Mungovan et al v. Wyndham Vacation Resorts, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
LIBBY MUNGOVAN and
ANDREW MUNGOVAN,
Plaintiffs,
v.
WYNDHAM VACATION RESORTS, INC.,
Defendant.
OPINION and ORDER
25-cv-521-amb
Plaintiffs Libby and Andrew Mungovan, two Minnesota residents, are suing defendant
Wyndham Vacation Resorts, Inc., alleging defendant engaged in fraudulent, deceptive, and
abusive practices in selling timeshares to plaintiffs in 2022 and 2023. Their suit was transferred
to this court from the District of Minnesota on defendant’s motion. Before the transfer,
defendant filed a Rule 12(b)(6) motion to dismiss a portion of Count 1 and the entirety of
Count 4. The District of Minnesota granted defendant’s motion to dismiss as to Count 4 but
left the challenge to Count 1 for this court to decide. After the transfer, the parties filed a
letter confirming that the only issue remaining from defendant’s original motion is whether to
dismiss plaintiffs’ claim, contained in Count 1, that defendant violated Wis. Stat § 707.47(2).
For the reasons stated below, the court resolves this issue and DENIES defendant’s motion as
to Count 1.1
1 The parties in this case consented to a magistrate judge’s authority to conduct all proceedings
and order the entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ.
P. 73. Dkt. 35.
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FACTUAL ALLEGATIONS2
Plaintiffs Libby and Andrew Mungovan are Minnesota residents. Dkt. 10 at 2. In
January 2022, they attended a timeshare sales presentation by defendant Wyndham Vacation
Resorts, Inc. Id. at 3. According to plaintiffs, the presentation eventually turned into a one-
on-one sales pitch during which a Wyndham agent urged plaintiffs to take advantage of special
offers and discounts that were good for only a short time. Id. at 4–5. After approximately four
hours going back and forth with the agent, plaintiffs met virtually with a different Wyndham
agent who, plaintiffs recount, presented them with a fifty-six-page document titled “Contract
No. 001132200083,” which plaintiffs signed. Id. at 8–9. After signing, an agent gave plaintiffs
a folder containing additional promotional materials and a flash drive containing over 1,600
pages of additional documents. Id. at 9.
In January 2023, during their first stay at a Wyndham property, plaintiffs attended a
“check-in session” with defendant. Id. at 12. During the session, plaintiffs expressed their
concerns about the availability of timeshare properties and their inability to book
accommodations that worked with their schedule. Id. at 13. A Wyndham agent told them
that the availability issues owed mainly to their lower-tier membership and assured them that
they would have access to more short-term Midwest locations if they purchased a more
expensive “VIP” package. Id. Plaintiffs also allege that the agent represented that they would
be able to sell the additional “ClubWyndham points” that came with their upgraded
membership to offset the additional cost. Id. at 14. Having decided to upgrade their
2 The facts in this section are derived primarily from the first amended complaint, Dkt. 10, and
are taken as true for the purpose of resolving this motion only. The court is not finding these
facts to be true for any other purpose in this case.
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membership, plaintiffs were led to a conference room and again met virtually with another
agent who directed them to sign and initial parts of a new timeshare contract. Id. at 15. An
agent then presented plaintiffs a flash drive containing thousands of pages of additional
documents. Id.
PROCEDURAL HISTORY
Plaintiffs filed this suit in January 2025 in the District of Minnesota alleging, among
other things, violations of several Wisconsin laws including, relevant to this motion, a
subsection of the Wisconsin Time Share Ownership Act, Wis. Stat. § 707.47(2). Dkt. 10 at
22. Defendant moved to dismiss the case for improper venue or, alternatively, to transfer the
case to this district. Dkt. 41 at 2. Defendant also moved to dismiss specific counts for failure
to state a claim under Rule 12(b)(6). Dkt. 19. Among the claims defendant moved to dismiss
was the allegation in Count 1 of the amended complaint, Dkt. 10, that defendant violated Wis.
Stat. § 707.47(2). Id. The District of Minnesota granted defendant’s motion to transfer venue
to this court and partially ruled on its Rule 12(b)(6) motion by dismissing Count 4 in its
entirety but left it to this court to determine whether to dismiss the claim that defendant
violated Wis. Stat. § 707.47(2). Dkt. 31 at 15. After transfer, the parties filed a joint letter
clarifying that defendant’s Rule 12(b)(6) motion to dismiss the portion of Count 1 alleging a
violation of Wis. Stat. § 707.47(2) is the only remaining issue for the court to resolve. Dkt. 41.
