We wanted to cancel the contract, seller refuse to give back my deposit. After trying the 3 different loans, and it takes about 3 months, when the

Asked by Ilovemywife, Alhambra, CA Thu Jan 14, 2010

We wanted to cancel the contract, seller refuse to give back my deposit.
After trying the 3 different loans, and it takes about 3 months, when the last loan is approval but not funding, our agent ( same person as seller agent) brought us a written letter from seller, asking for $7500 loss for waiting 3 months. After viewing this letter, we went to escrow to cancel the contract without notifing our agent. We made several phone call to our agent trying to know if we had signed the documents called removal of all contingency, no answer back. We went to realtor office same day afternoon asking her manager, who is also the broker. We need the a copy of all the documents with our signature on it, the broker refused to give, refuse to put it in black and white.
From the owner of the escrow company, we found out the escrow is closing down by end of December 2009. And if we can't settle up the case before it shut down, I was told the deposit will go to the state goverment.

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8
Dave Sutton, Agent, Portland, OR
Fri Jan 15, 2010
If you're willing, it would be educational to the rest of us (at least to me) if you could post an occasional update of what is happening with your case.
1 vote
John Barry, Agent, Eagle Rock, VA
Fri Feb 26, 2010
Hi There,

Sorry to hear about your dilemma - I agree with the advice below that you should definitely contact a real estate lawyer without delay who can assist you with this unfortunate situation. I don't mean to beat a dead horse, but this is a perfect example of why a buyer should not have the listing agent represent them on a sale, and it is imperative to have their own buyers agent looking out for them. The listing agent was representing the seller before you came into the picture, and the seller is the one with the written agreement to pay the brokers commission. Although it is his duty by law, it would be extremely difficult for this agent to look after 100% of YOUR best interests when he has such allegiance to the seller. I would strongly recommend getting your own agent to help you in future purchases once this situation is resolved. It customarily does not cost a buyer a penny to hire their own agent to represent them, as their fee would be paid as part of a shared commission agreement with the listing broker of whatever property you ultimately purchase.

Best of luck to you - I hope everything works out!

John Barry
DRE #01856079
Coldwell Banker Residential Brokerage
Cell: 323-810-7976
Email: john.barry@coldwellbanker.com
Facebook: http://www.facebook.com/RealtorJB
Twitter: http://twitter.com/RealtorJB
Web Reference: http://www.jbknowsthevalley.com
0 votes
Darkstang, Home Buyer, 90063
Thu Jan 28, 2010
The seller cannot open up a second escrow on the same property until your current escrow is resolved and closed.
Look at section 2i of the purchase agreement. That mgiht help you.
0 votes
Dan, , Alhambra, CA
Fri Jan 15, 2010
Short answer: Speak to an attorney. Call today. Do not delay. Legal doctrine such as res judicata may shut you out of more appropriate legal remedies if you lose your small claims case. Only an experienced attorney can help you now.

Long answer: Your case provides a peek at the complexity at real estate contracts and the individual variations that occur with each and every contract to purchase/sell a home. It also is a window into less desirable business practices of some real estate agents who convince buyers or sellers to save money and allow dual representation. Anytime an agent represents both parties, it is a red flag. It is impossible for that agent to reasonably deal with such an obvious conflict of interest.

By choosing to file in small claims court, you have perhaps shut yourself out of more appropriate legal remedies. It is possible the small claims court will bump your case to Superior Court. In which case, you will be left with only a short amount of time to refile and plead your case to the court.

Even if you are S.O.L with regard to the deposit because the contracts you signed, you should sue the agent and broker for violating fiduciary duties and accepting such an obvious conflict of interest. Moreover, it sounds like there is some intentional misrepresentation going on, along with potentially fraudulent conduct. You might be able to get your deposit back along with punitive or other damages. An attorney can help you with that.

Call a real estate attorney today. Good Luck!
0 votes
Patrick Thies, Agent, Anytown, IL
Thu Jan 14, 2010
You need to contact an attorney and have them look at how the contract was written and if any contingencies were or were not met.

