Why for Gods sake did you not follow the deadline specifically as lined out?
You are making a major purchase here.

Personally I think if you can prove that he intentionally delayed the
process you may have grounds to collect all the expenses but I am not a
Lawyer.

But look at it this way, you have experience now to guide you on your next
offer.

--
------------------------------
http://iBuyMinis.Us

"Saravana" wrote in message
om...
I am struck up in a strange situation. I made an offer to the seller
of the property he accepted it and I paid him the deposit. I did the
home inspection and we decided to sign the Sales & Purchase by 20 days
(that is June 29). The seller found a better offer and now he wantedly
made me to wait till June 29 and now he has come back saying that the
offer is not valid anymore because we didn't sign the Sales & Purchase
by the deadline. I don't know what to do with this person. He says he
can give me back the deposit but no home inspection cost.
Is the seller correct to say that the offer is not valid because the
Sales & Purchase was not signed by the deadline. Is he liable to pay
the inspection cost along with the deposit. What should I do further.
Any advice is highly appreciated

(Saravana) wrote in message . com...
I am struck up in a strange situation. I made an offer to the seller
of the property he accepted it and I paid him the deposit. I did the
home inspection and we decided to sign the Sales & Purchase by 20 days
(that is June 29). The seller found a better offer and now he wantedly
made me to wait till June 29 and now he has come back saying that the
offer is not valid anymore because we didn't sign the Sales & Purchase
by the deadline. I don't know what to do with this person. He says he
can give me back the deposit but no home inspection cost.
Is the seller correct to say that the offer is not valid because the
Sales & Purchase was not signed by the deadline. Is he liable to pay
the inspection cost along with the deposit. What should I do further.
Any advice is highly appreciated


Talk to a lawyer.

On 30 Jun 2003 03:49:17 -0700, (Saravana) wrote:

I am struck up in a strange situation. I made an offer to the seller
of the property he accepted it and I paid him the deposit. I did the
home inspection and we decided to sign the Sales & Purchase by 20 days
(that is June 29). The seller found a better offer and now he wantedly
made me to wait till June 29 and now he has come back saying that the
offer is not valid anymore because we didn't sign the Sales & Purchase
by the deadline. I don't know what to do with this person. He says he
can give me back the deposit but no home inspection cost.
Is the seller correct to say that the offer is not valid because the
Sales & Purchase was not signed by the deadline. Is he liable to pay
the inspection cost along with the deposit. What should I do further.
Any advice is highly appreciated

Can't say but next time always inspect the house after the contract is
signed with an escape clause regarding the inspection findings.


** remove .invalid from my email address to reply by email **

(Saravana) wrote in message . com...
I am struck up in a strange situation. I made an offer to the seller
of the property he accepted it and I paid him the deposit. I did the
home inspection and we decided to sign the Sales & Purchase by 20 days
(that is June 29). The seller found a better offer and now he wantedly
made me to wait till June 29 and now he has come back saying that the
offer is not valid anymore because we didn't sign the Sales & Purchase
by the deadline. I don't know what to do with this person. He says he
can give me back the deposit but no home inspection cost.
Is the seller correct to say that the offer is not valid because the
Sales & Purchase was not signed by the deadline. Is he liable to pay
the inspection cost along with the deposit. What should I do further.
Any advice is highly appreciated


Also DO NOT take your deposit back. He cannot sell the house to anyone
else as long as you do not explicitly release him from the contract!

1) Talk to a lawyer.

2) If the seller accepted your offer in writing, and his
written acceptance does not say "time is of the essence," then
he probably can't legally back out of the sale. However, if
you really want the house, you will probably need to get a
lawyer to make clear to him the fact that he is not going to
be able to back out of selling to you.

3) Even if his acceptance *does* say "time is of the essence,"
then he probably can't back out of the offer if you can prove
that the delay was instigated by him, not by you. Talk to a
lawyer.

4) If you decide it isn't worth the hassle of forcing the
seller to sell to you, it will probably be easier to at least
make it clear to him that he should reimburse you for all of
your expenses related to the deal if he doesn't want to spend
a lot of time and money fighting with your lawyer. Again,
talking to a lawyer will be useful.

