Home Buying in Las Vegas>Question Details

Jenn2445, Home Buyer in Las Vegas, Las Vegas,...

HELP REFUND ON MY EARNEST DEP shortsale. Money is refundable in 90 days but Seller still NOT signing CANCELLATION from escrow. Did seller use my

Asked by Jenn2445, Las Vegas, Las Vegas, NV Wed Jan 26, 2011

money? How TO enforce my MONEY BACK?

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Jenn, it is hard to answer your question without seeing the contract you signed. If the you are within the 90 days cancellation period, you should be able to receive the money back; however, the escrow company will not give your money back until they have ALL the parties agreeing to it and signing the papework related to that. The seller cannot spend your money also as he/she doesn't have your funds, they are deposited with the escrow company which won't give it to the seller unless ALL the parties agree to it. So, the only way for you to get your money back is to keep requesting the seller to sign the paperwork. If the latter is non-responsive for a long period of time, then the title company can send the formal certified letter to them stating they'd refund the money back to you within the contract guidelines unless the Seller responds accordingly. What is your agent advising?
Web Reference: http://www.LVRealDeal.com
0 votes Thank Flag Link Wed Jan 26, 2011
This sticky issue is more common than you might imagine. Whenever there is a fallout from the purchase agreement for any legitimate reason, the buyer is entitled to a full refund of their earnest deposit. However, if the funds went into a neutral escrow account (not the seller's broker trust account, which should not be handled any differently, but may have other considerations in the disposition of these funds as a "fiduciary"), this neutral party requires a written authorization from both parties. The seller, in cases where they feel "entitled" might think twice about voluntarily signing such a release -- erroneously or not. Because of this, the escrow company will not release the deposit, and it sits in escrow until something else happens...

As the rightful owner of your funds you shouldn't have to resort to other remedies, especially any which imposes inconvenience or additional costs, however, as one responder points out, the other option is to sue the seller (in small claims court) for your money back.

I had a situation like this a while back, only in that case I was the agent of the seller, and the buyer ARBITRARILY backed out of the deal. At the end of the flurry of complaints, threats and other unmentionables, the buyer followed through with a small claims lawsuit, and, because he was in the wrong, the judge awarded the deposit forfeited to the seller! For this reason, it is important to be sure that all your "ts" are crossed, and all you "is" are dotted -- literally.

If you're in the right, you'll get your deposit, and you may even get an award for the costs and the time it took to get to that point. The only problem with the latter is that if the seller is already having financial hardship (short sale implies this), you may wind up getting just your money back.

Good luck.
1 vote Thank Flag Link Fri Apr 8, 2011
I have had experience with this situation, and suggest file the small claims immediately, in addition to contacting all the agtents, brokers, title company. For a small claims filing fee, the other party will really know you are serious.

David Cooper Las Vegas Foreclosure Investor in Bank Owned REO's with Cash Flow. emailor call for FREE LIST +1-7024997037 not a real estate agent
0 votes Thank Flag Link Sat Apr 23, 2011
Dear Jenn:

As a Las Vegas Broker-Manager with 18 years experience, this issue is one I am counseling agents and customers about all too often. As several agents have stated here, your earnest money will remain with the Title Company until they receive mutual written instructions telling them how to disburse the funds. Your next step if your requests to have the EM returned to you is to file a mediation with the Greater Las Vegas Association of REALTORS. If your purchase agreement was written using our standard GLVAR contract, both you and the seller agreed to mediation. The filing fee is $100 for each party and is required before pursuing the matter in court (usually small claims court).

If mediation fails, you may then pursue a court action. Small Claims actions are under the jurisdiction of the Justice Court. You may obtain forms and proper procedures by visiting their office on the second floor of the Clark County Courthouse, 200 S. Third Street. To find out more information and get the filing guidelines please visit the following website. http://www.clarkcountycourts.us/lvjc/small-claims.html#small…

If the court hears the matter and concludes you are entitled to the earnest money, it will enter a judgment in your favor. Then you can present that judgment to the escrow company, which will honor it.

Good luck in your efforts,

Jan O'Brien
Realty ONE Group
0 votes Thank Flag Link Wed Feb 2, 2011
EMD must be released with all signatures. If they didn't sign the cancellation it is still sitting at the title or escrow office. Start barking up their tree and maybe get a lawyer to help you if the agent is not.
0 votes Thank Flag Link Sat Jan 29, 2011
Your buyers agent can assist you all is governed by the executed sales agreement.

