Home Buying in Denver>Question Details

Citybuddha, Home Buyer in Denver, CO

We were under contract on a house. We had inspections done and then found out the seller doesn't have the ability to sell, based on a lean.

Asked by Citybuddha, Denver, CO Tue Dec 13, 2011

Opinion? They had set a sell date that has passed AND dropped us out of contract because they found out they were not allowed to sell the house. It's been weeks since this happened. At this point, we want our earnest money back and to be reimbursed the money we payed for inspections, because they never had the ability to sell the house. Obviously, we wouldn't have any inspections if we couldn't buy the house. Right?

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Answers

38
It sounds as if you are in need of much better representation. I work closely with one of the best buyer's agents in Denver so if you'd like his name let me know. He can help you sort out what your options are here.

And if you don't have financing set up on either this transaction or the next I would be happy to assist you with that.

Just let me know!
2 votes Thank Flag Link Tue Dec 13, 2011
CityBudda,

As stated in the numerous posts prior, we are not attorneys and therefore can not provide legal advice. That being said, I prefer the path of least resistance or the most economical.

In Colorado, the listing and buyer agency states that those agreements are between the seller or the buyer and the brokerage firm; not individual agents.

Take out your offer to purchase contract and find out what company the listing and selling broker work for. It will be at the very end of the contract, after the buyer and seller’s signature. Go to the Colorado Division of Real Estate, search license section. Here is the link for your convenience: http://eservices.psiexams.com/crec/search.jsp

On the lower section of the inquiry form, under Search Company, enter both agents’ company names. Note: you stated that the company is Coldwell Banker, each of them are owned and operated individually. Click on the correct business and a screen will pop up that shows the employing broker is, along with contact information. (It appears by your post the transaction is within the same company) Call the employing broker and explain to him what has happened with the transaction and the agents involved.

The employing broker will contact both agents and see that the matter gets resolved or at the very least let you know what is going on. The employing broker wants good will and good things said about their companies, not unhappy clients and customers.

If that does not provide you the results that you desire, I suggest that you do find an attorney. I had an attorney draft a simple letter recently and it cost me $220 (but was well worth it). If you do go that way, make sure you understand the costs involved for an attorney to act in your behalf.

Best Wishes,

Colleen Mullins
Your Castle Real Estate, Inc.
ColleenLMullins@yahoo.com
1 vote Thank Flag Link Wed Dec 14, 2011
After your comment there about contacting Coldwell and Using one of their agents. I definitely think you should seek legal counsel. Get you attorney all the paperwork and details. Nobody here is going to make sense of it unless you call someone directly and share all of the details.
1 vote Thank Flag Link Tue Dec 13, 2011
You, of course, should get your earnest money back. You have no right to expect the Inspection fees reimbursed, unless that was agreed to in the original offer. I hope you were using a Buyer's Agent - he/she should be at work getting your Earnest Money back. The lien you refer to should have shown up on the Title work, that deadline for Title work is usually something your agent sees prior to the Inspection. Obviously, giving an opinion with limited information is of limited use. Please tell me you used a Buyer's Agent....
1 vote Thank Flag Link Tue Dec 13, 2011
First contact the local board of Realtors. Ask to set up a mediation with the seller. Mediation can cost between $50 and $100 but getting the rest of your money back and settling is better than letting simply go away or trying to contact a lawyer. Second call the title company and find out if the problem with selling can be remedied and maybe buy the home you originally selected.
0 votes Thank Flag Link Fri Dec 23, 2011
Dear City Buddha-
This happens infrequently on foreclosed homes. The ones I have dealt with like this stemmed from the fact that the foreclosing attorney failed to notify a Junior Lien Holder that they were foreclosing and hence deprived the Junior Lien Holder of their right of redemption under the current CO foreclosure laws. Unfortunately when that occurs the Jr Lien Holder still has a claim on the property which title cannot insure over or around. And that is why you can't close- your title is clouded.