5) A legal dispute over the seller's right to sell to someone
else would certainly have the potential of changing other
people's minds about whether to sell the house. Therefore, in
many states, the sellers agent would be obligated to disclose
the existence of this dispute to anyone else interested in
purchasing the house. It might therefore be a good idea for
you to send a certified letter to the seller's agent, spelling
out the nature of your dispute, the fact that said dispute
would have to be disclosed to any other potential buyers of
the property, and the fact that failing to disclose said
dispute might leave the agent vulnerable to legal action
and/or sanctions. It is likely that this would have the
effect of accelerating the resolution of your dispute.
However, you may wish to consult with a lawyer about whether
this is a good idea and, if so, the best way to go about it.

6) Talk to a lawyer.

7) Talk to a lawyer.

(Saravana) wrote:
What should I do further.

Get a lawyer. They're the ones that can look over the paperwork and
give you sound advice.

Regards,
Noal

On 30 Jun 2003 03:49:17 -0700,
(Saravana) wrote:

I am struck up in a strange situation. I made an offer to the seller
of the property he accepted it and I paid him the deposit. I did the
home inspection and we decided to sign the Sales & Purchase by 20 days
(that is June 29). The seller found a better offer and now he wantedly
made me to wait till June 29 and now he has come back saying that the
offer is not valid anymore because we didn't sign the Sales & Purchase
by the deadline. I don't know what to do with this person. He says he
can give me back the deposit but no home inspection cost.
Is the seller correct to say that the offer is not valid because the
Sales & Purchase was not signed by the deadline. Is he liable to pay
the inspection cost along with the deposit. What should I do further.
Any advice is highly appreciated


What does your attorney suggest you do?

Don't have an attorney? Better get one (knowledgable in local real
estate practices) quick!

On 30 Jun 2003 03:49:17 -0700,
(Saravana) wrote:

I am struck up in a strange situation. I made an offer to the seller
of the property he accepted it and I paid him the deposit. I did the
home inspection and we decided to sign the Sales & Purchase by 20 days
(that is June 29). The seller found a better offer and now he wantedly
made me to wait till June 29 and now he has come back saying that the
offer is not valid anymore because we didn't sign the Sales & Purchase
by the deadline. I don't know what to do with this person. He says he
can give me back the deposit but no home inspection cost.
Is the seller correct to say that the offer is not valid because the
Sales & Purchase was not signed by the deadline. Is he liable to pay
the inspection cost along with the deposit. What should I do further.
Any advice is highly appreciated


What does your attorney suggest you do?

Don't have an attorney? Better get one (knowledgable in local real
estate practices) quick!

On 30 Jun 2003 03:49:17 -0700, someone wrote:

I am struck up in a strange situation.cut. What should I do further.
Any advice is highly appreciated

What does you attorny say? The time to consult a lawyer is *before*
you sign and pay the deposit. We see many posts here that are after
the fact, asking for legal advise.


-v.

On 30 Jun 2003 03:49:17 -0700, someone wrote:

I am struck up in a strange situation.cut. What should I do further.
Any advice is highly appreciated

What does you attorny say? The time to consult a lawyer is *before*
you sign and pay the deposit. We see many posts here that are after
the fact, asking for legal advise.


-v.

On 30 Jun 2003 03:49:17 -0700, someone wrote:

I am struck up in a strange situation.cut. What should I do further.
Any advice is highly appreciated

What does you attorny say? The time to consult a lawyer is *before*
you sign and pay the deposit. We see many posts here that are after
the fact, asking for legal advise.


-v.

wrote in message . com...
(Saravana) wrote in message . com...
I am struck up in a strange situation. I made an offer to the seller
of the property he accepted it and I paid him the deposit. I did the

Talk to a lawyer.

Talk to a lawyer. WHY? Just move on to the next house. By the time you
get a lawyer involved the house is sold and no one will care about
your pitty problems.

(Gary) writes:
Talk to a lawyer. WHY? Just move on to the next house. By the time you
get a lawyer involved the house is sold and no one will care about
your pitty problems.

First of all.... There aren't that many houses on the market.
It's hard to find one you want at a price you're willing to
pay. It can take a very long time. Walking away from an
almost done deal on a house that one was willing to buy is not
a small thing.

