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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 115465
Experience:  Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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We made an offer on a mountain property. Because the seller

Customer Question

We made an offer on a mountain property. Because the seller did not want to pay the realtor's commission fee, we shared one realtor. The original offer was owner financing as the seller pretended to agree and then, he changed his mind. We were forced to get hard money lending because we did not have good credit score (660) and no bank would give us a conventional loan. We went with Montegra. When contacting the seller's insurance broker for home insurance, Kerry McDowell told us the property was uninsurable due to a claim the seller's made which cost the insurance company lots of money. McDowell clearly stated that he was not going to insure it. After the deadline had passed, which was May 8, 2015, we learned on June 2, 2015, the partial story about the water damage. The seller stated $40,000; it was really $153,316. On the closing day, Montegra stated they would not release the funds for purchase until we acquired a legal opinion letter making our lawyer liable for $1Million if we defaulted on the agreement. I lost $6875 because Montegra kept the money I paid for prepaid fees. But it got worse; when we went to the closing day, the seller already knew that Montegra wasn't releasing the funds and stating he was keeping my earnest money. Many people have told me that the most important contingency on a real estate purchase is financing. If financing is not completed, the prospective buyer is entitled to have their earnest money returned to them. We hired a mediator. The mediator had a real estate lawyer who reviewed our purchase agreement. He, David Wheaton, discovered that there was no 3-day deadline to supply the funds for the purchase and I was supposed to have had that in order to protect my earnest money. Moreover, on the purchase agreement, was check marked that if the seller refused to pay the commission of $75,240 that I was obligated to step in and pay for it on the closing day. The realtor did not protect my earnest money or informed me about this stipulation. When we went to mediation, Brian H. Wilson, Jr. was representing the sellers. Wilson demanded for the earnest money to be split. I clearly told them that I must have my full earnest money in order to make another offer to the house once our Swiss employer releases our $585,900. The seller wanted half of my earnest money to pay Coldwell Banker and also their friend Brian H. Wilson for his legal representation. They all misrepresented themselves when they said there was a deadline of October 26, 2015. Today, I learned, there was no deadline for the earnest money form until I was ready for it. Brian H. Wilson also presented to the District Court to fight my earnest money release in full to his clients and nothing for me. Learning that there was no deadline for the earnest money truly affected me. My father is now in a coma. I thought he was dead, but thank God he is still alive. I was rushed and pressured to sign this release earnest money form now or else we are now going to court. Coldwell Banker and their realtor, Linda Pinkul failed to protect my earnest money. I asked them to protect it while I was in Puerto Rico taking care of my ailing dad. Now, I learned, my earnest money was never protected and Linda Pinkul failed to inform me about no deadline date to provide the funds before closing day. I am filing a complaint against Brian H. Wilson, Jr. for misrepresenting himself and for the sellers for causing financial entrapment when I they failed to honor the first agreement of owner financing. Tannya Irizarry(###) ###-####
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

I have read everything above, but what is your specific question for us about this situation? What happened in mediation?

Customer: replied 1 year ago.
The seller only wanted to split my earnest money 50-50. I couldn't do so because our Swiss employer demanded for full return of earnest money in order for them to release our home allowance of $585,900. I told them all that I needed my earnest money returned to my holdings company. The sellers' lawyer, Brian H. Wilson Jr. & the seller, Bob Eaton said the deadline from Guardian Title Company was October 27, 2015. They did coercion to get half of my earnest money. I learned today that the title company never put any deadline to release my earnest money. Jen Kelso-Shaw told me she would wait for me to send them the correct earnest money form. Now the ***** ***** lawyer told us that he already filled out the legal documentation for district court because I failed to meet the deadline. It gives me the impression that Wison wants the earnest money to pay for his legal services he provided to the sellers. Currently, the house is under contract. Normally, sellers return earnest money to previous buyer because they are getting $1,260,000 for their home. Why my hard earned money is wanted by these sellers. & lawyer? Just to cause financial grief against me just for the hell of it.
Customer: replied 1 year ago.
I want to know how can I fight back & get my earnest money?
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

If the reason that this sale did not complete because of no fault of your own, but because of changes by the seller, then YOU ARE ENTITLED TO RETURN OF THE ESCROW. The seller cannot keep escrow when their own conduct and change in demands, which occurred here, is the cause of the delay or the failure to complete the sale. The attorney/seller and escrow agent are all jointly and severally liable to you for return of that money. The attorney's problem is with the seller and not with you regarding his fees and he needs to seek his payment from the seller who caused all of this to occur.

Unfortunately, at this point, you need to obtain a local attorney and file in court to get the return of your money for the seller breaching the contract with you and making these changes and demands which caused you to not be able to complete the sale.

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