Any short sale experts - breach of contract advice?

Any short sale experts - breach of contract advice?

Investor · Asbury Park, NJ · Member since 2016 · 23 posts · 5 votes

First,  
YES - I plan to reach out today to a real estate attorney. 

Looking for advice and if anyone has encountered this before just to get some preliminary data before making phone calls to lawyers. 

I have, under contract, a single family home that is a short sale.  The sale contract was fully signed and my agent was informed that the primary lender accepted the offer.  The offer more than covers the outstanding 1st lien, based upon what I've seen in the county mortgage records online. 
Closing day came and went - and then suddenly a day or two after the closing date was to occur I receive notice that the seller "needs to send a cancellation notice, as there is suddenly a 2nd lien who won't agree to the sale."  
Rumor is that the 2nd lien is a general contractor, but I find zero record of this in the county websites.  

I've already paid for liability and flood insurance (had to be paid before close, I paid it 24 hours before the closing date) and now I'm being asked to sign a document basically mutually agreeing to cancel the sale.  I'll now need to fight to get the insurance cancelled and refunded, and something just seems very fishy about this whole situation.  
I do not understand the following: 

- How can there suddenly be a 2nd lien, with no evidence of such on the county websites, and how could the seller have agreed to the sale and executed the sale contract fully to begin with, stating that the short sale was accepted a month ago if he had evidence of this second lien?  

- Doesn't the execution of the sale contract bind the seller to sell me this property?  Once he signed and accepted this offer - he can't suddenly decide that he needs more money to close out a 2nd lien.  If that were the case -   he should have never accepted the offer to begin with, correct?  In FL law, there are only certain reasons why a seller can cancel a contract (buyer can't get financing, force majeure, mutual agreement of both parties, title issues, etc)

- Can this 2nd position lien holder prevent the sale of the property, even though the sale was allegedly agreed upon by the primary lien holder?  Again - I see no evidence of a 2nd lien in the county websites, but apparently its a G.C. who did work on the home. 


- Can I still force this sale or somehow recover damages from this seller?  I'm certain I won't get every penny of my insurance payment back (had to pay 6 months in advance), I've had GCs and builders out to the space to give quotes, I did a sewer line camera inspection, etc. 
I know some of this is the cost of doing business as a real estate investor (sewer main inspection, for instance) - so I'm not concerned about that.  I' m more concerned with the $2400 in insurance costs, the seemingly fishy way this is all going down, and the lack of transparency around this sudden "2nd lien".  


I also plan to call the title company this am and see what info they have.  

Does anyone have any suggestions, information, tips, etc? 

Thanks!!

1Reply
46 views

Most Popular Reply

Investor · Get yourself trained before doing something inadvisable. · Member since 2024 · 3k+ posts · 1k+ votes
1y
Quote from @Brian Stike:

First,  
YES - I plan to reach out today to a real estate attorney. 

Looking for advice and if anyone has encountered this before just to get some preliminary data before making phone calls to lawyers. 

I have, under contract, a single family home that is a short sale.  The sale contract was fully signed and my agent was informed that the primary lender accepted the offer.  The offer more than covers the outstanding 1st lien, based upon what I've seen in the county mortgage records online. 
Closing day came and went - and then suddenly a day or two after the closing date was to occur I receive notice that the seller "needs to send a cancellation notice, as there is suddenly a 2nd lien who won't agree to the sale."  
Rumor is that the 2nd lien is a general contractor, but I find zero record of this in the county websites.  

I've already paid for liability and flood insurance (had to be paid before close, I paid it 24 hours before the closing date) and now I'm being asked to sign a document basically mutually agreeing to cancel the sale.  I'll now need to fight to get the insurance cancelled and refunded, and something just seems very fishy about this whole situation.  
I do not understand the following: 

- How can there suddenly be a 2nd lien, with no evidence of such on the county websites, and how could the seller have agreed to the sale and executed the sale contract fully to begin with, stating that the short sale was accepted a month ago if he had evidence of this second lien?  

- Doesn't the execution of the sale contract bind the seller to sell me this property?  Once he signed and accepted this offer - he can't suddenly decide that he needs more money to close out a 2nd lien.  If that were the case -   he should have never accepted the offer to begin with, correct?  In FL law, there are only certain reasons why a seller can cancel a contract (buyer can't get financing, force majeure, mutual agreement of both parties, title issues, etc)

- Can this 2nd position lien holder prevent the sale of the property, even though the sale was allegedly agreed upon by the primary lien holder?  Again - I see no evidence of a 2nd lien in the county websites, but apparently its a G.C. who did work on the home. 


