date due to the point availability listed and asked and was told the summary was from a few months earlier. I also would have had to rely upon what the seller told Fidelity as being correct b/c there was almost no chance they'd be able to get it verified with Disney in the time remaining.

My particular case with TTS was a contract that was listed incorrectly when I made the offer (points in different UY). It made enough of a difference to me to back out but when it was posted again it was listed exactly the same as it was previously. I watched it and it wasn't relisted again so the next buyer apparently didn't care that there was a difference in the listing to the actual.

 

[GoofItUp]

We have used TTS & Fidelity for resale purchases. While TTS does give better service/communication, Fidelity did an acceptable job. It was a little more work on my part, but nothing terrible. While I would work with TTS again over Fidelity, the fact is that Fidelity has more listings (at least at the time I was looking) at better prices. It was worth the little bit of hassle to get the contract I wanted (UY, loaded pts, cheaper price).

To the OP: While it looks like you've already put something in with Fidelity to resolve this, another option that might work is having the seller get a points transfer to "replace" the missing pts. Just an idea....

 

[dbs1228]

OP - Any news on this? Just curious what happened and the out come.

Denise

 

[Normangirls]

Sorry to drop out of sight for a few days. Actually, there's not much more to tell. We're still talking, through Rachel, to the seller. We may be able to come to terms to go through with the sale, but we're waiting to hear from DVC to confirm our pre-3/20-ROFR status. We won't make any "side deals" behind DVC's back, so I want a definitive answer from them that they know about the changes and they will still grandfather us in. I will definitely update when I have news I can share.

You guys are the BEST!

 

[Dean]

Sorry to drop out of sight for a few days. Actually, there's not much more to tell. We're still talking, through Rachel, to the seller. We may be able to come to terms to go through with the sale, but we're waiting to hear from DVC to confirm our pre-3/20-ROFR status. We won't make any "side deals" behind DVC's back, so I want a definitive answer from them that they know about the changes and they will still grandfather us in. I will definitely update when I have news I can share.

You guys are the BEST!

good luck, I hope it works out. One issue to consider is that IF DVC agrees to the exception, they may require confidentiality like they try to do (or at least did) when they exercise ROFR.

 

[suebeelin]

So I just had something similar happen.

The listing was at 238 points.

At contract time we were notified that the sellers only had 208 points.

A week ago (3 weeks after signing contract), we were notified that there are only 169 points now.

That's almost 70 points less than the original listing.

However, now that we just passed ROFR what are our options? My concern is that the seller is not trustworthy and may continue to use points up the closing date. How did it go from 208 points from the signing of the contract to 169 points?

I understand the listing started at 238 and then something may have happened between listing and contract date. But from contract date to ROFR there are less points?

I may back out. What are the repercussions to backing out?

And yes, this is via Fidelity. Any advice?

 

[dbs1228]

You should not have a problem backing out if the contracts you signed say 208 points available. That is not what you are getting - you should get a refund of your deposit. Call your broker to find out your options.

 

[JimMIA]

I may back out. What are the repercussions to backing out?

And yes, this is via Fidelity. Any advice?

Technically, under Florida law, you have ten days from the time you sign the contract to rescind without any penalty. Since you are already through ROFR, I assume more than 10 days have passed.

However, the contract you are approaching closing on is NOT the contract you agreed to purchase -- it's 39 points short of what you agreed to. So I don't think you'd have any problem at all with backing out and getting your deposit back. If the broker/seller can't deliver the number of points you contracted to buy, there is no contract and they owe you your deposit back.

There are two issues here.

First of all, when the owner used points between listing and selling, that SHOULD have been a big red flag to the broker. Knowing what happened, they had an ethical obligation to you to tell the owner the contract was sold and not to use any more points. From your description of the events, it's not clear whether they did that or not, and with a little bit of a pattern emerging with Fidelity, one has to wonder whether they are really representing the interests of both parties.

The second issue is that the seller is obviously dishonest. They used points they had contracted to sell because they thought they could get away with it. You can't blame them for using points between listing and agreeing to sell, but once you have a contract is a very different story.

IF (and it's a big IF) I were going through with that sale, I would insist on a substantial price reduction. Not a little token reduction like the dues for the missing points, but a completely different deal -- significantly reduced price, seller pays all the dues for the current year, seller pays closing, etc, etc. If the seller and/or broker are going to play games, I would make them pay dearly...or go get another contract somewhere else.

THE key issue going forward with a deal like this, IMHO, is whether Disney will let you alter the terms of the already-approved contract and guarantee you the pre-3/20 benefits. I think that is very iffy. I'm sure they have some latitude, but this is not a problem of Disney's making and granting exceptions to the deadline could come back to haunt them later. I'd be kind of surprised if they grandfathered messed-up deals like this. For the buyers in these situations, I hope they do, but I'd be surprised.

Good luck with whatever you decide.

 

[tammymacb]

Wow! scary stuff. You all made me pull up my contract from Fidelity and reread it to make sure the points were right. ( We also just passed ROFR ) Mine are, but if this happened, at this point, I'd probably just cancel the contract.

 

[Normangirls]

So I just had something similar happen.

The listing was at 238 points.

At contract time we were notified that the sellers only had 208 points.

A week ago (3 weeks after signing contract), we were notified that there are only 169 points now.

That's almost 70 points less than the original listing.

However, now that we just passed ROFR what are our options? My concern is that the seller is not trustworthy and may continue to use points up the closing date. How did it go from 208 points from the signing of the contract to 169 points?

I understand the listing started at 238 and then something may have happened between listing and contract date. But from contract date to ROFR there are less points?

I may back out. What are the repercussions to backing out?

And yes, this is via Fidelity. Any advice?

Wow. In my case, the seller knowingly signed a fraudulent contract. In your case, they signed and THEN tried to defraud you!

There are no repercussions to backing out, except you lose your ROFR submission date (if it was pre-3/20, then you have to decide how important that is to you).

If, like me, the deal you agreed to is worth pursuing, get Fidelity to request concessions from the seller (and if you're told DVC will grandfather you in pre-3/20, get it in writing!).

Good luck!