By Nathan Hale

Law360, Miami (October 24, 2016, 10:33 PM EDT) -- Time-share purchasers who accuse Marriott and First American Title Insurance Co. of duping them into invalid real estate deals slammed an attempt by Florida's Orange County to escape claims it was complicit in the alleged violations, saying the county's responsibilities go beyond being a “mindless administrator.”

Anthony and Beth Lennen, who filed the proposed class action in May, hold that Orange County and its comptroller played a role in the scheme by failing to fulfill statutory duties to verify that the time-share deed recordings evidence the transfer of real property.

In a memorandum filed Friday, the Lennens rebutted the county's Aug. 29 motion to dismiss the single negligence claim brought against it, saying the county cannot hide behind arguments that the plaintiffs did not follow proper filing procedures, that they allege failures beyond the county's authority or that a statute of limitations bars their claims.

The county's position that it cannot be found to have been negligent because state law does not grant it discretion to reject deed submissions basically amounts to it arguing it has “no greater duty than to act as a mindless administrator, bound to blindly accept virtually any document presented for recording,” the Lennens said.

“In addition to being wrong on the law, this absurd argument misses the point of plaintiffs’ claims entirely,” they argued. “While plaintiffs concede the county’s duty is limited, it nonetheless exists and operates to ensure that only instruments that should be recorded are recorded and that processes are maintained to safeguard the integrity of the county’s land records. The county has failed in this regard.”

Their allegation is not just that the county failed to identify a defective legal definition in the deed but that it accepted a deed with no property description at all, they said.

The court should also find that the county's questionable tactics amounted to a waiver of a presuit notice requirement, they said.

“Indeed, because the county actively led plaintiffs to believe that notice was not required, failed to notify plaintiffs of any notice problems as it had a duty to do, and then ambushed plaintiffs by using a notice argument as a 'gotcha' tactic in its motion to dismiss, the county should be deemed to have waived notice and [be] estopped from asserting the same,” the Lennens said.

Finally, the county's reliance on a statue of limitations argument is in error because while an original trust memorandum was recorded in 2010, the clock did not begin running until their claims arose after they purchased the Marriott trust product in January 2015, and the original trust memorandum also remains on record, was improperly indexed and continues to be amended, they said.

The suit claims Marriott Vacation Club and its co-defendants violated state racketeering and timeshare laws by selling a points-based timeshare product to customers that falsely conveys title to a Florida timeshare estate and a beneficial interest in a Florida land trust.

While these consumers are paying the costs and taking on the burdens associated with property ownership, such as title policy premiums, taxes and maintenance fees, they are not getting the benefits that come with typical time-share ownership, according to the suit. What they are really getting is just a use license for selected corporate-owned time-share estates in various locations across the country, the suit claims.

Instead of having a traditional time-share model, in which customers receive a fractional interest in real property and are able to stay in the property for a week or so every year, MVC owners are allotted increments of points that can be used to book days at various time-share condos, according to the suit.

Despite its nature, the MVC product is sold as a Florida time-share estate vested as a beneficiary interest in a Florida statutory land trust, according to the complaint.

Marriott and First American also filed motions for dismissal on Sept. 15. First American said the Lennens had misread both their deed and Florida law in making their claim, while Marriott’s motion called their 21-count complaint a “mish-mash” of unsupported and unlikely claims. Those motions are still awaiting responses.

Marriott also has requested to stay the proposed class action to allow the Florida Department of Business and Professional Regulation's Division of Florida Condominiums, Timeshares and Mobile Homes can weigh in, but the Lennens argue that the agency isn't allowed to do so.

Counsel for Orange County did not immediately respond to a request for comment late Monday.

The Lennens are represented by Christopher S. Polaszek of The Polaszek Law Firm PLLC, by Lucas A. Ferrara, Jeffrey M. Norton and Roger A. Sachar Jr. of Newman Ferrara LLP and by Soomi Kim.

Orange County is represented by John T. Conner, John David Robinson and William E. Lawton of Dean Ringers Morgan & Lawton PA.

The Marriott companies are represented by Philip R. Sellinger, Ian S. Marx and Roger B. Kaplan of Greenberg Traurig PA.

MVC Trust Owners Association is represented by Alfred J. Bennington Jr., Clay Deatherage and Harold Morlan III of Shutts & Bowen LLP.

First American is represented by Douglas B. Brown and W.L. Kirk of Rumberger Kirk & Caldwell PA and Jeffrey L. Willian, Donna M. Welch and Leslie S. Garthwaite of Kirkland & Ellis LLP.

The case is Anthony Lennen et al. v. Marriott Ownership Resorts Inc. et al., case number 6:16-cv-00855, in the U.S. District Court for the Middle District of Florida.

--Additional reporting by Rick Archer and Alex Wolf. Editing by Jill Coffey.