Q1: If I felt imminent danger for being present at the closing in front of the buyer who is my customer. Is their a law that states I should stay away from dangerous abusive people no matter how important it is that I be present if I feel a major altercation could arise?
A1: No. If you are afraid of this person, you could have hired a bodyguard.
Q2: Can he sue me for the amount that was supposed to be for the reduction of price even though we are holding it in escrow but once again refuses to accept it until the agreement is signed that states we wont tax him at the end of the year?
A2: If the purchaser is not a real estate broker, then he cannot lawfully obtain a commission from a real estate sale. Thus, the price reduction must be just that -- a price reduction, because otherwise it would be an unlawful commission.
Q3: And if he does accept it can he sue for the taxes he has to pay on the refund which was supposed to be taken out at closing?
A3: Irrelevant. The reduction is, in fact a price reduction, and not earned income to the real estate broker, because it's a cost of doing business, i.e. an expense.
Q4: Now with all his threats to further press criminal charges and further monetary penalties. This has caused the owner of my company to seriously consider closing down and I will be out of a job. Can attorney use their licence as a weapon to threaten like this when all we want to do is pay him?
A4: Threatening crimnal charges in order to obtain an advantage in a civil matter is prohibited by the NY Attorney Code of Professional Responsibility, DR 7-105. So here, you may have a legitimate complaint against the attorney.
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Doesnt a refund mean that it needs to come from the seller directly? meaning, how can I refund something I did not recieve from the buyer? So I am assuming this is not a legaly binding document below?
Re; Purchase of apt. 12 A, 222 West 40th Street NYC, NY 10001; Reduction of Purchase Price by $42,500.00 John Hime, purchaser; and XXXXX XXone a licensed real estate broker, on behalf of himself, and his employer/partner, Prime Realty, and any agents, principal, shareholders, etc., do agree as to the following in regard to the purchase of above referenced premises, In consideration for the purchaser(XXXXX XXXXX) above the asking price for the premises and to facilitate the negotiations for the above referenced premises, The broker, (Lione) shall refund a check(s) in the amount of 42,500.00 to the purchaser (James) at closing, payable to John Hime, as a reduction in the purchase price. The broker, Lion, on behalf of his company, agents, ensigns, and etc., shall retain 10,000.00 as their brokerage commission. If the Seller (James) reduce the purchase price by 42,500.00 or prior to closing, this shall be credited against any Broker's monies due and owing to Purchaser, and shall not waive Broker's right to receive 10,000.00 as their reduced commission their thereof. Signed Fran Lion
What can I write in my response to the court on the Request for Juditial Intervention suit I was served?
Also, the buyer insulted my wife with sexual undertones, I wasnt afraid of him, i was afraid of me... If you know what i mean. This is why I did not show up for the closing and he is saying that by me not showing up nulled the part where as the seller could have ammended the contract and given me 10K. But as I read it, I believe we had a few other options that i could and did use to avoid conflict such as paying him later after closing. But he is refussing payment until we give him an agreement stating we will not 1099 him at years end.
Q1: Doesnt a refund mean that it needs to come from the seller directly? meaning, how can I refund something I did not recieve from the buyer?
A1: If you are legally enitled to a commission, then you can waive that right in favor of the purchaser, with the effect of a price reduction. The law cares more for substance than for form. It's what the parties actually do, not what they call it that matters.
Q2: So I am assuming this is not a legaly binding document below?
A2: If you signed it, then it's binding, unless you can show that the contract is based on fraud, mistake, undue influence, illegality or unconscionablness, as it relates to the subject matter. Based on your facts, thus far, I see nothing that makes the contract unenforceable.
Q3: Also am I required by law to be at a closing?
A3: There is no statutory requirement that you appear at a closing. However, if you are the buyer's broker, then your duty is to act in your buyer's best financial interests. If being at the closing serves the buyer's best interests, then you should be there. However, if your not being there works no disadvantage to the buyer, then he has no cause of action against you, regardless of your non-appearance potentially being against the buyer's best interests.
