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This is a how to guide about what to do if you cancel your contract within the required 5 working days and the timeshare company refuses to refund your money. We are using the example of a person who contacted us after purchasing a timeshare at Hacienda Encantada in Cabo San Lucas and who is dealing with Ryan the sale manager. We have actually been through the timeshare presentation at Hacienda Encantada a couple of years ago. We of course did not buy and we were in and out in under two hours. We could have been out earlier, but we were there with our neighbor and they took longer to "just say no". I did screw up on this visit since we only got one fishing trip for the two of us. If you go to any of these presentations, you should demand at least the equivalent of $300 USD in payment for your time. Now read the story of our victim who we will name William, who is having to deal with Ryan from Hacienda Encantada and learn the exact steps to take if the timeshare refuses to comply with Mexican law and refund your money after you legally cancelled your contract. Initial Correspondence to MESCAM:
To:
mescam@mescam.com We purchased at Hacienda Encantada and after discovering issues with our contract as well as numerous undisclosed fees we rescinded within our allowed 5 day period. Here is the issue. After signing the contract Ryan, the sales manager at Hacienda Encantada was insisting that we spend the following three nights at their resort as a thank you for the purchase. We actually had very nice accommodations already and did not particularly want to move, but did go ahead and stay there. When we went in to rescind after discovering the issues with our contract we were told that by staying there we waived our right to rescind and had done a "move in". 15 days have passed and we have not been refunded our $18,765 AND they have sent our contract to Concorde servicing to begin collecting the remaining amount that would have been owed. Have you ever heard of this tactic before? We filed disputes with our credit cards the day we rescinded, Ryan at Hacienda Encantada says that the credit cards will not credit us. Any advice??? William MESCAM Response On Sat, Apr 9, 2016 at 12:05 PM, mescam <mescam@mescam.com> wrote: Mexican law does not say anything about you giving up your right to cancel within 5 days because you spent the night at the resort. This is just a tactic by the resort to scam you out of your rights. Since your down payment was $18,765, I will assume you put this on a credit card. If you have been to my website and you followed my instructions, you would have cancelled your contract and have proof that it was cancelled, and you would by now ALWAYS be referring to these charges as fraudulent charges. Do you have physical proof that you cancelled your contract? Did you send in a cancellation letter by email, or did you hand deliver such a letter and have the resort personnel sign a copy for your records? If you used a cancellation letter, did you base it on my example and clearly state that you were cancelling your contract in accordance with Mexican law and ANY CHARGES on your credit card would be considered in violation of the law and therefore fraudulent? Did you tell the timeshare in your letter that you would sue your credit card company in a US court if they processed any fraudulent charges? If you did these things, then tell Ryan that you are going to sue your credit card company for processing these fraudulent charges, and that after your credit card company allows a default judgment, the credit card company is not only going to reverse the deposit charges from his company’s merchant account, but they are also going to demand that Hacienda Encantada pay all the court costs you will be awarded. Once you get a default judgment, the resort and Concorde servicing can not go after you since a judge will have declared the contract void. If you did not do these things, then you need to figure out how to fix it. If you do not have proof that you cancelled you contract, that may be a real problem. In that case, you may want to research some of these companies that advertise on the internet to get you out of your timeshare contract for a cost. I do not know if any of them are any good, but I have seen some who claim they will only charge you if they are successful. I would stick to those companies if you go that route. If you did cancel and you have proof, then start from now on claiming these charges as fraudulent, contact the resort and tell them you will be suing your credit card company for processing fraudulent charges and continue from there. Send a copy of your cancellation proof to Concorde and tell them this matter is going to court and if they harass you, you will be suing them. You can get more information from my website regarding this approach of suing your credit card company and you can read Kurt’s Story which addresses some of your concerns. (I just updated the MESCAM website) Good Luck. MESCAM First Reply from William Thank you for that information. At the time that we rescinded I had not seen your website, but I followed a sample that I found online. I believe I included everything that you mentioned except the part about suing the credit card company. I did not know about that. We do have proof, I sent by email to which Ryan responded as well a delivering to the resort personally. The employee would not give me his signature but I did get his whole name and made note of it on my copy of the letter and I also kept my parking ticket showing that I was there at that time Didn't know what else to do. I would like to scan what I have to you to look at if it would be okay. I am really freaking out over this. I notice I don't see any telephone numbers. is it at all possible to ever speak to you? Thank you for your help. William Second Reply from William Thank you for that information. At the time that we rescinded I had not seen your website, but I followed a sample that I found online. I believe I included everything that you mentioned except the part about suing the credit card company. I did not know about that. We do have proof, I sent by email to which Ryan responded as well a delivering to the resort personally. The employee