Second.... Quite frankly, a seller should not be allowed to
get away with welching on a deal. That's just reprehensible
conduct. I think it's perfectly reasonable, therefore, for
the potential buyer who was screwed to do what he can to make
the buyer's life difficult. He deserves it.

On 7 Jul 2003 05:54:07 -0700, (Gary) wrote:


Talk to a lawyer. WHY? Just move on to the next house. By the time you
get a lawyer involved the house is sold and no one will care about
your pitty problems.


"By the time....etc...." Do you have any idea about what you are
saying? If the OP contacted a lawyer and got him/her on the case, it
probably is already resolved by now! Have you any idea what is
involved in hunting for a house that you can live in at a price you
are willing to pay?

"Saravana" wrote in message
om...
: I am struck up in a strange situation. I made an offer to the seller
: of the property he accepted it and I paid him the deposit. I did the
: home inspection and we decided to sign the Sales & Purchase by 20 days
: (that is June 29). The seller found a better offer and now he wantedly
: made me to wait till June 29 and now he has come back saying that the
: offer is not valid anymore because we didn't sign the Sales & Purchase
: by the deadline. I don't know what to do with this person. He says he
: can give me back the deposit but no home inspection cost.
: Is the seller correct to say that the offer is not valid because the
: Sales & Purchase was not signed by the deadline. Is he liable to pay
: the inspection cost along with the deposit. What should I do further.
: Any advice is highly appreciated

More than likely, your jurisdiction will allow you to sue for
non-performance.
Good Luck :-\
(This was an interesting and well-covered legal topic in the RE Licensing
classes I took a few years ago.)

Before you get ridiculous about it, stop & *think* for a few hours --
### Add up **ALL** of the costs of a suit.
### Consider the *time* involved (don't forget the inevitable delays and
continuances).
### Consider the enormous amount of non-compensable time *you* will lose on
the process.
### Consider the costs *you'll pay* if you fail to prove your case.

And, should you actually "win",
### consider the condition the property might be in once you "get it" by
winning a suit to force the seller to sell to you --
### and then consider just how you're going to *prove* that the roof
wouldn't have caved in on your bed had you never had to sue for
non-performance in the first place.

Yes, there are laws and supporting case law to enforce contracts and
intents.
But so what?
Are your hurt feelings / Sour Grapes really worth all of the
self-destructive energy ?
--
Steve
www.ApacheTrail.com/ww/
Mesa, AZ
Penury Is the Mother of Invention

The case is back now. The seller who gave me a check for the deposit
money has put a stop payment on it and says he will not be able to
give me back the money because the Sales & Purchase was not done
within the deadline. SUmmarizing what happened
I made an offer on a property for x$. I paid 500$ deposit on it. I did
home inspection for 300$ and the issues that came up during the
inspection were very minor and I agreed to take care of it. I was
waiting for the seller to give me the Sales & Purchase. The seller
said he is waiting on the date for the other property (which he was
planning to buy) and once he knows it we will sign the S&P. He dragged
me till the deadline date we put in the offer letter and then came
back and said the offer is not valid anymore because we have crossed
the deadline. Mad at him I spoke with an attorney and the attorney
said he has to either sell the house (or) pay me back the home
inspecton+deposit. The seller gave me both the check but now has put a
stop payment on it. When I asked him why, he says since we didn't do
S&P by deadline I am not elgible for the money. Added to it he says
the buyer has to do the S&P.

So now first I would like to know, should the buyer be doing S&P, is
there any written rules like that. And the next question would be what
should I do now?

Any kind of advice is highly appreciated.

Thanks
Saravana

(Saravana) writes:
So now first I would like to know, should the buyer be doing S&P, is
there any written rules like that. And the next question would be what
should I do now?

Obviously, what you should do now is go back to the attorney with whom
you previously spoke and ask him to commence legal action against the
seller to get back your money.

Did you follow any of the other advice that was recommended to you in
this newsgroup? I'm not going to repeat it all; go back and read it
again if you don't recall. However, one thing that stands out in my
mind is a conversation I suggested you have with the seller's agent;
did you have that conversation?

