Home Buying in Antioch>Question Details

Peter, Home Buyer in Antioch, CA

Seller's agent cancel purchase contract for non-performance???

Asked by Peter, Antioch, CA Thu May 21, 2009

I am in the final stage of purchasing a home. We've done all of the inspections and appraisals and now waiting on my bank to do the final underwriting of the property. Given the volume of refi's/purchases my bank is backed up and telling me they're not sure if we're going to make my closing this Friday (which was outlined in my purchase contract). The Seller's agent has indicated that they will re-list the property due to "buyer's non-performance" if we don't close by next Wednesday.

I was pre-approved prior to looking for a home. My file was thoroughly reviewed (income/credit/etc) and conditionally approved by an underwriter. The home is owned by Fannie Mae. Can the seller do this? I have provided my bank with all of the required documentation so there is no question as to my performance. Do I have any legal recourse if the seller does try to break the contract? We're in the 11th hour here and so close to completing this purchase; I've already sunk $2K into this.

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Peter
the housing industry went through a huge contraction in the last two years. Although volume (number of homes sold) is greater than last year, the entities servicing the industry have not increased staffing. Title, Escrow, lending, inspections, etc. are all overextended and committed.

The good news is that you will be funded. The bad news is that you will be late. If they cancel and re-list, they will have the same problem. Perhaps it would help to do a couple of things:

1. Have your agent present a updated CMA to the sellers. Do they realize that the market is tanking and that if they cancel and re-list they may get LESS?
2. Assuming that you have motivated sellers, and assuming that you can close, if they will not extend the escrow tell them that they are welcome to re-list the property, however when your lender closes you are still buying the home.

Discuss strategy with your Realtor and lender. We had just that scenario happen. Sellers need to be patient. If not, and they re-list at a lower price, guess what...the lender will ask for a re-appraisal and that will not be because the value went UP>
0 votes Thank Flag Link Thu May 21, 2009
Keith Sorem, Real Estate Pro in Glendale, CA
MVP'08
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Peter,

You've got lots of opinions to choose from, bet you like that, huh. Sounds as though you need legal counsel. There could be an issue of specific non-performance if the seller attempts to withdraw from the contract because of delays caused by the lender/underwriter while you have demonstrated diligence in your actions and only need a short period to complete the transaction - assuming you've disclosed everything pertinent about the deal. It is possible that the agent is talking, not the seller. Perhaps there is a superior offer lurking in the background. So... there is another set of hypotheses and more can be conjured.

Anyway you need the opinion of counsel. Persevere and do so in a timely manner!!
Web Reference: http://realtz.com
0 votes Thank Flag Link Thu May 21, 2009
John, thank you for the encouraging words!
0 votes Thank Flag Link Thu May 21, 2009
Peter,

I will think positive thoughts for you and I am sure it will all work out. It is a very stressful situation, but I sincerely hope they give you the extra week.

Best of luck!!!

John
0 votes Thank Flag Link Thu May 21, 2009
Thanks John. Yes, my agent did review the addendum and the clause specifically states that we need to close on 5/22 and no later than 5 business days after or the contract is null and void. So it would seem that I have another week. Given the holiday this coming Monday it feels like chances are slim.
0 votes Thank Flag Link Thu May 21, 2009
Peter,

Your best course of action is to get the extension in writing. Did you get a chance to review the bank addendum as I mentioned and look for the "buyer non-performance clause"?

It is so easy to let emotion get in the way. This is a very personal and big decision. Your agent and loan officer know so much about you and you spend so much time together working on this project. Once the transaction is over, you get a feeling for somethings missing because this takes up so much of your life. So don't feel like you broke any rules! ;o)

Keep me posted.

Regards,

John
0 votes Thank Flag Link Thu May 21, 2009
View of the forecast is always a prediction. Some will say it's bottomed, some will say it will keep declining. Who's going to really know? I still think we got a long way to go, hence I'm still declaring a declining market.
I think it's a conspiracy theory where the top people in the markets are making sure that the declines from the past years does not happen again. Therefore they are letting foreclosures come to market slowly rather than flooding the inventory to keep prices stable.
Web Reference: http://www.crosswalkre.com
0 votes Thank Flag Link Thu May 21, 2009
John, your last response makes perfect sense and is what I'm afraid of. The house is a good house and move-in ready. It appraised for a significant amount less than what we had offered so the seller conceded to lowering the selling price. So I understand that now that inventories are low, the house may fetch a higher price if it were put on the market.

I'm afraid that I'm breaking one of the cardinal rules of home buying and that's letting emotion get to me. It's that feeling that I'm so close to completing the deal. I just relocated to California from out of state so purchasing would put me in a way better financial position than renting. I've been looking for the "right" place for months now and to have it slip away because my bank can't get their act together is difficult to swallow. I was hoping that I might have some sort of reprieve. Per contract closing is tomorrow, 5/22. The listing agent gave us a verbal agreement to extend to 5/27 but has yet to send an addendum. The loan processor won't return any of my own/agents/loan officer's calls or email.
0 votes Thank Flag Link Thu May 21, 2009
Peter,

Johnny makes a good point, but I here is what I think MIGHT be the case. Johnny made the point that we are in a "declining market", I respectfully disagree. The inventory in East County is down at numbers we have not seen since 2005. Typically Antioch (in 2007 and 2008) there were approximately 1000-1100 homes on the market. That number has dropped to just above 300, and Brentwood is even lower. Because of pent up demand from buyers and since the banks have slowed the number of foreclosures come on the market, we are in a market where every "decent" home, even the short sales, have MULTIPLE offers. My point is, if the bank smells more money, they may pressure you into performing knowing that if the home goes back on the market, even if it is on again for another 30 to 45 day, they may get back more money in a multiple bid situation.

Let me know if that makes sense.

Regards,

John
0 votes Thank Flag Link Thu May 21, 2009
Unless this property is move in condition and there are people waiting to jump on this house immediately, it doesn't make sense for the selling agent to "re-list" the property when we're in a declining market. It's going to take marketing time and another 30-45 closing time. Not good from an asset managers point of view IMO.

One thing you can do is find out if the sellers are willing to extend the contract for another week. Talk to your agent about this.

Also, talk to your mortgage professional if they can escalate your paperwork due to seller's demands.

It's ishould be in everyone's best interest not to cancel.
Web Reference: http://www.crosswalkre.com
0 votes Thank Flag Link Thu May 21, 2009
Hi Peter,

You will have to review the "bank addendum" to see what rights you gave up from the original purchase agreement. There are certain protections under the California Association of Realtors contracts, but when you sign the required bank addendum, it basically guts the CAR contract. You need to read through every line of the addendum and look at their "buyer non-performance" clause.

Get back on the forum and let us know what it says and we can go from there.

Regards,

John
0 votes Thank Flag Link Thu May 21, 2009
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