would not give me his signature but I did get his whole name and made note of it on my copy of the letter and I also kept my parking ticket showing that I was there at that time Didn't know what else to do. I would like to scan what I have to you to look at if it would be okay. I am really freaking out over this. I notice I don't see any telephone numbers. is it at all possible to ever speak to you? Thank you for your help. William Third Reply from William ok, I did a little more reading and have a couple of questions. We have one credit card that has 7,000 on it - that is B of A and a Citicard with over 11,000 on it. we can do the small claims on the 7,000 what can we do about the 11,000? Will that amount give us more problems? Will they be more likely to show up and fight us on it? We filed disputes on both cards the day we rescinded, we were told that Hacienda has 45 days to reply then back to us and then they have another 45 days again. Do we wait all of this out to see if the credit cards will do the right thing? Also wondering - should we go ahead right now and tell Ryan (do you already know of him?) that we are suing our credit cards in the US? Is your thinking that he will just give us our money back? Will telling him that give him time to protect himself in any way? Is time passing against us? Can they change their accounts in some way so that the credit cards cannot debit them? William Second Response from MESACAM On Sun, Apr 10, 2016 at 5:22 PM, mescam <mescam@mescam.com> wrote: What I would do is to have either you or your husband file in small claims court for the $7000 first and after the other one of you can file for the $10,000 part of the $11,000 debt. If you win on the $7000 one there is no way the court could then decide against you in the $11,000 amount. As far as the issue that the $11,000 amount exceeds the $10,000 limit, if the court agrees that the debt itself is null and the contract was cancelled, then Citicard can not demand payment for any part of the debt. Even if the total amount of the debt is greater than $10,000, you should be suing for the dollar amount as well as rescission of the contract. If the court decides I your favor that the contract was legally cancelled and the charges are fraudulent and that Citicard can not collect on the charges, the whole amount has to be considered discharged. I remember reading about this somewhere that this is a way of discharging a debt greater than the $10,00 limit within Small claims court. You will have to look this up yourself, but I remember reading about it at one time. You also have to realize that once a court decides in your favor for the $7000 amount, any other court is going to have to follow suit and also decide in your favor. I would be surprised of CIticard would show up in court if you send them a copy of the previous judgment against BofA. What you need to do with Ryan is notify him that he has 15 days to refund your money or you will file a lawsuit against BofA and Citicard for processing fraudulent charges. Tell him that you can file a lawsuit anytime you want, and in fifteen days you will file against BofA and Citicard and they will have to either spend a bunch of money to show up in court, or allow a default judgment. Even if BofA or Citcard decides in your favor and reverses the charges themselves, once you file a lawsuit they will have to show up to small claims court or decide to allow you to have a default judgment. If they allow the default judgment, you get your dollar award as well as court costs. You need to let Ryan know that you are going to sue your credit card companies over these fraudulent charges and that not only are you going to win because the contract was legally cancelled in full compliance with Mexican law, but US law and the court has no option but to award you all your court costs. Whether BofA or Citicard wants to eat those costs or pass those costs on to Ryan, that is the credit card companies’ decision, but you can guarantee Ryan that the court costs are going to be significant. Not knowing where you live, I would guess that $120 would not be unreasonable for the service fee to serve the court papers on each credit card company. You can get a friend or one of your relatives who is over 18 to serve the papers. Normally you just need to find out who the credit card companies’ agents of service are and then drop the papers off. In California, there are primarily two agents of service that most large corporations use, one in Los Angeles, and one in Sacramento. I would also threaten Ryan that if this goes to court, you will bring in an expert witness, such as the owner of the MESCAM website who will testify as to the amount of corruption and scamming of American tourists that goes on with Mexican timeshares. If you read the article on my website titled Kurt’s Story, you will see how bent out of shape Kurt got when he was looking at a bunch of added costs. Initially what you want to do is make Ryan realize that the smart business decision is to simply give you your money back since you legally cancelled. Any other decision will mean that you are going to sue and generate huge court costs and that when the credit card companies do not show up in court and you are awarded your court costs, there is a good chance that the credit card companies are going to look to Ryan to pay those costs. If Ryan wants to be "pig headed" and stupid, then by all means accommodate him and sue your credit card companies. What is really going to happen in court is that at the worst you and a credit card representative will show up and you will show the judge your copy of your cancellation letter and a copy of the applicable Mexican laws. Your credit card company is going to do?? NOTHING. The only thing your credit card company has is the original contract and you are not disputing that you signed it. The only point of interest is that you legally cancelled the contract and Hacienda Encantada is going ahead and demanding payment for fraudulent charges against your account and the credit card company is violating US law and your credit card holder agreement by demanding you pay these fraudulent charges. The contract was legally cancelled and any charges that Hacienda Encantada is seeking against a contract that