This can be negotiated out if you want the house and I would counsel you not to give up...you've gone this far why not give it a last shot? I am inferring that you do not have a buyer's agent- if that is true go get one. Either way, get a copy of the title policy and then place a call to title and ask them about the Jr Lien- it is public information there shouldn't be any trouble disclosing the information. Then ask title if they have contacted the foreclosing attorney- (probably Castle Starwiaski)- as they are the big Freddie-Fannie guys in Denver. If title says they have not contacted the attorney ask them if they would mind doing so and asking the attorney to contact the Junior Lien Holder and see if they can get the lien released. Once that is determined you will have to determine who is going to pay Jr Lienholder, as they never go away for free. I always try to make the attorney, but that's like trying to pull chicken's teeth- the last time I did one of these- this time last year- I believe Fannie or Freddie-I can't remember which one owned the property- split the cost with the buyer and I think it cost each party $250.
Good Luck out there!
Carole & Greg
0 votes Thank Flag Link Wed Dec 21, 2011
You should be able to get your earnest deposit back. Your agent should draw up an addendum asking for them to release the funds in escrow. I agree you should be reimbursed for the inspections, however if the sellers are about to lose their house, I'm guessing they're having money problems and you would have to take them to small claims court to be reimbursed...and at the end of the day the judgement you would win wouldn't be worth very much.

My advice would be the next time you want to put an offer in on a house that you have a "property profile" pulled by the title company and see if any liens or notices of default have been recorded.
0 votes Thank Flag Link Wed Dec 21, 2011
City
If this is a freddie mac homesteps REO, it might be that you cant get clear title as they cannot find the source documentation to provide clear title policy. Probably Chain of ownership isnt clear, you cant get a mortgage on it and you wouldnt want the house anyway since it will carry to whenever you sell it. Hang in there! I am sure Freddie is trying to make it work, hard to plan a move, but with the selling of loans and the servicers not being the institutions that hold the paper, title isnt clear. No one's fault. Your lender could run a preliminary title report on future house. As for the inspections, ass agents we cannot get paid from 3rd party vendors like inspectors or loan originators. So no incentive to put you in contact with anyone but a good realiable resource. If agent didnt recommend you use an inspector and you did buy this place and found a problem, you would have a different complaint... Why didnt you tell me to get an inspection.

Carole, your right, I should have read the last sentence where you offered a 2nd opinion. Up to that point it was a solicitattion response.
0 votes Thank Flag Link Tue Dec 20, 2011
John Wahlen-
Wow- we did not "trample" all over the NAR Code of Ethics. We clearly said, " I am happy to help you/answer questions if you need a second opinion or to help you with the transaction IF YOU DO NOT HAVE A BUYER'S AGENT." Perhaps you should read the response more thoroughly before you call someone out.

I have closed over 10 million in short sales in the last 18 months. I have closed listings with as many as 8 lienholders and I have closed transactions where the first lienholder has lost over 1 million dollars. I know how to negotiate short sales and I feel bad that many sellers and buyers are getting hooked up with agents that represent they can do a short sale and then figure out they are in over their heads. Everybody loses on those transactions or non-transactions as they often turn out.. I counsel agents who are trying to work through their first short sales- agents who don't even work for me. My concern is that in this crazy market sellers and buyers get proper representation .
0 votes Thank Flag Link Mon Dec 19, 2011
That is horrible. I do read many articles that say the buyer is responsible for inspections if they want them but, you would think that only counted when you could buy the property. I am probably wrong because if there was no contract or agreements signed with the seller that said they would pay you back if they could not sell you are probably out the money.
0 votes Thank Flag Link Sun Dec 18, 2011
UPDATE for everyone.

First off, thank you all so much for you input. It's much appreciated and we'll take what we can from it to hopefully resolve this situation.