- Can I still force this sale or somehow recover damages from this seller?  I'm certain I won't get every penny of my insurance payment back (had to pay 6 months in advance), I've had GCs and builders out to the space to give quotes, I did a sewer line camera inspection, etc. 
I know some of this is the cost of doing business as a real estate investor (sewer main inspection, for instance) - so I'm not concerned about that.  I' m more concerned with the $2400 in insurance costs, the seemingly fishy way this is all going down, and the lack of transparency around this sudden "2nd lien".  


I also plan to call the title company this am and see what info they have.  

Does anyone have any suggestions, information, tips, etc? 

Thanks!!

Before you spend too much wasted money on an attorney, you have your agent request a copy of the document witnessing the 2nd lien. Seems straight enough. 

Only then will you know your next step.

Do that before you blow a gasket. You are paying your agent to take care of these burps. If they can't manage it, have a three way discussion with your agent, their broker and you.

By the way, to spend thousands and thousands ($10,000 to $25,000) of dollars to try to enforce a contract and the distraction it creates, rarely gives the outcome you think you deserve, The court will most likely side with the home owner, might award you monetary damages for money spent (not including legal fees) but is highly unlikely to force the sale.  

Then you have to collect. Good luck with that.

My number one rule when someone backs out of a contract, let them go. You never really had a "meeting of the minds". A legal requirement for selling a property.

Oh, and defending your contracts, One such person outright lied in court. I caught the judge between sessions, mentioned that to him, and his response was "everybody lies in court".
See this reply in the discussion

9 Replies

Jump to latestLatest
  • Real Estate Broker · Jacksonville FL & Middletown, CT · Member since 2008 · 1k+ posts · 633 votes
    1y

    Probably fruitless to attempt to sue a short seller as they are usually broke.

    However, a few questions for clarity - 

    Did you do a title search?

    Did you receive a short sale approval letter?

  • Investor · Get yourself trained before doing something inadvisable. · Member since 2024 · 3k+ posts · 1k+ votes
    1y
    Quote from @Brian Stike:

    First,  
    YES - I plan to reach out today to a real estate attorney. 

    Looking for advice and if anyone has encountered this before just to get some preliminary data before making phone calls to lawyers. 

    I have, under contract, a single family home that is a short sale.  The sale contract was fully signed and my agent was informed that the primary lender accepted the offer.  The offer more than covers the outstanding 1st lien, based upon what I've seen in the county mortgage records online. 
    Closing day came and went - and then suddenly a day or two after the closing date was to occur I receive notice that the seller "needs to send a cancellation notice, as there is suddenly a 2nd lien who won't agree to the sale."  
    Rumor is that the 2nd lien is a general contractor, but I find zero record of this in the county websites.  

    I've already paid for liability and flood insurance (had to be paid before close, I paid it 24 hours before the closing date) and now I'm being asked to sign a document basically mutually agreeing to cancel the sale.  I'll now need to fight to get the insurance cancelled and refunded, and something just seems very fishy about this whole situation.  
    I do not understand the following: 

    - How can there suddenly be a 2nd lien, with no evidence of such on the county websites, and how could the seller have agreed to the sale and executed the sale contract fully to begin with, stating that the short sale was accepted a month ago if he had evidence of this second lien?  

    - Doesn't the execution of the sale contract bind the seller to sell me this property?  Once he signed and accepted this offer - he can't suddenly decide that he needs more money to close out a 2nd lien.  If that were the case -   he should have never accepted the offer to begin with, correct?  In FL law, there are only certain reasons why a seller can cancel a contract (buyer can't get financing, force majeure, mutual agreement of both parties, title issues, etc)

    - Can this 2nd position lien holder prevent the sale of the property, even though the sale was allegedly agreed upon by the primary lien holder?  Again - I see no evidence of a 2nd lien in the county websites, but apparently its a G.C. who did work on the home. 


    - Can I still force this sale or somehow recover damages from this seller?  I'm certain I won't get every penny of my insurance payment back (had to pay 6 months in advance), I've had GCs and builders out to the space to give quotes, I did a sewer line camera inspection, etc. 
    I know some of this is the cost of doing business as a real estate investor (sewer main inspection, for instance) - so I'm not concerned about that.  I' m more concerned with the $2400 in insurance costs, the seemingly fishy way this is all going down, and the lack of transparency around this sudden "2nd lien".  


    I also plan to call the title company this am and see what info they have.  

    Does anyone have any suggestions, information, tips, etc? 

