Seller Backs Out After ROFR Passes

[JimMIA]

I should also point out that - until the contract was re-listed - I considered TTS the only victim in my first transaction. It was their listing contract that was violated by what was obviously a bad-faith listing. My only loss was a little more than a week, during which time I could have been offering on legitimate contracts - a period during which better deals may have come and gone.

My issue is the re-listing, not the failed original contract, because I am concerned that it presents an opportunity for someone else to get involved with a seller we already know to be unscrupulous.

 

[Dean]

Thanks Jim, I have mixed emotions. From the TSS standpoint the only thing they have to lose by re-listing it is their reputation. I'll let other decide whether it's an issue or not. Personally I haven't made up my mind about how I feel about it but it's certainly something to consider. I know that in housing sales, listing for a price is not considered binding. And deciding not to sell or changing your mind on your asking price is considered by many to be OK.

 

[JimMIA]

Thanks Jim, I have mixed emotions. From the TSS standpoint the only thing they have to lose by re-listing it is their reputation. I'll let other decide whether it's an issue or not. Personally I haven't made up my mind about how I feel about it but it's certainly something to consider. I know that in housing sales, listing for a price is not considered binding. And deciding not to sell or changing your mind on your asking price is considered by many to be OK.

I agree that we had no contract with the seller in my particular case. But the realtor had a listing contract with them, and those are usually binding if the seller renegs on an offer of asking price or higher. The penalty is usually that they have to pay the realtor's commission, because the realtor has gone to some expense to offer their property and they are entitled to their commission.

In all of these cases, I don't think there is any doubt about what is right or wrong, or when contractural obligations exist. The problem is the obligations which exist are unenforceable because of the small size of the financial transactions as compared to the legal expenses of enforcing them. The fact that someone can wiggle out of a contract doesn't make that behavior ethical.

That's my problem with relisting. Buying a timeshare is really very much an exercise of caveat emptor ("buyer beware"). The buyer is entering into an unenforceable contract, and in large measure, is relying on the reputation of the realtor to assure them the contract is offered in good faith. If the realtor has had issues with a seller before, I'm surprised they would relist a property - as Jason very quickly pointed out in the case of the two UK contracts.

 

[First Wave]

How do you know that this is the same seller? Many people have identical packages. Same amount of points, same use year. Right now The Timeshare Store has two identical Boardwalk 213 point properties. Maybe the listing you're discussing isn't the seller from Argentina after all.

 

[JimMIA]

At first, there appeared to be three different bad situations -- mine in mid-Feb and then two others last week. Turns out, the two last week were, in fact, two different contracts with two different buyers, backed out of by the same seller in the UK. So, those two amounted to sorta the same crime with two victims.

The only connection with mine was that the broker was the same, and the fact set in my case was somewhat different (and less serious, except for the relisting) from the UK cases.

 

[DEff]

From the TSS standpoint the only thing they have to lose by re-listing it is their reputation. I'll let other decide whether it's an issue or not.

For me it is an issue. I've been watching the listings for the last couple of weeks and was under the impression that this was an up-right company. While they may have to look out for both parties during the negotiations, once the first party refuses to complete the sale, they would not be looking out for anyone but themselves by *not* accepting a listing from these folks again. By protecting prospective buyers, they protect their reputation and vice-versa.

Sorry to hear about this nonsense. But it seems to me that while they aren't likely to dump the listing, they can make sure that it is policy not to relist when a seller has not acted in good faith. Nobody is served.

Donna

 

[First Wave]

I wasn't asking about The Timeshare Store's reputation. I was asking if it was possible that the people from Argentina have an identical package that matches someone else in, say, Pittsburgh, Pa that listed theirs for sale. For example, how many 150 point listing that are similar are currently listed?

I personally have done business with The Timeshare Store and found them to have the professionalism and integrity to represent the Disney Vacation Club. If someone in a foreign country backs out of a contract due to a problem with understanding the negotiation process, can the broker be accused of not looking out for the client? Seems far-fetched to me. The broker spent all the time to make long distance calls, handle the negotiation process, prepare documentation, have the title company do a title search and prepare the new deed and transfer information and then the seller changes his mind. How in the world can anyone say The Timeshare Store benefited from this mess up??

