SUPERIOR COURT OF NEW JERSEY MIDDLESEX COUNTY – LAW DIVISION: CIVIL ACTION DOCKET NO. ATL-L-1515-19
FantaSea Resorts was ordered to pay plaintiff’s $1,688,423.88 rather than $1,069,284 initially awarded. A Final Judgment was filed on May 19, 2023. The amount included Trebel (triple) Damages to be paid to each Plaintiff. The amount awarded for attorneys’ fees and costs increased from $772,714 to $996,013 for interesting reasons. A breakdown of the amounts paid to each Plaintiff is below.
The Plaintiffs’ attorneys had filed a motion asking the court to reconsider an earlier ruling in which the court felt that legal fees were excessive and duplicative. The court granted the motion and ultimately concluded that they had unreasonably discounted the fees. As a result, a monetary 25% “enhancement” was applied to attorneys’ fees as provided by a “fee-shift” provision allowed under the Consumer Fraud Act (CFA) and the New Jersey Real Estate Timeshare Act (RETA). The enhancement is to encourage attorneys to take on risky cases. The judge described the FantaSea lawsuit as “extremely risky” pointing out that FantaSea had the money to pay their attorneys by the hour, but Plaintiffs did not.
The Final Judgment
Plaintiffs are granted a contingency multiplier of 25% (Rendine v. Pantzer, 141 N.J. 295, 1995) in the amount of $197,104; The total award of attorney fees to Plaintiffs is $985,519.
The court finds the risk involved in taking matters of this nature requires a greater enhancement than 10%. In addition, the court finds the typical fees in consumer protection matters generally and in this matter are based primarily on the fee shift provisions set forth in the pertinent statutes which, in this matter, are the CFA (Consumer Fraud Act) and RETA (Real Estate Timeshare Act). The court is persuaded by the plaintiffs’ position in its initial submission and bolstered by their present submission that matters such as this are extremely risky matters for a plaintiff’s attorney to take without the enhancement of fee award right permitted in certain fee shifting matters.
Taking the above into account, the court awards a 25% enhancement to the plaintiff.
In determining what constitutes reasonable attorneys’ fees, the court also took into consideration that the lawsuit spanned over four years, 19 individuals were represented and there were 11 causes of action. The court noted economies of scale by filing a mass action as opposed to filing 11 individual cases. In addition, Plaintiffs offered to settle, but FantaSea refused, thus the expense of a 13-day trial.
In my opinion, the reason FantaSea refused to settle was due to arrogance and the false assurance that the old oral representation clause would remain their friend. The verdict was a loss for the “oral representation” clause that resorts routinely fall back on to dismiss complaints that begin with, “the salesman said …”
As stated in the First Amended Complaint, 10/17/2018: 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.”
The FantaSea lawsuit is one of a number of lawsuits in which courts allowed claims of timeshare fraud to proceed.
It is unusual for a Developer to admit wrongdoing. FantaSea and The Manhattan Club Developers both admitted that inventory had been manipulated so that non-owners could book easier and less expensively than owners. This claim is also prevalent in the 11 Wyndham Vacation Resorts lawsuits we have been following.
Order Entering Final Judgment against FantaSea Resorts, filed May 19, 2023
$51,610.83 Plaintiff Keona Palmer (Actual damages $16,439.26, trebled under the Consumer Fraud Act at N.I.S.A. 56:8-19 to $49,317.78 plus $2,293.05 prejudgment interest on her actual damages)
$109,725.44 Duane and Ana St. Amour
$97,657.10 Brian and Jenny Roward
$19,867.86 Judith Jones and Nigel Figuero
$80,092.43 Otilio and Carmen Seda
$53,147.01 James Cohen
$43,561.15 Stephen Bell and Sonia Lenhardt
$25,883.63 Jo Ann Wright
$55,934.68 Denise and Thomas Frawley
$50,618.28 Brian and Jesica Hart
$84,312.47 Sandra and Thomas Money
$996,013 Attorneys’ Fees and Costs (Andrew M. Milz, Flitter Milz, PC, NJ, David C. Ricci, Esq. – Law Office of David C. Ricci, LLC, NJ, Joe Solseng, Esq., Schroeter Goldmark & Bender, Seattle WA, Attorneys for the Plaintiffs)
$1,668.423.88 Total Judgment
This lawsuit confirmed allegations that were reported to After Inside Timeshare by three seniors who had purchased a FantaSea timeshare – allegations that meet the definition of financial elder abuse.
FantaSea Complaint #1: A New Jersey resident, age 78
I purchased a FantaSea timeshare in November of 2013 for $7,900 from Flagship Resort Development Corp. After complaining about the lack of availability, I was told that the unit I had was not desirable and I should upgrade. In July 2015, I upgraded to a LaSammana unit for $15,900. As of September 2019, I have NEVER been able to use this property because of my age and medical problems, including hip replacement, knee replacement, a broken arm, and 10 broken ribs with a punctured lung. FantaSea’s title department responded to my request for release, “We don’t do that.”
