The Importance of Filing Timeshare Consumer Complaints with the Federal Trade Commission (FTC)
Federal Trade Commission – file a complaint link: https://www.ftc.gov/media/71268
Amicus Curiae briefs are petitions or briefs submitted by a person or group, not a party to a court action, that has an interest in the outcome of a lower court’s ruling.
Despite timeshare being a massive lending machine, timeshare consumers cannot file a timeshare complaint with the Consumer Financial Protection Bureau. Timeshare members can only “Tell Your Story” to the CFPB. This was reported to us by a Westgate Resorts owner, as she had been advised by a CFPB representative. We encourage you to do so if you experienced unfair and deceptive sales and lending practices.
The one exception to the exclusion of CFPB timeshare complaint filings is Westgate Resorts. That may be left over from when the CFPB conducted a two-year investigation of Westgate that ended after the outcome of the 2016 presidential election. Although Westgate Resorts is an available selection from the CFPB’s required drop-down menu of lenders, if a Westgate owner files a CFPB complaint, the CFPB merely forwards the report to the FTC. This was reported to us by the same Westgate owner.
David Siegel, Westgate Resorts CEO pictured left of candidate Donald Trump 2016
Credit Reporting Agencies
What a timeshare member can do, is file through the backdoor, a CFPB complaint with any credit reporting agency reporting inaccurate information. This is the subject matter of a lawsuit currently under appeal with the Eleventh Circuit Court of Appeals. The argument centers around whether Holiday Inn Vacation Club (HIVC) violated the Fair Credit Reporting Act (FCRA) by not investigating disputes. HIVC argues that an investigation was not merited because the dispute was a “legal” rather than a “factual” matter. A lower court ruled in favour of HIVC.
It’s easy to get lost in court semantics so I asked attorney Michael Finn about the difference. “Laws are laws, but facts can be disputed. Juries, and in many instances, judges, are referred to as ‘triers of the facts’. When the material facts essentially are not in dispute, the judge may then apply the law based on prior case law and applicable statutes to determine the outcome of a case without holding a trial. In lawyer parlance, this is known as a ‘summary disposition’.”
In other words, in a car accident case, two factual witnesses may disagree on whether a traffic light was yellow or green when the accident occurred. The law would state unequivocally at which point in the intersection would the light change result in a traffic violation.
Of primary importance, is that the FTC and the CFPB appear to be listening, and have taken significant actions to support the timeshare consumer. Today we report on the second Amicus Curiae (plural) filed recently. This Amicus Brief, dated December 16, 2022, urges the Eleventh Circuit Court of Appeals to reverse a decision made by a lower court that is arguably harmful to timeshare consumers. The lawsuit alleges that Holiday Inn Vacation Club (HIVC) should have conducted a reasonable investigation, as described below, after receiving a complaint. As stated in Plaintiffs’ Opening Brief, Experian settled with Plaintiffs in a confidential settlement.
Following are highlights of the FTC/CFPB Amicus Brief supporting Tanethia Holden, Plaintiff-Appellant, v. Holiday Inn Club Vacations Inc., Defendant-Appellee On Appeal from the United States District Court for the Middle District of Florida Hon. Carlos E. Mendoza. Case No. 6:19-cv-2373
Mark Mayer, Plaintiff-Appellant, v. Holiday Inn Club Vacations Inc., Defendant-Appellee
Brief of Amici Curiae
Consumer Financial Protection Bureau and Federal Trade Commission in Support of Plaintiffs-Appellants and Reversal
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Nos. 22-11014, 22-11734
This case presents a question about the scope of a furnisher’s duty to investigate an indirect dispute.
The district court decisions at issue unduly narrow the scope of a furnisher’s obligations by holding that furnishers need not investigate indirect disputes involving “legal” inaccuracies. These decisions run counter to the purpose of the FCRA to require a reasonable investigation of consumer disputes and would limit consumers’ ability to obtain correction of potentially harmful inaccuracies on their consumer reports.
- The Fair Credit Reporting Act
- Information contained in consumer reports has critical effects on Americans’ daily lives. Consumer reports are used to evaluate consumers’ eligibility for loans and determine the interest rates they pay, ascertain their eligibility for insurance and set the premiums they pay, and assess their eligibility for rental housing and for checking accounts. Prospective employers also commonly use consumer reports in their hiring decisions.
