Buxton vs. Wyndham Vacation Resorts: Wyndham Lawsuit #3 of 5 in which claims of fraud were allowed to proceed
Allowing claims of fraud to proceed in a timeshare lawsuit is a dramatic shift in the landscape of court rulings. In the past, courts have focused on the black-and-white contract that includes the previously fail-safe oral representation clause. Buyers unwittingly acknowledge in fine print that they did not rely on claims made by sales agents. If Developers wanted the prospective buyer to know this, they would make this disclosure prior to the hours-long sales drama. In another of the five lawsuits, Plaintiffs’ attorneys argued:
Wyndham’s business model is premised on the false assumption that you can lie to consumers to get them to sign confusing, vague and ambiguous boilerplate contracts and that because then there is a purported written agreement, you have no liability for the lies. This is not the law.
In the $1.6 million award paid to Flagship/FantaSea Resorts owners, attorneys argued the same:
To compound the deception, Defendant (FantaSea), after its sales pitch to each of the Plaintiffs, would have the consumer purchaser sign a “Purchaser’s Acknowledgment Annual Use Form” which deceptively required the consumer to acknowledge the opposite of what he or she had just heard from Defendant’s sales agent in Defendant’s sales pitch, including the paradoxical statement that the purchaser understands he/she: “should not, under any circumstances, allow himself/herself to become confused or misled by any representations or interpretations to the contrary.” First Amended Complaint 10/17/2018
We have been following 11 Wyndham lawsuits filed in recent years. In addition to the five concerning fraud claims, three are those in which district courts denied Wyndham’s motion to compel arbitration, and three are whistleblower or wrongful termination lawsuits.
The district court in Buxton vs. Wyndham Vacation Resorts, Inc. allowed claims of “Fraud by Omission” (Count 1) and “Fraud in the Inducement” (Count 3) to proceed. This lawsuit was filed in 2019, but we were not aware of this important lawsuit until finding it cited in the Kirchner lawsuit.
KEVIN BUXTON and PAMELA BUXTON, Plaintiffs, vs. WYNDHAM DESTINATIONS, INC., WYNDHAM VACATION OWNERSHIP, INC., and WYNDHAM VACATION RESORTS, INC., Defendants, U.S. District Court in the Middle District of Florida, August 20, 2019, CASE NO: 6:19-cv-01555-PGB-DCI
The Buxton lawsuit originally had 59 Plaintiffs. Presiding Judge Roy B. Dalton, Jr. dismissed the case on August 24, 2020 due to a settlement. Plaintiffs’ attorneys were instructed to pick a “First Five” to be acted upon individually. The remaining cases were to be “severed” and filed five at a time. We believe several have settled.
In addition to fraud claims, Breach of Contract allegations were also allowed to proceed. As stated in the Buxton complaint:
Evading the spirit of the bargain and abusing the power to specify terms constitute examples of bad faith in the performance of contracts.
None of the Plaintiffs were able to use the VOI’s as represented by Defendants WVR, WVO and WYND, through their agents, as the room reservations were and are unreasonably restricted by the Defendants. Defendants rent the rooms at issue to the general public or use these rooms for promotional purposes in competition with any and all of the Plaintiffs, said unreasonable restrictions and competition constituting breach of contract among each and every Plaintiff and the Defendants.
In an upcoming article, a former Wyndham executive explains in her Declaration, in support of the Kirchner plaintiffs, how inventory is manipulated, to the detriment of members who paid thousands of dollars upfront to become a member.
In his Court Order, Judge Dalton, Jr. wrote that Rule 9(b) satisfied the requirement of a fraud claim because Plaintiffs were able to provide the: who, what, when, where, why, for each allegation. Specifically, as state in Judge Dalton’s order:
Plaintiffs “must state with particularity the circumstances constituting fraud.”
- What statements were made in what document or oral representations or what omissions were made.
- The time and place and the person responsible, and
- The content,
- What defendants obtained due to the fraud.
Summary of Allegations in Buxton (also commonly reported industry-wide)
Defendants invited the Buxtons, who were vacationing in Orlando, Florida, to a presentation about Defendants’ programs that would last no longer than ninety minutes. But the presentation was not as advertised. It lasted multiple hours… In all the cases, at the presentations, the Sales Agents told Plaintiffs: the deal was good only for that day; the Sales Agents would be Plaintiffs’ personal representatives, helping them to make the most of their timeshare; the timeshare was a good investment and Plaintiffs could rent out their timeshares to cover all costs. But these statements weren’t true and the Sales Agents knew it. The Sales Agents also exaggerated the usefulness of points and reservation availability to stay at resorts.
As one attorney mentioned in oral arguments concerning another Wyndham lawsuit, it’s easy to forget that there are real people involved when looking at black and white contracts and legal filings. One of the “First Five” cases was Chandler v. Wyndham Vacation Resorts, Inc., Case No. 19-cv-1647-Orl-37DCI. In this YouTube video, Margaret Chandler is not the Mary Chandler plaintiff in the Buxton lawsuit, but she could be:
Developers try to avoid jury trials because it is difficult to find twelve jurors plus alternates who do not have negative feelings about timeshares. At a trial I attended, prospective jurors spoke loudly and clearly about their feelings, but then as time went on, I could not quite determine if other prospective jurors simply saw a quick and easy way out to avoid the stress and duration of a trial.
The other three of the “First Five” following Buxton and Chandler
Campbell v. Wyndham Vacation Resorts, Inc. (No. 19-cv-01556-Orl-37DCI),
Blessing v. Wyndham Vacation Resorts, Inc., (No. 19-cv-1613-Orl-37DCI);
Mason v. Wyndham Vacation Resorts, Inc., (No. 19-cv-1613-Orl-37DCI).
There appears to be a glimmer of hope that regulators and the Courts are beginning to see the side of the consumer.
Why the Non-Reliance Clause is Unfair in Timeshare Sales
Wyndham’s Arbitration Shell Game
Lawsuits #1 & 2 GOODS and SERVICES: In Kirchners v Wyndham Vacation Resorts Case 1:20-cv-00436-RGA-JLH the Court dismissed allegations of fraud in Nevada, but allowed claims of fraud to proceed in Tennessee. The Delaware judge dismissed the Nevada plaintiffs by deciding that timeshares are not classified as goods or services. Timeshares are regulated by Nevada’s Real Estate Department, despite the fact that non-deeded, right-to-use points do not bear any resemblance to real estate.
Evolution of the Kirchner Lawsuit
Thank you, Irene, as you know from our conversations over the years about how timeshare has been in the dock in Spain, from the early cases where it was hit & miss to those after the Supreme Court Rulings. It was the first ruling made against Silverpoint where the courts began to look very closely at the “fraud or deception” element, in this case, the Court of First Instance heard the plaintiff’s testimony and agreed the contract she was sold was misrepresented and consequently could involve fraud. The Silverpoint story is still unfolding as the international criminal investigation is still ongoing.
Consumers purchasing in Spain also had to sign an agreement stating that everything was above board, after the conclusion of business, a point that was not lost in many judges’ findings in favour of the consumer. The more these points are emphasised to the courts as part of any complaint, the more judges will start to join the dots, it worked in Spain.
That is all for this week, apologies for the lack of articles this week, I had an unexpected visit from Baby Dog for a few days. He was a little under the weather, well the heat had been harsh and it didn’t help with his hoooman cousins wanting to run around with him. This picture is where he just decided to sit and stare at me while I was trying to read, it worked, felt guilty and got no work done, have a great weekend.