was legally cancelled constitutes an act of fraud. If Ryan wants to make an issue about them giving you 2 free days accommodations after you signed, tell him that since the 2 free days is not written into the contract you signed, he will have to sue you separately for reimbursement of those costs if he thinks he can get a judge to make that award. You should provide Ryan with the address of your local court and tell him where he will need to file his lawsuit. You should be as accommodating as possible and give him as much information as you can to enable him to sue you, because, no US court would have jurisdiction over actions that occurred in Mexico. Even if he was to file a lawsuit against you, which I doubt he would do, all you have to do is write the court once you get served the court papers and state that your local court does not have jurisdiction and your local court would throw the case out without you even having to show up in court. Good Luck MESCAM Fourth Reply from William
To:
mescam Thank you again. I am so glad that I found your website. I don't know what we would have done. We live in a fairly small town that has a Bank of America, do you think they would show up in court? I guess even if they did we should win, we did everything right. How will we know where to have the papers served? Back East somewhere, where the credit card department is? Or, to the B of A here locally? Third Response from MESCAM Follow these steps:
1) You need to first go after Ryan and let him know you intend to sue your credit card companies. I would tell him among other things that you went to the MESCAM.com website and you read the story about Kurt and since you cancelled in accordance with Mexican law, you are going to sue your credit card companies for violating US law and processing fraudulent charges on your account. Your first goal is to get him to realize that he is in a losing position and make him comply with Mexican law. You need to spell out to him that in addition to suing for the fraudulent charge amounts, you are also going to get court costs which will be substantial. Ideally you want him to give in. 2) You also want to immediately send letter to BofA and Citicard informing them that this contract was cancelled in full compliance with Mexican law, which is the governing law for the contract, and that no charges applying to this contract should have been submitted by the timeshare company. All charges submitted by the timeshare company against a contract that was legally cancelled are in violation of Mexican law and are to be considered fraudulent. In accordance with US law and your credit card agreement, you are willing to pay the first $50 of any fraudulent charges, but if the credit card company does not immediately remove all fraudulent charges from your account, on such and such a date you will initiate legal action against the credit card company for violating US law as well as their cardholder agreement. You should also copy Ryan on your letter to your credit card companies. You cannot give the credit card company as much time as they want. You need to take control of this matter. Give the credit card company 10 days and then proceed to step 3. If you wait, you may end up with a bunch of interest charges. As soon as you get your credit card company served and the charges are being disputed in a lawsuit, I believe they have to place the entire amount on hold. You want to be in charge and you do not want to wait the 45 days plus 45 days that the bank has told you about. 3) Small claims court will ask you if you made an effort to settle your dispute before fling so after 15 days if the charges are not reverse by BofA and Citicard, or by Ryan, you need to send a second letter to your credit card companies tell them that in 10 days you will be filing a lawsuit against them asking the court for damages and ordering the credit card company to comply with US law and their cardholder agreement, and well as court costs. You should also copy Ryan on these letters. 4) If nothing happens you are going to have to file your lawsuits. Start by suing BofA since they are well within the limits of small claims court. You should sue for rescission of the charge on your account, and monetary damages of $7000 plus any interest you may have had to pay on that amount. Since you live in a small town you can probably file at your local court for small claims. You are not suing the local bank of America, but you are suing Bank of America Corporation’s credit card division. You are going to have to do some research to figure out the exact name of the corporation and their agent of service. In California I would go to the website for the Secretary of State and do a business entity search. There I would find http://kepler.sos.ca.gov/cbs.aspx and if you enter bank of America you will find a listing for bank of America corporation with an address in Delaware, but their agent of service for California is located in Los Angeles. All you do once you prepare your court papers and get them filed is to have someone over 18 drop the paper at their agent’s office. You can do the same thing for the state you live in. You can even call your credit card company and ask them who their agent of service is for your state. I would put them on the spot and if they do not answer you, ask for a supervisor and tell them that the phone call is being recorded. Since all call to BofA start with a message telling you that the call may be recorded, you can legally record the phone call. 5) When you go to court, it will probably not be someone from your local BofA bank who shows up to court, if anyone from BofA actually shows up. It would have to be some manager from their credit card division which, depending upon where you live, means that BofA is going to be paying for airfare and lodging for their representative to show up in court. BofA is going to approach this matter as a business decision and they are going to weigh what rewards they will get verses the cost of showing up in court. BofA cannot get any more money than what the credit card charges are, and they cannot get court costs either because they have not paid any. They can also not get reimbursed for costs to show up in court, and neither can you. Even for your $11,000 charge