It's December 8th. Our second closing day with the same home. But due to the seller of the property, once again, another closing is NOT happening.
Fool me once, shame on you. Fool me twice, shame on me.
And forward we go with house number two.
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| The new place. Let me explain... |
This house we are under contract for has been the most mentally aggravating thing I have EVER dealt with in my thirty-six years of existence.
Most times, your agent and your lender will gloss over the irritating bits that happen between your team and the seller's team. This is not the case, in our case.
Right now, as I type out this post, we should be sitting at my closing attorney's office signing documents and getting the keys to our new home. Instead, I have been receiving emails from the seller's attorney about payoff quotes, another family's estate probate (whom I don't even know), and other random, legal mumbo jumbo that I shouldn't be involved in. Period. I watch the seller and my agent's broker get in heated email arguments. I have seen the seller's father (the owner of their investment company) jump in and throw a fit. I see my loan processor -over and over again- requesting the same documents that should have been submitted three weeks ago.
Since my last post, I am now included in the chain of emails between -what feels like- a highly dysfunctional family: My attorney, my seller's attorney, my seller, his agent, my agent, my agent's broker, my lender, the loan coordinator, etc,. There are over a dozen people CC'd in this hot mess.
So, what's the hold up, you may ask?
When our seller agreed to the contract, he did not include any disclosure about the title of the home being clouded. He AND his attorney AND his agent knew it was, but failed to reveal this until six days before our first closing. If you don't know much about real estate, this means the seller has been in breech of contract since day one! The county recorder's office shows someone else as the rightful owner(s). This means the title is not free and clear. My lender, myself, and my attorney cannot sign off to purchase a home with this nightmare of an issue.
This explains why he was pushy AF about getting us to close with his attorney. We later found out, after talking to our own attorney, that they were going to pull a fast one and basically sell us a house that they legally cannot sell, fix the title issues later, and we'd be none the wiser; never find out. That's if it ever would be fixed...Well, I'm glad I hired my OWN attorney.
My seller is an investor who "purchased" the home through a quit-claim deed. But a quit-claim deed doesn't mean a whole lot in terms of deed protection. It basically transfers ownership in a non-formal way. Most people use them to transfer the names on a title to a family member or such, but the mortgage does not transfer with it. The people who currently and legally own it (warranty title and mortgage wise) have one big problem: The husband is dead.
In order for the wife to sell off the property in Georgia, she must get permission from the probate court in the county where he passed away, which is two hours away from where we are. This permission includes her being appointed to handle her husband's estate, and then, in the state of Georgia, a court appointed guardian ad litem must also be appointed to look out for the best interest of the minor children included in the estate. Courts do this to ensure that minor children are not missing out on a piece of their deceased parent's estate or any mishandling of what funds they could have received, if any assets, like a house, a fortune, a vacation home, retirement account, a Ferrari, are present.
This is where my own legal studies background came in handy:
Once I did some digging back in late November, I was able to locate the estate docket and see where these people were in their probate timeline. Much to my dismay, the court dismissed the case in August because certain required fees and documents were not submitted in a timely manner. Their attorney then had to resubmit requests for the wife's court appointment, as well as everything else. In other words, they had to somewhat start from scratch. The biggest issue is that they waited to do this until very recently. And if you know anything about court systems, they act, file and process documents when they want to.
The interesting thing of this all: The wife's attorney is ALSO my "seller's" attorney. No, they are not related in any way. This attorney is licensed to handle both estate law and real estate law. What we believe is that this particular attorney gave our "seller" a heads up on a property about to go under foreclosure, thus introducing a relationship between the wife who was in debt and an investor's slick offer of paying off said debt. He has been paying her mortgage since August of 2019 with intent to flip and sell, but that does not give him the authority to sell.
Skip ahead to December 3rd. At that point, we had already pushed our second closing to December 8th. We were still hopeful they could get it together. On that day, we learned the guardian had just been appointed by the court, and she had 30 days to say yes or no to the sale of the home, as well as draft a report for the judge's final approval. It was then I knew this would most likely fall through.
Today, as we miss our close, the report is still incomplete.
The guardian has been in correspondence with the family's attorney, and he has been updating everyone through email as he gets word on anything. She did say her report will be finished and on the judge's desk by end of Thursday, December 9th. But that still leaves us wondering when the judge will sign off, or if they even will. There shouldn't be any reason for her not to, but one cannot be certain.
As of now, today, my rate lock will expire. To extend it for another whole week will cost me $1,300 in interest. Yes, seriously. A little over $200 per day if we stick with this deal and push for another closing date. That's how long this ugly process has been going on.
Come Wednesday, December 15th we will have no AirBnB. Our time runs out here and we must find somewhere else to go.
