D
davidh90046
Guest
What is the name of your state? California (getting sued - where else?)
Thanks in advance for any advice/info y'all can provide... Here's the deal:
I am selling my home and received an offer from a prospective buyer. His initial offer was unacceptable, so I responded with a Counter Offer in which I listed eight (8) additional terms dealing with purchase price, close date, etc. (FYI, all documents referenced herein are standard California Association of Realtors forms.)
One of the terms of my Counter Offer stated that escrow was to close XX days FROM ACCEPTANCE and required the Buyer to pay a per-day "penalty" should escrow extend beyond the date specified.
On the day the Counter Offer was to expire, my Agent called to tell me that the Buyer's agent had contacted her and told her that his client was signing the Counter Offer, but that he had a small change regarding the close date. My agent said she had told the Buyer's Agent that she didn't think the change would be a problem -- I interrupted her, telling her that, while she may be right in the end, I was not prepared to agree to ANYTHING unless and until I had the actual document in-hand. She reassured me that she had told the Buyer's Agent that she could not, of course, speak on my behalf, and that it was understood that I would have to approve any change in the terms of the agreement.
The Buyer signed and returned the Counter Offer later that evening and, as expected, he included an additional term: it changed the close of escrow to XX days after OPENING OF ESCROW, and specified a date on which escrow was to be opened. This change could potentially amount to a difference of several thousand dollars less money to me.The new term was handwritten in the same space provided for my terms, labeled as item number "9", and was initialed by the Buyer.
I had an appointment to show the house (my Agent was busy) on the evening the Counter Offer was faxed to my agent. I told my Agent that I would consider the change and call her after the appointment to meet and check out the actual document. As it turned out, the new prospective buyer loved the house and wrote an offer (much higher and "cleaner") on-the-spot.
When notified of the new offer, the first Buyer's Agent left a scathing voicemail for my Agent, saying that as far as his client was concerned, we had a deal, and threatened legal action unless I sold my home to him. Until that time, I had not yet decided what I would do; I had not yet seen the actual response to my Counter Offer (it had only been described to me on the phone), and at the time, I still *thought* the Buyer was a pretty nice guy. I didn't want to just sell to someone else without first trying to work out a deal with him.
But once threats of legal action started flying, I knew that this was not a transaction I wanted anything to do with. I try to steer clear of anyone whose first response is to sue, and to me, the Buyer's response foretold a nightmare escrow and closing, should I agree to his additional term and enter into a binding agreement.
I instructed my Agent to inform the Buyer's Agent that his Counter Offer with the added term was NOT accepted, and that I was not interested in further negotiations.
The Buyer (just my luck, he's a lawyer) has responded by attempting to open escrow using the contract I rejected. The escrow company called me and I told them that the contract was never fully-executed and is invalid. The Buyer then sent me a letter in which he threatened to sue for specific performance and monetary damages, and also stated his intent to file a lis pendens on my home to prevent me from selling to anyone else.
I'm not a lawyer, but I thought that, unless the Buyer accepted my Counter Offer as tendered, we didn't have a valid contract. I thought that, by sending back the Counter Offer with an added term, the Buyer was essentially REJECTING my Counter Offer and proposing a new one, which I would then need to sign/initial before it could be considered "final".
But I'm worried, because the Buyer didn't submit a Counter-Counter Offer as a separate document -- he simply added another term to my Counter Offer, initialed the change, and signed in the appropriate space. Thus, the document bears both my signature (as the original offerer) and his, and it appears he's trying to fraudulently use this as evidence of a completed contract, despite the absence of my initials next to the additional term. (I still have the original Counter Offfer that was sent to him, on which the added term #9 does NOT appear.)
So what can I do? Is there any way to stop him from filing suit? There are both mediation and arbitration clauses in the original offer, but they allow for fliling of a lawsuit in order to record a lis pendens, so it appears that he could very well prevent me from selling my home, at least for a while.
I can't afford to have this drag out for months or years. I really need to sell my home, and the second buyer is ready-to-go. Unfortunately, my financial position is such that any delay in closing may result in my losing the home entirely, as well as suffering other (substantial!) monetary damages. Are there any FAST ways to resolve this? Is it possible to get a declaratory judgment that the contract is invalid, perhaps on an emergency, ex-parte basis? The only thing I absolutely will NOT do is sell to this joker, even if it means financial ruin for me.