with Citicard, the most that Citicard will get is $550 out of this. This would not even pay the airfare costs. If BofA or Citicard decide not to show up and you get a default judgment against them for rescission of the contract, damages, and court costs, this will give BofA all the rights they need to cancel the charge from the timeshare company, and if you are smart and you demand court costs from BofA, this may also result in BofA demanding reimbursement of the court costs from the timeshare company. Even if your credit card company decides to show up, and it would be a really stupid business decision for them to show up, what are they going to say. You have a copy of your cancellation letter which you sent by email and to which Ryan responded which proves beyond a doubt that you legally cancelled your contract in full compliance with Mexican law, which is the law governing the contract. What is BofA going to say about that? BofA has no legal stance. They were not at the timeshare presentation so they can not even state that they witnessed you signing the contract. Knowing most of these timeshare companies, they usually give you lots of liquor during the presentations so you can even claim that the contract would be void because you were drunk when you singed. Is BofA going to dispute that? They were not even there. More to the point, the real issue is that you legally cancelled the contract and that is a fact they cannot dispute. The contract was legally cancelled and Hacienda Encantada is violating Mexican law by trying to get payment for a contract that was legally cancelled. Hacienda Encantada and Ryan know you cancelled the contract and are violating Mexican law by continuing to demand payment for a legally cancelled contract. This is fraud. Think of it this way, what if you went to Walmart, purchased a TV, paid for the TV at the register, but before the delivery was made, you went back to Walmart and cancelled the order. If Walmart continued to charge you for the TV, you would consider those charges against your credit card to be fraudulent. This is the same thing. Any charges from Hacienda Encantada against this contract are fraudulent charges and US law says you are only responsible for the first $50. When you write your letter to your credit card company to need to make sure you talk about this point that these charges are against a contract that was legally cancelled, that Hacienda Encantada is violating Mexican law by demanding payment for a contract that was legally cancelled, and because Hacienda Encantada is demanding payment in violation of Mexican law, all of these charges are clearly fraudulent. The reason that Ryan, Hacienda Encantada, and all these timeshare companies want people like you to put their down payments on credit cards is because they want to get their money and run, and leave collecting the actual money from you up to your credit card company. The timeshare companies want the fight over money to be between you and your credit card company. What you need to do is turn this around and make the fight between the timeshare company and your credit card company; which is a fight that the timeshare company will always lose. Since you legally cancelled the smart business decision for Ryan and Hacienda Encantada is to accept the fact that you changed your mind and that you complied with Mexican law and legally cancelled the contract. Ryan should have been a man and accepted the fact that everything was done legally. Ryan is a crock and a pussy which is why he is trying to con you out of your money after you legally cancelled the contract. You need to make him and Hacienda Encantada pay by not only suing your credit cad companies, but after you win make sure that you demand full payment of all the court costs by your credit card companies. If they do not pay everything, you can then go back to court, and this time you can force the credit card company to show up and under oath tell you where their bank accounts are and you can then file papers with the bank to cease the money owed you from their accounts. After you legally cancel your contract, going after your credit card company for continuing to process fraudulent charges submitted by the timeshare company is something that the timeshare companies cannot fight. They are not going to show up in court. First off they are in the wrong, they do not want to pay the cost of flying someone to your hometown, and most importantly, they do not want to end up under oath before a US judge and have to answer questions about their sales practices. Your credit card company will have very little to say in court because obviously the contract was legally cancelled and obviously Hacienda Encantada is submitting fraudulent charges against your account by demanding payment for a contact that was legally cancelled. You can win this if you are willing to fight. Ryan and Hacienda Encantada are betting that you are going to give up. Prove them wrong and fight. It is not really that hard and very quickly someone is going to make the smart business decision; if Ryan is too stupid to do it, and am sure that your credit card company will. Good Luck MESCAM Following question from William about credit card companies positions. We are going to follow your advice step by step. Wanted to tell you that before we received your last message we had called both credit card companies this morning to verify that they had received the documentation that we sent last week for the dispute. We let both companies know that we consider the charges to be fraudulent. Both companies told us that since we did initially transact with the resort it cannot be considered fraud, just a billing dispute. is it possible that if we go ahead a sue the credit card companies the judge would throw it out because we did not wait and follow the dispute timeline?? sorry, this is all new territory for us. MESCAM's reply as to what scumbags credit card companies are. Screw BofA, CitiBank, and the horse they rode in on. BofA and Citibank are only one small step below Hacienda Encantada for being the biggest assholes on this planet. While BofA and Citibank do not have a big incentive regarding the transaction fees on your charges, ($280 on the $7,000 charge, and $440 on the $11,000 charge), they