The parties have fully briefed the issue, and it is ripe for decision.
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LEGAL STANDARDS
When reviewing claims on a Rule 12(b)(6) motion to dismiss, the court construes the
complaint in the light most favorable to the plaintiff, accepts all well-pleaded facts as true, and
draws reasonable inferences in plaintiff’s favor. Taha v. Int’l Bhd. of Teamsters, Loc. 781, 947
F.3d 464, 469 (7th Cir. 2020). “A claim . . . avoids dismissal under Rule 12(b)(6) if the
complaint alleges facts that show the claim is ‘plausible on its face.’” Id. (quoting Bell Atl. Corp
v. Twombly, 550 U.S. 544, 570 (2007) (cleaned up). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
ANALYSIS
Defendant’s motion and the parties’ arguments implicate several interconnected
provisions of Wis. Stat. ch. 707, which the court discusses before explaining the issue raised in
this motion.
A. Wisconsin’s Timeshare Ownership Statutes
Wis. Stat. § 707.47(2), the subsection cited in Count 1 and at issue in the instant
motion to dismiss, provides that a buyer may cancel a contract for the purchase of a timeshare
within five business days of the later of two events: either (1) the date the contract is executed,
or (2) the date the purchaser receives the last of the documents required to be provided to the
purchaser under § 707.47(1), which pertains to “timeshare disclosure statements” discussed
further in the following paragraph. Wis. Stat. § 707.47(2) applies to and references timeshare
contracts subject to the requirements of Wis. Stat. § 707.41(2).
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Wis. Stat. § 707.41(2) provides that anyone selling a timeshare must prepare and
deliver a timeshare disclosure statement to the purchaser “in the manner prescribed in
§ 707.47(1).” Wis. Stat. § 707.47(1) dictates the timing of the disclosure statement and
requires that the seller provide it, and all amendments and supplements to the statement, to
the buyer before the timeshare is transferred and no later than the date of any contract for the
purchase of the timeshare.
Finally, Wis. Stat. § 707.41(4) defines the disclosure statement, commanding that it
must “contain or fully and accurately disclose,” in most relevant part, but among other things,
(a) A cover sheet bearing the title “Time-Share Disclosure
Statement” and the name and principal business address of the
developer and the developer’s agent, if any, the name and location
of the time-share property . . .
(b) A general description of the time-share property and the
time-share units, including the number of units in the time-share
property and in any project of which it is a part, and the schedule
of commencement and completion of all promised improvements
as described in the time-share instrument, promotional materials,
advertising and the time-share disclosure statements.
(c) As to all units owned or offered by the developer in the
same project, all of the following:
1. The types and number of units.
2. Identification of units that are time-share units.
3. The types and durations of the time shares.
4. The maximum number of units that may become part
of the time-share property . . .
[…]
(g) A description of the nature and purposes of all charges,
dues, maintenance fees and other expenses that may be assessed,
the current amounts assessed and the method and formula for
changes.
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(h) Any services provided by the developer or expenses paid
by the developer which the developer expects may become a time-
share expense, and the projected time-share liability attributable
to each of those services or expenses for each time share.
(i) Any initial or special fee due from the purchaser at closing
and a description of the purpose of, and method of calculating,
the fee.
B. Plaintiffs’ Claim Under Wis. Stat. § 707.47(2)
Defendant’s motion centers on paragraph 52 of the amended complaint, Dkt. 10, which
states that “Wis. Stat. § 707.47(2) requires that prior to purchase, time-share sellers must
disclose all material facts relevant to a prospective buyer’s decision to purchase a time-share[.]”
Dkt. 10, ¶ 52. As shown above, this is not the most precise recounting of what § 707.47(2)
requires. More accurately stated, § 707.47(2) allows a buyer to cancel a timeshare contract
within five days of either the date the contract is executed or the date on which the purchaser
receives the last of the materials required to be included in the timeshare disclosure statement.
That said, this subsection does incorporate the disclosure provisions (§§ 707.41(2) &
707.47(1)) by reference. At this early stage of the case, the court will charitably read
paragraph 52 of the amended complaint as incorporating these disclosure requirements via its
citation to § 707.47(2).
