Stacey, Home Seller in Prince William, VA

EMD and contract pending

Asked by Stacey, Prince William, VA Sat Oct 9, 2010

I, as a seller and seller's agent, accepted an offer. Then about a week later, I was told by buyer's agent that the EMD is NSF according to the bank. Buyer's agent also contacted buyer to put money in. Buyer does not want send in money to cover EMD. The contract is still pending, not closed yet. The buyer orally said that he still want the house.
Right now, I want put property back to the market. I know I need fill RELEASE FORM. Also I want file suit for the EMD. HOW TO FILL THE REALEASE FORM WITH EMD? I may not want hire an attorney, simply because it's expensive, I am not 100% sure I'm gonna win. Even if win, if I am not able to get money from the buyer with a collection agency.
Thank you in advance for the advices!

Help the community by answering this question:


If you are a licenced agent, you should know how to handle a transaction - even your own.
Speak with your broker for help.
If you are not really an agent, then maybe you should hire one. This is a very good example of agent's education and value.
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2 votes Thank Flag Link Sat Oct 9, 2010
A contract needs two things to valid, an offer and consideration. You have an offer but your buyer did not provide the consideration, which is the earnest money deposit funds. So, you don't have a pending contract because you don't have an valid contract. This is the fundamental. I agree with Jay. If you are indeed an agent, then ask your broker for assistance. If you aren't an agent....consider hiring one.

Best of luck to you!
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1 vote Thank Flag Link Sat Oct 9, 2010
I'm certainly not an attorney but it seems to me that your "buyer" has voided the contract by his insufficient check. You may not even need a release. In any case, I think you have may have a case for small claims court regarding an insufficient funds check.
1 vote Thank Flag Link Sat Oct 9, 2010
I know you received multiple answers to this question under a different heading. Your agent needs to speak to their broker immediately regarding this issue. If you are a FSBO then you need to consult an attorney immediately. An "oral" I want to buy is not a legally binding contract in the Commonwealth of Virginia.
1 vote Thank Flag Link Sat Oct 9, 2010
There are 2 parts, the first being the contract is not valid without a EMD, you need to request a cashiers check replacment in writing giving them a stated number of days such as 3-7. Then write if the certiified check is not received you reserve the right to declare the agreement void as the buyer has defaulted in the section of the ps that requires that deposit. You should then include a release of escrow. If the buyer refuses to sign it, you will need to speak with an attorney regarding the laws in your state what you need to do to proceed.

As far as collecting the emd for damages, you may not be able to collect and keep the emd for damages. you cant get blood from a stine is the old saying, you could bring a civil suit for damages if you can prove to a court that you were damaged. The threat of a suit may move the buyer along to sign the release and you both move on.

Make sure everything is in writing, dont do anything verbally, keep records...
1 vote Thank Flag Link Sat Oct 9, 2010
Your agent will provide you with the release form. If the buyer cannot go to settlement he/she is in default and you are entitled to the earnest money deposit. As I suggested before, contact the settlement company that was going to do the closing. They should be able to help you. The other option is to have your agent's broker contact the buyer's agent's broker. If you aren't using an agent then you can contact the buyer's agent's broker yourself.
1 vote Thank Flag Link Sat Oct 9, 2010
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