To give you an update, the seller's representative, who is honestly the worst communicator I have ever dealt with, finally contacted us to let us know we will receive our earnest money back, though she's not able to do it in any sort of timely manner. She claims it will take time cause it's near the holiday, etc. I expected nothing more from her as she has lagged, severely, at every corner in this process. Her turn around time on even the smallest of requests has been nothing short of snail's pace. Which again, I feel has lead to a total break-down as far as this property is concerned. Personally, had she followed through with any of our very reasonable requests, most of this could have been avoided.

Concerning the money put forth towards our inspections, I have made contact with Freddie Mac, the seller's representative and the Better Business Bureau. While I understand that normally, this would be unrecoverable, I've decided to proceed under the premise that Freddie Mac specifically told me that as it applies to this property, this has been an issue in the past. They also told me they see no resolution to being able to list this property any time in the near future. I guess my biggest issue is that the seller and their agent were the one's who placed the contract date of December 7th in the contract, not us. It was their wish to have the transaction completed by that date. In an effort to meet their requirements, we had these inspections performed after giving the seller ample time to communicate with us concerning any possible hold ups. Further more, the inspectors and engineers we used were based on the suggestion of those working at Coldwell Banker. They suggested we get inspections and they supplied the inspectors. I'm not sure where it will go, but we are thoroughly disappointed at this point and will never do business with them again. I'm no expert, but what do these people get paid for if not to be knowledgable about these types of items?

And, ps, this was not a short sale, for those of you who have asked. Freddie Mac must have bought the house out of foreclosure and turned around to sell it. We offered exactly what they requested, as well as 1000 more than any other offer would involve.
0 votes Thank Flag Link Sun Dec 18, 2011
Carole & gregg
WOW your response is solicitation. Buyer has a licensee and you trampled all over the NAR solicitation and code of ethics.
0 votes Thank Flag Link Sun Dec 18, 2011
Not addressed so far is possible deed restrictions on the loan of the seller. That first time buyer credit in 2009 had stipulations regarding selling withing 2 or 3 years. Like the seller would have to return $8k cash if they resold house within a specified period of time! If you cant get clear title you dont want to close on the contract. Escrow monies are very strictly regulated and that wierd response below about short seller splitting with listing agent cant happen. Brokerage keeps the earnest money in non interest bearing account until closing and then takes that as partial payment toward the sellers commission cost. In this case, that money needs to have both seller and buyer sign a escrow release form to return the money to the buyer. Have your agent process that return of earnest money paperwork and the seller cant keep it or get their hands on it either, so their is no sense in them witholding signatures on the form.
.
0 votes Thank Flag Link Sun Dec 18, 2011
Sadly, I too have seen this happen this year. Regarding your earnest money, your realtor should submit a release for funds and the seller should sign and you should have that back fairly quickly.

Regarding the inspection costs, I would consult an attorney. If the seller didn't know about the liens, my guess is that they are not responsible, but I am not an attorney.

The seller's should be able to get an attorney who can advise them if they can try to get the liens mitigated or even removed from the property so they can move forward with the sale of the home.

Good luck and I'm sorry this happened to you.
0 votes Thank Flag Link Sat Dec 17, 2011
I'm sorry to hear that this happened to you. The seller should be willing to sign a Release of Deposit form so that you can easily get your deposit back. If the seller refuses to do that you may have to go to small claims court for a judicial opinion. Most sales contracts in most states do not provide for reimbursement of inspection fees if the seller cannot sell. Good luck in the future and I hope you are able to find another home.
0 votes Thank Flag Link Sat Dec 17, 2011
OUCH! This is happening more frequently in today's housing market. I've seen situations where the home owners truley felt the house was free and clear of liens just to discover years ago a lien was put on the house either by mistake, or the bank never released a lien to the property prior, or some other odd situation happened.