There are no seller/buyer agents involved in this real estate. This
was an "For sale by owner". I(buyer) was dealing directly with the
seller. I have already spoken to my previous attorney and he has
suggested me to file a case in local city court. But the issue is, it
seems it will take 6 months for the case to come to trial. I am very
much surprised that I cannot do anything to get atleast my money back
now.

Saravana

In article , Saravana wrote:
I have already spoken to my previous attorney and he has suggested
me to file a case in local city court. But the issue is, it seems it
will take 6 months for the case to come to trial. I am very much
surprised that I cannot do anything to get atleast my money back
now.

Small claims court shouldn't take you 6 months (I think it's typically
30 to 60 days from the date you file, to allow time for the summons),
and you should be well under the small claims limit.

Did your lawyer mention small claims court?

Ed

I did drop by the small claim court (Taunton MA) and got the
application. I may have to file a claim against the seller. They say
it takes 3 months for the case to come to trial.

Saravana

Ed Blackman wrote in message ...
In article , Saravana wrote:
I have already spoken to my previous attorney and he has suggested
me to file a case in local city court. But the issue is, it seems it
will take 6 months for the case to come to trial. I am very much
surprised that I cannot do anything to get atleast my money back
now.

Small claims court shouldn't take you 6 months (I think it's typically
30 to 60 days from the date you file, to allow time for the summons),
and you should be well under the small claims limit.

Did your lawyer mention small claims court?

Ed

(Saravana) writes:
But the issue is, it
seems it will take 6 months for the case to come to trial. I am very
much surprised that I cannot do anything to get atleast my money back
now.

Why are you surprised? The seller is apparently a dirtbag who is
trying to steal money from you. When you get into that situation with
someone, frequently taking them to court is the only way to resolve it.
And taking people to court can take a long time.

Incidentally, you might wish to let the seller know that writing a
check and then stopping payment on it when the circumstances
surrounding that check have not changed is illegal, and in fact in many
jurisdictions it is a criminal matter, not a civil matter. I suggest
you pay a visit to your local courthouse and ask a court magistrate
there if you can swear out a criminal complaint against someone who
wrote you a check and then put a stop-payment order on it. If he says
yes, contact the seller and tell him you will do just that unless he
gives you a bank check for the full amount he owes you (plus the fee
your bank charged you for depositing the stopped check, if you did in
fact discover that it was stopped by trying to deposit it).

Ed Blackman writes:
Small claims court shouldn't take you 6 months (I think it's typically
30 to 60 days from the date you file, to allow time for the summons),
and you should be well under the small claims limit.

Alas, the Massachusetts court system is completely overwhelmed right
now because so many clerks have been laid off. I filed several
small-claims cases in July 2002 and their hearings weren't even
scheduled for several months; when they were finally scheduled, they
were in January 2003, almost six months later.

(Saravana) writes:
By law, who is suppose to do Sales & Purchase agreement.

The law says nothing about who prepares the P&S. Seller, buyer,
seller's attorney, buyer's attorney, seller's agent, buyer's agent,
whatever, it doesn't really matter, as long as it's in the correct
format.

Well, OK, that's not *entirely* true, because an agent preparing the
P&S might constitute practicing law without a license. But a party to
a written agreement can't be charged with that, so it makes no
difference whether the buyer or seller prepares it.

If the P&S isn't sign by the date specified in the offer letter and/or
acceptance letter, then the issue isn't who was "supposed to prepare"
the P&S, but rather who was responsible for the delay which prevented
the P&S from being signed by the deadline. There is ample precedent
that if the seller caused the delay, he cannot then back out of the
deal because of it, and he *certainly* can't refuse to return your
deposit.

The seller clearly does not have the law on his side. The problem is
that taking him to court could be expensive if you use a lawyer, and
you may not be awarded legal fees even if you win. If you decide to
represent yourself in small-claims court, you need to be able to
present your case accurately and eloquently; if your oral English
skills are as refined as your written ones, this may be a problem.

One possibility to look into is suing him for double or triple damages
for what is essentially fraud. If this were feasible, you would be
able to recoup the cost of the lawsuit.

Also -- you mentioned that you've spoken to an attorney, but does the
seller know that? Frequently, a letter to the offending party from a
lawyer, on the lawyer's letterhead, making it clear that the aggrieved
party is aware that the law is on his side and intends to pursue legal
action, is sufficient to shake loose the money that is owed. In other
words, it may be worthwhile for you to pay a lawyer for an hour of his
time to fire off a quick missive to the guy who's jerking you around
and make it clear to him that if he doesn't pay up, he's going to be
facing some hefty legal bills.