Back to my question. Someone on the board seems to think that The Timeshare Store has relisted the property that the Argentina seller has. I'm wondering if there may be two, three or 50 people that have the identical membership for sale. For example: 230 points at Old Key West with a February use-year. Just because it looks the same doesn't mean it's the same seller. Maybe it is, but I sure wouldn't make that assumption without calling the broker and asking where the seller lives.

As a reminder. The Timeshare Store has handled more than 4,000 Disney Vacation Club resales (mine being one of them). They have thousands of satisfied customers. Why would they jeopardize their reputation to relist one problem listing?

First Wave

 

[DBBN]

I'll let other decide whether it's an issue or not. Personally I haven't made up my mind about how I feel about it but it's certainly something to consider. I know that in housing sales, listing for a price is not considered binding. And deciding not to sell or changing your mind on your asking price is considered by many to be OK.

Jason - please tell me this doesn't happen at the Timeshare Store! If it did - I'd see it as a BIG problem. I certainly wouldn't re-list a property from a seller who turned down a full price offer. I view any seller who receives a full price offer and doesn't accept it as a seller who was willing to waste my time and any broker who re-listed that same property as a broker unwilling to do all they can to protect me from unethical sellers.

All I know and all I've read about the Timeshare Store has been positive...I'd like it to stay that way.

 

[Dean]

Back to my question. Someone on the board seems to think that The Timeshare Store has relisted the property that the Argentina seller has. I'm wondering if there may be two, three or 50 people that have the identical membership for sale. For example: 230 points at Old Key West with a February use-year. Just because it looks the same doesn't mean it's the same seller. Maybe it is, but I sure wouldn't make that assumption without calling the broker and asking where the seller lives.

Jim likely has the listing number and compared. But it's unlikely there are multiple listings that have the same points accounting and home resort. Of course some possibilities would be more likely than others.

Jason - please tell me this doesn't happen at the Timeshare Store! If it did - I'd see it as a BIG problem. I certainly wouldn't re-list a property from a seller who turned down a full price offer. I view any seller who receives a full price offer and doesn't accept it as a seller who was willing to waste my time and any broker who re-listed that same property as a broker unwilling to do all they can to protect me from unethical sellers.

All I know and all I've read about the Timeshare Store has been positive...I'd like it to stay that way.

Obvously I can't speak for the TSS or Jason but I can see situations where this can happen, I've seen it with houses. The situations I know about are where the seller communicated with company but not everyone got the message. Or maybe they left a message and they were planning on increasing their price but hadn't actually talked to them yet. I haven't looked at a lot of listing contracts but a few. And I don't recall any of the ones I looked at that would prevent this type of behavior. Many resale agents actually have non exclusive listings. That means it may be listed at several locations and with several companies. What if they got two offers at the same time at their offering price? All I'm saying is there are circumstances where it's be reasonable and others where it isn't.

 

[drusba]

Just a word on some the legal issues bandying about:

1. If you have a contract for sale and then the seller backs out, you do not have any right to put a lien on the property.

2. You can sue the seller for performance of the contract even if in a foreign country. Since the property subject to the sale is in Florida, you can sue there. You can serve that person with the suit but have to follow the method of service allowed by the Hague Convention, which is somewhat of a pain in the butt, but service goes through the consulates of the country and once served the case can proceed in the US and a judgment can be entered against the seller even if he does not appear and the foreign country will recognize that judgment as valid. However, this raises the far more iimportant issue of cost of suing -- you need a lawyer, you need to pay the cost of service, you need to then enforce that judgment requiring the seller to perform (and if he then refuses to sign over title, the court can enter an order deeming it signed over). But in a timeshare market where you can get the same property through another seller, it does not make economic sense.

