Double Closing Disaster Cobb County, Georiga

Double Closing Disaster Cobb County, Georiga

Investor · Marietta, GA · Member since 2014 · 226 posts · 97 votes

Just thought I'd post and tell about a double closing gone wrong.  Not sure how this situation could have been avoided.  But, this does give another perspective.  I contracted with the wholesaler to purchase a property.  Instead of an assignment, we did a double closing.  We used his attorney because my attorney does not perform them.  Property was advertised on CL and we purchased it sight unseen as to the interior.  The property also had a tenant living in it and price was reduced accordingly.  Closing occurs and I immediately serve tenant with notice to pay or quit.  Two days later, no payment, so I file and serve the dispossession.   No answer from tenant, so a week later, judge signs the writ of possession.  I pay the sheriff and eviction to occur tomorrow.

Well, on Friday, the sheriff calls and says the judge stayed the writ.  Huh?  Yep, we have information that the underlying transaction A to B was illegal.  In other words, the original seller had no authorization to sell the property (she had a power of attorney from her husband who is in prison) and she apparently cashed the check and ran off with the money.  So, the eviction is stayed pending our investigation which is also tantamount to saying we don't own the property.

At this point, everything is kind of a mess.  In any event, that's where we are. Yesterday, I contacted the title insurance company and put in a claim.  I figured that 1) I am obligated to let them know ASAP and 2) I paid for the policy, so, rather than me running around trying to get answers, I might as well let them work for the money I paid and 3) I am sure that they don't want to pay out on a policy that they wrote two weeks ago so they will advocate for a clean sale.

Much more to the story, but that's it in a nutshell.

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Real Estate Agent · Atlanta, GA · Member since 2016 · 61 posts · 99 votes
10y

Kalimah - You are absolutely right about the eviction judge's jurisdiction. This judge has absolutely no authority to stay a writ of eviction unless there are clear violations of the lease agreement or tenant-landlord laws that can be made against you. These Cobb County judicial people think they can do whatever they want & make up the rules as they go, which is why Cobb County is always ranked among the very top most corrupt counties in the entire nation year after year. 

Georgia intrastate laws prohibit the sale or transfer of title for real estate without clear and marketable title. Therefore regardless of the authenticity of the POA this is all going to fall on the closing attorney that performed these transactions, and this attorney unequivocally knows it. The biggest problem is that now the eviction judge is awaiting evidence of clear and marketable title from the tax commissioner's office, which will be their sole source of verification in lifting the stay unless you continue to be proactive in resolving this situation yourself. If the double close was just performed, chances are that this transaction won't appear on tax record for another 1-2 months. My bet is that, in lieu of what's transpired, if the closing attorney hasn't mailed title they probably won't until your title insurance company can get a quick indemnification letter out to the closing attorney prior to recording which helps save his own a**. An indemnification letter is basically the title insurance company sweeping the situation under the rug by making an additional insurance guarantee on the title so that a sale can move forward, but it doesn't solve the title issue itself. This will buy the insurance company and closing attorney some time to properly resolve and /or avoid potential lawsuits, but does nothing for you and your situation as you sit around for the next half a year waiting for something to happen. Bottom line is continue to be proactive. The eviction judge will do nothing until title is recorded and properly documented which at this point could take a long time unless you do something about it. File for a pre-motion hearing with this judge immediately, and make it for the soonest available day on the court schedule. Bring all the evidence of the transaction, every bit of it to the hearing. Get copies of all closing docs, POA's and funds transfers for BOTH transactions. If lawyers, sellers, and birddogs don't give it to you, have them legally subpoena'd on proper court documents, cc everyone involved in the transaction and list all of their names on all court documents you record with the eviction court. Remember, the eviction court is still a court of law. Use the system to let all parties know that you mean business and this is going to get resolved now. The eviction judge can make a sole ruling on this case & he will not want to deal with a growing legal situation that continues to escalate, and may choose to lift the stay even if the title hasn't been recorded. Go after all of them!!!! Then afterwards, stay far away from these double close bird dogs.