Q4: Also can he file a complaint in 2 separette state systems such as the new york supreme court and also the new york department of state which govens my brokers licence demanding the same payment?
A4: Yes. Disciplinary complaints are different from civil suits.
Is the fact that he didnt give me a copy of the signed agreement for 3 months, only when I wrote him this email a few days before the closing did his closing attornet faxed it to me?
I spoke with the owner of xxxx and she instructed me not to sign anything else. Once again she asked that you send me a copy of what I signed. It has been 5 weeks since I last asked you and I never received it. Please fax it or email it to me ASAP... On the other note, I just want to ad that I am highly pissed at you for insulting me and my wife a few weeks ago. Not to mention the insults you thrown at me. I spoke with a few friends of mine cause I cant get it out of my head and they cant believe I've let it go on this long. What really bothers me as well as that stupid comment you made about wanting to sleep with me wife is the fact that you never apologized, not that it would help but it did add to my anger. And don't try to deny it, I always have proof, always. For the sake of my family, I personably have to let it go for now. However I don't want to speak with you unless I absolutely have to. Stay the xxxx away from me. I hope this is clear to you.
Can you elaborate on these please?
A2: If you signed it, then it's binding, unless you can show that the contract is based on fraud, mistake, undue influence, illegality or unconscionablness, as it relates to the subject matter. Based on your facts, thus far, I see nothing that makes the contract unenforceable
Q1: Keep in mind that he is not representing himself. So he the plaintiff made the criminal threat not his lawyer. Does your coment still stand in regards to dr7-105?
A1: DR 7-105 may apply to an attorney whether or not he is representing him/herself or a client. The rule's objective is to prevent the attorney from using the threat of criminal prosecution as a means of extorting a civil settlement from an opponent, instead of actually presenting the facts to a court for a decision.
Your facts don't disclose what threat of criminal prosecution was made or what proof of the threat exists. But, even if the threat was made and it was intended to obtain a settlement from you on the civil issues, this wouldn't prevent the case against you from going forwardl. It would only put the attorney at risk of disciplinary action by the State Bar.
If you want something to happen on this issue, then you must file a complaint with the disciplinary agency. And, if you end up hiring an attorney to represent you, that attorney cannot recommend that you use DR 7-105 against your opponent as leverage to gain a settlement, fo the same reason that your opponent can't use this leverage against you: it violates the "Code."
Q2: So what would be my best recourse sinse I did not show up because of his beligerence and so now he is saying that i did not act in his best interest which cost him money? So I am assuming that he can win this case because of this? Plus I guess he can also claim for the legal fees and his what he calls undue taxes he had to pay? Basically I'm screwed because he has a big mouth, correct?
A2: The issue here is: how was your client damaged by your not appearing at the closing? The sort of issues that your are being sued all appear to be legal. You're a real estate agent, not a tax attorney, so you couldn't legally advise your client on the matters of which he complains, even were you present at the closing.
Q3: Is the fact that he didnt give me a copy of the signed agreement for 3 months, only when I wrote him this email a few days before the closing did his closing attornet faxed it to me?
A3: You signed the agreement. The fact that your client chose not to provide you with a copy for three months isn't particularly relevant.
Q4: Can you elaborate on this please? "If you signed it, then it's binding, unless you can show that the contract is based on fraud, mistake, undue influence, illegality or unconscionablness, as it relates to the subject matter. Based on your facts, thus far, I see nothing that makes the contract unenforceable..."
A4: A contract is unenforceable unless it is freely and voluntarily entered into, with a mutual understanding and agreement as to the nature of the subject matter. The agreement to reduce the purchase by $42,500 is pretty straightfoward in my view. You agreed to the reduction as an incentive to your client to make the deal.
An agreement to not 1099 your client is illegal. If your payment is "income," then you have a legal duty under the IRS code to report it on a 1099. So, this part of the agreement would be illegal and unenforceable. However, this issue does not appear in the agreement that you signed, so it appears to be irrelevant.
