Legal Question in Real Estate Law in New York
Certified check not accepted at real estate auction
I was the winner at a real estate auction. I submitted a certified check with the name of the referee (the coop itself) instead of the law firm. A coop board member was there and was willing to sign over the check. The auctioneer and attorney declined, and accepted a check from the second bidder who also didn't make the check out to the law firm, but herself. I think I had an acceptance, and substantially performed. Any thoughts?
2 Answers from Attorneys
Re: Certified check not accepted at real estate auction
READ THE DISCLAIMER AT THE END. IT'S IMPORTANT.
If you complied with the terms of sale made available before the time of the sale and the auctioneer knocked the property down to another, lower bidder, then you may very well have an enforceable claim to the property.
The remedy is an action to declare you to have been the successul bidder and to compel the seller to transfer the property to you. You would need to file a summons, complaint, and notice of pendency. You would most likely need an attorney to have a reasonable prospect of success.
Be careful. If you're not right, then filing the notice of pendency could backfire. While the imposition of sanctions is not automatic in these cases, you would be on very thin ice if you proceeded without the advice of counsel. (Advice of counsel is a defense to the claim for sanctions.)
READ THE DISCLAIMER THAT FOLLOWS. IT'S IMPORTANT:
This post is not legal advice and does not create an attorney-client relationship. It is a comment on the legal question posed by the poster and should not be relied upon unless and until an attorney-client relationship is entered into. Doing so would require signing an engagement letter and depositing a retainer to secure payment of legal fees.
Re: Certified check not accepted at real estate auction
Although you may have won the Auction Bid, You were apparently not able to make immediate and direct payment pursuant the "sellers" terms of sale. Had the "Seller" accepted the 3rd Party check, it would have been a "Courtesy," not a requirement.
Unless you were denied the opportunity or time, per the Auction Bid rules and terms, to make payment to the satisfaction of the "seller," then it is unlikely you would win an "enforcement" action.
Your Certified check to a third party for the third party "assignment" over to the Seller,
was merely evidence of your "intention" or "desire" to make payment.
Please note: certified checks can be stopped and dishonored. They can also give rise to "holder in due course" issues that create negotiation and collection issues or problems for the party accepting the check.
Consider your experience as a lesson learned.
Good luck,
Phroska L. McAlister,ESQ
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