More details to this question:
The seller backed out of escrow once he saw the appraisal for the home came in at much more than we agreed upon. This happened after I wired the money into escrow and signed the papers. I've won $1k in small claims for fees paid (and won his recent appeal). I have not signed the escrow cancellation agreement to return the escrow fees because of the "hold harmless" cause. He's since sold the condo so I am going to have a hard time collecting since I cant put a lien on the property. I am owed $3,000 from escrow (including the earnest funds) I've been told the only way to get the fees back without signing is to get a court order. Does this court order come from small claims? And do I sue the seller to return the money or the title company? I did not sign the mediation clause in the contract.
1 ANSWER
You only get to sue the seller once. If you have already sued him and won, you can't sue him again.
In order to advise you about the escrow cancellation instructions, a lawyer would need to read them. A hold harmless in favor of the escrow company is common and appropriate. The hold harmless should not cover the seller. The hold harmless will include a long list of people it covers. Some categories might inlcude the seller.
Most commercially printed purchase and sale agreements which contain a mediation clause do not require a separate signature for the mediation clause. Those clauses are enforceable. Typically, if you don't ask for or agree to mediation before filing a lawsuite, you lose the right to recover your legal fees and expenses. In negotiations, that means you are at risk of having to reimburse the other side for their legal fees, but they are not at risk of paying yours.
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Dana Sack
Answered on Mar 28th, 2017 at 9:59 AM