Rowie's Messages Regarding Litigation
JOEP...@comcast.net
Just an update on the Litigation. The Injunction was filed on Friday
December 8. Attorney Bergman will visit court Tuesday and will be
advised as to the date the Judge will review the case. I will notify
you as soon as I receive the date. At this time we can not add to the
list filed with the court. This may change. 126 Owners were on the
list. I will still add names to the litigation list in my file, as we
may be able to add names at a later date.
The Atrium Owners Account had a balance of $6450, less $7.00 for checks
and $2556.45 for the $2500 wire transfer for the Bergman retainer.
This leaves a balance of $3886.55
Attorney Bergman estimates the Injunction Case fees should not be more
than $4000.
Again I thank everyone for your support. Our group has many owners
that have volunteered countless hours to fight this violation of our
lease. I thank you especially for your time and efforts.
We still have no news from the NC AG. If any owner has contact with
Festiva or the NC AG please forward it to me.
Rowie & Pat
JOEP...@comcast.net
Dear Owners,
We talked to a Linda Mathews of the NC AG today and she said the AG's
attorney has met with the Festiva attorney and requested further
information. She would not give us any other information but it does
sound like the AG is working on the case.
Any owners that have not filed a complaint with the NC AG would be
urged to still do so. Also an owner emailed me her complaint to the
Asheville BBB and I am attaching same for your review. Some of the
same points could be made to the AG as well and some of you may want to
file with the Asheville BBB.
Attorney Bergman and I have a call scheduled for tomorrow AM. I hope to
have more information on procedures. I have requested a common letter
for all of us to send to Festiva when we make our
maintenance payments. Things seem to be moving slowly but they are
moving in the right direction.
Another small group of owners is gathering at the Atrium next week and
hopes to meet with Festiva representatives. If I receive any
information I will pass it on.
We are still accepting new litigants, we have 5 new owners since last
week.
The collections for the Atrium Fund account is $6900 less the expenses
we have a balance of $4336.55
I hope to have some additional news to post tomorrow.
Please access the web site at www.atriumowners.com and register on the
Google site so you can post messages. If you have any problems contact
the webmaster. This site is for the benefit of all owners and it will
only work if we all support it.
Thanks again for all the support.
Rowie & Pat
Row...@aol.com
Owners,
A few owners have been contacted by Festiva and demands for payment of
the assessment have been made with the threat of "loss of usage" if not
paid immediately. I have contacted Attorney Bergman and he has made a
few recommendations and prepared a letter to be sent with any payments.
1. Do not be intimidated by Festiva, the Case is before the Court and
Festiva/Atrium has to answer in court. If you are a litigant you are
protected by the court at this time.
2. Any owner that feels he has to pay the assessment pay "IN DISPUTE"
in writing. Use a return receipt letter. Mail it registered mail.
3. Pay your regular maintenance fee by the due date, January 15. Only
pay the CPI increase of 4% above the 2006 fee. Pay with a letter "IN
DISPUTE" to the 10% fee increase and assessment. Mail it registered
mail.
4. The litigant owners could set up an escrow account in the USA to
hold the assessment and 6% additional maintenance fee funds.
Attorney Bergman has prepared a letter to be sent to Festiva with your
payment. You may have to modify the letter to fit your needs. Bergman
says the court case will be herd the First week of January, the ruling
may take a few weeks. The court will close for Christmas week. Pat and
I will be on a Cruise to Sint Maarten New Years week and will meet with
Bergman on Jan. 4. I know time is getting short and Festiva is
intimidating owners to make immediate payments. Please be patient.
Bergman feels strongly we will prevail in this suit. He feels the
demands by Festiva are illegal under the existing contract and they
cannot refuse you use of your unit if you pay the maintenance fee as
described in the contract.
On #4 setting up an escrow account here in the US by an attorney. This
would be very difficult to do under the short time restraints we have
at this time. This option should be implemented after the injunction
hearing. Bergman recommends we set up this account as a good faith
account, this will be the best method to go with the funds and still
retain control. This escrow account will show to the judge our
intentions to honor his decision in the final pleadings. When and if we
do set up this escrow account it would be handled through an attorney
here in the US. It does not help the owners threatened by Festiva with
dates in January. Everyone will have to make his own decision on how
to proceed.
All the litigants are protected under the court filing. Bergman says
the court will protect our usage for 2007 but it has to rule first.
There is a proposed $500 per day fine in the proceedings if Festiva
violates the injunction. The injunction is our first step in litigating
this assessment and violation of the lease. The actual suit may take
months or longer.
We can add additional litigants to the case. If you are not listed
please join the group.
