Thanks. This is going to be difficult, because it seems as if the real issue is the appraiser. There are so many incompetent appraisers; you always have to find an appraiser that is accustomed to dealing in the area in which the designated property is located. The real question here is whether the house is only worth what the appraiser states or whether the appraiser erred. If the appraiser is basically incompetent, it would not be the seller's fault; rather, you would want to either get another appraiser who better understands the area and/or re-educate the existing appraiser so that he/she can amend his appraisal. You might let him know that if he has erred and doesn't correct it, you will be filing a negligence suit against him for your loss. If the appraiser is correct and the property simply isn't worth the contract price, you'll have to be very proactive against the seller and realtor by putting them on the defensive by claiming a default on their end and to raise the stakes on them. The best approach here would be based on their duty to disclose. They are both obligated to disclose anything they knows or
should have known that a reasonable buyer would consider material in making the
decision whether or not to buy the property. You want to take the position that they should know there was a disconnect between the price and the value and was therefore something
that should have been disclosed. You should send
them a certified, return receipt requested letter detailing the situation and demanding that seller allow you to terminate and return your deposit in total within a short specified period of time. You will want to inform them that if your demand is not timely complied with, you will have no choice but to file a suit against
them for damages
. You will want to make sure to specifically mention that you will be filing this claim not only as a breach of contract case, but also as deceptive trade
practice and fraud actions, which will entitle you not only to actual damages, but also an
additional amount equal to multiple times that as punitive damages. That should
provide plenty of incentive to comply with your demands; but, if it does not,
file the suit. This is not a slam dunk for you in any way, but given your contract and your facts, you have to put them on the defensive and allege they are in default which would negate the non-refundable nature of the deposit.
This is the part of my job I don't like...when the law is not in favor of my customer. I wish I could tell you there was an easier resolution, but, I can only provide you information based on the law so that you can act on the best available information to you. ………..I wish I had better news, but can only hope you recognize and understand my predicament and don't shoot the messenger. I'm sorry!
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