- To further ensure that consumer reports are accurate, in 1996, Congress amended the FCRA to also impose “duties on the sources that provide credit information to CRAs, called ‘furnishers’ in the statute.” These duties include requiring furnishers to investigate when consumers dispute information that the furnisher has given to a CRA. Under the Act, furnishers have an obligation to investigate potential inaccuracies in two circumstances:
(i) when a consumer submits an “indirect” dispute to a CRA, which must forward the dispute to the furnisher under 15 U.S.C. § 1681i(a); and
(ii) when a consumer submits a dispute directly to the furnisher, see id. § 1681s-2(a)(8) and (b).
The Act requires a furnisher, after it receives notice of an “indirect” dispute from a CRA pursuant to § 1681i(a)(2), to:
(A) [C]onduct an investigation with respect to the disputed information;
(B) [R]eview all relevant information provided by the consumer reporting agency pursuant to section 1681i(a)(2) of this title;
(C) [R]eport the results of the investigation to the consumer reporting agency;
(D) [I]f the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and
(E) [I]f an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation under [§ 1681s-2(b)(1)], for purposes of reporting to a consumer reporting agency only, as appropriate, based on the result of the reinvestigation promptly –
(i) [M]odify that item of information;
(ii) [D]elete that item of information; or
(iii) [P]ermanently block the reporting of that item of information.
A consumer may sue a furnisher for willful or negligent noncompliance with its obligation to perform an investigation under § 1681s-2(b).
- Despite Congress’s repeated efforts to promote accuracy, errors persist in consumer reports. Between January and September 2021, the Bureau received more than 500,000 complaints about credit or consumer reporting, and the most common issue consumers identified was incorrect information on a credit report. (emphasis added) See Consumer Fin. Prot. Bureau, Annual Report of Credit and Consumer Reporting Complaints (Jan. 2022), at 21,30
Factual and Procedural Background
- Plaintiff-Appellant Mark Mayer entered into a timeshare agreement with Defendant-Appellee Holiday Inn Club Vacations Incorporated (HICV) in 2014 for a property in Cape Canaveral, Florida. Mr. Mayer made monthly payments for approximately three years, but ceased making payments in 2017. In 2019, Mr. Mayer mailed HICV letters that disputed the validity of, and purported to rescind, the agreement, while permitting HICV to retain all prior payments as liquidated damages.
HICV moved for summary judgment in October 2021, alleging that Mr. Mayer’s claim—that he was not contractually obligated to make the payments to HICV that are reported on his credit report as being due—“is inherently a legal dispute and is not actionable under the FCRA.”
The district court granted HICV’s motion for summary judgment.
The court then found that the parties’ dispute in this case—which it characterized as being about whether a liquidation clause in the timeshare contract excused Mr. Mayer’s payment obligations and therefore rendered inaccurate the credit reporting about an unpaid balance—was a “legal” contractual dispute, and “not a factual issue that would support a FCRA claim.”
- Plaintiff-Appellant Tanethia Holden entered into a timeshare agreement with Defendant-Appellee HICV in 2016. Ms. Holden made a down payment and the first three installment payments, but then did not make any additional payments. In 2017, Ms. Holden mailed letters to HICV that disputed the validity of, and attempted to cancel, the agreement. The timeshare deed was recorded in June 2017, and HICV reported to Experian that Ms. Holden was delinquent on her payments. Ms. Holden submitted letters to Experian in June, September, and November 2018, disputing the credit reporting.
After Experian communicated the disputes to HICV, HICV determined there was no inaccuracy in the reporting.
Ms. Holden filed this suit in December 2019, alleging (in the only claim remaining) that Defendant violated 15 U.S.C. § 1681s-2(b) when it verified the accuracy of her credit report without conducting reasonable investigations following receipt of her indirect disputes about credit reporting inaccuracies.
The district court granted HICV’s motion for summary judgment.
The court did not reach the question of whether HICV’s investigations of Ms. Holden’s indirect disputes were reasonable.
Her appeal was consolidated with Mr. Mayer’s on July 15, 2022.
SUMMARY OF ARGUMENT
This Court should reverse the district courts’ judgments and clarify that furnishers are required to, and can be held liable for failing to, conduct reasonable investigations of both legal and factual questions posed in consumer disputes.
Many inaccuracies in consumer reports could be characterized as legal, which would create an exception that would swallow the rule. Consumer reports generally include information about an individual’s debt obligations, and debts are generally creatures of contract. Thus, many inaccurate representations pertaining to an individual’s debt obligations arguably could be characterized as legal inaccuracies, given that determining the truth or falsity of the representation could require the reading of a contract.
This Court has an opportunity to join its sister circuit in holding that the FCRA does not categorically exempt disputes raising legal issues from the investigations that the FCRA requires of furnishers under § 1681s2(b)
This Court should also reject a formal distinction between factual and legal investigations because it will likely prove unworkable in practice.
