My jurisdiction is: Kentucky - Tennessee
Hello,
In 2007 I entered into a Lease Purchase agreement in order to buy a home located in the state of Kentucky. The owner, who lives out of state, hired a Realtor located in Tennessee to sell the home. The Lease Purchase contract was for two years and I put a 5000.00 payment into escrow with the same Realtor acting as the "holder". Approximately 6 months later the home was heavily damaged in a tornado with extensive water and structural issues.
The problems began when the Realtor sent out an uninsured "handyman" to place a tarp over a gaping hole in the roof. The tarp quickly blew off and after a dozen phone calls to both the Realtor and the handyman, which went unanswered over the course of a week, I ended up having to go up on the roof myself and fasten another tarp down to protect my interests. No one ever came out again to make repairs, I did not have the owner's contact information so I couldn't get any help from them. I made numerous repairs and clean up as time went on.
The contract stated that if an act of God should happen to occur resulting in more than 10% of the purchase price in damages, either party could opt out of the contract with all earnest monies returned to the buyer. An insurance appraiser, I assume representing the owner, came out and informed me of the cost of repairs which were clearly over the 10% threshold - I never seen that in writing however nor was I ever able to get an estimate although I did contact three General Contractors. The appraiser also told me that if the damages were more than 15,000.00 dollars (and in his estimation they were) then a licensed and insured General Contractor would be required to make repairs.
Since I was getting nowhere getting repairs made, and two weeks had passed, I contacted an attorney to represent me in a "negotiation" process. I still wanted to buy the house, so I made a generous offer to help coordinate repairs and continue to pay the "occupancy payment" although at a reduced rate until repairs were fully made. My other stipulation was that an insured and licensed General Contractor be retained. Three letters sent certified mail via my attorney to the Realtor and to the owners per an address I had discovered on the internet, went unanswered. A fourth letter sent out made clear that I was wanting out of the contract, per the stipulation I previously noted, and would like my earnest monies returned. A phone call made to my attorney by the owners confirmed they had received the letters and made it clear they would not return my earnest money and in fact wanted to know where my rent payment was. (at this time, about 10 days into the next month, I had not sent the occupancy payment due to the unrepaired damages and lack of a reply to my letters)
The Realtor, the only plaintiff apparently acting per the Property Management contract he had signed with the owners, attempted to have me evicted from the property by taking me to court in the state of Kentucky where the property was located. This "forcible detainer" action was thrown out based on the Lease Purchase contract which clearly stated no Landlord/Tenant relationship had existed therefore I was not a tenant. This same Realtor along with the owners as a plaintiff, then followed up with a lawsuit in the circuit court asking for a Writ of Possession and monetary damages including lawyer fees as I had breached the contract by not paying the occupancy payment.
Here's where it gets sticky, the Lease Purchase contract clearly stated - I'm talking a four year old could read it - that if there was any dispute or claim of breach of contract that Tennessee law would prevail in venue located in the state of Tennessee. Why ??? I assume because the Realtor was located in Tennessee and he used a standard form printed by the Tennessee Board of Realtors. In my layman's opinion the contract could of stated that the laws of Timbuktu would apply - if that's what the contract says and all parties agreed to that and signed the contract, then so be it. For me this was very important, the attorney I retained to negotiate on my behalf I found in Tennessee and was licensed only to practice in Tennessee.
Mind you my attorney and I are kicking around the wording for a lawsuit against these guys weeks before the owners/realtor filed their lawsuit in Kentucky. I file a breach of contract lawsuit in Tennessee against the owners, and several issues towards the Realtor based upon a dual agency agreement which he violated by sharing confidential information amongst other things. So, here I am forking out cash to an attorney in Tennessee to represent me in my complaint filed against the owners, and I'm being forced to retain another attorney in Kentucky to represent me as a defendant to their lawsuit filed in Kentucky. My guy argues that Kentucky doesn't have jurisdiction because we are not claiming any rights to the property, this is a breach of contract case. The Kentucky judge declares he has In rem jurisdiction because I'm still living in the house which is located in his state.
He would later rule that I had to make the full amount in occupancy payments, including back payments, to a fund set up by the court. These monies would be used as an award to the plaintiffs should they win their lawsuit. He also ruled that I was to be deposed via a court order. After informing me that the plaintiffs attorney and the presiding judge were in each other's wedding and were old pals, my Kentucky attorney writes an eloquent and very judge friendly motion asking him to reconsider as claiming In rem jurisdiction based upon property rights may keep him from having any jurisdiction over me, a person. On the morning of our court date to hear our motion I received a phone call from my lawyer's firm informing me that my Kentucky lawyer had taken his own life over the Thanksgiving holiday and they would no longer be representing me - I wouldn't believe this whole fiasco if it hadn't actually happened to me.
