I can't get the keys!!

[jabsosteel]

I've got a weird problem. I just finished buying a FSBO as of today (my loan recorded this afternoon and the funds were positively wired from my lender). I'm very happy because this transaction has been an absolute NIGHTMARE due to the ignorance/stubborness of the uninformed sellers. When my realtor called the seller to arrange for me to get the keys, the seller told her that he wasn't giving up the keys until he actually had the money! Is this legal? What is my recourse? The sellers have already moved out, but I can't get in my new home. I'm figuring that, if the funds are being directly wired to the sellers, they should get the funds relatively soon, but if they demanded a check I could be waiting upwards of a week on my dime (make that many, many dimes with this mortgage I'm paying). What can I do?

OregonWhat is the name of your state?

[moburkes]

This whole table funding is confusing to me, BUT, their check will be cut soon. You'll probably get them tomorrow. If you don't, pay a locksmith to break you into your new home.

[JETX]

Originally Posted by jabsosteel

What can I do?

First, what you SHOULD have done was close at a title company and made sure that everything was done correctly.... at the office.
Second, since you (presumably) closed at your attorney's office (hopefully), what did your attorney say when you asked him??

And finally, since it is your property.... go get access to YOUR house. Have a locksmith meet you there... have a copy of your paperwork to prove your ownership... and ask the smith to open the property and change the locks.

Then, if you really want to pursue this... file a lawsuit against the sellers to recover the costs of the locksmith.

[jabsosteel]

We did close this transaction properly at a title company. My wife and I signed the documents yesterday, they went back to the funding lender, were funded this morning, and the loan recorded this afternoon. All of this was confirmed to the seller by the title/escrow officer as well right after recording. His issue (if I can read into the mind of an imbecile) is that he doesn't trust that the funds will actually get to him. While I understand that the funds getting to him isn't my problem, I'm just wondering if I need to break into my own home? What a sucky way to gain ownership of my new home!

[justalayman]

Originally Posted by JETX

First, what you SHOULD have done was close at a title company and made sure that everything was done correctly.... at the office.
Second, since you (presumably) closed at your attorney's office (hopefully), what did your attorney say when you asked him??

And finally, since it is your property.... go get access to YOUR house. Have a locksmith meet you there... have a copy of your paperwork to prove your ownership... and ask the smith to open the property and change the locks.

Then, if you really want to pursue this... file a lawsuit against the sellers to recover the costs of the locksmith.

JETX, was it not you that stated the reciept of a check was not payment but only upon it being cashed was payment legaly rendered (paraphrased of course)?

If so, then the transaction is not final until the money is in the hands of the seller, is it not. Until that point, the contract is merely a promise to pay.

[moburkes]

Originally Posted by justalayman

JETX, was it not you that stated the reciept of a check was not payment but only upon it being cashed was payment legaly rendered (paraphrased of course)?

If so, then the transaction is not final until the money is in the hands of the seller, is it not. Until that point, the contract is merely a promise to pay.

No. This is a loan that was table-funded. The bank was paid within a few hours, if not a few minutes, of the signing. The seller would have been paid at the exact same time if they would have accepted the wire. It appears that they are waiting on a check to avoid a $35 wire fee.

But, this loan has been funded, so the seller is full of it.

[moburkes]

Originally Posted by jabsosteel

We did close this transaction properly at a title company. My wife and I signed the documents yesterday, they went back to the funding lender, were funded this morning, and the loan recorded this afternoon. All of this was confirmed to the seller by the title/escrow officer as well right after recording. His issue (if I can read into the mind of an imbecile) is that he doesn't trust that the funds will actually get to him. While I understand that the funds getting to him isn't my problem, I'm just wondering if I need to break into my own home? What a sucky way to gain ownership of my new home!

You would have changed the locks anyway. When I bought my home through HUD, every real estate investor, potential landlord, etc had a key. Someone even jammed the locks so no one COULD get it.

Bottom line, stuff happens.

[justalayman]

Originally Posted by moburkes

No. This is a loan that was table-funded. The bank was paid within a few hours, if not a few minutes, of the signing. The seller would have been paid at the exact same time if they would have accepted the wire. It appears that they are waiting on a check to avoid a $35 wire fee.

But, this loan has been funded, so the seller is full of it.