Using this reading, the court understands plaintiffs’ allegation as follows: Defendant
never delivered a legally valid disclosure statement that complied with §§ 707.41(2) &
707.47(1). Specifically, plaintiffs complain that defendant did not disclose aspects of the
timeshare’s resale value, availability of timeshare properties, and financial obligations such as
maintenance fees and interest payments. Dkt. 10, ¶ 52 a–c. Because of this failure, the
beginning of the five-day period during which plaintiffs could have canceled their purchase
under § 707.47(2) was indefinitely forestalled. See Dkt. 25 at 14 (“the five-day limit on
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Plaintiffs’ right to cancel was never triggered, because they never received a fully compliant
timeshare disclosure statement”). Plaintiffs seek recission of the timeshare contracts on these
grounds, having been denied the opportunity to do so during the five-day statutory grace
period. Dkt. 10, ¶ 56. This is sufficient to survive a Rule 12(b)(6) motion to dismiss at the
pleading stage.
Defendant argues that plaintiffs’ factual allegations do not support their claim. Citing
paragraphs 10 and 18–21 of the amended complaint, Dkt. 10, defendant asserts that plaintiffs
“admit they . . . received the timeshare disclosure statement” the same day they executed their
first timeshare contract in January 2022 but never alleged any deficiencies in the disclosure
statement. Dkt. 26 at 3. The court does not read paragraphs 10 and 18–21 in this way,
particularly when construing them in the light most favorable to plaintiffs, as the court must
at this stage. Taha, 947 F.3d at 469. Paragraph 10 alleges that plaintiffs attended a sales
presentation during which defendant employed high-pressure sales tactics and misrepresented
the benefits of timeshare ownership. Paragraphs 18–20 discuss the contents of the contract
plaintiffs signed, not any kind of preliminary disclosures. And paragraph 21 recounts how
defendant provided plaintiffs with a flash drive that contained hundreds of pages of additional
documents after they signed the contract. Paragraph 21 does not characterize the documents,
but the court can reasonably infer that they did not contain the things plaintiffs allege
defendant failed to give them. Again, paragraph 52 specifically sets forth certain alleged
deficiencies. Ultimately, the sufficiency of defendant’s disclosures is an open question of fact
that the parties can flesh out at summary judgment or trial, but plaintiffs have pled sufficient
facts to make their version of events plausible and to survive a Rule 12(b)(6) motion to dismiss.
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Defendant also argues that “[n]othing in the Wisconsin Timeshare Act suggests the five
business-day cancellation period fails to start if the disclosure statement contains an error or is
somehow deficient,” Dkt. 26 at 3, but this argument ignores the statutory requirement that
valid disclosure statements “contain or fully and accurately disclose” the information outlined
in § 707.41(4). It is possible, perhaps even likely, that this statutory scheme allows for
substantial compliance, but that is not an issue that the court will decide at the pleading stage.
If defendant believes it substantially complied with the statute, it may develop the factual
record and advance that argument at later stages of the case.
Finally, defendant contends that plaintiffs claim alleges a violation of § 707.41(4) itself,
which should not be “shoehorned” into a claim under § 707.47(2). Dkt. 26 at 4. Defendant
explains that § 707.57(1)(a) provides a claim for appropriate relief for violating any section of
chapter 707, so plaintiffs’ claim is unnecessarily convoluted. Be that as it may, § 707.57(1)(a)
provides a claim for a violation of any section of chapter 707, including § 707.47(2), and as
masters of their complaint, plaintiffs are free to plead whichever legally valid claims they wish.
“Unnecessarily convoluted” is not grounds to dismiss.
To defendant’s credit, plaintiffs’ claim is roundabout and verges on misstating statutory
language. Perhaps it would have been better to simply cite § 707.41 rather than incorporating
it via § 707.47. But the interconnected nature of chapter 707 allows the court to comprehend
plaintiffs’ logic, and their claim is sufficiently supported by plausible allegations to survive a
motion to dismiss.
For the sake of clarity going forward, the court understands plaintiffs to be proceeding
on three theories regarding violations of Wis. Stat. ch. 707 in Count 1: (1) failure to make
statutorily required disclosures, as described in paragraph 52; (2) employing deceptive trade
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practices, as described in paragraph 53; and (3) engaging in unconscionable conduct, as
described in paragraph 54. See Dkt. 10 at 22–24.
ORDER
IT IS ORDERED that defendant’s motion to dismiss the portion of Count 1 of the first
amended complaint alleging a violation of Wis. Stat. § 707.47(2) is DENIED.
Entered February 6, 2026.
BY THE COURT:
/s/
________________________________________
ANITA MARIE BOOR
Magistrate Judge
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