A state court certified a class action by timeshare owners against a developer based on improper timeshare closing fees.
Timeshare owners Shaundre and Kimberly Laskey allege on behalf of themselves and as class representatives that Bluegreen Vacations Unlimited (BVU) violated the Missouri Merchandising Practices Act (“MMPA”) through “preparation and processing of legal documents by an unlicensed individual.”
The case is at issue. The class claimants’ motion to modify the class definition is pending a ruling. Motions for Summary Judgment are due by June 22, 2023, and a jury trial is set for December 18, 2023.
On their own behalf and as class representatives, timeshare owners allege in their Third Amended Petition that Bluegreen Vacations Unlimited (BVU) engaged in the unauthorized practice of law by charging timeshare purchasers a “document fee” at each timeshare contract closing for “the preparation and processing of legal documents by an unlicensed individual,” in violation of the MMPA.
The case was filed on September 21, 2018 in the Circuit Court of Taney County, Missouri but was transferred on June 5, 2019 to Christian County based on the request of BVU for a change of venue and change of judge. On August 31, 2020, the Circuit Court certified one of two proposed classes of timeshare owners:
All persons or entities who (a) purchased a Missouri timeshare interest from Defendants on or after September 21, 2013, (b) were charged Closing Costs in connection with that transaction, and (c) did not rescind or cancel their timeshare purchase contract.
On March 9, 2022, the Circuit Court denied BVU’s motion to decertify the class.
After BVU’s corporate representative testified that the document fee at issue in the lawsuit was actually paid to an entity called Resort Title Agency (RTA)/ The timeshare owners filed a Third Amended Petition that added RTA as a defendant. The Third Amended Petition alleges (i) a violation of Mo. Rev. Stat. § 484.010, et seq.; (ii) a violation of the Missouri
Merchandising Practices Act (the “MMPA”); and (iii) money had and received.
On July 29, 2022, newly-added defendant RTA removed the action to federal court, and on January 9, 2023, the district court judge denied the timeshare owners’ motion to remand the action, arguing that BVU’s relationship with RTA is one of alter ego and therefore the removal was untimely. However, the court found no facts to support a claim that RTA and BVU are not alter egos but rather both are wholly owned subsidiaries of Bluegreen Vacations Corporation, which is not a named party (another entity, Bluegreen Vacations Holding Corporation, was also discussed).
On May 15, 2023, the timeshare owners moved [75, 76] to modify the class definition, as follows:
All persons or entities who (a) purchased a Missouri timeshare interest from Defendants from September 21, 2013 to April 17, 2017, (b) were charged Closing Costs in connection with that transaction, and (c) did not rescind or cancel their timeshare purchase contract.
On May 15, 2023, BVU moved [73, 74] to strike the timeshare owners’ expert, Brad Roth.
8/31/20 STATE COURT ORDER CERTIFYING CLASS, GRANTING IN PART AND DENYING PART PLAINTIFF’S MOTION TO DISMISS THE SECOND AMENDED PETITION
Bluegreen unsuccessfully moved to dismiss the Second Amended Complaint on the basis that the timeshare owners paid the document fees over two years ago, outside of the statute of limitations for a claim for the unauthorized practice of law under Section 484.020, RSMo. The timeshare owners, however, responded that 1) they also bring a common law claim for unauthorized practice of law, which is governed by a five-year statute of limitations; and 2) because the document fees are financed, each payment that they make is a new violation that restarts the statutory period. The Court was persuaded by the timeshare owners and denied Bluegreen’s motion.
The Court certified a class of timeshare owners who (a) purchased a Missouri timeshare interest from Bluegreen on or after September 21, 2018, (b) were charged Closing Costs in connection with that transaction, and (c) did not rescind or cancel their timeshare purchase contract.
Bluegreen also argued that the timeshare owners were subject to a mandatory arbitration clause. The Court noted that Shaundre and Kimberly Laskey, the class representatives, did not enter into a contract with Bluegreen containing a mandatory arbitration clause. The Court acknowledged that some members of the defined class might have contracts with Bluegreen containing an arbitration provision, and noted that if so, and if such provision is applicable and valid, those members could be excluded from the class at a later time.
Bluegreen successfully opposed certification of a second class of timeshare owners who alleged that Bluegreen engaged in abuse of process by suing the timeshare owners’ counsel, M. Scott Montgomery, in federal court in Florida for the purpose of “intimidating class participants from pursuing their legal rights.” The Court declined to certify the second class, agreeing with Bluegreen that such class members lack standing to pursue the claims because they are not parties to the lawsuit that is the alleged abuse of process, and have not been damaged by such lawsuit. The Court found that the timeshare owners received uninterrupted representation by Attorney Montgomery notwithstanding Bluegreen’s Florida lawsuit against their counsel.
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Shaundre and Kimberly Laskey, as class representatives
Mark Parrish, Raymond Salva, Jr., Erica Collins, and Joshua Sanders of Boyd Kenter Thomas & Parrish LLC
Bluegreen Vacations Unlimited, Inc. and Resort Title Agency, Inc.
Stearns Weaver Miller and Lewis Rice LLC