Title opinions are a cheap yet effective way to ensure a house is free of unexpected liens. Good luck to you!
0 votes Thank Flag Link Wed Dec 14, 2011
Hi again CityBuddha,

Just to clear things up…if this is a short sale, you sign the purchase contract, and then the sellers (homeowners) sign the contract. That contract along with the sellers (homeowners) financial package, hardship letter, etc. is sent to the lender for their approval of the short sale. A short sale is where the lender is willing to accept less than what is owed on the lien. THE LENDER IS NOT OBLIGATED TO ACCEPT LESS THAN WHAT IS OWED.

Why would they not settle you may ask? The benefit to the 2nd or junior lien holder is an answer. For example: the seller owes a 1st mortgage and a second mortgage. The 1st mortgage agrees to the short sale, the 2nd mortgage will not. You (the buyer on the purchase contract) do not have a deal. The law allows 2nd, or junior lien holders, to redeem after the foreclosure sale.

In the example above, the 1st mortgage forecloses and gets the house back at the foreclosure sale. The 2nd mortgage has then has a period of time, by law, that they could payoff the 1st mortgage (whatever the 1st mortgage holder paid plus at least $1) and then the Jr. lien holder (2nd mortgage) owns the property to do with as they wish.

Please note, the 2nd mortgage does not have to be a bank, it can be an individual, company, investor, HOA, etc.

Again, Best Wishes

Colleen Mullins
Your Castle Real Estate, Inc.
ColleenLMullins@yahoo.com
0 votes Thank Flag Link Wed Dec 14, 2011
Dear City Buddha-
As everyone has affirmed for you - you are entitled to your earnest money back but what I think I read in (or between the lines of) your question is that you want really still want the house. It is hard to be very specific because I don't know the conditions of the sale. I am thinking wither it was a short sale or should have been one if a lien holder is holding up the sale. If this is the case you may still be able to glue the deal back together. You need a buyer's agent who knows his or her way around a short sale and has loads of experience as the more lienholders- the more skill required of the agents involved. Once you have the buyer's agent you will need to have them thoroughly review title and figure out what might be going on then contact the seller's agent and see if you can work something out either as a short sale or cure the problem. I am happy to help you/answer questions if you need a second opinion or to help you with the transaction if you don't have a buyer's agent.
Contact me via email or on my office phone: 303-422-7926
Best of Luck!
Carole & Greg
0 votes Thank Flag Link Wed Dec 14, 2011
Hello Citybuddha,
This is a good example of why we use contracts. If you don't have a real estate agent, you might want to contact a real estate attorney. I think he will tell you the seller does not get to keep your earnest money because they missed a deadline and the contract fell apart.
0 votes Thank Flag Link Wed Dec 14, 2011
no question you are entitled to your deposit back. getting your inspect fee back, however, is unlikely.
0 votes Thank Flag Link Wed Dec 14, 2011
Is this by chance a short sale? Some unscrupulous sellers in this situation try to force the deal not close so that they can collect the earnest money and split it with the agent. Selling the home obviously does not put money in the seller's pocket, but trying to force the deal not to close and keep the EM does.

There's no way you are going to lose the EM as you've described it, but you're most likely out of your inspection cost.

Contact this attorney for help: Oliver Frascona at 303-494-3000.
0 votes Thank Flag Link Wed Dec 14, 2011
City.....

The specifics of what you will be entitled to have refunded are likely spelled out in your purchase agreement. Referring to it should be of assistance to you.

Seeking legal council is always a good option but sadly these services could easily exceed the amount in question. We recommend weighing your options carefully prior to commiting.

Good luck,

Bill
0 votes Thank Flag Link Wed Dec 14, 2011
Citybuddha,

Sorry to hear about your situation. The Colorado sales contract address your right to get your earnest money back in these situations. You will need to submit an Earnest Money Release signed by buyer and seller. Once signed, the title company should return your money right away. The worst scenario is to go to arbitration, which you will win. You might want to start with the listing agents managing broker to put pressure on the agent about the earnest money and the return of the inspection costs. If you have no success, you can put in a complaint to the real estate commission. You should also consult with a real estate attorney for more advice, action, a letter to the company, etc. My question, as so often in these situations is, "Where is your Buyer's Agent". He should be the facilitator looking out for your best interests and calming your fears.

