The title says it all, many timeshare owners have been duped and into buying what was described as Long-Term Holidays which would and could be sold to another -later- and for ever-increasing sums of money -which in turn would deliver to the buyer an “investment” return.
During your adventure to get to the truth you will read many articles and from many others, some agreeing with the above statement whilst others who have skin in the selling game will not. The simple truth is, consumers are repeating the same story in many resorts in many countries and all over the world. Buying timeshares do not and never has, delivered an “investment return” to anyone [other than those who sell it).
What is factual is when most timeshares were sold, the sellers lied to you. They over-egged the pudding, made wild claims, which could not and would not ever materialise. This has left many consumers with an abundance of financial problems. Moreover, it appears when you bought your timeshare some resorts sell or lose your data, however that data magically ends up in the hands of a “merry” band of ex Timeshare salespeople who habitually “cold call” you and when doing so, they, in turn, sell there “cold calling” lists to their buddy, you then “cold call” you again and again and the story continues. Therefore without a doubt, the source of the all your intrusive “cold calls” are the resorts themselves.
Perverting the term Lawyer, ex-timeshare salesman claims they are now in “legals” and have the “nouse” to get you compensation when such is an aberration. When you engage with them and agree to a meeting you are then faced off another timeshare salesman, this time, selling legal services and for considerable upfront fees. I the case of one company the directing mind was an ex-timeshare salesman, who “cold called” consumers from a dubious “list” the firm had obtained, they took millions and then ran off bankrupting his company when facing allegations from TESS.
On the other side of the ever thrutching attempts to seek compensation, is the timeshare resorts themselves. They know you could have a good compensation claim and are equally aware that courts are ruling against them, so they now offer to terminate the contract obligations if you agree not to pursue a claim against them or the connected third-party seller or the finance company who loaned you the money.
The seller of the timeshare makes money from the sale of say, a “club membership” so you become a member of a club. The club committee is expected to represent you and the other members yet that committee is controlled by the seller or its connected companies. The finance is sold by the seller’s financial partner and the club protects the sellers. That is simply wrong, as the seller and the club committee is participating in and enjoying an “unfair relationship” which is contrary to law.
It appears to me that consumers are sold [for considerable sums] a timeshare which is worthless, they then join a club which in some circumstances exists by name only but is dormant and run by the seller and for their economic benefit.
To ensure that the rouse is masked, some resorts join together and form an industry body. In Europe, it’s called the RDO, and it, in turn, creates other sub-entities who seek to engage with their members, complaining consumers and tendering industry mantra.
So many are sold worthless timeshare which is financed by Banks, your data is passed on and you are then hounded by a band of ex-timeshare salesmen who promise the world, take the money then deliver nothing. Should you seek independent advice, you are directed to the very resorts you are in conflict with.
The simple truth is, you can claim compensation if you obtain real independent professional and legal advice. When you do access independent advice you obtain a fundamental understanding of your problem, why you have the right to claim, and what you can expect should you raise a claim.
Your real Lawyer will explain that you are protected by laws authorities, regulations and should a seller contravene them you can assert your statutory rights and claim compensation and or a termination of the contract you are in.
The main issue when pursuing another is which contract did you enter first, should you have acquired a loan to finance the purchase of your timeshare or have paid part by way of a Credit Card, it is that provision of credit [contract] which is the “Principle Contract” and by way of assenting to that contract they provided a gateway for you to acquire the goods (the timeshare). Should you not have acquired finance, then the principal contract is the timeshare purchase contract.
Should you have acquired “linked finance” either by way of a “Credit Card” or “Linked Loan” you can hold the Bank responsible for the damages you seek and you have in law a “like for like” claim against them.
It does not matter how much you paid by “loan” or “credit card” as the overriding issue is, they assisted you to buy the product.
If the product was paid entirely by your own funds, “Debit Card” “Cheque”, Bank Transfer” or the “like” the principal contract was the purchase contract, accordingly you should pursue the seller in the jurisdiction were the sale took place or alternatively the jurisdiction which governs the sale noted in the contract.