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  • Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
    10y

    Did the closing attorney on the a to b sale issue a joint check?  Not that it really helps you now.

  • Investor · Marietta, GA · Member since 2014 · 226 posts · 97 votes
    10y

    I wasn't involved on the A to B.  Not sure how it was handled.  I (B to C) issued a wire to the closing attorney for the full amount.  I understand that As funds were issued to the husbands name.  Wife may have cashed the check and ran.

  • Lender · St. Louis, MO · Member since 2009 · 348 posts · 164 votes
    10y

    I'd be very interested in talking to the A-B wholesaler about the process leading up to closing and perhaps avoid a similar situation in the future. Would you be willing to privately share his or her contact info to me? Or, in lieu of that, share my info with him or her so they could contact me at their convenience?

  • Investor · Marietta, GA · Member since 2014 · 226 posts · 97 votes
    10y

    I cannot at the present given that no one in the chain of title is absolved as of this moment.  

  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    10y

    @Wayne Brooks  is it customary in those markets to issue paper checks for proceeds.. I have not seen one of those in years.. we do wires exclusively  for the buy side and proceed side..

    Seems like a title claim is the appropriate vehicle here for the person who ended up with this..

  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    10y

    PS  there was a transaction last year there I Atlanta that also had some pretty sloppy title work or closing attorney work done.

    it was a BP investor who got hooked up with some dude in ATL.. deal went pear shaped then a loan came on the property from a Crowdfunder and it appeared that the title company closed the loan with the wrong person signing on the loan.. the owner never signed for it.

    then the original purchaser got fed up and literally gave the property to a local realtor who turned around and sold it in a few days for cash and got clear title on that .. the original loan they wrote around.. or said they did... I reivewd the paper work and its very sloppy indeed.. and based on my experience closing in Atl.. you have to be super careful who you use there even the better firms make mistakes and scribner errors..

  • Investor · Marietta, GA · Member since 2014 · 226 posts · 97 votes
    10y

    Title claim already filed.  They are presently getting involved.  My issue is also with the magistrate.  He is dealing with a matter that is not even before him.  His only concern should be if title is good (appropriate closing and deed).  The underlying parties' issues (all between party A) should have to be dealt with separately.  We are trying to be patient but may have to take the matter to another court because we do believe that the matters (title and eviction) are separate and eviction judge has no authority to address title issues in this context.

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    10y

    Don't worry too much, that closing attorney has problems too, obviously a little behind on settlement procedures! Hope he was an insured closing agent for your title policy! Good luck :)

    PS  and I didn't say a thing about wholesalers and not taking title!  LOL  

  • Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
    10y

    @Jay Hinrichs Yes, wire transfers for proceeds are the norm. But occasionally, I had one with the sellers fighting, our closing agent will issue separate checks after the parties sign documents agreeing to the division of the proceeds.

  • Greg H.Pro Member
    Moderator
    Broker/Flipper · Austin, TX · Member since 2013 · 4k+ posts · 4k+ votes
    10y

    I see the only issue being the validity of the POA and the reach provided by it. Many title insurance underwriters would require a specific POA instead of a general to cover themselves from this type of scenario. It would appear that you have many "pockets" to go after so I would imagine that one of them will step up to the plate and resolve it. The Attorney, Title Insurance Underwriter and even the Wholesaler could have some liability as he/she actually took title via a double close. The wife will probably be ultimately liable but no doubt she will be broke any minute now !

  • Investor · Marietta, GA · Member since 2014 · 226 posts · 97 votes
    10y

    @Greg H. You are right on target.  I am a good faith purchaser for value.  It just hurts to pay cash and be delayed.  Can't make up for the time.  But yes, there's the attorney, wholesaler, and title company in the mix.  I doubt that the wholesaler or seller can pay.  

