Sunday, January 26, 2014

Timeshare Sales People Sued by Timeshare Company for Previously Paid Commissions

A timeshare company has filed a lawsuit against dozens of its former sales people to recover previously paid commissions, $15,000.00 or more in some instances. Here is a link to a recent article. It appears that the contracts of the sales people allows the timeshare company to take back previously paid commissions under certain circumstances, despite that some of the sales people have not worked with the timeshare company for years.

The timeshare sales people are classified as independent contractors and work on commissions; they are not classified as employees. The timeshare sales people have independent contracts with the timeshare company. These types of contracts are often written by the timeshare company and have terms favoring the timeshare company over the timeshare sales people.

Pursuant to the contract between the timeshare sales people and the timeshare company, a certain percentage of the timeshare sales people's commissions are set aside into a "reserve" account. The timeshare company has filed the lawsuit against its timeshare sales people because there was not enough money in the reserve accounts to satisfy other obligations.

Classifying timeshare sales people as independent contractors and not employees appears to be common in the timeshare industry. Sales people often have independent contracts that govern their rights and responsibilities. They contain terms describing reserve accounts, paybacks, bonuses, and indemnification clauses.

Timeshare sales people often do business as themselves, sole proprietors of their personal business of selling timeshares for a timeshare company. And so they are sued as themselves, personally. One lawsuit follows another, and in the end, the timeshare company looks to the timeshare sales people for money.

Sunday, January 19, 2014

Notary Fraud in South Carolina Timeshare

Notary fraud is a criminal misdemeanor in South Carolina. South Carolina Code Section 26-1-95, false certification by notary, states that "[a] notary public who, in his official capacity, falsely certifies to affirming, swearing, or acknowledging of a person or his signature to an instrument, affidavit, or writing is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days. A notary public convicted under the provisions of this section shall forfeit his commission and shall not be issued another commission. The court in which the notary public is convicted shall notify the Secretary of State within ten days after conviction."

So what is a false certification? SC Code Section 26-3-40 states that "[t]he person taking an acknowledgement shall certify that (1) The person acknowledging appeared before him and acknowledged he executed the instrument; and (2) The person acknowledging was known to the person taking the acknowledgment or that the person taking the acknowledgment had satisfactory evidence that the person acknowledging was the person described in and who executed the instrument.

A document with the signature of an affiant but without a notarization, or a document with a notarization but without the signature of the affiant should strike you as odd. It would appear that notarizing a document without the affiant appearing before the notary public and notarizing a document without knowing the affiant or obtaining satisfactory evidence of the identity of the affiant otherwise would constitute a false certification.

Here is a link to a press release from the South Carolina Law Enforcement Division (SLED) relating to a Charleston County employee, page four containing the criminal charge against the employee for false certification by a notary in violation of SC Code Section 26-1-95, discussed herein above. It does appear that these acts of notary fraud are investigated and prosecuted. The South Carolina Code further provides for notification by the convicting court to the Secretary of State for permanent forfeiture of the convicted person's notary public commission. The South Carolina Secretary of State's Office directed me to complain to the Beaufort County Sheriff's Office as the proper law enforcement agency to make a report for any such activity on Hilton Head Island.

After a timeshare pitch, if you've taken advantage of the opportunity of your lifetime, someone may briskly review your documents with you (likely not actually reading the documents, just listening to the timeshare salesman explain the details and relying upon the timeshare salesman to tell you the truth about the terms). Just sign here, here, and here, and date here, and initial here. How many people are with you to witness your signature? Just one, the singular timeshare salesman.

The salesman leaves and returns with a copy of the documents you just signed (yes, all of the timeshare salesperson's handwritten notes have disappeared). Sometime later when you return home or try to use your timeshare, you review your documents and realize, among other things, that those notes must have been discarded somehow. You look closely and see that none of these terms seem familiar. And why does this particular page look incomplete?

The document is unintelligible in legalize and timeshare mumbo jumbo, but you clearly identify your signature and the signature of the timeshare salesperson who was present for your signing of the document above an incomplete section of the document reserved for the notarization of a notary public. Why did you sign a document that was required to be notarized, yet a notary public was not present for your purchase and never notarized the document? Why did the timeshare salesperson pre-complete the date, month, and year of the notary public's signature block? Did a notary public go behind you, without your knowledge, without knowing you or confirming your identity, and without you certifying your signature of the same? Does this constitute a false certification by a notary public?

