The buyer has put a down payment and the property is in escrow. My attorney said were are set to close 3 months ago. The buyer contacted me a month ago and offered an amount much lower that the agreed upon amount in the contract. I refused his offer. Now he will neither set a closing date nor back out of the deal. Repeated calls to his attorney by my attorney are being ignored. What would be the best course of action on my part?
If you had an end date to close on the house and its now past that date, then the offer would be invalid as the buyer didn't perform as contract specified. Once again, if this is the same attorney you have referenced in your other posts, in my opinion he's a poor excuse for an attorney and a big time slacker. Can you get another attorney's opinion?
I was thinking of that option.
weakestlink, Read your copy of the contract. Most real estate transactions are iniated using standard pre-printed "fill in the blank" forms that are written in every day English - not legalese.
There should be provisions regarding failure to perform, time limits and the disposition of any "down payment" if either of the parties fails to perform. It's difficult to tell from the information in your post what exactly the problem is ~ was there a problem with the title that caused a delay in closing? Or did the prospective buyer simply fail to show up for the closing?
Three months past the scheduled closing is a LONG time and the fact that the same buyer has now come back to you with a different offer might seem to indicate that there was a problem with the property, not the buyer.
As suggested, you may want to consult with a different attorney if the one you have now is unable to explain the situation to you to your satisfaction. Has he been paid in full to date for any work performed and/or consultations you have had with him?
I suspect, given the length of time that has passed since the closing failed to occur, THAT DEAL is done and you should start looking for a new buyer. Was this property listed with a real estate agent? If so, perhaps they can answer some of the questions of what went wrong.
If not, you might consider engaging one as they can be quite helpful in helping individuals to complete real estate transactions. It's not just a matter of finding the buyer as you have now learned so they are well-worth their commission in situations such as this one. Good Luck!
Idaho, I hope that is correct. What I've heard from folks relocating from New York, the attorneys actually write the sales contract rather than the agents so I hope it is in English
Down here in the sticks in our standard agreement to buy and sell real estate the 3rd paragraph (which is the first after identifying the parties and the property) is titled - Conveyance Shall Be Made: Then spells out conditions and a date. Further down in paragraph 12 after other points are made is the Extension Agreement which is usually no more than 1 week and only if there is a funding or other specific problem in transferring title.
I would first ask my listing agent what is the problem. If that does not resolve it or a talk with the broker then the next option would be asking the local real estate board (if either of you are using an agent) to find out what your recourse is. Then hire an attorney. All the above steps will take a few days at this point I don't think another week is a problem.
I contacted the estate attorney again and he informed me that the judgment on the property was satisfied, but he is unable to get a written statement from the debtor (a bank) to that effect and the buyer will not close unless there is something in writing. I don't know why he can't get a written satisfaction of judgment or why he's let it go so long.
I did contact an attorney that helped me some years ago for a second opinion, but here is the reply:
"I am sorry. I cannot advise you in this matter. You have an attorney, and it puts me in a bad situation to advise you when you already have counsel. I would trust that your attorney will do what is necessary in your situation."
In order to consult the other attorney, you'll need to let the first attorney know that his services are no longer needed. Pay his final invoice and be free of him. THEN contact the second attorney to see if he feels he'll be more successful in getting the paid-in-full statement from the bank.
Hi Weakest Link --
So appreciate that you have come to the boards for input for your problem~~ but please understand unless we are lawyers, really can't give you legal advice. However, you have had good conversation here to bring up questions to your counsel.
I would add this inquiry to your attorney --
IF the contract was suppose to close three months ago ~~ is the contract still valid?
I didn't say this to alarm you as there may have been an extension (or more than one) of the closing date, OR there MAY BE provisions in format /paragraphs of subject contract~~ like that of the title section~~ which can address time elements needed to clear title.
Different states- different formats-different styles- for different types of property ...of sales contracts. Check your state real estate laws through your attorney regarding these type of concerns you are having.
Most important have a sit down with your attorney to review your sales contract so you understand it completely.
A well written sales contract will give you answers on the spot.
"Meeting of the minds" means just that.. that both parties agree to what they have signed.
Fingers crossed for a smooth closing.This message has been edited. Last edited by: real estate lady,
The title search will show if there is a judgement or lien against the property. The buyer shouldn't need anything else; it carries more legal weight than a letter from any creditor. Of course, the lien will still show up if there has been no release sent to the county where the judgement was rendered - has that been done?
Apparently not. If the bank won't even send the attorney a statement, they probably haven't sent one to the county.
Weakest, to expedite matters, if I were you, I would make a few calls myself before possibly delaying everything by changing attorneys.
Don't know when the lien was satisfied but I would call the bank and ask for the department that issues deeds of reconveyance. Hopefully they can research your relative's file and forward the appropriate documents to the county with a copy to you. (That's the normal procedure, IMHO, BTW.)
When the buyer contacted you, did he forward his revised offer in writing? If not, I would contact him and ask him to forward it for your consideration.