    Thanks!!

    Before you spend too much wasted money on an attorney, you have your agent request a copy of the document witnessing the 2nd lien. Seems straight enough. 

    Only then will you know your next step.

    Do that before you blow a gasket. You are paying your agent to take care of these burps. If they can't manage it, have a three way discussion with your agent, their broker and you.

    By the way, to spend thousands and thousands ($10,000 to $25,000) of dollars to try to enforce a contract and the distraction it creates, rarely gives the outcome you think you deserve, The court will most likely side with the home owner, might award you monetary damages for money spent (not including legal fees) but is highly unlikely to force the sale.  

    Then you have to collect. Good luck with that.

    My number one rule when someone backs out of a contract, let them go. You never really had a "meeting of the minds". A legal requirement for selling a property.

    Oh, and defending your contracts, One such person outright lied in court. I caught the judge between sessions, mentioned that to him, and his response was "everybody lies in court".
  • Chris SeveneyBusiness Member
    Moderator
    Investor · VA · Member since 2015 · 21k+ posts · 19k+ votes
    1y

    Ask the title company for a copy of the title report to see if their was a subordinate lien on the property 

    7e investments53 Reviews
    • Jay HinrichsBusiness Member
      Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
      1y
      Quote from @Chris Seveney:

      Ask the title company for a copy of the title report to see if their was a subordinate lien on the property 


      geesh..  do buyer or their agents not know to receive a copy of thier title commitment and read and understand it.. if there is a second it will show up.. Now the contractor may have gotten wind of the sale and ran in a few days  ago and recorded the lien.. and its not posting on the county website yet.. this is why title companies do a date down a few hours before recording the transactions.. to catch these last minute filings.

      forcing a short sale is 99% of the time a waste of money and its the risk you take when trying to buy one.. buyer should know this going into it.. insurance will refund.. inspections are lost.
  • Doug SmithPro Member
    Lender · Tampa, FL · Member since 2013 · 2k+ posts · 2k+ votes
    1y

    You should be able to get the insurance premium back, so I don't think that would be a concern. We've had to seek the "specific performance" remedy in the past to force the seller to go through with the transaction, but if this is a short-sale, the seller is likely going to be behind in their payments and not have any money to pay an attorney. It won't likely go anywhere. Did the closing agent/title company uncover a lien? If not, they are likely pulling your leg on that. They probably have a better offer and are trying to make you go away so they can take it. I think your only option is to point out the specific performance remedy that is likely in your contract (check it first) and remind them that they will also be liable for attorney's fees if you have to force the issue. That's always worked for us, but in the instance of a short sale, you can't get blood from a stone. 

  • Chris SeveneyBusiness Member
    Moderator
    Investor · VA · Member since 2015 · 21k+ posts · 19k+ votes
    1y
    Quote from @Brian Stike:

    First,  
    YES - I plan to reach out today to a real estate attorney. 

    Looking for advice and if anyone has encountered this before just to get some preliminary data before making phone calls to lawyers. 

    I have, under contract, a single family home that is a short sale.  The sale contract was fully signed and my agent was informed that the primary lender accepted the offer.  The offer more than covers the outstanding 1st lien, based upon what I've seen in the county mortgage records online. 
    Closing day came and went - and then suddenly a day or two after the closing date was to occur I receive notice that the seller "needs to send a cancellation notice, as there is suddenly a 2nd lien who won't agree to the sale."  
    Rumor is that the 2nd lien is a general contractor, but I find zero record of this in the county websites.  

    I've already paid for liability and flood insurance (had to be paid before close, I paid it 24 hours before the closing date) and now I'm being asked to sign a document basically mutually agreeing to cancel the sale.  I'll now need to fight to get the insurance cancelled and refunded, and something just seems very fishy about this whole situation.  
    I do not understand the following: 

    - How can there suddenly be a 2nd lien, with no evidence of such on the county websites, and how could the seller have agreed to the sale and executed the sale contract fully to begin with, stating that the short sale was accepted a month ago if he had evidence of this second lien?  

    - Doesn't the execution of the sale contract bind the seller to sell me this property?  Once he signed and accepted this offer - he can't suddenly decide that he needs more money to close out a 2nd lien.  If that were the case -   he should have never accepted the offer to begin with, correct?  In FL law, there are only certain reasons why a seller can cancel a contract (buyer can't get financing, force majeure, mutual agreement of both parties, title issues, etc)

    - Can this 2nd position lien holder prevent the sale of the property, even though the sale was allegedly agreed upon by the primary lien holder?  Again - I see no evidence of a 2nd lien in the county websites, but apparently its a G.C. who did work on the home. 


