What would you do? Clerk of Court Problems

[masmith79]

Jurisdiction: North Carolina
County: Johnston

First and foremost, thank you for any help and/or advice. Second, in the interest of full disclosure, I am a licensed attorney in North Carolina but do not practice at this time.

Background: My wife and I listed our home for sale in 2012. In February 2013, a prospective buyer made an offer, we countered, and she accepted. As part of the signed offer, the prospective buyer had to remit earnest money in the amount of $1,000. Per the sales contract, a party responsible for delay in settlement or termination of the contract would be in breach. The non-breaching party, per the contract, is entitled to the earnest money. Settlement was set for April 1 w/ a 14 day grace period.

The prospective buyer failed to obtain financing by April 1 and subsequently elected to stop attempting to obtain financing on or about April 24. As a result, the contract was terminated and the house was put back on the market. The prospective buyer then refused to sign a release of her claim on the earnest money.

In North Carolina, the clerk of court has exclusive jurisdiction over earnest money disputes though their is a statutory right to appeal to the Superior Court. The matter was heard before the clerk of court. Following the first hearing where the clerk refused to render a verdict, the same requested memorandums of law. The MofL were submitted and second hearing was conducted where the Clerk of Court rendered a verdict in favor of the prospective buyer because "the sellers terminated the contract and re-listed the home for resale within the 14 day grace period"

The prospective buyer never presented evidence supporting the claim that the contract was terminated prior to the end of the 14 day grace period. Conversely, sellers presented emails establishing that the prospective buyer continued to attempt to obtain financing to purchase the home up and until April 24. Further, the sellers were able to establish the contract was not terminated until April 25 because the buyer stated she would longer attempt to purchase the home.

The Clerk was informed that there was no evidence supporting the buyer's claims to which he responded that the sellers should appeal then.

Question:
Is there any action to be brought against the clerk where the clerk consciously ignored the facts during the proceedings? Maybe an ethics complaint? Has anyone ever encountered such a situation?

Thank you

 

[TigerD]

Regardless of the potential viability of an action against the clerk, I have to ask: Is it worth it? Surely it will cost you far more than $1,000 to pursue this. I'm not going to spend the time researching NC law because I don't think it is worth pursuing and because you are more than capable of that research yourself.

DC

 

[quincy]

Jurisdiction: North Carolina
County: Johnston

First and foremost, thank you for any help and/or advice. Second, in the interest of full disclosure, I am a licensed attorney in North Carolina but do not practice at this time.

Background: My wife and I listed our home for sale in 2012. In February 2013, a prospective buyer made an offer, we countered, and she accepted. As part of the signed offer, the prospective buyer had to remit earnest money in the amount of $1,000. Per the sales contract, a party responsible for delay in settlement or termination of the contract would be in breach. The non-breaching party, per the contract, is entitled to the earnest money. Settlement was set for April 1 w/ a 14 day grace period.

The prospective buyer failed to obtain financing by April 1 and subsequently elected to stop attempting to obtain financing on or about April 24. As a result, the contract was terminated and the house was put back on the market. The prospective buyer then refused to sign a release of her claim on the earnest money.

In North Carolina, the clerk of court has exclusive jurisdiction over earnest money disputes though their is a statutory right to appeal to the Superior Court. The matter was heard before the clerk of court. Following the first hearing where the clerk refused to render a verdict, the same requested memorandums of law. The MofL were submitted and second hearing was conducted where the Clerk of Court rendered a verdict in favor of the prospective buyer because "the sellers terminated the contract and re-listed the home for resale within the 14 day grace period"

The prospective buyer never presented evidence supporting the claim that the contract was terminated prior to the end of the 14 day grace period. Conversely, sellers presented emails establishing that the prospective buyer continued to attempt to obtain financing to purchase the home up and until April 24. Further, the sellers were able to establish the contract was not terminated until April 25 because the buyer stated she would longer attempt to purchase the home.

The Clerk was informed that there was no evidence supporting the buyer's claims to which he responded that the sellers should appeal then.

Question:
Is there any action to be brought against the clerk where the clerk consciously ignored the facts during the proceedings? Maybe an ethics complaint? Has anyone ever encountered such a situation?

