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Old 07-17-2009, 07:53 PM
 
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So, we're the buyers and due to close next week. We have just been told by our agent that the sellers do not have the cash to close (about 10K)! I think he is looking for us to raise our purchase price at this late date. What are our options? Should our realtors (buyer's & seller's) give up a portion of their full commission? Is there a clause in our contract we should be looking for? What are our options? We really want the house. Help.

Edit: Also the appraisal came in about $5k above the purchase price.
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Old 07-17-2009, 08:08 PM
 
Location: DFW - Coppell / Las Colinas
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The sellers agent should have run him an estimate of closing costs when he listed & before he accepted your offer. I think he's trying to get you up 10K on your price at this late date.

Hold firm & let him, his agent and yours work out his problem. He has a contract with you and he should fulfill his obligation.
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Old 07-17-2009, 08:11 PM
 
Location: Salem, OR
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I find this highly odd. I agree that the seller's agent should have run an estimated closing statement for the seller.

If the seller doesn't have cash to clear title, they don't have cash to clear title. Out here, the seller is representing when they SIGN and agree to the offer that they can clear title. What does your contract say?
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Old 07-17-2009, 08:21 PM
 
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Contract states "owner warrants having legal authority and capacity to convey the Property with all improvements. If a purchaser for the Property is secured, the usual and customary practice for title examination, curing the title and for closing the transaction shall apply. Owner agrees to deliver a marketable title at closing."

Does this mean we would have to sue for specific performance if they can't give marketable title?

Could this mean the seller's agent might be the one who is responsible if he didn't prepare the seller's a closing statement? Should we be pushing for this resolution?

Everyone has known all along that the sellers were just looking to come out of this intact. Our initial offer was rejected because we were told they would not be able to sell with that offer becoz they did not have the cash to bring to closing.

Also, this is another thing...our realtor is kind of new and she happens to work in the same office as the seller's agent. I dont know if this matters for anything, but when she spoke to us she seemed kind of clueless about what should be done. Their agent oth, is an old-timer.

Last edited by fauve; 07-17-2009 at 08:34 PM.. Reason: Add agent info
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Old 07-17-2009, 10:00 PM
 
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The ball is really in their court to make settlement. To be honest, if I were a realtor (especially your realtor), I would not be willing to cut my commission. The seller accepted the offer and should have done the homework to know closing costs. They signed the listing agreement and agreed to the commission and now it becomes a contract issue.

You have already come up in your offer to get the house, knowing that the owners "needed" a certain offer. At this point, if they can't figure out how to come up with the closing costs, how much more are you willing to invest in the home? I personally would walk before coming up with an additional $10,000, but I don't know how emotionally or financially committed to the home you are.

If the realtors know that you are emotionally tied to the house, they are going to keep scratching their heads until you come up with the money. I would make it very clear you are walking if they can't make settlement and let the sellers come up with a creative solution. Of course you will probably have to wait for the closing day and have the sellers not make settlement before you can get out of the contract - even if you know it will fall through, so it will cost you time as well. Get some good legal advice, so you follow the contract exactly!

Sorry you are having to deal with this.
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Old 07-17-2009, 10:15 PM
 
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The close is for the middle of next week, so time to wait is nothing. If we let the day pass and we don't close, do we have any recourse at that point, or do you think the contract just expires and they stay in their house? I'm kind of beginning to think they changed their minds about selling, and may be using this as an excuse. Oth, they are distressed sellers. I imagine suing them or going to a lawyer would cost more than $10K, plus even if we won, they still dont have the money to close...And, yes, we're pretty emotionally attached and all parties are aware of this. Financially, nothing outrageous. We weren't planning on moving in immediately so at least we're not all packed.

Last edited by fauve; 07-17-2009 at 10:23 PM..
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Old 07-17-2009, 10:30 PM
 
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Legal fees to check that you are honoring the contract so you don't lose your escrow money should be a minimal amount. I'm guessing the $10,000 fee you mention would be to sue for performance. I'm not sure what good that would do - if they don't have the money to close, suing them won't magically make them come up with the money.

You are in a tough spot. Good luck!
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Old 07-17-2009, 10:37 PM
 
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That is not the way that suits work when seller fails to complete a sale -- you don't sue to get them to do what they are not capable of, you sue for damages. The likely outcome of a successful case is that the judge awards damages to the "jilted buyer" so that WHEN the seller does finally do a deal the jilted buyer gets a cut of the proceeds. If the seller is already selling at a loss there are no proceeds. Law suit would be a big waste of time...
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Old 07-18-2009, 05:36 AM
 
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And, I'm guessing damages would only be the amount I've put into the property like the cost of the appraisal?

If I find the seller's agent didn't do a closing estimate, is he responsible for making up the difference? I can't see any reason why the agents wouldn't want this deal to go through. Their commission will be about $40K in a market where nothing is selling.
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Old 07-18-2009, 07:05 AM
 
Location: Palm Coast, Fl
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Quote:
If I find the seller's agent didn't do a closing estimate, is he responsible for making up the difference?
Uhhh, no.
Have you asked the agents if they would cut the commission to assist the deal in going through? Has anyone asked the seller's bank if they would take less to settle out the loan? Would the seller take an unsecured note from the bank for the $10K?
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