Also -- you mentioned that you've spoken to an attorney, but does the
seller know that? Frequently, a letter to the offending party from a
lawyer, on the lawyer's letterhead, making it clear that the aggrieved
party is aware that the law is on his side and intends to pursue legal
action, is sufficient to shake loose the money that is owed. In other
words, it may be worthwhile for you to pay a lawyer for an hour of his
time to fire off a quick missive to the guy who's jerking you around
and make it clear to him that if he doesn't pay up, he's going to be
facing some hefty legal bills.

Speaking of lawyers, is there any way that the would-have-been buyer could have
a lawyer put a lien on the house for the amount of money he's owed back by the
seller since the money involves the house?

I once had a friend threaten to do that and it seemed to work. She wanted to
buy a house and had put down earnest money. The seller backed out, saying a
brother-in-law of his wanted to buy the house and there would be family trouble
if he didn't sell to the brother-in-law. That was OK with her, but then the
seller also wanted to keep the earnest money. That *wasn't* OK with her.

She told the seller that she would put a lien on the house for the amount of
her deposit so that *nobody* would be buying the house until the issue was
settled. So, she told him, she hoped he wanted to live a long full life in
that house with her money.

I have no idea whether she could have actually gone thru with the lien idea or
not but she had her money back within a couple of weeks.

So would this be an option for the original poster or, if my friend had tried
to do it, would she have been unsuccessful in trying to put a lien on the
house?

Cindy

Quoting
"If you decide to
represent yourself in small-claims court, you need to be able to
present your case accurately and eloquently; if your oral English
skills are as refined as your written ones, this may be a problem."


I am not sure I understand you. Should I be more descriptive when I
goto small claims court? Could you guide me in this regard.

Thanks
Saravana

(Saravana) writes:
I spoke with my attorney who had tried to call this seller and left
him a voice message and the seller has not responded for the last 2
days.

A voice-mail message? I'm not sure that an attorney who thinks that a
voice-mail message is an appropriate way to notify someone of impending
legal action is an attorney worth retaining. Usually, such
notifications are sent via certified mail with the recipient required
to sign for the letter.

So I decided to file a case in my district court for small
claims. It was pretty simple and costed me 40$. The case has been
posted for end of September.

$40? Wow, they've more than doubled the fee. I guess Massachusetts
is looking to drum up cash any way it can.

I have proof of the offer letter, the returned checks and email which
I have sent him that clearly states that he will do the Sales &
Purchase. I hope that should be sufficient to get justice.

Small-claims court is a crap-shoot. You may get a judge who knows
enough about real-estate law to know that the seller is in the wrong,
and you may not, in which case you either have to hope that his common
sense tells him you're right, or you have to go into the hearing
prepared to present a legal case in addition to the evidence you've
listed. It would be useful for you to do some research so that you are
armed with the citations of precedent-setting Massachusetts cases.
There are three relevant concepts here -- (1) a seller cannot back out
of a deal using delays which he caused as a justification; (2) if an
offer acceptance letter does not say "time is of the essence," a seller
usually cannot back out of a deal merely because a written deadline has
passed if the buyer is still interested in closing the deal; (3) it's
illegal, both civilly and criminally, to stop payment on a check when
the circumstances surrounding the writing of that check have not
changed.

If you do not feel qualified to do the research necessary to arm
yourself with precedents related to these concepts, then you may wish
to reconsider your plan to represent yourself in small-claims court.

I have sued him for the offer deposit+home inspection cost+2 days
pay(since I had to take two days off after this frustrating incident).
Is this correct?

Even if the clerk or judge hearing the case agrees that you are owed
the deposit and home inspection cost, he may choose not to award you
the lost wages, but it doesn't hurt to ask. You should be sure to
bring with you proof of employment and of how your wages are calculated
so that you can prove the amount if the defendant challenges it. You
may also wish to ask your employer to provide written confirmation that
you would have been working on the days you missed to handle all of
this.