  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    10y

    @Greg H.  yup that money is long gone.. :)

  • Lender · St. Louis, MO · Member since 2009 · 348 posts · 164 votes
    10y
    Originally posted by @Kalimah Jenkins:

    I cannot at the present given that no one in the chain of title is absolved as of this moment.  

     I completely understand.

  • Real Estate Agent · Atlanta, GA · Member since 2016 · 61 posts · 99 votes
    10y

    Kalimah - You are absolutely right about the eviction judge's jurisdiction. This judge has absolutely no authority to stay a writ of eviction unless there are clear violations of the lease agreement or tenant-landlord laws that can be made against you. These Cobb County judicial people think they can do whatever they want & make up the rules as they go, which is why Cobb County is always ranked among the very top most corrupt counties in the entire nation year after year. 

    Georgia intrastate laws prohibit the sale or transfer of title for real estate without clear and marketable title. Therefore regardless of the authenticity of the POA this is all going to fall on the closing attorney that performed these transactions, and this attorney unequivocally knows it. The biggest problem is that now the eviction judge is awaiting evidence of clear and marketable title from the tax commissioner's office, which will be their sole source of verification in lifting the stay unless you continue to be proactive in resolving this situation yourself. If the double close was just performed, chances are that this transaction won't appear on tax record for another 1-2 months. My bet is that, in lieu of what's transpired, if the closing attorney hasn't mailed title they probably won't until your title insurance company can get a quick indemnification letter out to the closing attorney prior to recording which helps save his own a**. An indemnification letter is basically the title insurance company sweeping the situation under the rug by making an additional insurance guarantee on the title so that a sale can move forward, but it doesn't solve the title issue itself. This will buy the insurance company and closing attorney some time to properly resolve and /or avoid potential lawsuits, but does nothing for you and your situation as you sit around for the next half a year waiting for something to happen. Bottom line is continue to be proactive. The eviction judge will do nothing until title is recorded and properly documented which at this point could take a long time unless you do something about it. File for a pre-motion hearing with this judge immediately, and make it for the soonest available day on the court schedule. Bring all the evidence of the transaction, every bit of it to the hearing. Get copies of all closing docs, POA's and funds transfers for BOTH transactions. If lawyers, sellers, and birddogs don't give it to you, have them legally subpoena'd on proper court documents, cc everyone involved in the transaction and list all of their names on all court documents you record with the eviction court. Remember, the eviction court is still a court of law. Use the system to let all parties know that you mean business and this is going to get resolved now. The eviction judge can make a sole ruling on this case & he will not want to deal with a growing legal situation that continues to escalate, and may choose to lift the stay even if the title hasn't been recorded. Go after all of them!!!! Then afterwards, stay far away from these double close bird dogs.

  • Investor · Marietta, GA · Member since 2014 · 226 posts · 97 votes
    10y

    @Gordon Vaughn Right, right, and right.  Update:  Title company claim in, but hey, we can't do anything until title policy issued.  Attorney:  hey, we will issue it, but it takes another week or so, but I spoke with both underwriters again who assured me clean deal.  Investigator: I am still looking into it.  Judge:  issues a writ saying we can get stay lifted or writ vacated depending on investigation.

    Magistrate supervisor:  sorry, we can't do anything for you.  Have to wait.

    Me:  Nope, not waiting.  I need a final order so I am coming to court tomorrow morning with a motion to lift the stay citing that the magistrate has no jurisdiction over determinations that are over $15,000 or that involved decisions regarding ownership of real estate.  Regardless of what she does, I will have a final order to take to Superior court.  We are not going to sit on this.  

    Crazy thing:  I am going to ask her to decide ex parte because it's jurisdictional anyway, but also, there is no complaining witness.  The tenant cannot challenge my title, she has no standing.  However, she's the one on the stayed case.  The "unknown person" challenging title hasn't even filed a case.  Yet, he is getting the benefit of court action.  How crazy is that?