do want these charges to stick because you probably do not have $18,000 in your mattress with which to immediately pay off these charges and these credit card companies will then begin to collect their ungodly 24 – 35% interest on your unpaid credit card balances. Do not expect the credit card companies to tell you the truth. As I have said from the beginning, the timeshare companies want to get their money and run and leave this as a fight between you and the credit card company which will be a fight you will lose. You need to make it a fight between whether the credit card company recognizes that you followed the law and legally cancelled the contract and that the timeshare is violating Mexican law and illegally continuing to apply charges on your credit card for payment against a cancelled, legally non-existent contract, or whether the crdit card company wants to pay the timeshare company and eat the fraudulent charges. Fraud is defined as “A false representation of a matter of fact—whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed—that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury.” You legally cancelled the contract in full compliance with Mexican law and Mexican law clearly states that all monies are to be refunded within 15 days. Hacienda Encantada is falsely representing that the contract has not been cancelled, Hacienda Encantada is concealing the fact that the contract has been legally cancelled and that Mexican law clearly states that all monies are to be refunded within 15 days, and they are using these misrepresentations to cause you injury. A billing dispute can only be a billing dispute if there is a legal bill or contract. Any contract you had with Hacienda Encantada was legally cancelled in full compliance with the governing laws of Mexico, so any charges continuing to be made by Hacienda Encantada against a non-existent contract constitute an illegal act and are fraudulent charges. The Truth in Lending Act clearly states that your personal liability for unauthorized credit card charges is limited to only $50.00. It does not matter what BofA and Citibank says, it only matter what a US judge will say when he looks at your evidence and sees that you clearly cancelled your contract and that Hacienda Encantada, knowing full well that the contract was legally cancelled, refused to comply with the governing laws of Mexico and continued to process fraudulent charges against a non-existent contract. As far as a “billing dispute” is concerned, if Hacienda Encantada had also slapped charges on your credit card for massages, dinners, and sightseeing trips which you never took, those would not be billing disputes; those would be fraudulent charges because you never authorized those charges. While you did sign the timeshare contract and initially authorized some charges, Mexican law allows for you to legally withdraw that authorization by legally canceling the contract and therefore by continuing to demand payment for charges whose authorization was legally withdrawn, you can argue that these charges are unauthorized and fraudulent. There is no “if”, “ands”, or “buts” about it, Hacienda Encantada is clearly trying to commit an illegal act and defraud you by claiming that these charges are valid charges. As soon as Hacienda Encantada started to lie to your credit card companies about the charges still being authorized, they crossed the line and committed fraud. Of course your credit card company wants to turn a blind eye on the fact that Hacienda Encantada is committing an illegal act because they want to collect the ridiculous interest payments on your unpaid balances. You can and should argue in court that the evidence is overwhelming that the contract was clearly legally cancelled and that the credit card company is refusing to acknowledge clear evidence that these charges are based upon illegal, criminal, and fraudulent acts by Hacienda Encantada solely for their own personal gain. According to the legal dictionary, “Fraud must be proved by showing that the defendant's actions involved five separate elements: (1) a false statement of a material fact,(2) knowledge on the part of the defendant that the statement is untrue, (3) intent on the part of the defendant to deceive the alleged victim, (4) justifiable reliance by the alleged victim on the statement, and (5) injury to the alleged victim as a result.” So is Hacienda Encantada commiting fraud? Absolutely and here is why: 1. The defendant Hacienda Encantada has made false statements. Hacienda Encantada knows full well that the contract was legally cancelled and that all charges on your credit cards are no longer authorized and that it is illegal for Hacienda Encantada to retain any of your monies. Any correspondence by Hacienda Encantada to your credit acrd companies saying that the charges are valid is false. 2. The defendant Hacienda Encantada knows that the statements are untrue. You have emails and other evidence that Ryan and Hacienda Encantada received your legal cancellation of the contract and Hacienda Encantada knows that he contract ws legally cancelled and Hacienda Encantada knows full well that any statements they make to your credit card company claiming the charges are authorized are untrue. 3. Hacienda Encantada has shown clear intent to deceive you, the alleged victim. Ryan has stated that he clearly received your legal cancellation letter and has stated that he intends to willfully ignore Mexican law which allows you to legally cancel this contract within 5 working days. Nowhere in Mexican law does it say that through any action by you, you can given up your legal right to cancel. Article 1 of Mexico’s Consumer Protection laws clearly states that your consumer protections under the law cannot be waived. By trying to convince you that you legal cancellation is not valid, Ryan has shown clear intent to deceive you. 4. According to Mexican law NOM-029-SCFI-2010, any contract that you signed is required to incorporate a section for termination or cancellation of the contract and must clearly state that you have a period of five working days within which to cancel the contract without suffering any prejudice in payments and that your total initial investment must be returned within 15 working days. You relied on the fact that Hacienda Encantada and Mexican law said you had 5 working days to legally cancel the contract. By not complying with Mexican law and refunding all of your initial investment, Hacienda Encantada is committing an illegal act. Of course if Hacienda Encantada did not include the required statements within the contract, according to Mexican law the contract was illegal to be given with and by having you enter into a transaction based upon an illegal contract, that is clearly fraud. 