Home Buying in 94610>Question Details

monstertaco, Home Buyer in Oakland, CA

Seller is delaying closing by not signing title, what now?

Asked by monstertaco, Oakland, CA Tue Oct 30, 2012

First time buyers, we signed the title over a week ago and provided our funds. The seller is haggling one of the debts attached to the property that is his responsibility. Meanwhile we are in limbo, and are now being charged $200 a day. Today we were told we may not have closure until next Tuesday, so another week and about $1800 in fees due to his negligence. The title Co as well as the sellers agent are trying all they can to move this along, but there is not a whole lot they can do.
Now, assuming all goes through, we would like to take legal action to reclaim our monies that we are being charged because of the sellers actions. Does this go through small claims court? We have plenty of documentation showing neglect on his side through the entire ordeal (he accepted our initial offer in July, then countered. It's been a while). The seller is also in another state, we can file the suit through Alameda Co, correct?
Could this be quite expensive on our side?
thank you.

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Answers

10
Hi monstertaco,

Wow, this is like "crossing the border" into a state of confusion!

Clearly, there are details not being shared; and as such, I'll pass on adding to the "clarification question count" and defer to the advice already proposed - talk to your Agent and if you cannot get a clear answer from them ask to speak with their Broker!

CA SB 221 (law as of 1/1/12) increased the Small Claims Court jurisdictional limit from $7,500 to $10,000 with two caveats: A) The jurisdictional limit of the Small Claims Court will remain $7,500 for claims of bodily injury resulting from a car accident if the defendant in the action is insured and the insured’s policy includes a duty to defend, and B) The Small Claims jurisdictional limit will remain $5,000 for suits brought by entities such as corporations, limited liability companies, partnerships and the like.

-Steve
0 votes Thank Flag Link Thu Nov 1, 2012
Per diem charges are also common in short sales.

Small claims limit is $7,500.

Arbitration and mediation clauses in the California contract make an exception for “a matter that is within the jurisdiction of a probate, small claims or bankruptcy court.”

You can do an internet search for “Oakland Ca. small claims court” and you can find a great deal of information about small claims in Oakland including phone number to call.

I hope that you, through your agent, have told the seller that then can be expected to be held personally liable for the additional charges if the delay is their fault.
0 votes Thank Flag Link Wed Oct 31, 2012
You really should talk to your Realtor, as s/he is aware of the whole process / transaction issues.
Being charged a per dime is probably from an REO purchase. Your legal questions as to where to file suit would be best answered by a lawyer. You may have signed the arbitration clause. Pls. consult with the agent you worked with, and the escrow / tile company.
A
0 votes Thank Flag Link Wed Oct 31, 2012
I’m also confused by the per diem – as stated below, none of us have seen a per diem charged unless it was the buyer’s side that was delaying the close of escrow. Can you provide some explanation for us?
0 votes Thank Flag Link Wed Oct 31, 2012
Its best to discuss with an attorney. But it seems that this is perfect for small claims court. What does your agent say? Have you looked into settling this before the deal closes? Getting judgement in court is 1 thing collecting the funds is something else... particularly when the other party is out of state.
0 votes Thank Flag Link Wed Oct 31, 2012
By whom are you being charged the fee? Was this a bank-owned property?

Your agent can give you a form called "demand to close escrow." Talk to your agent's broker, and see if you can get to the legal counsel of the brokerage. If you are not using an agent with a major brokerage (who would provide expert direction and instruction regarding your rights - - a very good reason it is worth paying a 1/2% more in commission for this kind of help!) then I would think it is definitely worth a consultation with a laywer who SPECIALIZES in real estate law. If your agent doesn't know any lawyers who specialize in this, I have 2 good local attorneys. (yes - local property, local courts, regardless of where the seller is...) Once it closes, it seems to me that small claims court will be the only recourse, and once it closes, your agent no longer represents you. You will be on your own.
0 votes Thank Flag Link Tue Oct 30, 2012
This is hard to understand. If the seller is delaying closing, why are you responsible for paying $200/day? Typically a late fee is assessed on the buyer if the buyer's side is delaying the close.
From what you described, the seller is the one who is holding things up.

Please tell me you have a Realtor! You didn't just buy your first home without one???(:(). If you don't have an agent, please consult with a real estate attorney and together review the terms of your contract. From this post, there are just a number of things that don't make sense.
0 votes Thank Flag Link Tue Oct 30, 2012
Confused about a per diem charge on buyer -- I usually see this on REOs. But in this case, if it's the seller delaying signing his documents, why are you being charged for the delay?

I believe there's a Notice to Seller to Perform and Demand to Close Escrow forms. Hoping you have a realtor representing you. If so, have your realtor and your broker jump in to make this happen.
0 votes Thank Flag Link Tue Oct 30, 2012
Good luck to you. I had one agent refuse to close escrow because my seller didn't leave a bathroom mirror behind (it was a personal item). So I had my broker get in the fray with me and we got it done. Take care.
Flag Tue Oct 30, 2012
Thank you Pacita. To your question, I was wondering the same thing but being naive I thought this was normal as our agent didn't seem to raise an eyebrow at that.
I have requested our agent provide a demand to close to the seller. Hopefully this helps in speeding up the process. thank you for your comments.
Flag Tue Oct 30, 2012
It just doesn't compute:
If you've signed your papers, how could you be charged $200 per diem?
Who is charging you; the Title Company?
Have you talked to the Title Officer?
Don't you have a Realtor representing you?
Yes, it sounds like Small Claims Court may be righteous, but,
Did you agree to Arbitration/Mediation?

Good luck and may God bless
0 votes Thank Flag Link Tue Oct 30, 2012
Hi Ron, yes we do have a realtor representing us.
The title Co is charging us for the delay. We haven't spoken with the title officer directly since we signed, however our realtor is keeping in touch.
Now that you mention it, we did agree to arbitration. That slipped my mind, thanks for the reminder. That would be our solution hopefully. Thank you.
Flag Tue Oct 30, 2012
You need to seek legal advice but I would start by having your agent serve the sellers with a demand to close. I am sure the judge will ask if that was done if you need to go to court.
0 votes Thank Flag Link Tue Oct 30, 2012
Thank you Laura, I just requested a demand to close from our agent.
Flag Tue Oct 30, 2012
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