3. The broker may have a right to his commisssion if the seller backs out -- it simply depends on whether the broker spells that right out in the broker's contract with the seller; form brokerage contracts usually do that. However, that broker has the same "economic" choice issue as you -- is it worth the legal cost and hassle to go after a couple of thousand dollars.

4. One thing you can do to the seller if you want a little satisfaction is to file your contract of sale with the recorder of deeds in the county where the property is listed. You have to pay a filing fee and need to make sure it is recorded under the proper filing number that covers that property interest of the seller. That places no lien on the property. However, when that seller goes to sell again that contract will show up in the title search and the title insurance company will list it as an exception from what it will insure against and the result will be that it will be brought to the attention of the next buyer that there is an outstanding contract of sale that has not been released and may take priority over the new sale. That is something the seller definitely will not want to have to deal with.

 

[DBBN]

Obvously I can't speak for the TSS or Jason but I can see situations where this can happen, I've seen it with houses. The situations I know about are where the seller communicated with company but not everyone got the message. Or maybe they left a message and they were planning on increasing their price but hadn't actually talked to them yet. I haven't looked at a lot of listing contracts but a few. And I don't recall any of the ones I looked at that would prevent this type of behavior. Many resale agents actually have non exclusive listings. That means it may be listed at several locations and with several companies. What if they got two offers at the same time at their offering price? All I'm saying is there are circumstances where it's be reasonable and others where it isn't.

I concur...Although not stated in my post I can see instances where this could happen due to mistakes, miscommunication, etc. Unexpected problems can happen at anytime even to the most vigilant of brokers. Good brokers will explain problems to the buyer and the buyer can choose to proceed with the sale or withdraw if the problem causes the property to no longer be viewed as desireable. I doubt if many buyers would be displeased with a broker if they re-listed a property after an honest mistake or omission was discovered.

My position is born of feeling victimized by a seller who just changed their mind about selling their contract. Not accepting a full price offer due to an unfavorable currency exchange rate or to seek to sell at a higher price is viewed by this buyer as not acceptable. I hope The Timeshare Store will protect me from sellers who believe this type of behavior is acceptable by NOT re-listing their property.

 

[manning]

However, when that seller goes to sell again that contract will show up in the title search and the title insurance company will list it as an exception from what it will insure against and the result will be that it will be brought to the attention of the next buyer that there is an outstanding contract of sale that has not been released and may take priority over the new sale. That is something the seller definitely will not want to have to deal with.

That sounds like a plan. If it was me I would do it just to give that seller heartburn. I think that is what I was trying to get at a few posts back.

The downside may be if you buy another contract and then this seller decides to go thru with the sale you are stuck with more points than you want.

 

[JimMIA]

I was asking if it was possible that the people from Argentina have an identical package that matches someone else in, say, Pittsburgh, Pa that listed theirs for sale. For example, how many 150 point listing that are similar are currently listed?

You are right on two counts - I DID misunderstand your original question, and it would obviously be possible that there were duplicate contracts.

However, I am quite sure this is the same contract relisted.

 

[JimMIA]

Not accepting a full price offer due to an unfavorable currency exchange rate or to seek to sell at a higher price is viewed by this buyer as not acceptable. I hope The Timeshare Store will protect me from sellers who believe this type of behavior is acceptable by NOT re-listing their property.

Exactly!

In the various threads where these situations have been discussed, there have been an amazing number of people who have said, "Well, gee...if the exchange rate changed..."

That rationale is just nonsense, but it is the rationale which was used by the sellers from UK. Actually, they used two - exchange rate and the fact that they had to pay to have documents notarized...which shows you how trivial their excuses were.

There are several problems with the exchange rate rationale. The first problem is that rates don't change that drastically. Sure they fluctuate, but they don't make enormous moves unless there is some major political or economic disruption.

The second, which we Americans don't really understand, is that exchange rate fluctuations and factoring those into business decisions are everyday considerations for most people on this planet. We don't do business internationally - at least as consumers - like the rest of the world does. We usually buy and sell in US dollars, so exchange rates are rather mysterious to us. They are not to people in other countries, and to use exchange rates as an excuse just shows somebody is hoping we're stupid enough to believe that tale.