It's too hard to answer without all the facts. If you tried to get a loan but were not approved, depending on how the contract was written, you should be entitled to your deposit back. If you did not meet deadlines, did not notify the seller or just decided you don't want to go forward with the deal, then you may not be entitled to your deposit back. It all depends on what is written in the contract and how things were handled.
0 votes
Dave Sutton, Agent, Portland, OR
Thu Jan 14, 2010
I'm no lawyer and you certainly need a real estate lawyer here because the broker is not cooperative. Remember the broker is legally responsible for the action of the agent.

The fact that the same agent represented you and the seller is extremely unusual and requires special cautions which appear not have been taken in your case. In my opinion if the facts are as you describe you are entitled to not only your deposit but damages as well. Whether that can be achieved at a reasonable cost only an attorney can tell you. Even if you do win a judgment, collecting on it may not be possible if the parties are gone (you said the title company is closing) or don't have any ability to pay or assets to seize. If that's the case it is probably fruitless to sue, but again that's something on which you need a lawyer's advice (and one that has experience in real estate law). That said, let me try to clarify some issues.

Was your offer made on the standard form provided by the California Association of Realtors? (I realize that may be a hard for you to answer since you appear not to have a copy of your documents.) It's titled "Residential Purchase Agreement. If that form was used, there is a optional provision at the bottom of page five allowing the parties (buyer & seller) to agree to arbitration. If both parties initialed that paragraph you cannot sue, but must go to arbitration (you still need a lawyer). That may be to your advantage.

As for you owing any money to the seller as compensation for the length of time it has taken, that would not be the case unless you signed a document agreeing to it. There is no standard document for that (nor have I ever heard of any seller asking for that) but it may have been included in a form called an "Addendum". That form allows one to write free-form any conditions either party wants to add to the contract. However no form is legally binding unless both parties have agreed to it.

As for the concept of a buyer paying a seller for delay, it could reasonably come in the form of an extension of the contract expiration date. It might occur that a seller would be unwilling to extend a contract without the buyer paying something for the privilege. Highly unusual. In my experience sellers either agree or not, without any agreement to additional money. If I read you correctly your seller made such a request but you did not sign the agreement so you are not obligated to pay it.

There is a standard form and process through which a seller can give notice to a buyer (or vice versa) that unless they do what is said in the contract (usually agree to buy the property) within three days of the notice, the contract is void. In principle, if your seller was concerned about the amount of time it was taking to close your deal, they could have sent this notice and, unless you performed or both parties agreed to something else, the seller would have been free of your contract and normally would have to return your deposit, but that's a stickier matter resting on more detail than we have here (and more legal experience that I have). Again, this is a matter for a real estate lawyer.

Whether a buyer is entitled to a refund of their deposit depends on several things, the most important of which is whether they have signed the document(s) removing all contingencies and it seems unclear to you whether you did that or not.

I hope that provides a little clarity and I wish I could provide reliable advice, but if there was ever a case which needed a lawyer this is it. I wish you the best.
0 votes
Jerry Lorenz, Agent, Strongsville, OH
Thu Jan 14, 2010
Home buyer

It is very hard to give you advice about this situation without seeing All the paperwork you have signed. If you do not get any response from the agent or the broker I would suggest you contact your attorney or a good Real Estate Attorney.

Jerry A. Lorenz
Russell Realtors
Cell: 440 724 4402
Web Reference:  http://www.lorenz-543.com
0 votes
Ilovemywife, Home Buyer, Alhambra, CA
Thu Jan 14, 2010
I believe we didn't sign the removal of all contingency through out the whole process, is it true that we can still back out at the last minute and take our deposit back.
We had file the claim against the escrow company, the agent and the seller in the small claim court, we want our deposit back.
The seller, which is the defendant turn around and ask for her loss for $7500. Because we delayed for 3 months not closing the deal, and causing seller loss $7500 by discount the price for quick sale. And on the paper from the court, there's a number stated NEW SOLD PRICE, which minus our offering price is $7500. I understand the maximum claim in the small claim court is also 7500. My question is can the seller accept other offer and close the deal when my deposit has already tied up her property.
How possible can the seller win base on her claim, loss 7500 by discount the price for quick sale?
We didnt sign the removal of all contingency, can we back out from the deal and get the deposit back?
Agent and the realtor company refuse to give us a copy of all the documents with our signature on. I was told what they're doing is against the law.
We had already filed complained to DRE and BBB.
0 votes
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