FTC File a Complaint
CFPB “Tell Your Story”
Oral arguments in Tanethia Holden and Mark Mayer, plaintiffs v. Holiday Inn Club Vacations (HICV), defendants, Case 6:19-cv-02373-CEM-EJK took place at the Eleventh Circuit Court of Appeals in Jacksonville, Florida on October 3rd. The Chamber of Commerce and the Consumer Financial Protection Bureau (CFPB), along with plaintiffs and defendant’s attorneys, debated whether timeshare companies (furnishers) should be required to investigate disputes if the dispute concerns a legal matter.
Plaintiffs allege that HICV is violating the Fair Credit Reporting Act (FCRA) by not adequately investigating disputes. The Consumer Financial Protection Bureau and the Federal Trade Commission jointly filed an amicus curiae brief on behalf of the plaintiffs. The Chamber of Commerce filed an amicus curiae on behalf of the industry.
The CFPB weighed in on the consumer’s side, arguing that HICV should investigate legal and factual disputes. The Chamber of Commerce presented their arguments as to why Holiday Inn should only be required to investigate factual matters. The discussion and debate seemed to produce more confusion than clarification. One of the three judges mentioned that two or three lower courts agreed with one side of the argument and two or three lower courts agreed with the opposing side. Two attorneys I questioned disagreed. Ironically, this debate has been going on since 1670! In a London court, William Penn was accused of preaching a doctrine other than Anglican. From court transcripts:
“You have been told if the fact be found against you, it is time then to dispute the law…..It will be time to dispute the point of law if you are found guilty of the fact.”
What the court was trying to do by emphasizing “fact” was to influence the jury to deliver a “special verdict,” meaning limiting their verdict to the obvious, that Penn had preached on the street. Then the court would be able to deliver the broader (general verdict) covering both fact and law by declaring that he had violated the Conventicle Act (preaching a doctrine other than Anglican). Understanding this, Penn and (co-defendant) Mead wanted to combine fact and law together and urge the jurors to deliver the general verdict themselves. We the Jury by Godfrey D. Lehman, pp 44 – 47.
Penn and the jury prevailed, despite the jurors being held for three days without food, water or a chamber pot, and were instructed not to return without a verdict favourable to the court. Their resulting imprisonment of Penn and the jurors, who refused to budge, resulted in nullifying and voiding the king’s law. Ten years later William Penn founded Sylvania, known as Penn’s Sylvania.
My question to an attorney in attendance on October 3, 2023:
“If my sales agent falsely promises me that I won’t have maintenance fees anymore, if I buy points to get to the next level, and the Developer points to the oral representation/non-reliance clause to dismiss my complaint, is that fact or law?”
The attorney I asked replied, “Fact.”
In reference to the same question concerning the oral representation clause, as stated in Deneen et. al. v Wyndham Vacation Resorts, No. 19 C 5499
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 there is a purported written agreement, you have no liability for the lies. This is not the law.
Attorney Michael Finn, an attorney of record in the Holiday Inn dispute, clarified:
Generally speaking, a “fact” is a concrete thing like a document or perhaps an event that’s been admitted into evidence even if over an objection, ergo, you can argue that it’s evidentiary ‘weight’ but not its existence. ‘Law’ is a statement from a statute or a ‘holding’ in a comparable case that has been generally accepted as the law that may control certain “facts” that arise in a particular matter, similar to what has previously been adjudicated. So, for example, the law generally says the driver of a vehicle that rear-ends the car in front is at fault because it failed to stop within the assured clear distance ahead. Seems pretty basic, but what if the driver in the first car created an emergency like an unexpected panic slamming on the brakes? The ‘sudden emergency’ doctrine may excuse the rear-ender. Nothing is simple!
In your example, the agent’s misrepresentation cannot be law, so giving the attorney only two choices meant he gave you an answer that was more correct, but the answer might be ‘neither’. Assuming the salesman denies that statement under oath makes it a “question of fact” but certainly not an accepted fact at that point, and most certainly not a statement of law.
I realize that my answers probably create more issues than they resolve. Sometimes Judges use bad law or faulty reasoning to get to a desired result. It may be the right result, cause the good guy won, but the bad law created may create more problems down the road. That’s why we lawyers rely on appeals court rulings, not trial court rulings.
Damage to credit scores and timeshare buyers left with no choice but to default, if deceived into thinking a timeshare encumbered with a loan can be easily sold, has left thousands upon thousands of families with ruined credit. At least the CFPB is speaking up for us. Next week we hear what they have to say about a military family, one of many who find their security clearance in jeopardy because of a timeshare default. That oral argument was on October 6 in Louis vs Bluegreen Vacations.
CFPB Director Rohit Chopra explains in a lecture about companies’ “too big to fail/too big to jail” and “pay to play” strategies
Holden and Mayer vs Holiday Inn
Thank you, Irene, most people believe that “the law is the law” and that is it, unfortunately, it is not, it is open to “interpretation”, and it is not sacrosanct. One lawyer’s interpretation may differ wildly from that put forward by another, the search for loopholes and precedents is the lawyer’s job in order to protect their client, it is not about justice or truth that is just a myth. Timeshare developers have had many years of twisting the law to their advantage, making it virtually impossible for an ordinary citizen to gain any justice, that is changing.
Over the past few weeks, Irene has provided us with some of the cases where “oral arguments” are put forward, whether a point should be allowed in the trial or not, as we have seen these are just “games” played by the developer’s highly paid legal teams. They are a way of putting “legalised” obstacles in the way of justice, dragging out the proceedings, and increasing the legal costs and hopefully, this will put others off from bringing a case. As we have said before, several developers in Europe used this tactic with cases brought through the Spanish courts, the most common was the jurisdiction of the contract. At first, they were successful, but eventually, those original decisions were overturned in favour of the consumer with all courts and judges singing from the same hymn sheet, that Spanish law takes precedence on any product and contract purchased and signed in Spain.
Eventually, the courts in the US will come to the same conclusion, it is only a matter of time and most importantly for consumers to continue to file complaints, it is a case of winning by force of numbers. In other words, if consumers are telling the same story then something must be wrong.
That is all for this week, next week due to an unplanned trip to Germany there will only be articles on Monday and Friday, so have a great weekend.