Lynn911 Dallas Realtor & Consultant, Loan Officer, Credit Repair Advisor
The Michael Group - Dallas Business Journal Top Ranked Realtors
0 votes Thank Flag Link Fri Jan 28, 2011
It is people like you I would want to avoid as my neighbor, a friend, a co worker, my boss, my client.... it seems small things easily annoy you and would make money out of people's mistake if you have the opportunity. The rest of the world is laughing at our culture for making it a lawyer's world, what has become of America? What a shame....
0 votes Thank Flag Link Thu Jan 27, 2011
I recommend you contact your agent as your recourse is dependent on the terms of the Purchase contract you entered into. If your agent is unresponsive, then you should contact the broker.

Jennifer Harper, Realtor
Pulse Realty Group
(702) 542-3089
0 votes Thank Flag Link Thu Jan 27, 2011
Like my fellow agents have implied, some important pieces in the contract dictate what your recourse is. Most of the time buyers agree to go to mediation if an issue in the contract cannot get resolved. That could be your sole recourse at this time.

Has the home gone into contract or sold to another buyer yet? I may have an idea that can bring the seller to the table if the home has not yet sold to anyone else.

Mike Madsen
0 votes Thank Flag Link Thu Jan 27, 2011
Jenn, Karyn Mitchell is correct as is everyone else responding but your agent should be able to request the Title Company do exactly what Karyn stated. Most Title Companies have safeguards in place for this type of thing. In some situations the Sellers do move on and just forget about the house unfortunately. I too write into my counter offers an escape clause for the Buyers EMD for a non-responsive Seller.

Good Luck.

Sincerely, Heather Etchings
0 votes Thank Flag Link Wed Jan 26, 2011
"If" the seller has relocated, the Listing agent could be having problems getting the necessary signature to release the funds from escrow. The seller never received the funds so you don’t have to worry about the seller spending it-escrow must hold the funds them until closing or cancellation and they need BOTH parties to agree in writing before they can do either thing.

"IF" the seller did in fact relocate because he was told that the bank will not approve the short sale then it could be harder for the agent to find and he could be just pissed off at the world and you are the one that unfortunately suffers the most=temporarily. Escrow can use the documents from county once the property transfers from the home owner to the lien holder. Once the transfer is complete the HO no longer owns the home which voids the contract which authorizes them to refund the EMD without signatures from all the parties. Unfortunately it could take several weeks for that to happen.

To protect my clients I spell out in all my offers, regarding short sales, that the “refund of the emd will be automatic without further signatures from either party when demanded by the buyer after the required 90 day period”. This avoids the very problem you are having which unfortunately happens all to often for my liking. I'm surprised that the local association hasn't addressed the issue (contractually) yet.

If the listing agent doesn't want to do the above, regarding short sales, i have other tactics that help in avoiding this very problem. Obviously every listing agent and or seller is different and certain things work with one but not the other. You have to have back up plans because the local real estate market is constantly changing.

KNOW that you will get your EMD back…it’s a question of when. Your agent should be able to tell WHY the Listing agent hasn’t obtained the signatures yet. You could also drive by to see if the home has been vacated….

Valerie Edwards, REALTOR
Premier Real Estate
(702) 371-5533
0 votes Thank Flag Link Wed Jan 26, 2011
ah, I didn't see that you mentioned your agent being on top of it - that's good. Just have a little more patience and the matter should be resolved :) Your money is NOT with seller, it is with the escrow company and they will NOT refund it to the seller unless you agree to it.
Web Reference: http://www.LVRealDeal.com
0 votes Thank Flag Link Wed Jan 26, 2011
Jenn, I think you are referring to the Short Sale Addendum and it states that you might cancel 90 days after the acceptance of it (see when it was signed by both parties and count 90 days from that point) if you didn't receive the Lender's approval by then. So if you are within that 90 days period, then you should be able to get your money back. Seller's unresponsiveness is unfortunately a common practice but that does NOT mean that you won't get your money back, you'll just have to jump more hoops and loops. I'm sorry you have to go through this. I hope your agent is on top of it.
Web Reference: http://www.LVRealDeal.com
0 votes Thank Flag Link Wed Jan 26, 2011
The agent have been on top of it. Also, it is NOT WITHIN the 90 day period. The GLVAR contract says in 30, 45, 90 days. Mine is 90 which means I had to wait 90 days before I can ask for my money back. but seller is NOT responding.
0 votes Thank Flag Link Wed Jan 26, 2011
Hi Jenn,

Ask the escrow company to certify & snail mail cancelation instructions authorizing the earnest money to be released to the buyer. If the seller does not respond within 14 days, the escrow company may be able to return your funds without the sellers signitures.

Good Luck,

0 votes Thank Flag Link Wed Jan 26, 2011
What is your agent advising, and what does your contract state...if you don't have an agent consider consulting with an attorney who specializes in real estate, have all related paperwork reviewed--he/she can best advise as it relates to your specific situation.
0 votes Thank Flag Link Wed Jan 26, 2011
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