Robert McGuire ASR
Realtor/Consultant
Your Castle Real Estate
1776 S. Jackson St. #412
Denver CO 80210
http://www.theRobertMcGuire.com
Direct – 303-669-1246
0 votes Thank Flag Link Tue Dec 13, 2011
The Colorado contract to buy and sell real estate has provisions that provide for this situation. If the seller is in default you definitely get your earnest money back and your inspection fees refunded. Also being left in the dark for 3 weeks is unacceptable. I would contact an attorney. The contract also provides who is responsible for legal fees in your case.

Michael Le
Broker/Owner
Web Reference: http://Www.distinctrlty.com
0 votes Thank Flag Link Tue Dec 13, 2011
Please keep in mind this is not your agents fault. Unfortunately the Inspector will not refund the amount you paid, he completed his job. The listing agent should have known that there was a lien holder that had not released a lien on the property. but the sadly truth is that you wont get your money back on the inspection. Is just one of those situations, where if you look at it in the other hand if you had purchased the property it was going to be a sweet great deal in today's market.
0 votes Thank Flag Link Tue Dec 13, 2011
For some reason I have a lot of questions. Situations like this are hard lessons to learn from. There is a better home out there for you. I don't think it should have gotten to this point there is title insurance they just can't drop you from the contract. You are entitled to your earnest money back. If your agent cannot get this resolved contact a Real Estate Attorney. I can give you a referral she is like a pit bull with stuff like this.
0 votes Thank Flag Link Tue Dec 13, 2011
hi Citybuddha:
Looks like, from your comments below that you were not represented by a buyer's agent in this transaction, unless an CB agent other than the listing agent represented you.
This does not mean, however, that you are not entitled to your earnest money back. You should, as stated below, seek legal council and pursue all avenues open by your contract to buy and sell to get the money you deserve so that you can move on to find another suitable property.
Best of luck and really sorry that you have had to go through this mess.
Chuck Strauss
Your Castle Real Estate
720-318-7598
denverhomeguru@gmail.com
0 votes Thank Flag Link Tue Dec 13, 2011
I am very sorry to hear about your situation. It sounds like you should have your Agent work at getting the earnest money and inspection fees returned. If not I would then seek legal counsel to work on your behalf. Although they may have been unaware that they legally could not seel the house they are responsible for not following the terms of contracts they have entered to, not you. This is not your fault and you should not be out of funds because of this.

I hope that helps. Best of luck to you on getting this resolved.
0 votes Thank Flag Link Tue Dec 13, 2011
You should speak with legal counsel about this transaction. I agree with those who say that you should get your earnest money back, but I would address your statement that the seller dropped you out of contract. If your contract is on the Colorado Real Estate Commission approved form, the seller does not have the right to unilaterally terminate the contract because of their own inability to perform. If they have, in fact, improperly terminated the contract, they may be in default according to the terms of the contract, and you would have specific performance remedies. In that case, you would not be limited to damages for reimbursement of the money that you put in to the transaction. If you can prove additional damages (for example, if they terminated the contract so that they could sell the house for more money), the seller may well be liable for those as well. A good real estate attorney will be able to guide you. Good luck!
0 votes Thank Flag Link Tue Dec 13, 2011
Sorry to hear about your situation. Given the circumstances I would suggest you make sure your contractual obligations were met. Discuss this in detail with your agent. If your end of the contract has been fulfilled, on the minimal facts you present, it appears the sellers may have a lien of some kind that they didn't know about or are unable to satisfy (pay back). If the house has other issues as you indicate, it may be in your best interest to work closely with your agent to demand your earnest money. You will need a signature from the sellers for the title company to release the earnest money back to you. Hopefully the sellers will be reasonable and return your earnest money. It may be difficult to recover the costs of your inspections but your agent could request the return of those expenses given the seller's apparent inability to fulfill their contractual obligations. I would think a thorough discussion with your agent would lead to a course of action that will get you out of the contract and allow you to obtain your earnest money back. Good luck to you.