    - Can I still force this sale or somehow recover damages from this seller?  I'm certain I won't get every penny of my insurance payment back (had to pay 6 months in advance), I've had GCs and builders out to the space to give quotes, I did a sewer line camera inspection, etc. 
    I know some of this is the cost of doing business as a real estate investor (sewer main inspection, for instance) - so I'm not concerned about that.  I' m more concerned with the $2400 in insurance costs, the seemingly fishy way this is all going down, and the lack of transparency around this sudden "2nd lien".  


    I also plan to call the title company this am and see what info they have.  

    Does anyone have any suggestions, information, tips, etc? 

    Thanks!!


     Any update?

    7e investments53 Reviews
  • Investor · Las Vegas, NV · Member since 2013 · 8k+ posts · 10k+ votes
    1y

    In most cases the short seller/owner is going to walk with nothing. So if there’s a second lien for even just $10-$20k. The homeowner isn’t going to have the money, and even if they did they aren’t going to pay the money to sell. If you have a contract with the primary lender you could also make an offer to payoff some portion the 2nd lien holder, they’re not going to want to walk with nothing. They can do nothing and get that. I’d ask for proof of the 2nd lien, and a payoff amount. Then you’ll find out if it’s worth proceeding. 

  • Investor · Asbury Park, NJ · Member since 2016 · 23 posts · 5 votes
    1y

    update to all - 
    Yes, the title search when pulled showed the 2nd lien.  We finally got a copy of the title report AFTER I posted my initial post last week .  We knew it was a short sale going in, but the seller only discussed the 1st lien and we weren't aware of the 2nd lien until he stated he needs to cancel the contract. The 2nd lien is nowhere to be found on the county websites, no idea why.  And, what's even stranger, is the 2nd lien holder is "allegedly" a general contractor according to the seller, but the name on the title report of the 2nd lien holder is another title company.  

    At this point it makes sense to walk away - the property is going to foreclose because the 2nd lien is 75K+ and is not willing to walk away empty handed.  The 2nd lien is refusing to agree to the short sale, even though when the 1st lien holder forecloses he's still going to get nothing as the 1st lien will sell it for what they're owed and move on.  

    My attorney is reviewing to see if there is any way we can negotiate further, but I'm certainly not going to pay off the 2nd lien or increase my offer by 75K as that would not work in regards to a strong, profitable, deal.  

    • Jay HinrichsBusiness Member
      Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
      1y
      Quote from @Brian Stike:

      update to all - 
      Yes, the title search when pulled showed the 2nd lien.  We finally got a copy of the title report AFTER I posted my initial post last week .  We knew it was a short sale going in, but the seller only discussed the 1st lien and we weren't aware of the 2nd lien until he stated he needs to cancel the contract. The 2nd lien is nowhere to be found on the county websites, no idea why.  And, what's even stranger, is the 2nd lien holder is "allegedly" a general contractor according to the seller, but the name on the title report of the 2nd lien holder is another title company.  

      At this point it makes sense to walk away - the property is going to foreclose because the 2nd lien is 75K+ and is not willing to walk away empty handed.  The 2nd lien is refusing to agree to the short sale, even though when the 1st lien holder forecloses he's still going to get nothing as the 1st lien will sell it for what they're owed and move on.  

      My attorney is reviewing to see if there is any way we can negotiate further, but I'm certainly not going to pay off the 2nd lien or increase my offer by 75K as that would not work in regards to a strong, profitable, deal.  


      Keep in mind the property might bid up at sale and any money above whats owed teh first will go the second.. rate though as you state will the property bid up and cover the second.. of course we dont know the numbers but it could happen.. Also keep in mind the second can credit bid and maybe they want to own the house ??  you never know what is going on behind the scenes.. AS for title report now you know when your buying RE you should have a title commitment within 3 to 5 days of opening escrow this would have been divulged and you would not spend money until it was cleared up.. cant rely on websites totally.. I know out east in abstract states title report can take 1 to 2 weeks and I have seen closing attorneys not order one until very late in the game .. I got caught  on that myself in SC.. I paid 3k to survey a lot we are getting ready to close and the title had problems.. I asked the attorney whats up your just finding this now.. He says I dont order the report because I have to pay the abstractor 250.00 and dont want to do that until i know the deal is going to close.. I was pissed.. I told them going forward and my agents they can bill me but title MUST be run day one.
Join the conversationCreate a free account to reply, vote on answers and follow this thread.