Expert: Matt Heisler - 10/21/2008

Question
QUESTION: seller and I signed p&S contingent upon seller's lender approval. Lender did not approve. Offers and counter offers made. Contract says 10 to inspect,etc but no approval from sellers bank until month later than what contract states. no broker updated contract to reflect. once inspection done within 10 days of banks approval of final offer letter to withdraw sent to seller along with deposit release form. seller refuses to sign. Can seller act this way under "old" contract absent new contract? Didn't  lack of seller's lender approval that contract was subject to cancel the contract? Home is now under agreement with another party and still I do not have my money. How do I get my money out of their realtors escrow account? Agent for escrow says his hands tied left up to seller and me how will I find seller once he sells his house? Help!!!

ANSWER: Hello:

Your situation boils down to the following:

A) The seller has sold his house to another party.
B) You don't have any deposit money.


Here's what you do:

1) Get an attorney.  Really, you should have done this already.
2) Send the seller a letter from your attorney stating that if you're deposit money is not returned, than you will sue the seller for breach of contract.  This will destroy his deal with the new party.

You see, only 1 of two things can be true:
Either A) you are buying the home  or B) your deposit money needs to be released.

The seller isn't signing the release because he does not understand that his situation is going to create a problem for him.  It's legally impossible.  Have an attorney remind him.

Good Luck-


Matt Heisler



---------- FOLLOW-UP ----------

QUESTION: I have already sent seller,broker, and broker/owner holding my escrow money  certified mail stating my desire to work out a deal which seller (only) so far has not accepted. How do I go about finding him especially if he's already out of the house being sold?

Answer
Hello-

This isn't really a real estate matter; it's a legal issue of how to force a settlement.  Given that it's not my area of expertise, if it were me, I wouldn't bother finding the seller.  You don't need to find him.  Have an attorney threaten the escrow agent. It's the escrow agents responsibility to communicate with both parties.  Only the threat of legal action is likely to free up the sticky points.  Sending certified letters to the broker saying you want to work out a deal is time-consuming, and, in my opinion, legally unimportant.  You can not force a settlement except through legal action, and you will need an attorney.  If you can't afford an attorney, you can, of course, bring action against the escrow agent directly, but you'll need a good understanding of the legal system, the paperwork involved, and your rights.

If the monetary amount is small (say $1500), I would do nothing.  The seller can not "claim" the money either, without you signing a release document.  Sooner or later he will have to come to you.

The legal system is a slow process.  There is little you can do to speed it up.

Sincerely,

Matt Heisler