After receiving the revised written offer, I would contact the title officer or other escrow holder and ask if the original contract has expired by its own terms, for any reason. If so, then the title officer may cancel the escrow and return his downpayment.
Anyway, that's JMHO and hope something's helpful to you. Take care -
Just curious - is this a short sale transaction?
Also, title companies in our state require signatures of seller and buyer to release escrow on fully executed contracts. Check your state.This message has been edited. Last edited by: real estate lady,
You should be able to get the answer to that yourself. Go online to the county and search which ever department records deeds - here it is the county registrars office. Most areas have some or all of the information available online.
Weakest, you s/b able to receive answers to all of your questions by calling the bank and title co/escrow holder, as previously recommended.
Incidentally, a title officer or other escrow holder will not cancel an escrow unless allowable under applicable state law. No need for you to do any research -
BTW, if I wasn't clear, I recommended you obtain a copy of the buyer's latest, revised offer strictly for your own file.
P.S. Obviously, I have no idea if either one or both parties failed to perform under the sales contract or other escrow instructions. If/when you contact the title company, you'll want to verify if any penalties or other fees apply.This message has been edited. Last edited by: BearCat49,
I just feel helplessly caught between a miffed buyer and an attorney that gives a different answer every time I communicate with him. It's just been a big can of worms since the get-go. This is the last time I volunteer to do someone's estate when I don't know what their financial situation was.
BTW- I guess you would call it a "short sale"! There are $60,000 in debts on the estate and the home is only worth about $20,000 (it's a double-wide modular home that's been vacant for 2 years).
Previously thought you might be handling a small estate, Weakest. That probably explains the issues with your attorney. Depending on the state, if he's subject to either a maximum percentage and/or a "reasonableness" standard, he may limit his time on the file, believing he won't ultimately receive payment.
Incidentally, it may not help you to change attorneys, either. If percentage fees are allocated among all the attorneys, each firm could receive even less. Because of the size of the estate, another attorney may not care to get involved.
So, that's why I previously suggested you make a couple of calls on your own to either get the sale back on track (by expediting the bank's release of the lien) or cancelling the deal (if it's expired either by its own terms or b/c of the buyer's nonperformance) to allow you to move on.
IIRC, I explained the procedure to sell the property free and clear of all liens, with liens to attach to the sales proceeds. That procedure would allow you to sell the property and deal with the bank afterwards. It would require a simple motion, however.
You mentioned the estate's 60K of debts. Any of that mortgage debt on the property? Any other liens, besides the credit card judgement? How about past due property taxes? What are the total amount of liens against the property? The answers to these questions could give you an easy way out of this situation.
Hope something helps you, Weakest - all, JMHO. Too bad you must deal with this. My condolences again -
Weakestlink, Thanks for the additional information. I almost hesitate to post back as I have made many of these suggestions before but I can tell that you are sincerely troubled over this matter, so I will try one more time.
Before I do so, I just have to correct the impression that the action and/or inaction on the part of the attorney might result from the amount of fees being capped at a percentage of the estate. Yes, that was the custom years ago (and may still be in some states - I have no idea on whether or not NY is one of them) BUT, here in Idaho, fees based on a percentages of the estate went out over 30 years ago with the adoption of the Uniform Probate Code.
Back to OP's situation, it's clear that, if the major asset is the real property valued at $20K and the estate has debts in excess of 60K, it is a "no-asset" estate. Very simple estate to administer then regardless of the state. The personal representative has an obligation to sell the assets at the best possible FMV, deposit the funds and distribute them according to the relevant state's probate code.
Basically, there are three categories - administrative, secured and unsecured. A very reasonable disposition of assets in this case would be an estate auction of both real and personal property ~ any secured creditors on the real property would be paid from the proceeds, the balance deposited for later distribution according to the law. There really is no need to spend hours and days sorting through old clothing and wire hangers unless you choose to do so.
Simply enter into a contract with a well-established auction company, agree to publication and advertisements of the sale which will be deducted from the gross proceeds, have the sale, deposit the funds in a trust account, file the accounting with the court and the estate will be closed.
I wish you well, weakestlink. It's time for an end to these estates and time for you to be able to get back to your own life. You have done your duty and then some....
Idaho, Thank you, I've never had to deal with closing an estate and it sounds like you have had experience in that area.
It is distressing the estate attorney did not make the situation about the status of the estate more clear to Weakest Link.
Perhaps she will tell her real estate agent to tell the buyers - Time's Up - and go with your suggestion if that is an option in NY.
There's no property agent involved. The buyer contacted me through a mutual acquaintance. I agreed to sell directly to him for cash. Now he wants money taken off the agreed upon price because of the lien. At first the attorney said not to accept that offer, now he's hinting that maybe I'd better take it and be through with this haggling.