A copy of the letter is attached in word or this email. Copy and print
the letter and add your name, address and contract numbers along with
your maintenance fee payment. Send it registered mail. Get a receipt.
If you have any questions please email me. Bergman and the court are
on holiday next week. Pat and I will try to keep in touch on our
vacation. We thank all of you again for your support and patience.
Wishing everyone a Very Merry Christmas - Happy Holidays - Happy New
Year
Rowie & Pat
COPY OF LETTER TO BE SENT TO FESTIVA WITH MAINTENANCE FEE PAYMENT.
ONLY SEND 4% MORE THAN YOU PAID LAST YEAR. ADD YOUR NAME, ADDRESS
CONTRACT NUMBERS AND DATE. SEND IT REGISTERED MAIL TO ASHEVILLE, NC
SEND IT BEFORE THE DUE DATE OF JANUARY 15.
Festiva Resorts
1 Vance Gap Road
Asheville, NC 28805
Attention: Donald K. Clayton
Re: Pelican Atrium Resort N.V.
In the newsletter of Atrium Resort of October 2006, you announced that
owners were obliged to pay by January 1, 2007 an increase of the
maintenance fees of 10 % and a special assessment. On behalf of us, our
lawyer in Sint Maarten, Rik Bergman, objected against these
unreasonable measures which are in violation with our contracts. Our
lawyer did not receive any response from you about the contents of his
letter, reason why we inform you as follows:
Enclosed herewith funds for payment of Annual Maintenance Fee as
prescribed in our lease agreement paragraph 10, Postmarked and or Due
January 15, 2007
All amounts claimed to be due for Special Assessments and above the NA
CPI for 2006 are "in dispute." and will not be paid pending
confirmation of all records supporting the amounts claimed to be due
and owing.
In the first half of January 2007 a court case is scheduled against you
in Sint Maarten pertaining to the announced increase of the maintenance
fees and the special assessment. We, plaintiffs in the injunction court
case will comply with our contractual obligation to pay the regular
contractual maintenance fees in time. However we have valid objections
against the increase and the special assessment and the Judge will rule
in the matter whether or not these additional payments will be
justified.
Sincerely,
che...@kitchenguy.biz
"official" demand for payment of the increased maintenance and special
assessments.
JOEP...@comcast.net
Atrium Owners,
On Thursday, Harvey Lipman, Marvin Rosenbusch and I met with Attorney
Rik Bergman in Sint Maarten. Harvey leads a group of 15 Canadian
owners that have now joined in the litigation. To date we have 164
Atrium owners in the litigation group and represent over 270 unit
weeks.
Attorney Bergman was to meet with the Judge today and request a court
hearing for next week. The Judge just returned from holiday. Harvey
and Marvin brought into the meeting some additional information that
enlightened Bergman on the operations of Festiva and Atrium. We
discussed the payment of the Maintenance fee plus the CPI of 4% and
withholding of the assessment and additional maintenance increase.
Bergman still recommends only paying the Contractual required
maintenance fee plus 4%. In all the documents he has reviewed there is
no provision for any additional charges.
The same recommendations were made as before. We may set up an escrow
account in the US, overseen by an attorney there. Bergman has
requested documents published by Festiva stating that we may pay them
on a monthly basis over the next year. This may be the way we set up
the escrow account. Also discussed were the current conditions at the
Atrium. Festiva is withholding funds they say they have received, the
only items authorized for purchase are the new awning and furniture for
the display room. No other improvements have been made at the resort.
The RCI status has changed from Gold to Silver. This was due to the
neglect of Festiva in 2006.
It was also noted that Festiva is now sending letters to owners two to
three weeks before your visit to notify you of the due payments.
Festiva has published the due dates as January 1 and late on January
31. Please be aware the contract states you must have your Maintenance
payment postmarked by January 15.
Bergman requests you follow the contract. Mail your payments with the
letter prepared by him registered mail to the Asheville, NC address.
On another note, the Today newspaper, December 30, had a front page
article with the Headline "ATRIUM FACES INJUNCTION" It describes the
lawsuit by 140 Atrium owners and is very accurate as most of the
information comes from our emails to and from Festiva. I will try to
copy the article and post it when we return.
We still receive emails from new owners every day. Over 1000 unit weeks
are owned by French citizens. That leaves 2400 unit weeks US and
Canadian, we now have close to 300, a very high percentage almost 10%.
Next week when we return I will publish all the names of the litigants.
If your name does not appear on the list please notify me if you want
to join the litigation.
We are having a very nice cruise and SXM was very busy, we did spend
most of the day in SXM with the grand kids at the beach. We have
Internet in the cabin and have received many emails. Thanks again for
all your support.
The next few weeks will be very interesting. We should have some
results very soon.
Pat & Rowie