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.
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
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,
Realty ONE Group
Lynn911 Dallas Realtor & Consultant, Loan Officer, Credit Repair Advisor
The Michael Group - Dallas Business Journal Top Ranked Realtors
Jennifer Harper, Realtor
Pulse Realty Group
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.
Sincerely, Heather Etchings
"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 â€œrefund of the emd will be automatic without further signatures from either party when demanded by the buyer after the required 90 day periodâ€. 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 backâ€¦itâ€™s a question of when. Your agent should be able to tell WHY the Listing agent hasnâ€™t obtained the signatures yet. You could also drive by to see if the home has been vacatedâ€¦.
Valerie Edwards, REALTOR
ABR, RRG, SRS, SFR, SRES, RSPS, GREEN, ATHOM
Premier Real Estate
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.