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We made an offer on a property in south Florida, and followed

through on all requests from...
We made an offer on a property in south Florida, and followed through on all requests from the lender for documents and LOX's. sadly the lender's estimated closing dates have come and gone twice. The first time we were asked to get an extension, the seller had no problem and signed right away.

However, as a result of the bank blowing through our second closing date the seller's attorney sent us a letter of default in order to freeze our $40k escrow funds and offered to extend a second time by requiring that we release our deposit from escrow, put another $50k into escrow, and pay for all prorated costs from the recently missed closing date.

Our belief is that they were advised by the bank the day before closing, and that we as the buyers cannot be held accountable for a lack of performance on the part of the lender's back office to complete their package. Everyone involved in this deal is dependent on the bank, including the title company, realtors and buyers and sellers.

There is zero involvement on our part other than to turn around whatever requests were being made by the lender. Time was of the essence and we have the email chains wherein we have been pressuring the bank because we have turned around everything within hours of the requests.

This should be a fairly easy deal, with 50% LTV, great credit and no impairments on our part.

The delay has been intolerable for everyone, mostly for the seller who is desperate to collect her recently deceased father's cash and the loan proceeds and go back to South America. The seller and her attorney are insisting that we are in default and that they can take our deposit. Our belief is that they were notified by the title company in advance of the missed closing date, and therefore were aware that the bank had not been able to complete their packaging.

We as buyers have done nothing but chase the lender as hard as we can without discrediting ourselves. Throughout this entire process we have made every attempt to keep everyone in the loop on all our communications. We on we only received the contact information for the seller's attorney this past week when the letter of default was shared with us.

We're in a pickle now. Is the contract dead, and do we have an obligation to continue moving forward to close? Do we need to comply with the seller's conditions to extend? Should we put more money down on a property which the lender has not made a commitment to provide a loan on? Are we really responsible for the pro-rated costs like HOA dues and taxes, etc?

Moreover, do we need legal representation and the added expense of that entails (which we really cannot afford)?

Any help will be greatly appreciated.
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5/19/2013
socrateaser
socrateaser, Lawyer
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Hello,

Sorry for your troubles. You asked: We're in a pickle now. Is the contract dead, and do we have an obligation to continue moving forward to close?

A: Most real estate purchase agreements contain a financing contingency, which permits the buyer to cancel the transaction if the financing is not confirmed by a lender by some date certain before closing. If you had a real estate agent representing you in the negotiations and you were not strongly advised to have this provision in the contract, then you may have a malpractice action against the agent. If you did not have an agent, then you may have no financing contingency, and that could expose you to liability if you cannot produce the necessary cash to close the transaction.

Do we need to comply with the seller's conditions to extend?

A: The contract provisions control. Usually, you're required to move forward, and if you don't the seller may have an action for damages against you, which may be the amount actually provable at trial, or based upon a "liquidated damages" clause in the contract which states the exact amount of damages that will be due if the contract is not completed as agreed. In practice, however, when a real estate market is rising, the seller is never damaged, because he/she can always sell the property for more to someone else. Consequently, buyers are rarely liable for damages. Unless your contract expressly requires you to pay for the seller's expenses due to his not being a resident of Florida, then this would not be ordered against you by a court. You're not responsible for the seller's cost of living.

Should we put more money down on a property which the lender has not made a commitment to provide a loan on?

A: I wouldn't put another penny into escrow -- nor would I release any monies. I would offer to either cancel the transaction, and receive the entire deposit back, less any actual costs incurred by the closing attorney, or I would offer to try to find another lender. The seller can actually put the property back on the market and try to sell to someone else. Ultimately, were that to happen, you would have to sue to get your money back from the closing attorney -- but you probably would get it all back, less the attorney's costs, because the seller would sell the property, get his profit, and have no damages.

Are we really responsible for the pro-rated costs like HOA dues and taxes, etc?

A: No. You're not the owner, yet. It's possible that a court could hold you responsible for these fees, but without legal action and a court order, you're not liable. And, if you are sued, then you could sue the lender for the unreasonable delay in underwriting the loan, and thereby tie the entire transaction up for a very long time (because banks rarely settle, and they have unlimited financial resources with which to defend lawsuits against them).

Moreover, do we need legal representation and the added expense of that entails (which we really cannot afford)?