I think you should take it and be done with said property. If there's not enough money to pay off the debts of the estate , then you can truly say you did the best with what you got and walk away. The rest of the debts of your aunt aren't your personal responsibility to pay them. I don't think there's anyone on these boards who know what all you have done would think any differently. It's time to reclaim your life.
Great advice, mamaspoon. The responsibility of the personal representative of an estate is to get the best deal possible. There is no way you can get $60,000 for the house. But realize it is not your problem. These are not your debts. Close out this chapter by going ahead with the sale and live your life knowing you did your best to honor your aunt's memory.
This is why I asked above if a portion of the $60K included mortgage debt or other liens on the property. If said mortgage debt exceeds the value of the property, a notice of abandonment can simply be filed with the court, concluding the matter for Weakest.
Idaho, state law controls probate matters. IIRC, to date, only about 20 states (including Idaho, BTW) have adopted the Uniform Probate Code in full. Incidentally, the "reasonableness" standard I mentioned above is included in the UPC.
A number of states do continue to use either percentage fees and/or fee schedules. Even if they don't say so, a percentage standard might be considered when determining the reasonableness of attorneys' fees.
For example, if an estate has 20K of gross assets (similar to Weakest) and an attorney bills 10 or 15K, say 50 or 75% of the estate's gross assets and assuming only 1 simple sale of property plus a smattering of routine debts/claims - I doubt those fees would be considered reasonable. In fact, 25% would probably be considered excessive.
Unfortunately, IRL, it's not difficult to rack up attorneys' fees. Small estates, IME, can require as much time as larger ones. They include the same transactions but the **$ have fewer 000's.
Assuming no other issues, if I had to guess w/o knowing the state involved, I would estimate maximum total fees of a couple of thousand but probably not more than 5% for Weakest's estate. The sale involved sounds routine - or should have been routine, IMHO.
In addition, if the attorney performs simple tasks that should have been handled by the executor, those fees may not be approved. Using a second attorney to complete those tasks (the sale) may not be considered reasonable. Weakest may need to work on completing the administrative function (clearing the lien) and closing this sale, on her own.
Weakest Link, I strongly urge you to follow up on the lien and sale as I suggested above. If you don't and allow the sale to proceed (net of the lien), then, based on your previous posts, the estate's essentially paid the lien/secured creditor twice. If that happens, you may have liability to the other creditors.
You stated (last post) this individual approached you directly to purchase the property. A direct sale can cause a valuation issue. For the same reason as mentioned above, i.e. your liability to the other creditors, it's important to document/establish the value of that property, if you didn't previously do so.
To start that process, you may want to interview several real estate agents and ask them to provide standard CMA forms (estimating value, based on comps) to help you document the value. Then, if you need to put the property back on the market, if the sale falls through, you'll be ready. Wouldn't hurt to spend a few hundred **$ and obtain a formal appraisal of the property, either.
Best of luck to you, Weakest - all, JMHO.This message has been edited. Last edited by: BearCat49,
I did get a professional appraisal that cost $250. The agent's value was $25,000 which is what the buyer originally agreed to pay. He knew there was a lien. Now he screaming that he lost money because we didn't close in January as per the contract date. He claims he could have had rental money for that time and also he's had $1000 tied up in escrow as his down payment while I was "playing around" trying to get the judgment satisfied when he would buy it for $18,000 and assume the debt. The estate attorney told me at first not to accept the low offer because he was confident he could get the judgment settled, now he's waffling. He said that although the balance on the judgment shows $0, the bank refuses to submit a satisfaction of judgment. It seems that every time I contact him, I'm told a different story. I don't know what to believe any more.
Weakest Link - What an awful Catch 22 they have you in!
Instead of talking on the phone and emailing - call the estate's attorney and make an appointment. Go into the meeting prepared, review Bear Cat's and Idaho's posts and make a list of questions. Find out what you need to know to get rid of the property.
When you can - go online to check the county registrar of deeds. If there are any leans filed against the property it will be there.
Good luck and hugs for all this mess.
I am still mystified as to why the buyer went ahead and had the utility accounts on the property in his name. It doesn't make any sense to do that before a closing.
Call the utilities and have it all switched off today. I don't know about NY real estate but that is not their property until you sign the deed over.
Hooray! The house is SOLD - finally! Now all that's needed is to try to get the estate attorney to try and get the other bills reduced.
That's a great summary post, Weakest, but how about some details? How is it that you went from not being able to get the bank to issue the satisfaciton of judgement (which was preventing the buyer from closing on the property) to now having successfully closed???
The attorney advised me to accept the reduced offer and get this over with. I'm just happy to be able to go to bed and wake up without obsessing over this responsibility. When I went to see the attorney to discuss the outstanding bills against the estate, he informed me that the satisfaction of debt was obtained.
Did you obtain a copy of the satisfaction of judgement for your file? If not, I would strongly urge you to request one from your attorney and/or the escrow or title company.
Glad to hear everything was finally (hopefully) resolved.
Deep breaths- relax- your job is done!! You've been granted some difficult jobs and you persevered longer than most of us would.
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