Wyndham v Vacation Transfers Unlimited

Case Number: 3:18-cv-01399

Last Updated: June 5, 2021

Status

Pending

Location

USDC, TN Middle District

Presiding Judge

Hon. Chief Judge Waverly Crenshaw, Jr.

Date Filed

12/27/2018

Highlights

Case Posture

Claims:

Wyndham’s Complaint, filed in US District Court, Middle District of Tennessee, alleges violations of the Lanham and Tennessee Consumer Protection Acts, statutory inducement of breach of contract, common law intentional interference with existing contractual relations and with current and prospective business relations, and civil conspiracy against Tennessee timeshare contract cancellation marketing companies.

Posture:

The case is at issue. On 8/13/20, in a joint proposed Initial Case Management Order, the parties have proposed that the parties submit a joint report regarding the parties’ good faith effort to resolve the case no later than 10/29/20. The parties have proposed a deadline of 10/11/21 for dispositive motions, and a bench trial to take place no earlier than 2/21/22. The parties have proposed expert disclosures as follows: Plaintiffs to disclose all expert witnesses and reports on or before 6/23/21, and defendants to disclose all expert witnesses and reports on or before 8/31/21.

Summary:

In its complaint, Wyndham alleges that defendant marketing companies falsely guarantee the ability to cancel timeshare contracts and thereby cause and induce the breach of Wyndham owner’s timeshare contracts, charging money for a service while the timeshare owner could have breached on his or her own, for free. Wyndham argues that the advertised “cancellation” of a timeshare contract is different than the actual breach and termination of the owners’ timeshare contracts. Moreover, Wyndham concedes that Defendants refer its customers to attorneys, however, Wyndham alleges the attorneys merely send “a meaningless form demand letter to Wyndham.” Wyndham further alleges that “Defendants conceal the existence of programs such as Wyndham Ovation ® or Wyndham Cares ®, both of which offer free or low cost assistance to Wyndham Owners who may be looking to exit their Purchase Contract or may be having trouble making contractual payments.” Finally, Wyndham alleges that owners “often do not realize the scam until after the damage is done when their credit rating is badly hurt due to the default and/or foreclosure.”

In response to Wyndham’s complaint, Defendants Dean Spigner and Vacation Transfers Unlimited, LLC deny liability under any theory and deny that any of Wyndham’s claimed damages were caused by them. They allege that they previously entered into an agreement with Wyndham settling and releasing them from liability related to their business practices, and that Wyndham’s lawsuit is a violation of that agreement, entitling them to attorneys’ fees and costs.

In response to Wyndham’s complaint, Defendants Charles Simerka and Mortgage Wellness Solutions similarly deny any liability. Simerka alleges that Wyndham’s complaint is brought to “stop any person, organization, or law firm from assisting victims of timeshare abuse and fraud. He alleges that his company, Legal Timeshare Aid, only takes clients who claim they are victims of timeshare fraud.

Selected Events:

SELECTED EVENTS (REVERSE CHRONOLOGICAL ORDER)

4/19/19 – Order denying Defendants’ motion for a more definite statement. The Court ruled that the complaint sufficiently puts Defendants on notice of the claims against them, because “the complaint adequately specifies who Plaintiffs are and their relationship to each other and the Wyndham owners.” The Court cited precedent holding that “plaintiff under no obligation to attach to his complaint documents upon which his action is based.” [36]

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1/10/20 – Order overruling Defendant Charles Simerka and Mortgage Wellness Solutions objection to the Magistrate Judge’s ruling granting Wyndham’s motion to disqualify attorneys Aubrey Givens and Kristin Mosher from representing them in the action, because such attorneys “could be essential witnesses” regarding “key disputed issues that form the basis for Wyndham’s claims.” [62]*

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*Related: On 3/31/20, in Wyndham v. Reed Hein & Associates, LLC et al., US District Court, Middle District of Florida, Case No. 6:18-cv-02171, [DE 183], the Court denied a similar motion by Wyndham to disqualify attorney Leslie Benjamin from representing defendant Mitchell Reed Sussman, Esq., notwithstanding Wyndham’s argument that Attorney Benjamin is a material witness.

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Transcripts

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Parties

Plaintiffs:

Wyndham Vacation Ownership & affiliated entities represented by Shutts & Bowen

Defendants:

Vacation Transfers Unlimited and Dean Spigner represented by McKellar Smith PLC

Charles Simerka and Mortgage Wellness Solutions dba Legal Timeshare Aid (pro se)