A: If your contract has a mediation or arbitration provision, you could start along that course -- or, if not, then you could offer to mediate or arbitrate. This would reduce your legal expenses -- but, you definitely need a lawyer for any of this. Ideally, if you can get a retired judge to mediate and tell you and the seller what is likely to occur if the matter continues unresolved, you will probably be able to reach a settlement of the matter. The seller is desperate to "get out of town," so if it feels as though things may be bogged down in litigation, the seller may be willing to cooperate. But, you need a plan that will actually show you can get funding. In my view, this probably means a different lender, and it may require a higher interest rate in order to mitigate the lender's risk as a means of getting underwriting more quickly.

Please let me know if I can be of further assistance.
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Customer reply replied 4 years ago
Thank you. We are concerned about the relevance to Florida statute and case law.

Follow-ups from the initial response:
1) We are not responsible for any pro-rated costs, this is simply a requirement the seller has presented us in order to extend the closing again. Does it make sense to concede this point because it should only represent ~$1k?;
2) We may be liable for damages even though we have a realtor who helped us with the offer and amendments (FYI, in our opinion the realtor has been helping the seller more than he's been helping us). Is it common for buyers to sue realtors for malpractice?;
3) Our money is in escrow with our realtor, who has received the seller's letter of default (thus freezing our $40k). What can we do at this point to receive our escrow funds back from our realtor/escrow agent considering there is a letter of default?;
4) If the seller does not yield to our request to leave the contract as-is, and insists on conditions for extension, can we walk away and receive our $40 free and clear?;
5) What happens if the lender comes back and declines to fund the loan for whatever reason?;
6) What should be our next steps in the process, considering the above potential scenarios?

Thank you again! VB
1) We are not responsible for any pro-rated costs, this is simply a requirement the seller has presented us in order to extend the closing again. Does it make sense to concede this point because it should only represent ~$1k?;

A: I wouldn't concede anything, except as part of a complete settlement and release agreement. Piecemeal concessions merely weaken your overall negotiating position.

2) We may be liable for damages even though we have a realtor who helped us with the offer and amendments (FYI, in our opinion the realtor has been helping the seller more than he's been helping us). Is it common for buyers to sue realtors for malpractice?;

A: As a practical matter, there really is no such thing as a "buyer's agent." The reason is simple: both agents are compensated based upon the actual closing of the sale and they get more money if the price is higher. So there is zero incentive for a buyer's agent to do anything for the buyer's benefit. This is an artifact of very powerful real estate association lobbyists, who have over the years, obtained major changes to the common law rules of agency which would ordinarily prohibit a buyer's agent from being paid based upon a percentage of the sales commission. I can tell you that as a lawyer, were I to accept such a deal, it would create in instantaneous conflict of interest, and I could be disbarred. But, real estate agents are not required to play by the rules set down over the past 500 years. Just the way of the world.

That said, buyers rarely sue their agents -- nor do sellers. The reason is equally simple: most people won't pay a lawyer to sue, and most lawyers won't take a malpractice action against a real estate agent because it's likely that the agent doesn't carry professional liability insurance, and the agent probably doesn't have two nickels to rub together -- so the lawyer won't be able to collect the judgment, and consequently he/she won't get paid. Thus, law suits against agents are rare, except where the properties are very costly, and the parties are wealthy, so they can afford to go after the agent, who is also likely to be selling very high priced properties, and so he/she is equally likely to have those "two nickels" to collect from.

3) Our money is in escrow with our realtor, who has received the seller's letter of default (thus freezing our $40k). What can we do at this point to receive our escrow funds back from our realtor/escrow agent considering there is a letter of default?;

A: Your agent owes a duty to hold the money, subject to either a settlement agreement by the parties, or a court order. The agent can't just return your money, or the seller can sue for breach of trust.

4) If the seller does not yield to our request to leave the contract as-is, and insists on conditions for extension, can we walk away and receive our $40 free and clear?;

A: Only if the seller agrees to the release of your money -- or a court or arbitrator orders it released.

5) What happens if the lender comes back and declines to fund the loan for whatever reason?;

A: That's why there are contingency clauses in purchase agreements. Ordinarily, a buyer is required to produce a loan commitment by a specific contract date, or the buyer and/or seller can cancel the deal and the buyer's earnest money is returned.