I do not yet know the answer. Please do not consider any information in this particular blog post and this blog in general as legal advice. The law continues to evolve and change, and the blog posts are rather stagnant after being written. Your situation is unique, and you should consult with an attorney regarding the particular circumstances in your life. This law firm does not defend notary fraud. However, we do advocate for victims of timeshare fraud and as it may relate to notary fraud.

Saturday, January 11, 2014

Part II: You're Still the Victim of a South Carolina Timeshare Scam

My last post entitled "You're the Victim of a Timeshare Scam. How did that Happen?" was viewed about 120 times in its first day. And people keep asking me, they'll say, "that's it?" And mostly, yes, that is usually it. People are usually only burned one time. But for many still, they will be ripped off a second, third, fourth, fifth time maybe. So, to pick up where we left off.

You go ahead and purchase the upgraded and rocketship edition timeshare that does everything the last one doesn't. Finally, someone who understood your timeshare needs. And, confidentially, they even told you that your previous salesperson is no longer with the timeshare company and probably lied to you. Believe it or not, you've been defrauded again. It's the same scenario as the first purchase: what the timeshare salespeople told you and lead you to believe was all lies, and the contract does not contain the terms that were discussed with you by the timeshare salesperson.

Maybe this is it for your. You realize you have been ripped off, and you decide to get help from a third party. If so, please feel free to move on to the next Paragraph. Some will go through this cycle another time or few, but at some point you realize that you have $30,000.00 invested in these timeshares that you cannot use, that you've never really been able to use, that have none of the features that were promised to you, and you are still stuck with your other timeshare with the high maintenance fee. The timeshare they told you they would dispose of for you on your behalf, and in exchange you would purchase their low maintenance fee timeshare. The entire reason for the purchase.

You do a quick Google search and are blasted with advertisements for timeshare dispositions. They offer guarantees and promises. And, well, that sounds pretty good. It sounds too good to be true almost. It's a theme. You pay an upfront fee, your timeshare is listed on a website somewhere, or maybe it's never even posted. It never sells. Same as before. You can stop here. Or you can pay another company to do the same thing. Okay, so the timeshare cannot be disposed of this way, but what else?

You check eBay and find in the completed listings that your timeshare has sold for significantly less than your purchase price, maybe only a couple or few hundred dollars. You then learn that your timeshare company charges you a fee to transfer the timeshare from your name to someone else's name, assuming that you have paid the timeshare in full and own it, and assuming you can find someone else to take it. A timeshare resale company told you about the fee. The timeshare resale company was going to sell you another timeshare, but at a significant discount, and dispose of your most recent timeshare. Sound familiar?

You decided enough is enough, and you say: I'm going to write a letter. And you send it to any or all of the following (I will use Hilton Head for this example, but please relate these to your location's appropriate entities and individuals): South Carolina Real Estate Commission, Department of Labor, Licensing, and Regulation; the Island Packet; Mayor of Hilton Head's Office; the Better Business Bureau; the Bluffton-Hilton Head Chamber of Commerce; the South Carolina Attorney General's Office; the Beaufort County Sheriff's Office; the FBI; the IRS; the Consumer Affairs Commission; the Federal Trade Commission; the Governor's Office; your credit card company; the AARP; and on and on and on.

After seeing your complaints shuffled around the government or receiving no response or no meaningful response, you discover that your ultimate remedy is filing a lawsuit. You read our timeshare blogs. All of it sounds strangely familiar, eerily familiar, just like your story. Just like all of the complaints that have been posted on the internet on websites like www.ripoffreport.com, www.complaintsboard.com, and www.redweek.com.

You do a Google search: you find my law firm.

Saturday, January 4, 2014

You're the Victim of a Timeshare Scam. How Did That Happen?

You were on vacation and someone offered you some free tickets to an event or invited you to have dinner on them, and all in exchange for you simply attending a short and exciting real estate presentation. You think you know what's happening. It's something that you can't quite put your finger on. But someone is trying to give you something for nothing. It's a theme of something sounding too good to be true. You tell them you're not interested in making any type of substantial purchase, taking out a mortgage and a loan. You chuckle. Nothing like that. You just want to enjoy your vacation with your significant other. But they tell you that it's easy going, you just attend a short presentation, tell them you're not interested, and they'll get you out the door with your free gift real quick. It happens all the time.

