Retrieving earnest money after seller defaults

[madelyn328]

We were under contract for a house in IL in July 2009. The seller did not show up to closing twice and therefore was in default. They had $1000 earnest money from us. We left the contract "open" for several months because the house was being foreclosed on and we wanted to be able to buy it. We finally gave up and in March 2010 requested our earnest money back. The seller's realtor is claiming that the seller won't sign the cancellation form to return our money. I am wondering if this is true -does the seller need to sign anything if he is already in default (i.e., how can he both default on the contract and also not cancel the contract)?

Also, if we have to go to small claims court, would we sue the seller or the realtor? I'm hoping the realtor because we don't have the seller's address and the realtor is the one who the check was made out to and who cashed it. I think the realtor is trying to be able to keep the money herself and is using the seller not signing something as an excuse. Both seller and realtor were dishonest and unethical during the process (at one point, the seller said he would only show up to closing if we paid him $20K as it was a short sale and he was not profiting on the sale of the home he built).

Any advice would be greatly appreciated!

 

[army judge]

We were under contract for a house in IL in July 2009. The seller did not show up to closing twice and therefore was in default. They had $1000 earnest money from us. We left the contract "open" for several months because the house was being foreclosed on and we wanted to be able to buy it. We finally gave up and in March 2010 requested our earnest money back. The seller's realtor is claiming that the seller won't sign the cancellation form to return our money. I am wondering if this is true -does the seller need to sign anything if he is already in default (i.e., how can he both default on the contract and also not cancel the contract)?

Also, if we have to go to small claims court, would we sue the seller or the realtor? I'm hoping the realtor because we don't have the seller's address and the realtor is the one who the check was made out to and who cashed it. I think the realtor is trying to be able to keep the money herself and is using the seller not signing something as an excuse. Both seller and realtor were dishonest and unethical during the process (at one point, the seller said he would only show up to closing if we paid him $20K as it was a short sale and he was not profiting on the sale of the home he built).

Any advice would be greatly appreciated!

I'd sue BOTH of them.

You should be able to get their address through the court, or use what was on the various forms you signed.

Doesn't really matter, because you want the Realtor, anyway.

They have money, and they kept the grand you paid.

The seller is probably broke and homeless, anyway.

But, sue them both, and let the court sort it out.

I suspect that when you serve the Realtor, they'll want to settle.

Good luck!!!