Please help!
David
Thanks in advance for any advice/info y'all can provide... Here's the deal:
I am selling my home and received an offer from a prospective buyer. His initial offer was unacceptable, so I responded with a Counter Offer in which I listed eight (8) additional terms dealing with purchase price, close date, etc. (FYI, all documents referenced herein are standard California Association of Realtors forms.)
One of the terms of my Counter Offer stated that escrow was to close XX days FROM ACCEPTANCE and required the Buyer to pay a per-day "penalty" should escrow extend beyond the date specified.
On the day the Counter Offer was to expire, my Agent called to tell me that the Buyer's agent had contacted her and told her that his client was signing the Counter Offer, but that he had a small change regarding the close date. My agent said she had told the Buyer's Agent that she didn't think the change would be a problem -- I interrupted her, telling her that, while she may be right in the end, I was not prepared to agree to ANYTHING unless and until I had the actual document in-hand. She reassured me that she had told the Buyer's Agent that she could not, of course, speak on my behalf, and that it was understood that I would have to approve any change in the terms of the agreement.
The Buyer signed and returned the Counter Offer later that evening and, as expected, he included an additional term: it changed the close of escrow to XX days after OPENING OF ESCROW, and specified a date on which escrow was to be opened. This change could potentially amount to a difference of several thousand dollars less money to me.The new term was handwritten in the same space provided for my terms, labeled as item number "9", and was initialed by the Buyer.
I had an appointment to show the house (my Agent was busy) on the evening the Counter Offer was faxed to my agent. I told my Agent that I would consider the change and call her after the appointment to meet and check out the actual document. As it turned out, the new prospective buyer loved the house and wrote an offer (much higher and "cleaner") on-the-spot.
When notified of the new offer, the first Buyer's Agent left a scathing voicemail for my Agent, saying that as far as his client was concerned, we had a deal, and threatened legal action unless I sold my home to him. Until that time, I had not yet decided what I would do; I had not yet seen the actual response to my Counter Offer (it had only been described to me on the phone), and at the time, I still *thought* the Buyer was a pretty nice guy. I didn't want to just sell to someone else without first trying to work out a deal with him.
But once threats of legal action started flying, I knew that this was not a transaction I wanted anything to do with. I try to steer clear of anyone whose first response is to sue, and to me, the Buyer's response foretold a nightmare escrow and closing, should I agree to his additional term and enter into a binding agreement.
I instructed my Agent to inform the Buyer's Agent that his Counter Offer with the added term was NOT accepted, and that I was not interested in further negotiations.
The Buyer (just my luck, he's a lawyer) has responded by attempting to open escrow using the contract I rejected. The escrow company called me and I told them that the contract was never fully-executed and is invalid. The Buyer then sent me a letter in which he threatened to sue for specific performance and monetary damages, and also stated his intent to file a lis pendens on my home to prevent me from selling to anyone else.
I'm not a lawyer, but I thought that, unless the Buyer accepted my Counter Offer as tendered, we didn't have a valid contract. I thought that, by sending back the Counter Offer with an added term, the Buyer was essentially REJECTING my Counter Offer and proposing a new one, which I would then need to sign/initial before it could be considered "final".
But I'm worried, because the Buyer didn't submit a Counter-Counter Offer as a separate document -- he simply added another term to my Counter Offer, initialed the change, and signed in the appropriate space. Thus, the document bears both my signature (as the original offerer) and his, and it appears he's trying to fraudulently use this as evidence of a completed contract, despite the absence of my initials next to the additional term. (I still have the original Counter Offfer that was sent to him, on which the added term #9 does NOT appear.)
So what can I do? Is there any way to stop him from filing suit? There are both mediation and arbitration clauses in the original offer, but they allow for fliling of a lawsuit in order to record a lis pendens, so it appears that he could very well prevent me from selling my home, at least for a while.
I can't afford to have this drag out for months or years. I really need to sell my home, and the second buyer is ready-to-go. Unfortunately, my financial position is such that any delay in closing may result in my losing the home entirely, as well as suffering other (substantial!) monetary damages. Are there any FAST ways to resolve this? Is it possible to get a declaratory judgment that the contract is invalid, perhaps on an emergency, ex-parte basis? The only thing I absolutely will NOT do is sell to this joker, even if it means financial ruin for me.
Please help!
David