So, what to do ??? Based upon the recommendation of my Tennessee attorney I moved out of the residence so there could be no question about property rights, all told I'm out over over 20,000 dollars in escrow, repairs, improvements, and lawyer fees. I got a judge in Kentucky giving me orders, I no longer live in the state, and I have no confidence in any local Kentucky attorney in this "Mayberry" town to fight on my behalf with the same gusto and cleverness that the poor chap who took his own life showed. Calls to more "metropolitan" areas resulted in frank talk about a "shakedown" and the ol' ....."it ain't whatcha know but who you know" which leaves me with absolutely no confidence that this litigation in Kentucky could ever be resolved in my favor. At this point it seems that I can either walk away and let them try to collect a judgement, or let the chips fall where they may and fork out some more cash in pursuit of an appeal hopefully in front of another judge if not in another county.
My complaint in Tennessee - in a much more metropolitan area in a court system where uncontested divorces aren't being heard for 6 months - is being countered by the owner and Realtor's attorneys informing the judge that the case is being heard in Kentucky.....that sure isn't helping my cause any.
So, I'm left wondering......
Can I get any money out of the Realtor ?? What's he doing on the Kentucky lawsuit anyways, he doesn't own the house. On their reply to my answer their attorney clearly states that the Realtor made a mistake by using a Tennessee contract and they're asking the judge to throw it away. Shouldn't this lend weight to my lawsuit in Tennessee, if the Realtor made a mistake then is their some sort of fund or insurance that can pay me for my loss ?? Who can be contacted about what I believe to be a serious case of bias by this Kentucky judge, I'm not gonna win any friends but why hasn't this guy dismissed their lawsuit since I'm no longer in the house and the contract was written up by the plaintiffs ???
Lastly, I'm going to a deposition of the Realtor, any topics of discussion that anyone can suggest that might help "discover" more information that I can use to bolster my case - I'm not familar with Real Estate law and as time goes by I'm not so sure my Tennessee attorney is either.
Sorry to be so long winded, but there's alot of facts 'mam......
Hello,
In 2007 I entered into a Lease Purchase agreement in order to buy a home located in the state of Kentucky. The owner, who lives out of state, hired a Realtor located in Tennessee to sell the home. The Lease Purchase contract was for two years and I put a 5000.00 payment into escrow with the same Realtor acting as the "holder". Approximately 6 months later the home was heavily damaged in a tornado with extensive water and structural issues.
The problems began when the Realtor sent out an uninsured "handyman" to place a tarp over a gaping hole in the roof. The tarp quickly blew off and after a dozen phone calls to both the Realtor and the handyman, which went unanswered over the course of a week, I ended up having to go up on the roof myself and fasten another tarp down to protect my interests. No one ever came out again to make repairs, I did not have the owner's contact information so I couldn't get any help from them. I made numerous repairs and clean up as time went on.
The contract stated that if an act of God should happen to occur resulting in more than 10% of the purchase price in damages, either party could opt out of the contract with all earnest monies returned to the buyer. An insurance appraiser, I assume representing the owner, came out and informed me of the cost of repairs which were clearly over the 10% threshold - I never seen that in writing however nor was I ever able to get an estimate although I did contact three General Contractors. The appraiser also told me that if the damages were more than 15,000.00 dollars (and in his estimation they were) then a licensed and insured General Contractor would be required to make repairs.
Since I was getting nowhere getting repairs made, and two weeks had passed, I contacted an attorney to represent me in a "negotiation" process. I still wanted to buy the house, so I made a generous offer to help coordinate repairs and continue to pay the "occupancy payment" although at a reduced rate until repairs were fully made. My other stipulation was that an insured and licensed General Contractor be retained. Three letters sent certified mail via my attorney to the Realtor and to the owners per an address I had discovered on the internet, went unanswered. A fourth letter sent out made clear that I was wanting out of the contract, per the stipulation I previously noted, and would like my earnest monies returned. A phone call made to my attorney by the owners confirmed they had received the letters and made it clear they would not return my earnest money and in fact wanted to know where my rent payment was. (at this time, about 10 days into the next month, I had not sent the occupancy payment due to the unrepaired damages and lack of a reply to my letters)
The Realtor, the only plaintiff apparently acting per the Property Management contract he had signed with the owners, attempted to have me evicted from the property by taking me to court in the state of Kentucky where the property was located. This "forcible detainer" action was thrown out based on the Lease Purchase contract which clearly stated no Landlord/Tenant relationship had existed therefore I was not a tenant. This same Realtor along with the owners as a plaintiff, then followed up with a lawsuit in the circuit court asking for a Writ of Possession and monetary damages including lawyer fees as I had breached the contract by not paying the occupancy payment.
