To Albert Fletcher
Club Chairman
Dear Albert,
As a long term owner at Los Claveles I have witnessed continuous wrongdoing by WimPen, Onagrup and FNTC over the past 7 years, all in pursuit of their common aim to control the resort and its future, against the wishes of owners who are aware of the risk that they pose. I hope by listing the wrongdoing that it will convince owners to protect the resort and their investment from this risk by voting at the 2019 AGM in support of resolution 7, and against resolutions 8, 9 and 10, to regain and retain owner control of the resort.
Not to support the Club now will effectively hand the resort over to WimPen/Onagrup for free. The company is looking long-term whereas Owners tend to look at the short to medium term. Having control of Owner groups makes life very easy for an organisation which has no service agreement and did not keep the founding documents up to date. Those documents enable WimPen/Onagrup, who are after all a service provider, to dictate what they do and at what cost. With one person representing Escritura owners on the
management committee it is highly unlikely that a performance agreement will ever be
written.
Wrongdoing by Wimpen, Onagrup and FNTC at Los Claveles, 2012 – 2019
1. 2012 to date: Collusion by WimPen, old and new, with FNTC to prevent the 2012 AGM resolution to transfer trusteeship of the Club to Hutchinson from happening. It is no accident that 7 years later FNTC is still there. They need each other to stay in control of the resort.
2. 2015: Threat made by FNTC’s Chief Executive when he lost his temper in private with
selected Club members in 2015. I understand from the members who were present that he said that he owned the Club, and if Onagrup and the Committee didn’t agree, he would close Los Claveles down.
3. 2015: Threat made by FNTC’s Chief Executive to yourself as Club Chairman that unless you agreed to Onagrup’s terms for Club administration in late 2015 he would see to it that no funds were released to the Club Committee for their legal costs. (This is not the behaviour one would expect from a Trustee whose purpose is to protect the interest of all owners and not a service provider.)
4. 2016 to date: Refusal by FNTC’s Chief Executive to take instruction from you, the Club Chairman, as required by the Deed of Trust, from the start of the dispute in 2016 onward.
5. 2016: Threat by FNTC’s Chief Executive to call a Special General Meeting of Club members in January 2016, contrary to the Club Constitution. He backed down when the Club’s lawyer confronted him with an injunction to prevent him from doing this if he continued.
6. 2015: Refusal by WimPen (old) to allow members scrutiny of 100+ proxy votes for the 2015 AGM that Ian Crane, son-in-law of Mr Pengelly, declared void.
7. 2015 to date: Refusal of WimPen (new) to allow member scrutiny of accounting records, in breach of the Club Constitution.
8. 2015-2017: WimPen (new) falsely accusing the Club President and Club Chairman of fraud from 2015 to 2017, and informing the Tenerife Police that they were criminals. The case was thrown out after causing considerable emotional distress and expense.
9. 2017: WimPen (new) hiring a security firm to prevent owners from accessing their
property in May 2017 after the expiry of their Club Administration contract, and bringing in a temporary enforcement manager by the name of Jesus Gomez who physically assaulted the Club President in the resort reception in May 2017, following an earlier verbal sexual assault near the entrance to the resort. The physical assault was witnessed by a Club owner. However, WimPen reversed the incident claiming it was the President who assaulted Gomez and took the matter to Tenerife courts. The judge dismissed the case against the President choosing to believe her and the Club owner’s testimony who witnessed the event over WimPen’s employee, Ana Martin.
10. 2017 to date: Wimpen (new) collecting payments illegally after 2 May 2017 when their Club administration contract expired, and illegally barring members who paid their maintenance fees to the Club from entering their property, and from receiving their RCI exchanges.
11. 2017 to date: Wimpen (new) sending threatening letters after 2 May 2017 to members who legally paid their maintenance fees to the Club, extorting money from them.
12. 2017 to date: Non-compliance by WimPen (new) with an independent arbitration award of August 2017 to hand back to the Club Committee all Club property used for the administration of the Club, including the membership register, accounting records and funds. An award that took full account of their main arguments that Spanish data protection laws did not permit them to hand over the membership record to a “third party”, and that they did not have the authority to return funds from the resort’s joint community bank account. (The Club Committee is the “first party” owner of the data held in the membership register, not a third party).
13. 2017: WimPen (new) misinforming an Arona Court judge in Tenerife by saying that they could not contact the Club Chairman in 2017 for the Club to be represented in a case brought by Escritura owner and WimPen employee Jane Oliphant to prevent WimPen from paying out money from the joint community bank account to the Club Committee. This was a deliberate and calculated attempt to obstruct the Arbitration Award from being enforced in Tenerife.
14. 2018 to date: Non-compliance by WimPen (new) with the Scottish Court of Session (the highest court in Scotland) Appeal Court order of February 2018 to comply with the arbitration award.
