Home Buying in Miami>Question Details

Dori, Home Buyer in Miami, FL

Who keeps the escrow? Buyer or Seller?

Asked by Dori, Miami, FL Sun May 25, 2014

I have a 2013 Florida BAR As Is contract . Line 87 (sec 8, b) is checked, contingent on financing. if I received loan commitment with conditions within time frame, i did my best to meet all conditions. Days before closing date I received and updated loan commitment with a condition that I did my best to meet yet the lender did not accept and kept that only condition, therefore the bank sent me a denial letter, will the escrow be returned to me (buyer)? seller is not willing to sign release form.

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3
Hello Dori,

This depends on the date of your loan commitment, which is specified in your contract.
The problem is that what you received as "loan commitment" was really a loan approval subject to
conditions (conditional loan approval). If it was a "clear to close" given to you prior to your commitment date, you'd be fine. Clear to close means you satisfied all conditions and are ready to close. In the future, if you don't get all conditions clear prior to your loan commitment - extend your commitment date through an addendum to contract. If the seller does not give you an extension - get out of the deal by getting a denial letter prior to commitment date.

You have to demonstrate that you did all in your power to provide all conditions - so the seller can not say you didn't act in good faith.

Because it sounds like you passed your commitment without informing the seller, you might be
close to or in the period where you can't get your funds back. Go to a real estate attorney - a consult might be free - and do what he advises to do.

Right now you are in dispute over escrow funds...Normally, if the escrow funds are held by brokers (does not matter seller's or buyer's) - the disputed deal goes to Florida Real Estate Commission (FREC). FREC will decide if you could get the money back. However, while you are still in the transaction, you need to do steps your attorney will advise. It might take up to 6 months to hear back from FREC.

Your attorney might get your money back, so you won't have to wait that long - and he/she could get you the best results in the current situation.

If the escrow funds are being held by the sellers attorney (you know who holds funds by looking at p. 1 of contract) or seller's title company, they might distribute funds based on the contract, and it may not be in your favor.

So, run to see a good real estate attorney - I can advise one, if you need it.

P.S. You can also change a lender and try to get a loan in another lending institutions, preferably not in a large bank (those are too rigid in their underwriting). Then, you could still get your new place.
To do that, you have to get an extension for financing. Your attorney is the key in all that takes place from this point on.

Hope this helps,

Irina Karan
Beachfront Realty, Inc.
IrinaKaran@gmail.com
0 votes Thank Flag Link Wed May 28, 2014
Dori,

I want to make it clear that I am NOT an attorney or any type of legal professional for that matter. With that said, any contract contingent on financing is exactly that: contingent on you garnering financing from your desired lending institution. If all parties have agreed to this contract, and your financing is denied, then you should be entitled to receive the entire balance of your escrow deposit.

Now, I cannot rightfully ascertain that your situation is as clear-cut as I've laid out, so you should consult an attorney to see who is entitled to whatever compensation is due.

Hope this helps!

Sincerely,

Compton.
0 votes Thank Flag Link Mon May 26, 2014
Dear Dori,
According to my experience and the information I recently obtained in a training, If a finance contingency was checked in the As Is contract and the lender did not approve the financing due to a condition. The buyer is entitled to receive his escrow in return. But...this situation is kind of tricky because you must of put a time frame for this loan commitment to be given to seller. Basically according to what you are saying, Seller was notified days before closing. If you did not provide this loan commitment to seller within time frame it can be assumed that the financial contingency was waived. Unless according to section 8 line 101... seller was notified 7 days prior to closing. Make sure you check that all notifications and time frame conditions were accomplished according to contract. Hope it helped in someway.
0 votes Thank Flag Link Sun May 25, 2014
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