5. This is a “no brainer” since by demanding that you pay for unauthorized charges on your credit card Hacienda Encantada is clearly causing you damages. As far as you not waiting on the credit card companies dispute resolution efforts, unless your cardholder agreements specifically says you agree to forgo any legal action until those time periods have expired, you can sue your credit card company anytime you want. Unless there is an agreement not to sue, or not to sue within a specified time limit, no judge has any grounds to throw out your case. Once you file a small claims lawsuit, the hearing is not going to happen for at least 30 days so your credit card company is going to have plenty of time to complete their resolution process anyway. If the credit card company finds in your favor, you can simply cancel the lawsuit or if you continue it, the credit card company can show up in court and state that the matter is resolved and that you are not entitled to any court costs. That is the worst that could probably happen. What would probably happen is that if the credit card company does find in your favor, they would not even bother to show up since they would have already reversed the charges. In your next letters to both Ryan at Hacienda Encantada and to your credit card companies you need to clearly state your case for why these charges are fraudulent. You need to go through each and every point like I did and present your case as to why Hacienda Encantada has committed fraud. In your letters you need to clearly state the applicable Mexican laws and I would state the laws in their original Spanish as well as following that up with a clear English translation. I would also lay out your claim that the credit card companies are clearly ignoring irrefutable evidence that these charges are fraudulent and they are doing this for their own personal gain. Your evidence and Ryan’s email reply clearly shows that you cancelled this contract in full compliance with the governing laws and there can be no doubt that the contract was cancelled and that the continuing acts by Hacienda Encantada to collect on a cancelled contract amount to fraud. You should also tell them that any statement made by Ryan or Hacienda Encantada that the contract is still enforce is clearly untrue and is further evidence of a fraudulent act being committed by Hacienda Encantada. In your letters, which you should copy Hacienda Encantada and Ryan on, you should include a copy of your original cancellation letter as well as a copy of Ryan’s response which clearly indicates that he received your legal cancellation and that he and Hacienda Encantada are clearly committing fraud by continuing to pursue payment for a legally cancelled contract. Make sure that any time you refer to the credit card charges you refer to them as fraudulent charges. Now before you ask, I am not going to write your letter nor am I going to review it. Looking at the correspondences I have written so far, I have spent over five hours answering questions. It is now time to cut this off. I have provided you plenty of information to get started and you will need to do whatever research you have to in order to finish this effort. This may sound cruel, but I am not getting paid for this and I have other thing in my life to do. I think I have gone above and beyond in helping you so far. I have kept the MESCAM website up and running for over 13 years basically on my own funds and time, and very few people have shown any appreciation or donated to support the effort. If you really feel overwhelmed and do not think you can do this, there are companies on the internet who have taken what I have done for free these last 13 years and they have turned it into a business. You can look these companies up and they will charge you a basic fee of $600-$800 to help you and then 10 – 20% of all monies you get refunded. Some of these companies do this on a contingency basis which means they do not get paid unless they are successful. I would stick to only those companies who will do this on a contingency basis and I would think that in your case, any of them would jump at the chance for your business since I think you have done everything right so far and you have legally cancelled your contract. Good Luck. MESCAM Another question from William, To: mescam okay. I know you don't want to hear from me. I just have a simple question. we are proceeding with the small claims lawsuits. and, we are able to do the citi card one for 10,000, which really helps - this is in Oregon. my question - I had contacted profeco early on in this. I heard from them the other day and they said we have 10 days to file a legal complaint. do we want to do this? didn't know if it will hold up or hinder in any way. would we need it if we wanted to sue Ryan or Hacienda down the line?? I read that resorts stall the profeco complaints to get the customer past the one year mark for some reason. your thoughts would be appreciated. Response from MESCAM William, It is not that I don’t want to hear from you, it is that there is only so much I can do for everyone who has a run in with these people and comes looking for help. As far as Profeco is concerned, it is Mexico. The only people more corrupt than the timeshare people are the Government employees. Profeco is not really going to do much for you. They will tell you that they do not have any real authority over the timeshare people and the most that they will do is try to negotiate a settlement between you and the timeshare normally for half to three quarters of what you put down. The timeshare gets that money and you get nothing. I have never heard of anyone working through Profeco and getting all their money back. You need to remember one thing, YOU CANCELLED YOUR