Legal Question in Real Estate Law in Illinois
selling home
My parents have been trying to sell their home since July. Borg Warner is their Realtor. My parents were told in July that they had people that was approved to buy their house and that they needed to move out. So my parents moved out Sept. The closing date keep getting postponed. In December my parent were informed that the people loan did not go through. Since then my parent house has gone into foreclosure this December. The Realtor wants my parents to sign these papers giving the buyers their earnest money back. I feel they are not entitled to their money back because their house has been tied up for 3 months by these buyers. The lawyer which is part of Borg Warner told them unless it was fraud they are entitled to their money back. We want to get rid of Borg Warner and go with another Realtor. My parents own a coach house that is part of the property that was never posted as part of the sell. We really need to sell their house ASAP. Are the buyers entitled to their earnest money back
4 Answers from Attorneys
Re: selling home
There's not enough info to determine whether your parents are entitled to the earnest money back. What is done a lot of times is that the "baby is split", i.e., there's a settlement of the earnest money (half and half is common) in order to avoid the expense, time and hassle of litigation.
In any case, the earnest money issue should take a back seat to the foreclosure. Don't ignore that part! Get yourself a competent foreclosure defense attorney (that's one of my areas of practice if you have any questions or would like a free consultation) and don't let them proceed in court without your parents being represented.
Re: selling home
You're quite right, the earnest money should be paid to them. No need to prove fraud. You should certainly find another realtor. If I can be of further assistance to them, or to you, please feel free to contact me.
Sincerely,
Gerald Nordgren
Re: selling home
If they lied in applying for their loan or in some other part of the contract you may have a case against them. It may cost you more to sue them than its worth.
The earnest money cannot be released unless all parties agree to the release.
Please feel free to use these resources:
email: [email protected]
web: www.michelottilaw.com
blog: blog.michelottilaw.com
Re: selling home
You need to reprioritize. You need to focus on the foreclosure first, then worry about the earnest money.
The earnest money can only be released by court order or by mutual agreement of the parties.
The answer to the question concerning who gets the earnest money depends on a number of different things, including whether there was fraud, what the contract says concerning the earnest money and whether the buyer acted in good faith in the loan process.
You can and should change brokers. Borg Warner's attorney should not be counseling you and depending on all of the circumstances you may even have a cause of action against BW.
Good luck
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