6) What should be our next steps in the process, considering the above potential scenarios?

A: In my view, the next step is to offer to split the cost of a mediator. Then, hire a retired judge to mediate. The judge will tell you what's likely to happen if this issue goes to court, and in my experience, when each side realizes that the property and the money may be held up for years, a settlement is quickly reached.

You may want to consider reviewing this article from the Florida State Bar. It provides a good overview of why real estate contract actions are a bad idea for everyone.

Hope this helps.
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Customer reply replied 4 years ago
Ok, it seems that this is all wrapped around the contingency clauses in the contract. Here is what it says:

Section 8 - Financing
This contract is contingent upon Buyer obtaining a written loan commitment for a (X) conventional loan on the following terms within (30) days after effective date ("Loan Commitment Date") for (mortgage types, none selected) in the principal amount of $290k at an initial interest rate (blah blah) for term (blah blah).

Buyer will make mortgage loan application for the financing within (5) days after Effective Date and use good faith and diligent effort to obtain a written loan commitment for the financing (Loan Commitment) and close this contract. Buyer shall keep seller and broker fully informed about the status of mortgage loan application and Loan Commitment and authorizes Buyer's mortgage broker and Buyer's lender to disclose such status ad progress to Seller and Broker.

If Buyer does not receive Loan Commitment, the Buyer may terminate this Contract by delivering written notice to Seller, and the Deposit shall be refunded to buyer, thereby releasing Buyer and seller from all further obligation under this Contract.

If Buyer does not deliver written notice to seller of receipt of loan commitment or buyers written waiver of the financing contingency, then after Loan Commitment Date Seller may terminate the Contract by delivering written notice to Buyer ad the Deposit shall be refunded to Buyer, thereby releasing Buyer and Seller from all further obligations under this Contract.

If Buyer delivers written notice of receipt of Loan Commitment to Seller and this Contract does not thereafter close, the Deposit shall be paid to Seller unless failure to close is due to (1) Seller's default; (2) Property related conditions of the Loan Commitment have not been met (except when such conditions are waived by other provisions of this Contract); (3) appraisal of the Property obtained by Buyer's lender is insufficient to meet terms of the Loan Commitment; or (4) the loan s not funded due to financial failure of Buyer's lender, in which event(s) the Deposit shall be returned to Buyer, thereby releasing Buyer and Seller from all further obligations under this Contract.

QUESTIONS:
- what defines a "Loan Commitment"? The seller's attorney alleges that we HAVE received a loan commitment when the loan officer sent us repeated lists of documentation and LOX's. Is that a true interpretation of a Loan Commitment, or is it part of the application process?
- do we not meet the requirements of the third paragraph, wherein we the buyer have not yet received any loan commitment, and in fact have exceeded the lender's estimated closing dates twice?
- given that the lender's estimated closing dates have both been missed by the lender, then under paragraph 5, section 4, can we allege that the lender's financial conditions have contributed to the failure of we the buyer to close and thus alleviating us of any obligation to forfeit our deposit?

Thank you again!
Sorry for the delay. Too beautiful to stay indoors.

- what defines a "Loan Commitment"? The seller's attorney alleges that we HAVE received a loan commitment when the loan officer sent us repeated lists of documentation and LOX's. Is that a true interpretation of a Loan Commitment, or is it part of the application process?

A: This is a loan commitment. Nothing else.

- do we not meet the requirements of the third paragraph, wherein we the buyer have not yet received any loan commitment, and in fact have exceeded the lender's estimated closing dates twice?

A: The paragraph doesn't state a date by which the buyer must obtain the loan commitment, which makes the buyer's rights and duties somewhat ambiguous. However, the contract does contain a closing date, and assuming that the date has passed, and you have not receive a loan commitment, then that would be grounds to terminate the contract and recover your deposit -- in my opinion.

Note: the contract is written so that only the seller can clearly cancel. Standard realtor association contracts always favor the seller, because the buyer is usually the person looking to back out, and a realtor doesn't get paid unless the deal closes.

- given that the lender's estimated closing dates have both been missed by the lender, then under paragraph 5, section 4, can we allege that the lender's financial conditions have contributed to the failure of we the buyer to close and thus alleviating us of any obligation to forfeit our deposit?