CONTRACT IN FULL COMPLIANCE WITH THE LAW. You did nothing wrong. The timeshare people are violating the law by continuing to submit fraudulent charges on your credit cards. The timeshare companies know full well that you legally cancelled this contract, so any effort they make to continue to demand payment through your credit card companies is fraud. As far as filing a complaint with Profeco, you might as well go ahead and file it just so have another document to show a judge that clearly states that the contract was legally cancelled and that HE is violating the law and committing credit card fraud by continuing to demand payment for a contract which they admit was legally cancelled. Once you serve your credit card companies with the court papers for the hearing, at the same time I would serve them with a subpoena requesting copies of all document received or generated by Citibank that relate to this dispute. “Document” includes any written, recorded, electronic, or graphic matter, however produced or reproduced, that is or was ever in the possession, custody, or control of the Defendant. “Document” includes the originals and all drafts and copies which differ in any respect from the original. “Document” includes all of the above materials, whether privileged or not. If any of the documents designated below are withheld on the grounds of privilege or work product, such document should be identified by author, recipient, date, and nature of the document. I would also request from Citibank all documents in Citibank’s possession regarding any past disputes or complaints concerning Hacienda Encantada dating from January 1, 2013 to April 19, 2016. You can serve the subpoena on Citibank’s agent of service at the same time you serve the court papers. If Citibank shows up to court without producing any of these court papers before hand, and papers that they do bring which would be covered under the subpoena you can demand that they be inadmissible because Citibank failed to comply with a legal subpoena. I have attached a copy of the small claims court subpoena form for California, but you will need to find the right form for your area. I would try to see if you can use a regular subpoena form since the regular form demands that the defendant produce the documents at an earlier time and at a place of your choosing. You would want to get a hold of the documents early so you have a chance to review them. Here again you can see what Citibank plans to present if anything, you can see what lies Encantada is telling, and you can be better prepared with any defense you might need. From past statements made, Encantada will probably try to claim that your cancellation is invalid because you used their facilities. I would make sure to be prepared to claim in court that the two days stay was simply part of the compensation promised you for showing up to the sales presentation. Ryan is not going to show up in court so it will be your word against nobody’s. Citibank can not say what was or was not promised to you since they were not there. I assume there was no bill for the two free nights stay you received, but if there was some paperwork which listed the stay as complimentary, that could be interpreted as simply part of your free gifts for showing up to the sales presentation, which it was. From what you have said, I don't believe that Ryan has any paperwork which claims otherwise, and any paperwork which he might forge which says you gave up your right to your 5 day cancellation period is a violation of Mexican law and therefore completely illegal and void. Remember one thing above all else, you legally cancelled the contract in full compliance with Mexican law and there can be no dispute about that. Any attempt by Hacinda Encantada to continue to demand payment for a contract which they know was cancelled is fraud on their part and according to US law you are only responsible for the first $50 of any fraudulent charges on your credit card account. What you need to do in your court papers and in court itself if Citibank decides to show up is clearly state that the contract was cancelled in full compliance with the law governing said contract which are as follows: (list the appropriate Mexican laws) and so since the contract was legally cancelled and HE freely acknowledges that they received the written notice cancelling the contract with in the legal time period as prescribed by law, any effort by HE to continue to demand payment on a contract that was legally cancelled is a willful attempt by HE to commit fraud by demanding payment for a contract that was legally cancelled. Your credit card agreement, as well as federal consumer protection laws limits your liability to only $50 on all fraudulent charges. This is not a payment dispute, this is fraud. The contract was legally cancelled and HE acknowledges that fact, so by continuing to demand payment for a contract that HE acknowledges was legally cancelled, HE is essentially submitting fraudulent charges on your credit card account and you are not responsible for paying these fraudulent charges. Good Luck MESCAM Next Question from William
To:
mescam I just want to clarify paragraph three. Should it be "generated by Hacienda Encantada"? want to make sure I get it all right. Response from MESCAM If you serve Citibank with a subpoena, you are asking Citibank to provide to you all documents that they have. Who produced those documents is not important. The documents could be produced by Hacienda Encantada or by Citibank. It does not matter. You want a copy of all the documents that Citibank has. Citibank may very well ignore your subpoena, in fact, I would bet that they will ignore it and that is OK. If you go to court you need to prepare a petition (which is legal talk for a simple letter addressed to the court) to exclude all information that Citibank has previously failed to send you in response to your subpoena. If Citibank refuses to send you anything in response to your subpoena, then any documents or papers that Citibank would try to bring to court would have to be excluded, or if you really want to get their goat, since Citibank refused to comply with your subpoena, demand that the trial be rescheduled and that Citibank be fined $500 and that Citibank pays your