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  1. #1
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    X-Post: OT: Paging any North Carolina Attorneys

    I need real estate advice over an offer to puchase contract. We are backing out due to many legit factors but seller refuses to turn over earnest money. Any other recourse besides filing in small claims? I am willing to pay for the advice, but I can't afford a retainer fee since I am only looking for a refund of a relatively small amount of money. I have never sued anybody before. Thanks in advance. Please private message me if you want more details, don't feel like posting them all here.

  2. #2
    zod
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    I am assuming this is a "for sale by owner" purchase? You should have never given them the earnest money check directly, it should have been put into a trust fund via a 3rd party like say a lawyer...but these are the kind of steps that get bypassed in FSBO situations. That is what would have happened thru an agency. Now however you getting your money back relies on the language of the contract you signed into when you gave them the earnest money. The contract needed to be very specific about what would happen with the earnest money SHOULD the sale fall thru. If you signed a contract that doesn't say you will get back your earnest money then you probably will have a hard time getting it back. Those are the kind of things you need to make sure are on paper before you hand over those retainer funds. I hope you can get the money back but unless it said on paper that you would if the closing fails then you might have to chalk it up as a learning experience.

    Now one thing that should not of happened is that a FSBO seller should NEVER cash your earnest check prior to the closing (or in this case prior to the fall thru). If they cashed your earnest check before you backed out then you might have a leg to stand on.

    All that said there might be some buyer protection clauses in NC real estate laws that will take care of you even if you signed a contract that did not state anything about the return of earnest funds.

    I'd suggest you talk to a real estate lawyer....might cost you $50 or so to do so but he/she will let you know whether to waste your time or not.

  3. #3
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    The problem is that this was done through real estate agents, not through a FSBO. The money is being held by the selling agent. They will not release the money to me because the seller will not allow it. The contract specifically states the scenarios when the earnest money is to be returned to me. It seems like the selling agent is ignoring these circumstances. This is what is driving me nuts. I am in the industry in another state so I cannot believe that this is the way business is done in NC. It is a learning experience though. On the next offer I will put so many addendums full of legalese it will make my head spin, but at least I will cover myself much better.

  4. #4
    Freeride Pabstist Church
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    Can you not file a lien against the property in this situation? I'd be finding out real quick if I was in your shoes. Seller can't sell until all liens are satisfied. Then I'd wait the same amount of time you had to wait for the cash to take the lien off. I had a similar issue when I bought my house years back. It took almost a month to get my earnest money back but they finally coughed up.

    Plenty of needy barristers around these parts to help you out.

    pb

  5. #5
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    How about a quick letter to the licensing authority for NC realtors? I don't know much about real estate, but a letter to the SC bar has caused sleazy attorneys to cough up improperly retained funds before.

  6. #6
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    Thanks for the responses. A lien will be filed against his name (and all his properties) if a small claims judge agrees with me. I have already contacted th NC real estate commission and they say this is a matter for a civil court since the seller himself is not a licensed agent. It blows my mind that this sellers agent is not doing anything. I do not know if I would have a complaint against him for his failure to act.
    To add to all of this. I am packing up a U-haul and driving down to NC on Tuesday since our house that we currently live in is closing on Monday. Now we are moving into a storage unit since we will be officially homeless. With a wife, a 5 month old and 2 dogs, not the most ideal situation. Sorry for part rant, I'm just really pissed off.

  7. #7
    zod
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    That blows me away that an agent is acting like this....with a real contract, trust,etc. I just assumed it was FSBO. Take them to the cleaners if you go to small claims court. Go ahead and file for $5000 for damages. Teach them a lesson.

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