In escrow means that it is currently no one's money.
If there wasn't a mortgage contingency in the original offer (and subsequently noted in the P&S) ... then the seller may have grounds for keeping the deposit. Hopefully, your attorney saw to it that you were protected against this possibility.
All this assumes you had your mortgage contingency clause intact and kept to the dates and correctly notified the seller.
If that is the case.. your money is yours to have back. I just had a deal fall through a week before closing due to a loss of work and my guy got his money back promptly.
I have owned my own brokerage and my guess is that your best bet is to go directly to the broker holding the deposit. They cannot release funds without a signed agreement by both parties, or put towards the successful closing... or when a judge renders a judgement.....period.
Call the broker, then your atty and you will get your money back.
In the future...make sure you have a good buyer agent and atty to lower the risk of this sort of issue.
Sorry to hear this. I am hoping you had "subject to financing" on your Purchase and Sales agreement. If so,did you have a mortgage commitment letter after the denial? If the information was documented prior to the loan commitment letter, you are entitled to the deposit back, but make sure you had "subject to financing and the loan commitment date didn't pass after the indicated date on the agreement. If you have documentation that the financial letter was sent to the listing agent, you should pursue your deposit and not sign any documents unless and until you have an attorney to represent you. Did you have a buyers agent? It is rare that deposits are kept by the seller.. know your rights. get an attorney
Good luck with this, Michelle.
Consult your attorney.
You want to review the document that was sent to the agent. Does it clearly say that it is a denial and that you are withdrawing from the property?
Was the document sent via email or fax ? Are receipts available showing that it was in fact sent with the date and time?
If so save any and all documentation in a safe location.
Ultimately if you supplied the buyers agent with the letter of denial within the dates outlined on the purchase and sale contract the seller would have no recourse to refuse to release your deposit BUT the broker will need a mutually signed release.
You should absolutely contact the attorney who drafted or reviewed the purchase and sale contract for their input and don't hesitate to get the broker of record involved if you are positive that you acted within the commitment date allotted.
Release issues can be sticky. It's always best to document every conversation that has taken place.
Best of luck.
Good Luck, but don't be penny wise and pound foolish, get a real estate attorney.
Marg McShane CBRB Sciutate
Usually--but I don't know about Massachusetts, so you really need someone familiar with Massachusetts--the deposit is kept in escrow. And, yes, it generally does take the agreement of the buyer and seller to get the money released from escrow.
I'm not a lawyer, so what follows is not legal advice. For legal advice, you need a lawyer. (However, initially, your Realtor should be able to assist.)
Was there a financing contingency in your contract? That is, do you have a right (per your contract) to receive your deposit back? If so, there are various steps you can take--your Realtor can advise you--to attempt to get your money back.
If there wasn't a financing contingency in your contract, then you may not be due any refund of your deposit.
So the first question really is: Based on your contract (and the presence or absence of a financing contingency), are you entitled to a return of your deposit? If yes, your Realtor can outline the steps you can take.
Miscellaneous question: Were you pre-approved for the loan? If yes, then why was it denied? Is it possible to have the decision reviewed? Or to find another lender to make the loan?
Hope that helps.