Comment:
It appears from this thread that you agreed to reduce your commission to close a real estate sale, and that you did not do so, because the client wants you to agree to not 1099 him for the income. These two issues are not tied to each other, because you cannot contract with the client concerning the 1099. This is a matter of federal law over which neither you nor your client have any control. My perspective is that the reduction amount is not taxable, because it's not income. But, you could write the IRS and request a ruling on the issue, and that way it wouldn't be your responsibility any longer.
As for the other fees and costs that your client wants you to pay, they're negotiable. So, negotiate, or hire an attorney to negotiate for you.
Finally, on the issue of the DOS complaint, I haven't read it, so I can't really comment intelligently. But, if you want to keep your license, you may want to consider hiring a lawyer to respond for you -- if only because this entire matter seems to have you all wound up in knots. You can't think straight when you're emotions are in play. That's why you hire a lawyer.
I understand your situation very well. Everyone is hurting in this real estate market. I wish you the best in overcoming your current difficulties.
This is the complaint made to the DOS. Maybe you can see something I cant. Thank you again.
Broker failed to attend closing and refused to remit refund of $42,500.00 as required by agreement. Upon information and belief, If Broker remits this sum as legally required forthwith, I shall not inform the Dept. of State of numerous examples where Broker has not acted with reasonable care, has acted in bad faith, has not acted with reasonable skills and care in performance, has demonstrated untrustworthiness and has participated in threatening and unprofessional behavior, and has not acted in the interests of his client, xxxxxxxxxx, purchaser. Due to Broker's refusal to attend closing and comply with agreement, he nullified purchaser's reduction in purchase price. I'm seeking to inform Broker to make immediate payment of $42,500.00 that was due to be credited at closing, 8/12/08. If Broker does not do so, I do not believe he is acting professionally to warrant continuation of being licensed by NYS.==
Well, here some thoughts...they are not intended as legal advice, but are just musings on my part:
Your failure to attend the closing is not a requirement of your agency agreement with the purchaser, and this complaint does not show that your not being present caused any injury to the complainant. Moreover,the complainant is an attorney, so he is in a better position to assess his rights than are you as his agent.
Your duty as an agent is to find the purchaser a property that meets his requirements, to help negotiate the lowest possible price on the best possible terms, and to fill in the basic provisions of the contract, and not to add/delete or modify any other contingencies or conditions.
Your reason for not paying the commission at closing is because the complainant demanded that you agree to not file a 1099 with the IRS for the amount of the payment, and because he waited until three days before closing to make said demand, you were unable to obtain legal counsel on whether or not the complainant's demand was lawful, in view of the circumstances of the transaction.
Finally, the complainant is stating on the record that he will not make any further complaints if you rebate the money to him immediately -- in other words, the complainant appears to be attempting to extort money from you by means of an administrative process -- rather than to make a good faith complaint about your conduct.
I can't say that the above is the sort of answer that will successfully defeat the complaint. The straightforward issue is that you appear to owe your client a large sum of money that you have not paid. The only reason for this that I can come up with is that you are concerned about the tax issue and that you have not obtained a satisfactory answer. However, escrow closed apparently on 8/12, and it is now 8/29, which is more than sufficient time for you to obtain legal advice as to this entire issue, so this could work against you.
Please allow me to repeat that, while I understand your financial hardships, I nevertheless believe that you are making a big mistake by not obtaining legal representation.
He doesn't want it from you? Get that in writing, because that would directly contradict both his administrative and civil complaints. He would be suing you to obtain something which he has actually told you that he does not want, except based on conditions not present in his complaint, and that would be a possible fraud on the court, as well as a possible tax fraud.
The commission payment should have been treated as a reduction in price during the escrow. Then it would simply have been a price reduction between seller and buyer. Now that the sale is complete, the transaction starts to look like something else -- and frankly, that something else may be a pretty serious matter for both you and your client. Your client would be well served to withdraw both his administrative and civil complaints, and both of you should stop discussing this issue in public.
I regret that I cannot continue to discuss this matter with you. If you have questions about my reasoning, please click on my important legal information link.
You really need get an attorney, my friend.
You're welcome, and I genuinely wish you the best in all this. I know it's an undeserved pain, considering that your only goal was to find someone a home.