And also if anyone has experience in small claim
court please advice on how it works? Any help is highly appreciated?

Read the stuff they gave you and/or sent you when your trial was
scheduled. If they didn't give you information, then go find it at
http://www.state.ma.us/. It isn't any more complicated than what's
written in the documentation they provide.

I am not sure. I assumed I can call back the district court few weeks
before the case and find it out. If that is not the case then I need
to give little thought on what can be done.

Saravana

(Jonathan Kamens) wrote in message ...
(Saravana) writes:
However if I
find that the defendant is hiring a lawyer I will have to change my
decision.

And how will you find that out? The defendant is under no
obligation to notify you that he will have a lawyer at the
hearing. If he's smart, he'll keep that fact to himself so
as to catch you off-balance.

wrote in message . ..
On 7 Jul 2003 05:54:07 -0700, (Gary) wrote:

"By the time....etc...." Do you have any idea about what you are
saying? If the OP contacted a lawyer and got him/her on the case, it
probably is already resolved by now! Have you any idea what is
involved in hunting for a house that you can live in at a price you
are willing to pay?

I know I am smart enough not to live in an area where your life
revolves around the purchase of a single home.

Thanks for that clarification. I have already filed a case in the
small claims court. Yesterday I had called the local district office
to check if the "check - stop payment and check- insufficient fund" is
a crminal offense and they said yes. So I have sent them a certified
mail that if they don't send me the check for the full amt + bank
return fee within 7 days a criminal case will be filed. Thanks for
your suggestion earlier in this posting. I appreciate your help.
Is it ok to file the a case in both civil and criminal court at the
same time?
Just curious to know.

Saravana

(Jonathan Kamens) wrote in message ...
(Saravana) writes:
I am not sure. I assumed I can call back the district court few weeks
before the case and find it out. If that is not the case then I need
to give little thought on what can be done.

Your assumption is incorrect. The defendant is under no
obligation to notify the court that he will be represented by
an attorney at the hearing. All he needs to do is show up
with or without an attorney.

(Saravana) writes:
So I have sent them a certified
mail that if they don't send me the check for the full amt + bank
return fee within 7 days a criminal case will be filed.

You need to be careful about your wording. A private citizen
cannot file criminal charges. All you can do is swear out a
complaint to the police or a clerk magistrate, and then they
make the determination of whether there is sufficient grounds
for criminal charges and whether or not they will be filed.
Sometimes they will disagree that there are grounds for
charges; sometimes, even though there are grounds, they will
choose not to prosecute.

Thanks for
your suggestion earlier in this posting. I appreciate your help.
Is it ok to file the a case in both civil and criminal court at the
same time?

Yes.

If I were you, I would have demanded in my letter that they
reimburse you for the small-claims filing fee in addition to
the other amounts you mentioned. Now, if they send you the
money you demanded in the letter, you probably won't be able to
get them to reimburse you for the small-claims fee, so that
money is lost.

I found that the seller(defendant) has moved out of the state to
Florida and sold the house to someone already.
What happens now? I know the small claims court will send two mails to
the seller -
certfied and regular. The certified is bound to return back and the
regular may reach the seller
provided he has address forwarding.
Will the case come to trial now?

Also the notice I served the seller for criminal action is not yet
picked up by the seller from the postoffice.
The postoffice has tried couple of times to deliver it and left
notices but no response. I think the post office
will wait for another week before the mail is returned to the sender.

Is there anything I can do now? Has the seller made his escape from
this case?

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!

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.

Always More Questions writes:
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...

Yes, this is possible, but it really should be pursued as a
last resort, because the amount of hassle involved in
something like this is huge, the legal bills would be quite
high, and it might be an unsuccessful effort.... The OP's
agreement to relinquish the right to buy the house in exchange
for reimbursement of his deposit and inspection costs may have
released any claim he had on the title. The fact that the
seller subsequently stopped the check and then skipped town is
a different issue. While it may be actionable, it's likely
that it doesn't actually cloud the title.

Thank you Jonathan Kamens. Your advice is highly appreciated. I will
try to find his address and that would be my next step in this case. I
am hoping that my criminal notice for this person will return unless
he has fwd request turned on. I will also try to stop by at the
property and get information regarding the seller from the new buyer.

Saravana