damages which would be your actual costs for showing up in court, costs which would include mileage, any lost wages, etc. If Citibank tries to push for the hearing to continue, demand that the trial be continued because you want time to review the documents that Citibank should have produce earlier in response to the subpoena, and you specifically requested those documents earlier so you could have a legal advisor review them with you. While you are not allowed to have a lawyer in small claims court with you, there is no law against you having a lawyer help you prepare for the hearing, which is why you requested the documents early. Citibank is going to have to have their lawyers review all their documents and send them out to you prior to the hearing if they want any of them to be admissible at the hearing. This is going to take Citibank a lot more time, and cost them a lot more money, and if they screw up and do not send you the documents beforehand, you get to make them come back a second time and also pay you for all your damages for having to appear a second time, whether or not you actually win the hearing. Failure to respond to a subpoena carries its own penalties and damages, separate from the hearing. Other than telling Ryan and HE that you are filing a lawsuit against your credit card companies you should not have any dealings with Ryan or HE. I would send Ryan a copy of the court papers once you have them filled out and give him 48 hours to settle this matter out of court, or you will file the paper in your local court and once you win not only rescission of the fraudulent credit card charges but also all of your court costs, there is a good chance that Citibank will be coming back after him for the credit card charges and the court costs. You need to make it clear in your letter to Ryan, your letter to your credit card company telling them that you will be filing a lawsuit against them, in your court papers themselves where you describe the grounds for your lawsuit, and before the judge; that these charges are fraudulent and the main reason which makes them fraudulent is because after Hacienda Encantada received your letter of cancellation, and after Ryan from Hacienda Encantada acknowledged his company’s receipt of your cancellation letter, Hacienda Encantada continued to demand payment for a contract that was legally cancelled. The act by Ryan and Hacienda Encantada continuing to demand payment for a cancelled contract constitutes fraud. This is not a payment dispute because to have a payment dispute you have to have a legally binding contract. The Mexican Government has put into law specific protection addressing these timeshare contract and in full compliance with the Mexican Consumer Protection laws, you cancelled the contract and Hacienda Encantada and Ryan have fully acknowledged their receipt of your cancellation letter. The fact that Hacienda Encantada continues to demand payment for a contract which they full acknowledge was cancelled makes their actions criminal, because they are willfully violating Mexican law, and therefore makes all these charges fraudulent charges. You need to review my previous letter where I went through the definition of fraud and I believe there were 4 points that had to be met to define fraud and I went through them point by point to prove that Hacienda Encantada, by continuing to demand payment for a contract which they acknowledge was legally cancelled, is committing fraud. You need to make these points clearly in your letters to your credit card companies tell them you intend to sue them for processing fraudulent charges, your letter to Ryan telling him you are suing your credit card companies for processing fraudulent charges and you will be getting not only the credit card charges dropped, but by default you will be award all of your court costs which will amount to about $1000. You also need to clearly make these point in your court filings, and if you must, attached additional pages to the filing,; and finally you need to make these points clearly in court if your credit card company is stupid enough to fight you over this. Good Luck. MESCAM P.S. Because I am taking so much time answering your questions and because these are questions that I have answered in the past with other people, this time I have decided to document all the questions and answers so I do not have to repeat myself with other people. If you go onto my website you will see a new article titled “How to stop Ryan”. It is a running documentation of all your questions and my answers, except I changed the name of the person to William. You can decide if you want to let Ryan know now that his actions are being made public and that everyone is going to know how Hacienda Encantada ignores Mexican law and submits fraudulent charges to people’s credit card companies. The thought of having this being made public may be enough to convince Ryan to "make the smart business decision" and decide this is not worth the fight, or it could make him mad enough that he continues the fight. Since you are not really fighting him directly, it may not be of any importance if he gets mad. Hacienda Encantada is not going to pay to fly him up to the US to show up in a US court. They do not want to spend the money and more than that, they do not want one of their sales managers questioned by a US judge regarding their sales practices, and besides, what would Ryan have to say except to confirm that his company did receive your cancellation letter and that after knowing that the contract was legally cancelled, his company, Hacienda Encantada, continued to demand payment for a cancelled contract which constitutes fraud. Maybe it would be a good thing for Ryan to show up in court, so he could testify that his company is committing fraud. You also have the additional issue that if Citibank does not respond to your subpoena, you can demand that the trial be rescheduled and Ryan would have to fly back to the US a second time; but not really, I doubt that Hacienda Encantada would pay to fly him up to the US the first time because the truth by told, Hacienda Encantada knows full well that they are violating Mexican law and that these charges are fraudulent.
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