The fridge I purchased (I know, we could have waited, but didn't want to move in and be without one for sometime) was scheduled to be delivered this Friday. Before getting our latest update, I knew the first closing would not happen on time, and I rescheduled delivery for next week. We have also rescheduled our mover's delivery for our household goods twice. My husband changed his leave dates twice. As of today, he is officially on leave because we could not change it again.
Last night, we reluctantly had to sit down to weigh some heavy options here. We could push closing again, but there would be zero guarantee the seller's end could make it work since they are waiting on a court to sign off. Missing another close would set us back beyond humanly capable levels of patience. We have none at this point.
We had talked about agreeing to push back ONLY if the seller agreed to full closing assistance. We had talked about getting him to pay our AirBnB, but if that ran out again and we missed another closing, we still would have wasted precious time in finding another house within a fast moving market.
My loan officer called me around 8pm last night. She said some profound and pivotal things I needed to hear, but didn't want to hear, but grateful that she did: "This may be a sign from the universe to walk away. There have been multiple signs and multiple moments where you could have, but didn't. This could be an out to a contract that would have otherwise left you with future home heartache in some way you cannot see now."
Then I talked to my husband. In a deep moment of what felt like grief, we agreed and decided to terminate our contract. Walk away, free and clear, get our earnest money back, and pretend we never met that house.
We have been fooled twice, and we cannot afford to be fooled for a third time.
I called my agent and told her the news. It was almost like a high school break up call that went something like this:
"Hi, soooo...*long pause*...um...we think...uh...I hate to say it out loud, but we need to terminate. *LONGER PAUSE*."
She agreed with me. Whether she was being nice for my sake or not, she was calm, understanding and knows how difficult this has been for not only us, but everyone involved.
The good news is that we toured another home yesterday, knowing our current seller would not meet the closing date again. We loved it, though it's not entirely our 'style', and submitted an offer last night. Still waiting to see if the seller will accept, and if he does so today, we will be under contract for two homes until 11:59pm tonight. Tomorrow morning we'll submit a unilateral termination that forces the seller to sign. We considered doing a mutual termination agreement today, but the seller indicated he would not agree to terminate, even though he's in breech of contract.
If you are an experienced home buyer/seller I know what you may be thinking.
"No agent/broker in their right mind would find it ethical for an average residential buyer to be under contract for two homes."
You are correct. But my agent/broker were willing to do this carefully because of our extenuating circumstances, knowing 100% that our current seller would be in breech of contract again. And as of 9:01am this morning, after missing another closing date, he most definitely is. Even before 9am, he has been in breech since day one, as he did not disclose his knowledge of the clouded title. We could've backed out at any given second throughout this process and not have lost our earnest money. They could have tried to fight it, but they'd be in a losing battle.
Our anger has mostly subsided. Saying the words to my agent "We are terminating" for a property we love felt similar to the acceptance stage of grief, which I do know so very well; accepting that a deal is dead, that nothing can revive it, and the only thing left to do is go forward.
My simple advice to anyone out there reading this: Do not assume that a seller's disclosure is gospel truth. Do not be bullied into making a decision that doesn't sit right in your gut (like going with a shady lawyer suggested by a shady seller). And do not give the basket you are under contract for all of your eggs.
*Update: December 9th
We are now officially under contract for house number two with an unheard of 21 day VA backed loan closing. Crossing fingers we'll be in our first home by the first of the year.
New update and mental closure: December 15, 2021
The judge ordered the original property to be removed from the sale market, as the true owner does not have the authority to sell it without being appointed to handle her husband's estate...yet. This could take awhile. Also, the judge ruled the quitclaim deed null and void, since it was signed without the legal authority for her to agree to such a commitment with our "seller".
The court guardian suggested that the wife sell the home herself, since it is a demanding market. She could pay off her mortgage, our "seller", and still have money left over for the children involved.
Our "seller" has invested over $100k into this house, and now is stuck. He currently refuses to make another mortgage payment on her behalf without the title in his name, which means this house can very well go into a foreclosure situation again if she cannot front the bill in the meantime.
Karma for the win.
New update: April 27, 2022
It's been six months after we went under contract and the house is still not on the market AND is still wrapped up in the probate court! The court appointed another member to the case to evaluate and deep dive into the investor's claims, requesting itemized receipts and such. She caught some investor dishonesty and is now suggesting that the family receive a bigger portion of the sale. The dishonest part? It had to do with our contract!
When the investor and his lawyer submitted our contract to the docket as "proof" of value, they completely overlooked the fact that it HAS A DATE on it. The date: October 21, 2022. This date proves they KNEW they were attempting to sell a home that they could not legally sell! They have no excuse, considering the lawyer is equip to know that the quit-claim deed he facilitated (that the investor and wife signed in 2019) doesn't formally transfer ownership, nor authorize the right to sell by a third party.
If we would have held out and took up some of the "solutions" that our investor seller suggested to keep us interested, we would have been 100% screwed.
Again, if it smells bad, it's probably rotten. Go with your gut and follow it when something goes sour!
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