Here's where it gets sticky, the Lease Purchase contract clearly stated - I'm talking a four year old could read it - that if there was any dispute or claim of breach of contract that Tennessee law would prevail in venue located in the state of Tennessee. Why ??? I assume because the Realtor was located in Tennessee and he used a standard form printed by the Tennessee Board of Realtors. In my layman's opinion the contract could of stated that the laws of Timbuktu would apply - if that's what the contract says and all parties agreed to that and signed the contract, then so be it. For me this was very important, the attorney I retained to negotiate on my behalf I found in Tennessee and was licensed only to practice in Tennessee.
Mind you my attorney and I are kicking around the wording for a lawsuit against these guys weeks before the owners/realtor filed their lawsuit in Kentucky. I file a breach of contract lawsuit in Tennessee against the owners, and several issues towards the Realtor based upon a dual agency agreement which he violated by sharing confidential information amongst other things. So, here I am forking out cash to an attorney in Tennessee to represent me in my complaint filed against the owners, and I'm being forced to retain another attorney in Kentucky to represent me as a defendant to their lawsuit filed in Kentucky. My guy argues that Kentucky doesn't have jurisdiction because we are not claiming any rights to the property, this is a breach of contract case. The Kentucky judge declares he has In rem jurisdiction because I'm still living in the house which is located in his state.
He would later rule that I had to make the full amount in occupancy payments, including back payments, to a fund set up by the court. These monies would be used as an award to the plaintiffs should they win their lawsuit. He also ruled that I was to be deposed via a court order. After informing me that the plaintiffs attorney and the presiding judge were in each other's wedding and were old pals, my Kentucky attorney writes an eloquent and very judge friendly motion asking him to reconsider as claiming In rem jurisdiction based upon property rights may keep him from having any jurisdiction over me, a person. On the morning of our court date to hear our motion I received a phone call from my lawyer's firm informing me that my Kentucky lawyer had taken his own life over the Thanksgiving holiday and they would no longer be representing me - I wouldn't believe this whole fiasco if it hadn't actually happened to me.
So, what to do ??? Based upon the recommendation of my Tennessee attorney I moved out of the residence so there could be no question about property rights, all told I'm out over over 20,000 dollars in escrow, repairs, improvements, and lawyer fees. I got a judge in Kentucky giving me orders, I no longer live in the state, and I have no confidence in any local Kentucky attorney in this "Mayberry" town to fight on my behalf with the same gusto and cleverness that the poor chap who took his own life showed. Calls to more "metropolitan" areas resulted in frank talk about a "shakedown" and the ol' ....."it ain't whatcha know but who you know" which leaves me with absolutely no confidence that this litigation in Kentucky could ever be resolved in my favor. At this point it seems that I can either walk away and let them try to collect a judgement, or let the chips fall where they may and fork out some more cash in pursuit of an appeal hopefully in front of another judge if not in another county.
My complaint in Tennessee - in a much more metropolitan area in a court system where uncontested divorces aren't being heard for 6 months - is being countered by the owner and Realtor's attorneys informing the judge that the case is being heard in Kentucky.....that sure isn't helping my cause any.
So, I'm left wondering......
Can I get any money out of the Realtor ?? What's he doing on the Kentucky lawsuit anyways, he doesn't own the house. On their reply to my answer their attorney clearly states that the Realtor made a mistake by using a Tennessee contract and they're asking the judge to throw it away. Shouldn't this lend weight to my lawsuit in Tennessee, if the Realtor made a mistake then is their some sort of fund or insurance that can pay me for my loss ?? Who can be contacted about what I believe to be a serious case of bias by this Kentucky judge, I'm not gonna win any friends but why hasn't this guy dismissed their lawsuit since I'm no longer in the house and the contract was written up by the plaintiffs ???
Lastly, I'm going to a deposition of the Realtor, any topics of discussion that anyone can suggest that might help "discover" more information that I can use to bolster my case - I'm not familar with Real Estate law and as time goes by I'm not so sure my Tennessee attorney is either.
Sorry to be so long winded, but there's alot of facts 'mam......
