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P. Simmons
P. Simmons, Attorney
Category: Legal
Satisfied Customers: 27157
Experience:  16 yrs. of trial experience
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Hello, Would you be so kind as to inform us on how to proceed

Resolved Question:

Hello,

Would you be so kind as to inform us on how to proceed regarding a real estate deal.
We signed RE papers to purchase a property with the contingency we could obtain a loan.
We shortly found out we could not and we did not sign any escrow papers. However, we gave a $5000.00 deposit. The escrow company said we could not get our $5000.00 back until the seller signs off. The seller is not signing off and the house is now in escrow with another company.
Is it possible to put a lien on this property before it closes escrow, possibly forcing the seller to sign off on our escrow.
Any advise you could give us would be greatly appreciated.
Thank you. J. Spencer
Submitted: 1 year ago.
Category: Legal
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question

If your contract was continent on financing and you were not able to obtain financing, this should be simple. You get the money back. End of story.

Can you tell me, why is the seller refusing to refund your money...again, this seems simple....
Customer: replied 1 year ago.

I really don't know why the seller is not signing off. I understand that the escrow papers stipulated that all parties need to sign off but, as I stated, previously, we never signed the escrow papers, only the RE agreement.
Even our RE agent can't understand why the sellers have not signed off.


Perhaps their just upset that the deal did not go through. But it is in escrow now so I just don't understand the problem


 


Thank you, Jacquie

Expert:  P. Simmons replied 1 year ago.
But it is always in escrow...that is, once you enter into contract (and the accept the check) you start escrow immediately. So you were in escrow. But if the contract was void because you did not meet a contingency, then you are entitled to your money back

Let me ask a couple more questions

1. How long ago did this happen (did you notify that you were unable to obtain financing)?

2. Did you make a "good faith attempt" to obtain financing? If so what happened...why could you not obtain financing?

3. Did you provide evidence to the seller of your good faith attempt to obtain financing and the results of your efforts (that you were denied)?

4. Finally, are you past your "inspection period"? In a standard CA real estate contract (residential) you have an inspection period...has that come and gone? Or is that still in the future?
Customer: replied 1 year ago.

We started escrow on April 29th, 2013. I have documented every conversation we've had with escrow. Our RE agent and the escrow co. were notified that we could not obtain financing.


We certainly made every effort to obtain financing but as you've probably heard the economy tanked and we were left with foreclosures--we are in the construction business. Our loan officer told us, perhaps in another year, we might be able to purchase a home since our last foreclosure was in Nov. 2012. So much for trying to get ahead in life.


 


We notified our RE agent and she notified the sellers that we could not qualify.


We notified the escrow co. approx. 14 days after escrow accepted our check. Therefore, there was no need for an inspection. Our escrow was for 30 days.


I just would like to know if it is at all possible to lien the sellers property before their escrow closes, since they do not seem to want to sign off.


 


Thank you, Jacquie

Expert:  P. Simmons replied 1 year ago.
Thank you Ma'am

It is possible to place a lien on the property...but only with court action.

What you describe? You have a breach of contract. You had a contract, with a provision that allowed you to withdraw from the contract if you were unable to obtain financing.

Contract law imposes a duty on all parties to "operate in good faith"...so you were required to make a good faith effort to obtain financing. If you did this...if you applied for a loan on this property and were denied the loan? THen that would be grounds to withdraw from the contract.

If you provided notice to the other party (the seller) and they have refused to release your money? Then your next step is to sue them. You can sue them for the $5K they owe you. When you win the lawsuit, if they do not pay the money, then you can file a motion with the court to have their home attached (sold) to satisfy the judgment.

So it is not possible to place a lien directly (like, for example, if you were a contractor and did work on the home...the law would support a lien in such a case). But if they refuse to pay, you can sue them, then when you win you can ask the court to force the sale of the home to allow you to recover your losses.

What you describe you have a great case. And in CA you can use the small claims court to address this (avoid the cost of hiring a lawyer)

But you will need to go to court to force this...state law does not provide a mechanism to allow you to place a lien prior to a court order.

Let me know if you have more questions...happy to assist if I can.
Customer: replied 1 year ago.

Thank you for all your help. It's very much appreciated.


Have a great weekend.


 


Regards, Jacquie

Expert:  P. Simmons replied 1 year ago.
Yes Ma'am
Best of luck in this fight

Phil

P. Simmons, Attorney
Category: Legal
Satisfied Customers: 27157
Experience: 16 yrs. of trial experience
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P. Simmons
P. Simmons
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16 yrs. of trial experience