Expert: Diann Tonnesen - 9/11/2009

Question
Thank you for taking my question.. I was pre-approved for a FHA loan. I found a townhouse that I wanted to buy. I began the initial process by putting down $2500 earnest money. In addition I signed a contract that promising/guarantee closing by a specific date. The home was inspected 30 days prior to closing. The inspector advised there was an issue with the heating. My realtor contacted the seller (Bank-Owned) and advised of the issue. The home was appraised and the report indicated there was a note on the thermostat advising of the issue. FHA guidelines states that issues with the property must be fixed before approving of the funding. As we came close to closing I asked the realtor had she heard anything about fixing the issue. The issue was not fixed on the closing date so an extension was filed and signed. The issue was not fixed on the amended closing date. Finally the problem was fixed and now the seller wants to charge a per diem of $100 for being late. I objected because I feel it was not my fault for being late. My realtor performed in that all of my financial paper work was ready at both closing dates. So the deal has been canceled and now the seller wants to keep the earnest money. What process should I follow to attempt to get my money back. Can the seller be reported to a an agency for unethical practices? Your help is appreciated.

Answer
There is no agency I know of that you can report the seller to, unfortunately. It will depend on what state you are in as to what your recourse might be to get your earnest deposit refunded. If the seller disputes it here in Nevada, as long as it is under $5,000 the buyer can take the seller to small claims court. The "loser" pays all court costs and attorney fees.But you probably need to contact a real estate attorney to review your contracts and determine your rights in the state you are in.

Has the deal been officially canceled? Has your agent sent a letter to the seller detailing your attempts to close that were hindered by the seller's lack of performance? I have not had any sellers that were banks charge a per diem if the delay was on their side - this is highly unusual. Is the seller's agent trying to help at all? Is it possible to get permission for your agent to speak directly to the asset manager? If the listing agent was remiss in ordering the repairs, they may not want to let the seller know it was their fault!