Corbin Wagoner
0 votes Thank Flag Link Tue Dec 13, 2011
Title issues do come up during transactions, it's not that unusual and doesn't necessary mean there was something "shady" going on. My suggestion is to focus on getting your agent to get your earnest money back and try and find a different property you like. Getting an inspection is optional in CO, so while you might try and pursue getting reimbursed in small claims court, I personally do not think it's worth your time.

I'm sorry this transaction was such a nightmare for you. Stay positive, the right house for you is out there!

Marina Jensen
Web Reference: http://www.MarinaJensen.com
0 votes Thank Flag Link Tue Dec 13, 2011
Citybuddha,
What a lousy situation! As others have said, if the contract failed through no fault of yours, you are absolutely entitled to get your earnest money back. Hopefully, you had a buyer agent and they are working on that. The holder of the earnest money may ask for a mutual release - a document signed by seller and buyer to release the funds. Sellers can refuse, if they believe they are entitled to the funds. But no one will get the funds unless both parties agree. The standard real estate commission contract allows for mediation in the event of a dispute, and you may want/have to pursue that.
It is difficult in a question format for you to give all the facts that might help in deciding whether you have a claim for reimbursement of your inspection fees. You may, in fact, have a claim for damages or for specific performance (requiring the seller to sell you the home), but you would want to talk to a lawyer about that.
Best of luck.
0 votes Thank Flag Link Tue Dec 13, 2011
The house was listed with Coldwell Banker. We contacted them directly and used one of their agents. We were the best of three offers and went under contract, immediately putting in our earnest money. We then had two inspections done, one that received a poor severe structural grade, and another for a general inspection. AFTER we had these done, without requesting anything from the seller, a bank, or applying for financing, the seller called our agent and said we'd been dropped out of contract. It's been three weeks and all we know is they can't get the title transferred. They have yet to provide us with any explanation as to why. The whole thing seems VERY shady! Like they figured out the house was worth more and decided to push us out???
0 votes Thank Flag Link Tue Dec 13, 2011
Citybuddha,

Do you have an agent representing you? Our job as agents is to represent your interests in the transaction and guide you though the situations like this.

Usually leans are discovered during a title contingency period in your contract. I cannot speak for your agent or how she/he structures his/her contracts, but usually the buyers get an opportunity to get out of the contract and receive back their earnest money if the title paperwork was unsatisfactory to them. Please stay in contact with your Realtor if you have one and he/she should be able to get the earnest money released for you based on what you are describing here.

Marina Jensen
Web Reference: http://www.MarinaJensen.com
0 votes Thank Flag Link Tue Dec 13, 2011
Lilian below has a very applicable answer to your question. Earnest Money should be recovered. A Buyer Agent would facilitate this for you (do you have a Buyer Agent??). If you don't, get one assuming you will pursue a purchase. They may be able to assist you. As for inspection costs, I would not expect to collect those. Brent had the best advice if you would like to try: get an attorney. Best of luck!
Web Reference: http://www.jonrroberts.com
0 votes Thank Flag Link Tue Dec 13, 2011
Do ya'll have Small Claims Court in Colorado?

Most appropriate.

Good luck and may God bless
0 votes Thank Flag Link Tue Dec 13, 2011
I think I would agree with you. You should definitely get your earnest money back, are they fighting this.

You'd have to take it up with a lawyer, also a lean doesn't stop someone from selling a house typically, what would stop it is their inability to pay off the lean. Did the lean come up on title work, because if title work came out before inspection then you might not have recourse for the inspection costs.

If you need a lawyer let me know.
0 votes Thank Flag Link Tue Dec 13, 2011
Was this a for sale by owner or was it listed with a broker?
0 votes Thank Flag Link Tue Dec 13, 2011
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