Well, alright. What else did you have planned? Family fun on the beach? It's just a quick real estate presentation, like they said, and then it's a nice free gift. No problem. You arrive at your scheduled time and find yourself with a large group of people, all awaiting their real estate presentation and free gifts. Some bells and whistles go off, there's some lights and people laughing. And your timeshare salesperson introduces himself or herself. What a nice person, really. He or she is a local volunteer firefighter or has children the same age as you. They're a part-time captain of a fishing boat or retired ethical compliance manager for a Fortune 500 company.

Maybe you see the timeshares, or maybe you don't get past the sales room. Maybe you buy the timeshare you toured, or maybe you buy another one. Maybe you don't know which timeshare you are buying. But you're buying. The timeshare has so many rooms and so many amenities. The on tour special is expired, but you can still get a really good deal today, but today only. And the deal isn't guaranteed, it has to first be approved by a manager. This is just a hypothetical deal of the century being proposed by the timeshare salesperson, not likely to materialize. And what you want may or may not even be in stock, the timeshares being in such high demand. The salesperson will check with the manager on the price and availability, maybe someone traded in their timeshare for an upgraded timeshare and some inventory has recently become available, it's possible, but unlikely.

What luck, one just came available! It really is your lucky day, and everyone else's. So many lights and sounds, lots of buzzing around in the sales room. People are smiling. Someone did come in and make a big scene. An elderly person. The person was furious. The person screamed and yelled and demanded to see their salesperson. They were refused. They demanded a manager. They were refused. They were told they had to leave, or the Sheriff would be called. The old person eventually left after screaming obscenities about people being frauds and thieves. What was wrong with him? Who knows. The article the salesperson shows you on how your profits would be taxed was very interesting and is distracting you. Where is that article again?

You ask for a copy of the article and go over and over all the profit you will make off this timeshare purchase. The timeshare company is going to buy or sell your other timeshare for you, lower your maintenance fees, allow you to take more vacations for less money, and even rent out your weeks and send you a check. You have developer or owner weeks as well that they can rent out for you for a profit too. There is such high demand because of all of the vacationers and golfers, it's a guaranteed profit. It's an investment, something you can hand down to your children.

You can't pass this up. No way, no how. And you're not going to go with the high interest rate financing. You have a credit card with a high limit, and you can just put it on the credit card. Perfect. Your salesperson hands you off to someone you may have never met before, someone who looks at you and asks if you understand what you're purchasing, briskly flipping through the documents. You recount all the amazing facets of this deal that were told to you by your salesperson, sign where you're told to sign, and the person disappears. They take all the handwritten notes explaining the deals and the article on taxation of timeshare profits along with the contract documents to make a copy for you to take home. They return with your copy, hand you the same, and you're off.

Awesome. Now all you have to do is wait for the details of your purchase to arrive by mail, and you'll be getting that check for the purchase or sale of your other timeshare from your timeshare salesperson within thirty (30) days, so you can pay off that credit card you used to purchase the timeshare in full. Perfect, perfect. And you can't use the timeshare this year anyway, so you decide to call your salesperson so it can be rented this year and they can send you your $2,000.00 check. You call your salesperson, but it's a cell phone number and they don't answer. You leave a message. You never get a return phone call. You send an e-mail. You never receive a reply. Do you go back to the sales room? No, they might throw you out like the elderly person when you were making your purchase. Plus, you're back home, maybe Georgia or North Carolina, but likely far, far away from your timeshare.

And your check doesn't arrive within thirty (30) days. Where is it? And why won't the timeshare salesperson return your phone calls or e-mails? You finally speak with someone in customer service. They hear your story, and they regretfully inform you that your salesperson is on vacation or no longer with the company and none of those timeshare benefits actually exist. You will not be receiving a check in the mail for your other timeshare. You will not be able to rent out your timeshare for a profit. And, what are they telling you that you actually purchased? How can this be? The salesperson told you something entirely different. Where are the handwritten explanations of the salespeople and the article on timeshare profits?

But you're in luck again. The customer service representative knows what you want and has exactly what you need: another timeshare! This one will not only have the benefits you thought your original purchase had, but it will be seen to that your other timeshare is sold this time, and you will get even more bonus weeks. Finally. Someone who understands where you're coming from. The customer service person really is a nice person. And the price is only another $8,000.00. Remember, they tell you, it's an investment. Before you finish reading your credit card number over the phone to the customer service representative, you finally get through this rambling blog post and decide to consult with an attorney.