15. 2018: An attempt by WimPen (new) to cast 1200 proxy votes and take control of the Club at the April 2018 Club AGM using cancelled weeks belonging to the Club that they had no permission from the Club Committee to sell and in breach of the Club Constitution. The proxy voting forms were all in the same handwriting and colour of ink, and thecompanies to which WimPen (new) claim to have sold these weeks either did not answer enquiries, or letters to them were returned unknown.
16. 2018 to date: Failure by WimPen (new) to transparently account for the income from the sale of 1200 cancelled weeks in 2016 and the maintenance fees collected for them in 2017 and 2018. WimPen (new) claim that the income from the sale of these weeks was used to reduce bad debts but have produced no evidence of that, and there has been no increase in the level of maintenance fee income in the 2017 and 2018 accounts compared to 2016. This is not credible since the annual maintenance fees for 1200 weeks would be in the region of €360,000.
17. 2017-2018: Failure by WimPen (new) to pay maintenance to the Club in 2017 for the weeks that they own for which they were suspended from the Club and subsequently had their membership cancelled in 2018.
18. All time: Failure of WimPen (old and new) to keep community funds in separate community bank accounts as required by law and at the request of Escritura and Club owners at successive AGMs.
19. All time: Failure of Wimpen (old and new) to comply with the DOA Statutes to calculate and gain AGM approval from owners for the Common Parts Service charge, and to collect the charge from the Administrators of Timeshare Community 1 and Club Los Claveles. Wimpen (new) keep accusing the Club of not paying members’ dues into the community fund but it is their failure to follow the DOA Statutes, the legal rules, that is the cause of this. They are being deliberately obstructive because they refuse to accept that they are no longer the Club’s Administrator and they refuse to recognise the legitimacy of the legally elected Administrator, Hiro Bulchand.
20. 2018: A long list of non-compliances by WimPen (new) and Mr Barrow in conducting the May 2018 Timeshare Community 1 (Escritura) and Development Owners Association (DOA) AGM, including canvassing votes from owners in Germany and elsewhere using the Club’s membership register and using their own rapidly increasing votes in a clear conflict of interest to ensure that their candidate for Presidency of the DOA, and their bid to continue to administer the DOA in the long term, were passed by Escritura owners only, representing less than 2% of the resort’s owners. Club owners were prevented from taking part in voting for highly contestable reasons which are the subject of a current legal challenge and in a clear infringement of natural justice where owners who pay for and use the services of the DOA are not allowed any say in how their contributions are used.
21. 2018 to date: Continued resistance by WimPen (new) in June 2018 to the acceptance of the arbitration award by the Spanish Supreme Court for enforcement in Spain, in which all of their arguments for non-acceptance were rejected. These arguments included the previously discredited data protection and joint bank account arguments. In effect, WimPen (new) attempted to re-run the arbitration in Spain and it failed. The Supreme Court Judges rejected all of their arguments with no right of appeal and passed the award to the Court of Arona in Tenerife to be enforced. WimPen’s lawyer has intimated that Wimpen (new) will again present their arguments to this court despite having had them rejected at the Supreme Court because that is what they do and Mr Barrow, who in his roleas President is ultimately responsible for all legal matters affecting the resort, condones the practice knowing the distress that this is causing to owners.
22. 2018 to date: Non-compliance by WimPen (new) on grounds of appeal to the Arona Court order of December 2018 that ordered Wimpen (new) to stop collecting maintenance payments from Club members because their administration contract with the Club which gave them the authority to do this had expired on 2 May 2017. This appeal is another delaying strategy in an effort to right their wrong doing.
Resolution 8 to the 2019 Club AGM to give WimPen a 2-year contract, presumably back dated to 2017 in order the prevent a fraud charge against the company, or a future 2 year contract so that they can claim oversight for the intervening years, will serve to give Wimpen (new) some protection for malpractice and should on no account be supported.
It is worth noting that this Spanish court judgement was reinforced by a UK Small Claims Court ruling on 1 April 2019 in which a member’s claim against the Club for the return of his maintenance fee was rejected on the grounds that Wimpen’s collection of his payment was, and is illegal.
23. 2019: WimPen (new) continuing to send intimidating letters to Club members after the Arona Court order, threatening to block their membership unless they pay WimPen. (Only the Club Committee has the constitutional authority to block, i.e. suspend, membership).
24. 2019: WimPen’s behaviour in sending intimidating and threatening letters is, by definition, extortion which is a criminal offence and I hope that the Club’s Spanish lawyer will take legal action against WimPen on behalf of the many owners who have suffered distress and loss as a result of receiving these letters when the appeal is over and done with.
25. 2018-19: WimPen (new) renting owners’ apartments without their permission, charging them for electricity used by the renters, and continuing to accept short duration rentals of a few days in breach of the Constitution and previous commitments to stop doing this.
Yours sincerely,
Christine John (Villa 63. Weeks 7 & 8) sent by email 9 April 2019. (Chronology added for ease of reference).