The Merchantable Product
The Merchantable timeshare products are known to be a “Membership” into a Holiday Club which can be a “regulated” governed by way of the: –
Timeshare act 1992 (UK), which came into force on the 1st of March 1992. Hereon in referred to as The Act 1992 and/or Law 42.98 in Spain which came into force on the 5th of January 1999 in compliance with the E.U. directive 1994/47/ECC. Hereon in referred to as Law 42/98 and/or The Timeshare, Holiday Products, Resale and Exchange Contracts Regulations 2010 (UK) Directive 2008/122/EC, which came into force on the 23rd of February 2011. Hereon in referred to as The Timeshare Regulations 2010 and/or Law 04.12 Directive 2008/122/EC, which came into force on the 6th of July 2012. Hereon in referred to as Law 04.12.
The Laws (identified above) imparted a liability on the Merchant and a Bank to grant to the borrower (amongst other things) a 14-day cooling off period [in Spain 10 days sic 14 in Law 04/12] and for the borrower to receive all the prescribed and needy “key information”. Should the Bank or the Merchant contravene the Debtors Statutory Implied Rights, the contravention constitutes an offence under the Consumer Protection Regulations 2008.
As the object of the provision of credit was to buy a “Timeshare”, the Creditor, under the agreement assumeS obligations pursuit to the CCA 1974 ss 56 and 75, notwithstanding that the Merchantable Membership product and its represented property inventory is (in part) situated outside the jurisdiction of the UK see Jarrett Barclays Bank Plc; Jones v First National Bank Plc; Peacock v First National Bank Plc.
TESS submits credit agreements are regulated, thus, banks cannot import the laws of another jurisdiction where the timeshare properties are situated if the effect would be to exclude rights conferred on the Debtor by the CCA1974. The reasoning is the implied imposition would conflict with the anti-avoidance provisions set out in the CCA1974 section 173 and would constitute an unfair term under The Unfair Terms in Consumer Contract Regulations 1999. That averred, should the National Laws enhance consumer rights which they can, consumers can and should rely on them.
Advertising and representing and incentives delivered by your agent, to enter into the Credit Agreement.
When dealing with a consumer and tendering credit product, the banks are subject to a plethora of Statutory Implied provisions, which impart a duty on them, to act and treat consumers fairly.
Many Banks appointed an agent, who do sell Bank products and while in the confines of a long and arduous sales presentation.
The Representations and incentives the Bank or its agent tendered, are extensive, cannot be un-picked, rethatched and are incapable of being assigned to any of the other products being sold (i.e timeshare) thus, the Bank is responsible for all the representations made and can be relied upon by a consumer.
The Bank did allow the Vending Merchant to sell and represent both products, at the same time thus, knew or ought to have known, the Representations delivered would/could persuade a consumer to buy the Banks product which would serve as a gateway to obtain the Merchants Membership product. Accordingly, no shield exists and no responsibility can be negated by Bank under the Misrepresentations Act 1967.
The Banks are in possession of a “standard licence” which grants them the right to carry on Consumer Credit Business. When obtaining that licence they were required to pass a “test of fitness” by the OFT and that fitness requirement continues and is constantly under review [see SI2008/1277 which came into force on the 26th of May 2008] therefore, the Banks are required to act with integrity and amongst other things act in compliance with the law including the “unfair trading regulations” which imposes on them a duty to deal with consumers fairly and not carry out aggressive practices or the 31 specific practices, contained in schedule 1 of the regulations 2008 all of which are considered unfair.
The Banks and its agents are not permitted to make misleading statements or give misleading information as the practice is deemed contrary to the Regulations 2008 5 (5) or section 3 and 4 of the Business Protection from Misleading Marketing Regulations 2008. Advertising in a way which contravenes paragraphs 5,5,7, of schedule 1 of the Regulations 2008 and by way of section 61 (1) (a) –(c) CCA 1974 is deemed to be improper and “unfair”.
Failure to comply with “Key” Information provisions
Making false statements about the Merchantable Goods and the availability of those goods is contrary to The Sale of Goods Act 1968 and The Regulations 2008. Inducing consumers to enter into contracts for the provision of goods and services knowingly recklessly and/or negligently is contrary to the Regulations 2008. Further making or subscribing to falsehoods including false statements about the nature of the merchantable membership conveyed, is also contrary to the Regulations 2008.