A: I don't think you need to allege anything. The closing date in the contract is what governs the contract -- not the lender's estimated closing date.

The botXXXXX XXXXXne is pretty simple: (1) If you don't have a loan commitment letter, you did not deliver notice of the letter to the seller, and the closing date has passed, you can cancel the deal; (2) If you have a loan commitment letter, then you are liable to close the transaction, unless the seller releases you.

You could argue that the lender has financially failed, but I don't think that's what the contract means -- I think it means if the lender files bankruptcy or is taken into receivership by the FDIC.

A great deal of the contract language is ambiguous. Vague language is always construed against the draftsperson. The problem is that the contract is probably a realtor's association form, which means that neither buyer nor seller is the draftsperson, except for handwritten portions. So, anything that's not obvious, is up for argument and for a judge to interpret.

I'd love to give you a bunch of case law interpreting these agreements, but there really isn't any. Most of the time, the cases never reach an appellate court, because the parties cannot afford it. They inevitably settle, or an arbitrator or trial court judge makes the decision, and the loser can't afford an appeal.

Hope this helps.
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Customer reply replied 4 years ago
If at this point we send them a letter / e-mail stating that we wish to cancel, are we clear to receive our deposit funds back without any losses?

Seller is desperate for the cash no matter how they get it. We don't want to walk away from our money that over years we broke sweat to save up.

We don't want to comply with their extension conditions, and they only want to extend if we comply. So it's a stalemate.

Does their "Letter of Buyer's Default for Failure to Close" trump our "Letter of Cancellation of Contract" in any way?

I'd prefer to walk away from the deal than get strong-armed into anything.
If at this point we send them a letter / e-mail stating that we wish to cancel, are we clear to receive our deposit funds back without any losses?

A: In my opinion, the contract provisions that you have disclosed would permit you to cancel due to the inability to obtain a loan commitment. But, just be I believe this to be a correct legal interpretation, doesn't mean that the seller will refuse to consent to the release of your funds. And, if the seller does not consent, then you will have to arbitrate or litigate the matter in order to recover your deposit.

Does their "Letter of Buyer's Default for Failure to Close" trump our "Letter of Cancellation of Contract" in any way?

A: In my opinion, the seller's letter has no legal authority under the contract, given that you have never received a formal loan commitment.

In sum, I realize that you are looking for a means to avoid any third party dispute resolution. However, if you make a demand for the return of your deposit, your agent will be obligated to do one of the following (Fla. Stat. 475.25(1)(d)(1)):

a. Request that the real estate commission issue an escrow disbursement order determining who is entitled to the escrowed property;
b. With the consent of all parties, submit the matter to arbitration;
c. By interpleader or otherwise, seek adjudication of the matter by a court; or
d. With the written consent of all parties, submit the matter to mediation. The department may conduct mediation or may contract with public or private entities for mediation services.

This issue is going to be resolved by a judge or arbitrator, unless you and the seller can reach agreement between yourselves.

Hope this helps.
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Customer reply replied 4 years ago
Yes sir, this is the point to which we were hoping to arrive. Thank you SO MUCH for helping bring us to this level of awareness. Without law being our area of expertise it seemed like a long-shot trying to get to a place where we can speak with any degree of certainty. The seller's attorney was dancing around us and we felt like we were being manipulated. So again, thank you for your help! VB
Customer reply replied 4 years ago
Our question at this point is, how do we cancel the contract and pull the plug with the lender? What is the correct sequence of communications? Who do we notify first?
The loan commitment document is what creates the contract to lend -- though with a huge number of underwriting conditions, which must still be met. Prior to that, there is no contract with the lender -- everything is mere negotiation.

So, you can cancel the purchase agreement and any negotiation simultaneously (same letter to seller, your agent, and to the prospective lender), e.g.: "Notice is hereby given that due to the more than 30-day delay in receiving a formal loan commitment letter from [lender name], we are forthwith canceling the purchase agreement, pursuant to its terms and conditions, between ourselves and [name of seller] for the real property located at [address]. If you are in holding any deposits or other monies on our behalf, we hereby request that you return those deposits/monies to us immediately."

Note that as I am not in possession of all of the facts concerning your transaction, my sample language may or may not be the correct means of terminating the transaction. However, based upon what you have provided here, I believe that the above-described notice may be sufficient.

Best wishes.
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