Complaint #2, a widow, age 88, Pennsylvania resident, no computer
Roxanne at FantaSea informed her that there is no exit. Lisa Van Winkle, Manager of the Title and Legal Department, responded to me,
“Ms Parker, I wish that we could take back the units of every owner who calls us with a sad story. Unfortunately, the condo association could not afford to pay all of their fees. We will make an exception for Mrs G and send her a Quit Claim Deed to terminate her ownership.”
I responded, “Helen is 88 years old, a widow. She has just been denied a driver’s license. She uses a walker. Do you have to be in a permanent coma? ARDA-ROC Chairman Kenneth McKelvey testified at a Florida legislative workshop, “All resorts I am familiar with, all have a dissolution policy.”
FantaSea Complaint #3 – Seniors in Virginia, ages 67 and 68
My husband and I purchased a Flagship timeshare years ago. We were told the timeshare was real estate and would be easy to sell. I have learned timeshares are almost impossible to sell. We cannot travel. My husband has ALS, Lou Gehrig’s disease. We requested a voluntary surrender. We have no loan outstanding. We only used the timeshare one time since we bought it.
Flagship Development Corporation (FantaSea) still has an A + BBB rating. The Better Business Bureau does not rate the quality of a company, just how efficiently the company responds to complaints. It doesn’t take long to say, “Find a buyer.” The buyers are few and far between, especially for Legacy (old) resorts.
From Oct. 6, 2022 /PRNewswire/ —
FantaSea, a participant in the Resort Owner’s Coalition (ROC) of the American Resort Development Association (ARDA) whose properties include its Flagship, Atlantic Palace and La Sammana resorts, also misled consumer plaintiffs into believing that their purchase was a real estate investment that would increase in value over time. Instead, plaintiffs in the suit found that they were not only unable to sell their timeshare purchase but that it had effectively no resale value.
The victory for consumers was championed by Schroeter Goldmark & Bender along with partners, Flitter Milz, PC and the Law Office of David Ricci.
FantaSea Resort owners (initial) $1,069,284 jury award
Club Exploria agreed to pay the Aaronson Law Firm $175,000 in attorney fees and costs.
Not just lawyers win!
Thank you, Irene, for this report, you also reminded me of the comments at the end of the Club Exploria – Aaronson article back in February:
It does appear that the tide is turning against timeshare developers, with the only winners being the lawyers. It really is a strange industry, it has developed its product with so many “legal” clauses, and the only way to resolve any issue is through expensive legal action. The industry counts on this knowing full well most people will never follow through, they simply cannot afford to risk it, bowing down to the wishes of the developer. To coin a phrase common in London, “They have you by the short and curlies”.
The tide is turning for timeshare developers, their unethical practices to say the least, during sales, and their greed in holding hostage vulnerable and elderly consumers, are coming to an end, it will not be tomorrow but it is coming, of that, you can be sure.
This latest ruling by a court is certainly proof that judges seem to airing on the side of consumers, indeed the judge’s comments on the cost were most telling. He expressed his concern that these types of lawsuits were “extremely risky” for the plaintiffs, indicating that “Fantasea” can afford to pay their attorneys by the “hour,” something the ordinary citizen can ill afford. This has been the fundamental reason why the timeshare industry has got away with what they do for so long, but the tide is turning, slowly but surely in favour of the consumer, you and me, the little people.
Developers be warned, you ignored the laws of Spain and it has cost the industry in Europe dearly, not just in the awards by the courts, but also in the rapid decline of new sales. The European timeshare industry is at an all-time low, Club la Costa has tied in with Wyndham, rebranding some of their resorts, and others are slowly shedding their timeshare connections. The “flagship” resort on Gran Canaria, Anfi, (See Anfi Story https://afterinsidetimeshare.com/serialised-articles/2/), is undergoing legal wrangles over control and ownership. It is well known that IFA Lopesan has no interest in the timeshare model, their business has been built on the standard hotel model, offering high-quality service, so what they will do when they eventually get total control is anybody’s guess.
That is it for this week, apologies for not having any article midweek as I got sidetracked with some research, one part will be a forthcoming article which adds even more confusion to the question of “What is timeshare?” It is a product that to all intents and purposes looks like timeshare with all the benefits, but it is not sold as timeshare. It is fully regulated and legal and it has been operating very quietly for a very long time. I hope to have it completed and ready for publishing within the next couple of weeks, so watch this space.
We hope you all have a great weekend, I have a feeling that Baby Dog is not going to be cooperative this weekend, this was his attitude when I mentioned “walkies”!