Failing to perform the contractual obligations to consumers, failing to give refunds or to pay fair and just damages and/or failing to make or grant adequate redress is a breach of the legal duty they owe to Consumers.
The selling or assisting in the sale of un-merchantable, unconscionable or unlawful Timeshare products is contrary to the provisions provided by bespoke Laws and Regulations concerning regulated products.
In consideration of these submissions, many consumers contend that the Merchant/Supplier have conceived un-merchantable, unconscionable or unlawful Timeshare products, presented those products to a Bank and for their consideration. Having investigated and considered the product the Banks on many occasions wrongly deemed those products as being worthy of finance thus, are liable.
Consumers should consider the Merchant has participated in an engineered “racket” to smoke screen the product’s deficiencies, sold it by delivering a collection of negligent/fraudulent misrepresentations and the Bank may have failed at every turn to protect the consumer. The Banks have supported and partnered the Merchant by way of “linked finance” and appear to have turned a blind eye, to the merchant’s transgressions thus, treated Timeshare consumers unjustly, unfairly and recklessly.
Many consumers subjectively assert they are Consumers, which objectively is proven by the fact they entered into “consumer finance” contracts with Banks
Consumers have bought Memberships into a Club which for all intense and purposes is captured under the Timeshare Act 1992 [The Act 1992] The Timeshare, Holiday Products, Resale and Exchange Contract Regulations 2010 [The Regulations 2010], Spanish Ley (Law) 42/98 which was introduced in compliance with EU Directive 94/47/EC of 26 October 1994 [LAW 42/98] or Spanish Ley (Law) 4/12 which was introduced in compliance with the EU Directive 2008/122EC and in compliance with The Timeshare, Holiday Products, Resale and Exchange Contract Regulations 2010 [Law 4/12]
The product is hereon in referred to as a “Timeshare”. The Timeshare was purchased by consumers and from “vending Merchants”. The consumer/ debtor Did not act for the purposes of a “trade”, “business”, “craft” or “profession” and should any contrary assertion be made, the Banks will be required to prove it.
The Supplier is a “Vending Merchant”, is a Limited Company with a Timeshare to sell to consumers thus, is a “Trading Supplier”.
The Products sold by the Supplier to the Consumers debtor are Regulated Contracts (Timeshare and Finance). Accordingly, the Supplier did act for purposes relating to “trade”, “business”, “craft” or “profession” and did transact as a business, in Business-to-Consumer transactions.
Therefore many sales have been conducted in or within the legal jurisdiction of (say) Spain and the Supplier knew or ought to have known that they were obliged to have regard for consumer protection laws enforced in Spain.
The Bank is a “Credit Supplier” and they appointed the merchant to act as their agent, and they employed others to carry out that function. The agent’s function was to engage with, vend and negotiate the sale of the Banks financial product, which resulted in the supplied “Credit Finance” to Consumers. The selling of the Banks product may have taken place within the Jurisdiction of (say) Spain, their lands/colonies/protectorates and the Bank have entered an agency arrangement with the “Supplier”.
That agency permitted the Supplier (and or its sub-agents) to sell to Consumers (and others) the Banks financial product, in the confines of sales presentations and whilst the Supplier sold its Timeshare product.
Thus, the Consumer (Debtor) bought the Banks (Creditor) financial product which assisted them to buy the (Suppliers) Timeshare product. Both products were offered for sale by the Supplier or his agents, at the same time and in the same location, therefore, as the Finance product facilitated the purchase of the merchantable product, the transaction is a Debtor-Creditor-Supplier Agreement and as defined by Section 12(b) of the Consumer Credit Act 1974 (“CCA 1974”).
Accordingly, it follows, all consumer does retain the right to hold the Bank accountable to them should, the Supplier or the Bank [on the balance of probability] have either Breached the Contract and/or misrepresented the products or acted “unfairly”.
Posted on: 4th December 2017