    My deed was filed today.  Attorney seemed to now make that happen pretty fast.

  • Real Estate Agent · Atlanta, GA · Member since 2016 · 61 posts · 99 votes
    10y

    Lol..rattle that cage hell yeah! - love it!! Sounds like you're aggressively doing all the right things! If I were to make just 1 more suggestion, I would cite as many legal reasons as you can on that motion because it only takes one for reversal. Site that the transaction was legal by way of clear and marketable title, which could force the attorney to come clean in the event that..... Claim that transaction was also legal through legitimate POA, and research to come up with a few more arguments in favor of a lifting or vacate. Bring all supporting documentation to the transaction. If the POA is not legit, at least you have other legitimate arguments that justify the lift/vacate order. That's pretty much it.

    Great job!

  • Investor · Alpharetta, GA · Member since 2015 · 241 posts · 185 votes
    10y

    Anybody going after the "seller"? Sounds like check fraud at a minimum - if cashing a check payable to her husband or other. More like fraud - as in stealing. Good thing you opted for title insurance at closing. I know of many investors that take chances to save a few hundred dollars. 

  • Investor · Marietta, GA · Member since 2014 · 226 posts · 97 votes
    10y
    Went to the magistrate today with two emergency requests: 1) court doesn't have jurisdiction to deal with anything other than the eviction, 2) I am a good faith purchaser for value in any event. Court called today and said that they will have an answer for me by tomorrow regarding whether it is going to stay the writ, vacate it, or hold a hearing.
  • Investor · Marietta, GA · Member since 2014 · 226 posts · 97 votes
    10y
    Richard Balsam The sheriff has opened a case against the original seller. They are still investigating.
  • Investor · Marietta, GA · Member since 2014 · 226 posts · 97 votes
    10y
    Gordon Vaughn Emergency hearing set for tomorrow morning on the eviction. Will update after.
  • Real Estate Agent · Atlanta, GA · Member since 2016 · 61 posts · 99 votes
    10y

    Awesome! Looking forward to hearing the results! 

  • Investor · Marietta, GA · Member since 2014 · 226 posts · 97 votes
    10y

    @Gordon Vaughn -- Arghh -- I just learned that the court apparently accepted the jurisdictional arguments and is only having a hearing based upon the eviction.  I then asked why if the tenant never answered in the first instance?

    Because tenant is now challenging service.  The process server apparently never filled out the portion of the petition that says tenant has 7 days to answer.  He did file the appropriate affidavit with the court.  Do you have any idea if that section is REQUIRED BY LAW? I am just having bad luck.  Almost there but now a service issue.

  • Investor · Marietta, GA · Member since 2014 · 226 posts · 97 votes
    10y
    Gordon Vaughn Richard Balsam Jay Hinrichs Magistrate held an emergency hearing this morning, agreed with my jurisdictional arguments, and ordered an immediate writ of possession in my favor.
  • Real Estate Agent · Atlanta, GA · Member since 2016 · 61 posts · 99 votes
    10y

    Wow! Not to diminish what you just accomplished because it's pretty awesome, but it just blows my mind that you had to jump thru the hoops you did in order to reverse what the eviction judge had absolutely no right to do in the first place. All remnants of an elitist, self-entitled good ole boy southern network that will hopefully be dead and gone soon.

  • Investor · Marietta, GA · Member since 2014 · 226 posts · 97 votes
    10y

    Thanks all.  @Gordon Vaughn You are right about that.  And I will also say that it didn't hurt that I am still an admitted attorney in GA even though I haven't practiced in years.  I believe it was that fact alone (knowing my way around a courtroom and an ability to research the law) that lead to a result in my favor.  I just don't think that a non attorney would have received the same deference without spending $1,500 to have an attorney argue the case.  Got an eviction today and saved myself $1,500 bucks.

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