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Damien Bosco
Damien Bosco, Attorney
Category: Real Estate Law
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CALIFORNIA real estate transaction, per escrow instructions

Customer Question

CALIFORNIA real estate transaction, per escrow instructions seller was to pay no costs. I signed a demand from HOA requiring a fee for property transfer that was to be paid by buyer. Escrow did not charge buyer and now I am getting a bill for $775, escrow company, buyer and their mortgage people will not respond to me. If I pay the bill, can I sue them to recoup my expense?
Submitted: 2 months ago.
Category: Real Estate Law
Expert:  Damien Bosco replied 2 months ago.

Hello. My name is***** am an attorney. I am here to help you with your question. I will review it. And then we can discuss it. Sound good?

Customer: replied 2 months ago.
ok
Expert:  Damien Bosco replied 2 months ago.

Question: Did the escrow agent and buyer know about the cost?

Customer: replied 2 months ago.
the demand was in my closing paperwork & I told them they would have a HOA fee - further back story - my long term renters of this house (they had a lease option and did not exercise the lease option per contract but I still worked with them to purchase) purchased the home for 200k under market value. So everyone knew I was doing this at NO cost to me, and it was clear that I was to pay no costs from the beginning. the tenants were divorcing, but wanted her daughter to purchase for her so that she could stay in home, the daughter and daughters boy friend work for one of those seedy mortgage companies in southern california - high fees no doc kind of places. they did all the paperwork and so we did not have realtors involved, I had to trust their escrow company - I even had a lawyer review before I signed..... but did not have him look at final escrow docs from closing.... that is where the HOA demand came in and we all signed it only it was not checked who would cover cost..... even though they all knew it would not be me
Expert:  Damien Bosco replied 2 months ago.

What do you mean it was not checked? Do you mean nothing is in writing that the buyer would cover the cost?

Customer: replied 2 months ago.
see page 9
Customer: replied 2 months ago.
It is in writing - in the sales contract - buyer to pay ALL costs
Customer: replied 2 months ago.
I have emails, and texts between me and them reiterating - it was common knowledge all along that I was to pay no costs
Expert:  Damien Bosco replied 2 months ago.

On page 9, the buyer did not sign; nor is the box checked. So, there would be evidence to the contrary. In other words, you could bring the lawsuit based on emails and other texts, but the defense will be showing the lack of signature and unchecked box.

Customer: replied 2 months ago.
That is because they never got me signed copies of all of the docs. I have no actual copies of any of the signed docs. The only proof I know of that the escrow even closed is that my mortgage was paid off. I have not yet received the copy of the recorded document either
Expert:  Damien Bosco replied 2 months ago.

Okay. I understand. Presuming they signed the docs, the issue is the unchecked box verses the other evidence they would pay for it. So, you can make a demand, but as I mentioned above the defense would be the unchecked box. Because this would be a small claim, the judge or arbitrator would look at all the facts and come up with a determination. We can discuss more if you like.

Customer: replied 2 months ago.
Is this the only way for me to recoup the cost? I am assuming I HAVE to pay as the HOA letter in telling me I have 30 days, I assume in the state of california this is considered personal debt and does not stay with the property, so the HOA won't lien what is now their home, they are going to come after me for it? Also, I really think they did this intentionally - however I obviously have no way to prove it. How much can I write letter to - because I do not have email or phone information for - my old tenant who lives in the house and who ultimately my deal was made with - before it is considered harassment? same question for her daughter who actually owns the house, I know her place of business address, home address and email address, how much can I contact them trying to collect the debt before it would be construed as harassment?
Customer: replied 2 months ago.
is the escrow company required to provide me with signed copies of all documents from this transaction? Can i force them to give me the copies?
Expert:  Damien Bosco replied 2 months ago.

You can get copies of the signed documents and you are entitled to get them. If a buyer refuses to reimburse a seller for costs a buyer agreed to pay, other than a court proceeding, there may be a way to place a lien on the property. If you do not pay the HOA, then the HOA would have to bring a suit against you to get it.

Customer: replied 2 months ago.
also is it possible to take someone to small claims in CA and not actually be present in court? I live in TX so unless i can schedule my hearing date and time for a time I will already be back in CA it would not make financial sense to fly back for a small claim - however I would do it for the principle if I knew it was failsafe and I would win the case
Customer: replied 2 months ago.
is this the correct path of action?
I should:
#1 ask for copies of all closing documents (signed copies).
#2 ask buyer to pay the fee
#3 pay the fee myself to HOA and try to recoup the cost by placing a lien on the house rather than small claims?
Expert:  Damien Bosco replied 2 months ago.

You would have to go to be a factual witness even if you had an attorney. An attorney could go for you, but you would not be there to give testimonial evidence. There is no "failsafe," in a small claims court (think Judge Judy). YES. YES. to your first two questions. With regard to your third question, that is up to you. Someone in your situation could attempt to place a lien on the property because the fee is tied to the property if the fee has not been paid and it is due and owing.

Customer: replied 2 months ago.
Also, besides sending a formal letter demanding the documents? and sending a formal letter asking buyer and or mother to pay the fee..... how much email / letter writing can i do before it would be too much - by law
Customer: replied 2 months ago.
what legal steps do I have to take to place the lien - write a letter, have receipt of receiving the letter - wait a certain # of days... etc
Expert:  Damien Bosco replied 2 months ago.

A lawyer would only write one demand letter, possibly a follow up "final" demand letter. Otherwise, it could be considered harassment. Usually, a demand is for payment within 7-10 days. A lien is usually filed at the county clerk's office.

Customer: replied 2 months ago.
ok thank you. should i state in the demand letter recourse i will pursue - i.e. filing a lien against the house? or only the demand for payment per our contract that seller pays no fees?
Expert:  Damien Bosco replied 2 months ago.

You are welcome. Usually demand letter state a general recourse: further legal action will be taken if payment is not made. Or something like that.

Customer: replied 2 months ago.
can i state that the recourse i will take will be to lien the home?
Expert:  Damien Bosco replied 2 months ago.

In a demand letter you can state the specific legal action you would plan to take such as placing a lien. Most attorneys would also use language indicating they will take any legal action deemed necessary because it may be decided to file a complaint at a later date. Additionally, an attorney would also double check with the clerk or county office to make sure a lien could be recorded in such situation. Please remember to provide a rating on our detailed discussion, including the review of the document from 3 to 5 stars. Thank you.

Expert:  Damien Bosco replied 2 months ago.

Hello. I have not heard back from you. If you need further help, please let me know. Otherwise, please provide a positive rating between 3 and 5 stars so I receive credit for helping you. Thank you.

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