“[C]lassifying a dispute over a debt as ‘factual’ or ‘legal’ will usually prove a frustrating exercise.” The same dispute could be characterized as either factual or legal—or both.
This Court should hold that there is no exemption in the FCRA’s reasonable investigation requirement for legal questions. Such an exemption would curtail the reach of the FCRA’s investigation requirement in a way that runs counter to the purpose of the provision to require meaningful investigation to ensure accuracy on credit reports. It would also result in an unworkable standard where mixed questions of fact and law are presented, and it would encourage the evasion of statutory obligations by allowing furnishers to characterize disputes as legal.
The federal agencies charged with enforcing the statute have thus agreed, including in litigation before this Court, that the statute does not distinguish between legal and factual inaccuracies.
Factual v Legal – beyond timeshare
In a separate class action, without admitting wrongdoing, Experian agreed to pay $22.45 million as part of a lawsuit settlement to resolve claims it incorrectly reported residential information as high risk.
“Experian continues the practice of parroting the response from the furnisher even though it has been repeatedly sued for failing to conduct a reasonable investigation as required by the FCRA,” or Fair Credit Reporting Act, the Experian class action lawsuit contends.
The message is that, unless those harmed report violations, it will appear as if there are no problems. As we reported previously, Timeshare Sales were #7 on the FTC’s Top Ten Scams list in 2020 (later dropped to #9)
Here are the 10 costliest scams:
- Romance Scams$83.7 million
- Imposter: Government: $61 million
- Prizes, Sweepstakes and Lotteries: $51.4 million
- Impostor: Business $34.3 million
- Investments: $25.4 million
- Computer Tech Support Scams: $24.1 million
- Timeshare Sales: $17.4 million
- Impostor: Family/Friends: $17.1 million
- Online Shopping: $14.2 million
- Timeshare Resales: $12.5 million
Contact us if you have questions or need direction as to what state and federal agencies to file with, as well as the mechanics of filing.
CFPB Director Rohit Chopra explains in a lecture about companies “too big to fail/too big to jail”
An earlier amicus brief filed by the FTC and the CFPB urged the Eleventh Circuit Court of Appeals to reverse a decision by a lower court involving a lawsuit filed against Bluegreen Vacations by active duty service members concerning the Military Lending Act
A lawsuit was filed alleging Bluegreen violated the MLA on January 28, 2022
Westgate Arbitration and the Military Lending Act June 17, 2021
Westgate Resorts Case 8:22-cv-00283-CEH-JSS
PDF Link: Westgate Case No 8;22CV-0028-CEH-JSS
Oral Arguments Steines v Westgate Resort, October 19, 2022
Thank you, Irene, we also look forward to your report on the protest at the Westgate Lakes Resort & Spa, highlighting the plight of the “Westgate Hostages” a subject we have covered in detail. Filing complaints is another method of gaining support, as with protests, it is a matter of numbers, the more who attend a protest the more coverage it gets, and the more complaints that are filed, the better the chance of someone doing something about it. Regulating authorities or agencies only take note of large numbers of complaints against one particular entity, the more similar those complaints the more they take note.
Over the past few years, there has been a battle raging in the UK, it revolves around timeshare sales and loans brokered by sales agents themselves, the most notable have been the Silverpoint and Azure cases. These have involved the Financial Conduct Authority, the regulators, the Financial Ombudsman Service, the arbitration body and Barclays Partner Finance. Claims against these loans were being rejected by BPF, only to have the FCA and the FOS back up those rejections, despite overwhelming evidence being presented. It has taken a lot of work and several cases before a judge, but eventually, the FCA and the FOS are beginning to take note and are now finding against the BPF rejections. The number of claims and complaints they received, were all very similar in nature, with some having Court Judgements against Silverpoint for illegal contracts, with much campaigning and letter writing they are now coming around.
Making a complaint formal is the most important thing you can do, not just for yourself, but for everyone else who is in the same predicament. Numbers matter, your story matters, you all have very similar experiences, and the regulators don’t know that until you file your complaint. Go on, you have nothing to lose but everything to gain.
That’s it for this week, today in Spain and elsewhere in the world we are celebrating “Día de los Reyes Magos” or Three Kings Day, with all the kids eagerly awaiting their presents, and that for us will be an end to the Christmas festivities. For Baby Dog it will be an end to the fireworks until the next fiesta, although he was great with the New Year crescendo, even going to the window and watching the fireworks. Join us again on Monday for the first instalment of Anfi: The Story Behind the News.