I last wrote about our experience with the Cosmopolitan of Las Vegas last January and before that almost exactly one year ago to the day. To recap briefly, in 2005, back when buying real estate still seemed like a good idea, we bought a condo at the Cosmo. Then the recession hit, the developer went bankrupt, and the project was acquired by Deutsche Bank. Astonishingly, despite an almost perfect storm of bad economic conditions, the Cosmo actually got built.
But we didn't get our condo. The Cosmo took it from us, along with half of our down payment. The short version of the story is this: they finally finished building our condo, two and a half years after the promised delivery date and six months after the Cosmo opened, but they didn't tell us. The sent a closing notice to our old address in Los Angeles, but not to our new address in northern California, and so we never got it. When we called them on this their response was: you never notified us of your new address.
Now, that is manifestly untrue, and we can prove it. The Cosmo had been sending us correspondence at our new address for nearly a year, and of course we've kept it all. We can also prove that we sent them correspondence with our new address on it via certified mail as required under the contract.
What we cannot prove is that we sent via certified mail a letter saying, "Please note: our address has changed." The contract specifies that change of address notices have to be sent via certified mail.
Now, there is a legal principle called "implied waiver" that should apply in this case. Because the Cosmo sent us correspondence at our new address, that constitutes an implied waiver of the requirement that we notify them of our new address via certified mail. If we could count on getting justice, we would patiently wait until we got our day in court. Unfortunately for us, the contract also includes a binding arbitration clause, so we can't sue them. A number of people in situations similar to ours have already gone to arbitration. And one by one they have, with a very few exceptions, lost their cases.
I've read some of the decisions in those cases, and they are brazenly biased in favor of the Cosmo. In one case, it was so brazen that even the judge overseeing the case couldn't take it and ordered the arbiter to go back and redo part of it. I know of only one person who has prevailed in arbitration. In every other case I am aware of, the Cosmo has won, and the buyers are left with nothing. No condo, and no refund of their deposit. It is theft on a vast scale. And it's all legal.
Back in January I speculated about why the Cosmo seemed so confident in its position despite the fact that we have what should be a slam-dunk case against them. Now I know the answer: the fix was in from the beginning, and they knew it. The Cosmo employs 5000 people in a city that has been one of the hardest hit by the recession. The arbiters live in that city, and apparently they know what side their bread is buttered on.
Last week the Cosmo made a settlement offer to the few stragglers who are still under contract with them: we get 50% of our deposits back. They keep the rest. And despite the fact that it is a manifestly unjust outcome, we're going to accept it because the alternative is to continue to have this hanging over our heads for got only knows how long with the virtual certainty of losing 100% of our deposit to the decision of a biased or corrupt arbiter in an unappealable decision.
Lesson learned: never sign a contract with a large corporation that includes a binding arbitration clause. You will lose, and they know it, so you have no leverage at all. If they decide to screw you, you will be screwed.
My dismay over this extends far beyond the financial loss, which is considerable, but won't really have a major impact on me in the long run. What bothers me most is that I really believed that justice would prevail in the end, that at the end of the day (or the decade as the case may be) we would get our day in court, or at least in front of an arbiter, and we could present our case and be able to count on getting a fair decision. That faith has been shattered. If justice still exists at all in the United States of America (if it ever existed?) it seems to have become the rare exception rather than the rule.