Thursday, January 2, 2014

Top Ten Timeshare Complaints in South Carolina

Joe DuBois, my law partner, brought me in on my first timeshare case in 2012. I thought I knew someone who owned a timeshare once. I could put together on my own that it was some sort of vacation type package deal. It was mysterious. And I seemed to have an inkling that there was something more to timeshares. But what kind of boring, complicated real estate transaction case was Joe trying to get me involved in?

Joe was telling me a story about people who buy these so-called "timeshares" and were getting ripped off. It was mired in complicated, coded language describing a percentage fractured ownership interest in real property, deeded properties and points systems, exchanging points and maximize buying power, a color wheel of seasons, and developer or owner weeks and other perks. And he told me about the complaints. The ones in shaky handwriting. The ones noting the complainants' fixed income. The ones alleging fraud, lies, and misrepresentations by timeshare salespeople right here in South Carolina and on Hilton Head Island.

Today, timeshare litigation is a primary practice area of both Joe and myself. I have heard and read too many complaints from buyers and purchasers of timeshares with allegations of lies, fraud, and misrepresentations by timeshare salespeople. Outlined below for your consideration is my Top Ten Timeshare Complaints in South Carolina, in proximate order and based upon no scientific information:

1. I'm supposed to be able to use it every year

2. They promised to sell my other timeshare

3. I was going to make a profit from my timeshare purchase

4. The timeshare company was supposed to send me a check when they rent out my weeks

5. Developer weeks can be rented out, and the profit can be used to pay down the loan on the timeshare purchase

6. I was told I was purchasing a timeshare at one resort, but my paperwork reflects a different resort

7. They said they would buy it back from me in the future at my option

8. I didn't get what I thought I purchased the first time, and now they want me to purchase an upgraded timeshare

9. Timeshare was presented as an investment

10. My points are supposed to be more valuable than they are in actuality

A simple Google search will reveal more stories of timeshare lies, fraud, and misrepresentation that anyone reasonably has time to review. Most allegations are for oral fraud only, meaning that the buyer alleges that the oral representations of the timeshare salesperson are not reflected in the actual contract language of the timeshare purchase documents. However, some purchasers and buyers are savvy and have multiple witnesses present for the timeshare purchase; record the timeshare salespeople (please consult with an attorney regarding the legality of recording conversations in your locality); and retain the handwritten statements of the timeshare salespeople.

Do you have a story to tell about a South Carolina timeshare company?

Zach Naert

Wednesday, January 1, 2014

Automobile Injury Claims in South Carolina

Unfortunately, every day in South Carolina undeserving people, including drivers, passengers, bicyclists, and pedestrians, are injured through no fault of their own and as a result of automobile collisions caused by negligent drivers. Such injuries are often made even more difficult due to the additional disruptions to the injured person's life, including work, finances, and personal relationships. This article intends to provide an overview of various issues relating to automobile injuries and suggestions as to how best to deal with such unforeseen challenges.
A typical scenario begins when a motor vehicle passenger is struck unexpectedly by another motorist while traveling along South Carolina's roadways. The collision, whether resulting in the total loss of one or more vehicles or less significant property damage, may nonetheless have significant effects on the physical health of the occupants of the vehicles. After the appropriate emergency personnel, typically a police officer, responds to the scene of the collision and performs the investigation, including interviewing the drivers and any witnesses, a traffic collision report is then completed. This report, a copy of which is provided to all involved motorists, will indicate the officer's opinion as to which motorist is the at-fault driver, and further provides information regarding the appropriate automobile insurance companies and policy information.
Upon the request of any injured occupants an ambulance may be summoned to the scene to provide emergency medical services or transportation to an area medical facility, typically a local hospital's emergency department. However, many passengers in a collision may feel well enough immediately following a collision to decline the offer of an ambulance, only to awake the following morning in significant pain and discomfort. Regardless of the timing, however, the resulting medical treatment can be expensive and often requires significant out-of-pocket expense for the injured person.
Generally, the injured person is required to provide payment for the medical treatment at the time the treatment is provided, which results in an unfair financial burden for the blameless injured person. The amount of the claim, which typically includes additional compensation for the injured person's pain and suffering, is negotiated between the insurance company's claims adjuster and the injured person's attorney, with the injured person having the option to pursue the claim in court should the insurance adjuster fail to make an appropriate offer satisfactory to the injured person.
Of course, these are general principles concerning automobile injury claims in South Carolina and common issues relating to them. Because every situation is unique, please contact an auto accident attorney in Hilton Head or give me a call for advice as to your particular case.
-Joseph DuBois