I disagree with part of that Mo. Just because the loan was funded does not commit anything to the seller, it merely binds the funding agency to supply the funds.

it seems the buyer does not know if they accepted a wire or are requiring a check.

I often wonder about closings like these. Wnen I sold RE, the seller walked out of the closing with a check in hand and had approved checks to be distributed to all parties that were to recieve funds from the sale or because of actions during the sale (inspections and such). The only money not disbursed at that time was a possible escrow for repairs or other commitments that are pending.

[moburkes]

But the mortgage has been recorded.

[JETX]

Originally Posted by justalayman

JETX, was it not you that stated the reciept of a check was not payment but only upon it being cashed was payment legaly rendered (paraphrased of course)?

True.... in normal transactions.... however, a TITLE transfer is not a 'normal' transaction. The title papers are signed and absent a breach (failure to fund), the 'deal is done'. You need to study real property law.

[nextwife]

Many title companies doing table funded transactions are having a heck of a problem with:

A. Lenders holding onto the wire until after docs are signed and approved.
or
B. Lender having nobody available to provide a funding authorization number, which would authorize the closing agent to disburse.

It's VERY frustrating to the title company to, at the last minute, get stuck with a "dry closing" and no funds. On our state, bifircation is very common. One title company writes the owner's policy and prepares the seller side of the closing. They travel to the title company who is acting as LENDER'S closing agent then sit around, and sit around some more, and eventually someone from the lender's title company comes in to inform everyone that can't reach anyone to get a funding authorization at ABC East COAST or West Coast lender.

It is usually the fault of the lender the buyer selected. They don't seem to give a hoot whether the state in question has a "good funds law" or not.

The BIG question is whether the title company has been authorized to disburse funds (did they need a lender funding authorization???) and complete the closing. AND, what state are you in???????

If the check IS available, maybe you can deliver it to the seller in exchange for the key?

[moburkes]

He's in Oregon.

OregonWhat is the name of your state?

[justalayman]

Originally Posted by JETX

True.... in normal transactions.... however, a TITLE transfer is not a 'normal' transaction. The title papers are signed and absent a breach (failure to fund), the 'deal is done'. You need to study real property law.

The title papers (how about "the deed") are signed in anticipation of recieving the consideration designated within the contract. The contract would be inchoate until the consideration was recieved by both parties. Until the seller actually has the money within his control, there has been no transfer of consideration, merely a promise if it.

Title, in real property, is an intangible. There is no actual "title", at least in my state. It is a reference to ownership which is transferred by deed.

In your situation, regardless of whether the seller recieved actual payment or not, the contract has been executed. Can;t be so. In your situation, the buyer has performed all neccessary actions. That would mean the seller would have to seek redress of his grievance not from the buyer but from some party that had control of the funds.

Funding is a referrence to a financial party committing the financial requirements of the transaction. It merely states that a financial provider has committed the neccessary money to that particular transaction. It has nothing to do with the seller.

So funding, in those terms, would not cause a breach of the contract if for no other reason than the funding companies are not a party to the contract. The only "funding" situation that would cause a breach would be the buyer failing to provide funds to fulfill the contract.

So, until those funds are recieved by the seller, or his agent, the contract is still an executory contract.

[jabsosteel]

Just to follow up since my last posting....the seller (previously and appropriately described as imbecilic) finally relented when he received iron-clad assurance from the escrow officer that funds were wired. He was nasty when giving up the keys to my RE agent, and upon finally entering the home I discovered that Mr. and Mrs. Moron had removed several items from the home that were, basically, legal real property. Granted, I can live without them and I will, but that leads me to my final point.

BUYERS BEWARE: There is a reason that FSBO's have a bad name in the RE marketplace. I can attest first hand that, while it might not seem so at first glance, doing business through realtors (on both ends of the transaction) truly can save a lot of needless heartache by the end of the purchase. That said, I'll never buy another FSBO again.

[nextwife]

Frankly, until the SELLER is funded, they have no obligation to turn over the keys. Whether a FSBO or realtor deal. Assurances of a lender wire going out is NOT funds to the seller. They have every right to have payment IN THEIR HANDS before handing over the keys.

Your "consideration" is not delivered to the sellers until they are actually paid in full. Lender sending out a wire is NOT the same as seller being disbursed their proceeds in full.

If your written contract includes those removed items, contact the seller and demand they be returned.