Don’t just wing it when you have no seller at closing. Your options are going to be severely limited if you don’t plan ahead…

no seller at closing

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You only have a couple of options to rectify the situation.

1. Forget about it and get your earnest money deposit back from the closing agent.

2. Get ANGRY and quickly take legal action.

• Walking away from the deal hurts especially when you put in tons of time and effort and built a relationship with the seller.

• You may have gone way above the “call of duty” to help the seller and suddenly he or she says, “I changed my mind!”

• Even worse, the seller “ghosts” you and won’t take your calls or text messages.

• I suggest as one last effort you go to the seller’s property and try talking to him or her.

• As a note of interest – the seller can’t just decide to cancel your contract because he got a higher offer or for just any old reason, you have a legal and binding contract that’s enforceable in the court system.

• Now you’re faced with a substantial loss of money even if you get your earnest money deposit back.

• The reactionary track is to immediately get an attorney and file lis pendens lawsuit for “Breach of Contract.”

• If you prevail in court, which is not likely, the seller could have already sold the property and moved on, so now what?

• Assuming you prevail in court for some amount, now you must try and collect the money from the seller!

• PS – I once brought a lawsuit against one of the largest banks in the country at the time.

• I won the case and was awarded attorney’s fees plus one dollar ($1) because while the jury felt I was legally correct, they wouldn’t agree on damages!

• Your other and more “covert” action is to file a Notice of Interest (NOI), also known as a Memorandum of Contract, or Affidavit of Interest in the public record as soon as you get the signed contract by the seller.

• In your contract with the seller, add in a clause that you be filing in a NOI or similar document so the seller can’t claim you didn’t tell him or her.

• It is critical that the document is filed correctly and has a redacted contract attached, which was signed by the seller, and with your signature on the NOI notarized.

• While a few closing attorneys will write over the NOI, most will tell the seller to get a release of the lien before they close – that’s when the seller will have to come back to you.

• I’ve seen NOI “Document Prep Fees” to release the lien, which ranged from $500-$10,000.

• Have the closing agent prepare the release for you and collect a fee for your effort.

• At this point, you can still sue for breach of contract if you want to take a chance in court.

• In summary, when a seller changes their mind it’s usually because another investor made them a better offer, which I call black hat wholesalers.

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