At least my Argentinian sellers were more up front - they just said they wanted more money. But both sellers were doing the same thing. They were testing the waters to see what they could get easily. Then, once they'd established that, they were going to relist and get as much as they could extract from the marketplace.

There is nothing wrong with a seller trying to get the best price they can, but be ethical about it.

 

[drakethib]

The contract governs the sale.

This seller has disappointed several buyers.

What I am trying to point out are ways to slow down or stop this seller.

Unless he is careless or foolish he will not accept this contract, thus avoiding the next step. Going to the ROFR.

If he is crazy enough to accept the contract he runs the risk of dealing with someone who is crazy enough to enforce it. And I don't think he wants to deal with those headaches.

I am no lawyer, but I wonder if it is possible to file a lien against his interest based on the contract showing you have an interest in the property (it will show up on the title search). If so, this stymies him from selling to someone else and his only recourse is to complete the sale or convince the buyer to withdraw (for a price).

I was kind of wondering the same thing.

I don't know a great deal about Real Estate law, but it seems that once you sign a contract to sell, it could be enforced.

I may be totally off here, but couldn't Disney foreclose on this seller due to this?

I know HOA's have a pretty good deal of power so I would imagine Disney has the power to do something loike this.

I may be totally wrong.

 

[drusba]

Disney cannot foreclose on that seller. Disney cannot do anything to that seller for failure to follow through with a sale contract with a buyer.

 

[greenban]

DOUBLE double POST post

 

[greenban]

Jason - please tell me this doesn't happen at the Timeshare Store! If it did - I'd see it as a BIG problem. I certainly wouldn't re-list a property from a seller who turned down a full price offer. I view any seller who receives a full price offer and doesn't accept it as a seller who was willing to waste my time and any broker who re-listed that same property as a broker unwilling to do all they can to protect me from unethical sellers.

All I know and all I've read about the Timeshare Store has been positive...I'd like it to stay that way.

Having dealt with Jason of the TSS on 2.5 reasle purchases, and being basically thrilled with his service, I called him directly and asked what was up.

Jason would not confirm Lauralee or Joe as the buyers (to protect their confidentiality), but he DID CONFIRM, one seller in the UK backed out of two separate contracts after they passed ROFR.

Jason also said, very clearly and firmly, that the TSS would NOT relist or accept any future listings from that UK seller. He added that the closing company, lost all the amounts spent on title searches, etc., as well as the TSS losing their incidentials such as overseas calls and postage.

JimMIA, I don't know the circumstances of your 'event', and Jason can not break customer confidentiality to tell me about a JimMIA. However if you post the 'details' about your event, I or anyone else can call Jason and find out what happened.

FWIW, I have been 100% satisfied with Jason and the TSS with 2 sucessful and 1 unsucessful resale attempts, and I am currently actively working with Jason for another WVL resale. In the Joe & Laura case, I believe it was a bad seller, and everyone got burnt. TSS is doing the right thing by refusing to relist this 'seller'!

Happy Easter

-Tony

 

[rinkwide]

Last June I too made an offer (admittedly a low-ball one) through an agent and got a reply shortly thereafter that it had been accepted by the seller. The appropriate paperwork was faxed to me and promptly returned. Hours later the agent called to say the seller had changed their mind on the price and wondered if I would like to counter-offer. The agent also claimed that this situation was unusual and hadn't happened to him before. I chose to switch agents.

I do hope this is a coincidence and not a pattern.

 

[JimMIA]

Jason from the Timeshare Store just called me.

We reviewed our original contract with the seller in Argentina (Jason was not the agent in that sale) and he agreed it should never have been relisted due to the seller's conduct.

Jason is in the process of de-listing that particular contract, and that satisfactorily resolves any issues I have.

As I have said on numerous occasions, we have had nothing but good service and professionalism from all of the TSS personnel.

Our second contract is proceeding normally and we hope to close later this week.