Legal Question in Real Estate Law in Illinois

Release of earnest money

I have a client who wasn't approved for a mortgage. The seller was notified prior to the mortgage contingency deadline expiring. The sellers sold the home to another purchaser. Sellers relocated and can't be located in order to authorize release of earnest money. Realtor continues to hold earnest money and refuses to release money to buyer without authorization. Small claims action commenced against seller but I'm unable to serve sellers with summons. What type of cause of action do I need to initiate to release earnest money if I can't locate sellers after due diligience? Do I include realtor in the cause of action? Otherwise, realtor will hold earnest money indefinetly.

Perplexed attorney


Asked on 1/10/02, 1:21 pm

1 Answer from Attorneys
Jay Pollak The Pollak Law Firm, LLC

Re: Release of earnest money

It seems to me that you have an in rem action to obtain return of the earnest money. I would join the seller [serve him by publication] and also join the broker. If the broker is smart he will either turn the money over to you or at least deposit it with the court as a stakeholder. Based on the facts you have presented and assuming that the contract has been properly complied with and the earnest money is really your client's a summary judgement motion should be held in your favor. You might also consider filing a complaint with the broker's licensing agency. They should not be holding the money based on your facts.

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Answered on 1/10/02, 1:32 pm


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