Thank you

First, I am surprised the purchase agreement did not have a contingency clause (contingent on financing and satisfactory inspection of the premises, for example). Your buyers were new to buying, huh?

Second, I would not want to advise you without knowing more facts. I have never encountered such a situation but based on what you have written, I do not see an ethics violation - just a decision that did not go your way.

Hold on for others to comment, though. Oh. I see DC already has. I agree with what he wrote.

 

[masmith79]

Regardless of the potential viability of an action against the clerk, I have to ask: Is it worth it? Surely it will cost you far more than $1,000 to pursue this. I'm not going to spend the time researching NC law because I don't think it is worth pursuing and because you are more than capable of that research yourself.

DC

So, in sum, you have replied to tell me you have no intention of helping. Thank you, you should think about increasing your hourly rates.

As an aside, no one asked for you to do any research.

 

[quincy]

So, in sum, you have replied to tell me you have no intention of helping. Thank you, you should think about increasing your hourly rates.

As an aside, no one asked for you to do any research.

It is really difficult to advise without all of the facts and I agree with DC. You seem perfectly capable of researching this yourself. You know the laws of NC.

 

[TigerD]

So, in sum, you have replied to tell me you have no intention of helping. Thank you, you should think about increasing your hourly rates.

As an aside, no one asked for you to do any research.

Currently, my hourly is $45.
In four weeks, the hourly rate is $200.

Good luck.

DC

 

[masmith79]

Guys and gals, I am not necessarily asking for an opinion as to the viability of the underlying claim. I am asking if you all have had any experience in a similar situation (I.e. A clerk of court that acknowledges that his verdict is contrary to the facts).

As to the contingency clause, yes there is such a clause (financing) but keep in mind she decided not to pursue financing further, not that she couldn't obtain financing.

 

[Silverplum]

So, in sum, you have replied to tell me you have no intention of helping. Thank you, you should think about increasing your hourly rates.

As an aside, no one asked for you to do any research.

I gather two facts from your post: you have never been an attorney, and you're pretty snippy.

 

[masmith79]

I gather two facts from your post: you have never been an attorney, and you're pretty snippy.

Thank you for your response; very helpful.

Not to be pedantic, but your two gathered "facts" are not facts but conclusions one of which is totally incorrect.

 

[masmith79]

In all seriousness guys and gals, a few things:

1. Sorry for coming off a$$holy; silverplum, that should be all the evidence you need to conclude I have practiced law (I am a recovering litigator);
2. I can be dry and sarcastic, neither of which transfer well to the internet; and
3. I was hoping to converse with fellow attorneys that have practiced and have experienced a similar situation at one time; I am not looking for legal advice. As stated above, I can do the research myself

In sum, "sorry"

 

[TigerD]

Then, may I suggest the solesez listserv through ABA.

You would likely find other attorneys from NC that can speak to it.

DC

 

[Just Blue]

Thank you for your response; very helpful.

Not to be pedantic, but your two gathered "facts" are not facts but conclusions one of which is totally incorrect.

Hire an attorney to assist you.

 

[Zigner]

As to the contingency clause, yes there is such a clause (financing) but keep in mind she decided not to pursue financing further, not that she couldn't obtain financing.

So, did the contingency only speak to a failure to obtain financing?

As was pointed out above, your case against the clerk sounds weak (if it exists at all.)

And, as a final note, it's apparent that you didn't read this little disclaimer that appears on every page:

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[quincy]

So, did the contingency only speak to a failure to obtain financing? ...

Most of the contingency clauses on financing that I am familiar with, and that are standard in real estate purchase agreements, will allow for a buyer to walk away from a purchase agreement without penalty (i.e., loss of deposit) if the buyer is unable to obtain acceptable loan terms. "Acceptable" is left for the buyer to define, as it will be the buyer who has to live under the terms of the loan.

As a note, it would be a delay in the closing and not a delay in the settlement. I find masmith's use of the word "settlement" an odd one.

Ah, well. I guess we are left to believe (or pretend) that masmith is now happily conversing with other NC attorneys on SoloSez.