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…
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.
If you have any additional questions, contact me directly at DaveDinkelQuestions@gmail.com.
If you need hard money instead of transactional funding, contact me for referrals to private hard money lenders.
Be sure to check out BestTransactionalFunding.com for all your same-day double closing needs, including a list of Investor-Friendly Closing Agents in various states here.
We have more five-star Google ratings than all the other transactional funders combined.
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