Jonathan Kamens wrote:

Let me summarize all the details thus far as I understand
them....

The seller accepted your offer and then decided to accept a
better offer instead. He intentionally stalled the execution
of the P&S agreement with you until the deadline specified in
the offer had passed, then claimed that you were in violation
of the offer for failing to execute the P&S in time and
refused to refund your deposit. You demanded that he refund
the deposit as well as the cost of the inspector you hired,
because the failure to execute the P&S was his fault and he
was still legally bound to sell you the house. He agreed to
your demand and gave you a check, but then he stopped payment
on the check. You filed a small-claims case against him and
send him a letter notifying him of your intent to swear out a
criminal complaint based on him stopping the check. It is
not clear that he was ever notified about the small-claims
case, and in any case, Massachusetts courts can't force
someone out-of-state to show up in court. You never actually
swore out the criminal complaint, so he never received any
notification of that.

Boy, this guy really screwed you over. It seems rather clear
that he consciously, intentionally stole money from you with
the intent of leaving the state before you could do anything
to force him to pay it back.

There are various things you can do at this point, but if the
seller has really left the state, it is much less likely that
you will ever get your money back.

The first thing you should do is try to find out the seller's
new address. Perhaps he filed a change-of-address
notification with the post office, in which case sending an
envelope to him at his old address with your return address
and "address service requested" on it may prompt the postal
service to return the envelope to you with his new address on
it. You could also knock on the door of the house, tell the
people who bought it that you have some unfinished business
with the seller and ask them if he left a forwarding address.

If you can get the seller's new address, then you can notify
the small-claims court that he has moved and ask them to send
the trial notice to his new address rather than his old one.
While you're at it, you may also wish to ask them to add the
returned-check fee to the amount for which you are suing him.
Since you are suing about a tort that occurred in
Massachusetts, the Massachusetts small-claims court *does*
have jurisdiction even if he has moved out of state. The odds
are that he won't show up at the small-claims trial, which
means that after you briefly explain why you're suing, the
judge will rule in your favor. He'll then schedule a payment
hearing, about which the defendant will also be notified and
not show up. At your request, the judge at the payment
hearing will issue a capias warrant, i.e., a civil arrest
warrant, indicating that the defendant is in contempt of court
for not showing up at the payment hearing or paying the
judgment and allowing him to be arrested anywhere in
Massachusetts and brought to court to answer for his
contempt. You won't have your money at the end of all this,
but there will be an arrest warrant for the seller on record,
and furthermore, I believe that the judgment against him and
his failure to pay it will both show up (eventually) on his
credit report.

Call your local district attorney's office and ask what the
procedure is for swearing out a criminal complaint against
someone who stopped payment on a legitimate check to you and
then fled the state. If the amount is high enough, this may
qualify as a felony. If you have the guy's new address in
florida, give it to them; even if you don't, however, the
district attorney's investigators may be able to find it if
they decide that charges against the defendant are serious
enough that it's worth pursuing the case (unfortunately, they
can't pursue all criminal cases because of lack of resources).
Real estate fraud and check fraud are sufficiently big-deal
crimes that they may attempt to have him extradited from
Florida to stand charges in Massachusetts.

You may be able to place a lien against the guy's property
equal to the amount of your deposit, but I'm not sure it's
legal to do this after the house has changed ownership. You
will need to consult with an attorney about this, as well as
about whether it would be a good idea (it may not be, because
the buyers of the house may initiate legal proceedings
against you for the removal of the lien rather than helping
you get the money back from the seller).

You may be able to challenge the validity of the sale of the
house to the people who eventually bought it, because on the
fact that the seller accepted your offer, it was his fault
that the P&S was delayed, and "time is of the essence" was not
written in his acceptance letter. You will definitely need to
get a lawyer involved if you want to try this. It seems
likely that the cost of the legal work will exeed the amount
of money you've lost, so it probably isn't worth it, unless
you've got an airtight enough case that you think you can
compel the seller to reimburse you for your legal costs.

If you have the guy's new address, send him a letter and let
him know that all this is going on. For example... Tell him
about the capias warrant that will be issued against him.
Tell him that the judgment against him and his failure to pay
it will show up on his credit report. Tell him that
Massachusetts will be filing criminal charges against him for
fraud and he may very well be arrested in Florida and
extradited to stand charges here. Tell him that you are
investigating putting a lien on the property and/or
challenging the sale in court. And tell him that if he pays
you everything he owes you, i.e., the original deposit, the
inspector's fee, the small-claims fee, and the returned-check
fee, you will drop the small-claims case against him and
notify the district attorney that you have been recompensed
and no longer wish to press charges. They may choose to
proceed with the case even if you tell them you no longer wish
to press charges, but don't tell the seller that!

If you are currently working with a real estate agent to find
a house, you may wish to ask that agent for advice about what
to do in cases like this. The agent may have some knowledge
of your options and/or may be able to refer you to an
attorney who can advise you (frankly, the attorney you've
mentioned previously did not sound very good).

Good luck!


I'm curious. the original owner sold the house to the current occupents
(probably thru no fault of their own) under false pretenses. Assuming
that all is as the OP says, it seems likely that at some point he
can/will/may foul up the title to the property...it really does behove
the current owners to cooperate, even to the extent of filing their own
lawsuits to recover what this all may cost them. And then the mortgage
holder has to be a little concerned.