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Pending Small Claims case:real estate issue

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Cathie123

Member
What is the name of your state? NY

I have a small claims case pending the non-release of escrow which was held to insure obligations on a possession agreement.

I followed thru with all instructions given to me by my attorney, who was also acting as the escrow agent. My attorney sent demand letter in the early part of July which pretty much went unanswered. No damage claims were ever made (not that there would have been any, we left the home in good condition). And much speculation on my attorneys end as to why they just hadn't responded or released the funds.

In any case, I am now pursuing the release of said funds thru smalls claims and my questions are these:

1 - Besides a copy of the possession agreement and about 300 pictures that I had taken of the premises pre and post vacating the property, what else would you suggest I provide the court in order to prove my case?

2- Would I need to subpoena my attorney as he was the acting escrow agent and basically handled any (if any) correspondence with this buyer or her attorney? Or, can I simply request a suboena duces tecum and have the attorney submit any information he has regarding this matter?

3- If it comes down to this, when exactly would the defendant file a counter-claim? Would she need to file prior to the hearing or can she dupe me on the day of the hearing so that I'm not fully prepared with evidence backing my case?

Thanking you in advance for any responses.
 


You Are Guilty

Senior Member
With the caveat that small claims can't technically award that the specific escrowed funds be released but can award damages in the same amount (because they do not have equitable powers), then:
1 - Besides a copy of the possession agreement and about 300 pictures that I had taken of the premises pre and post vacating the property, what else would you suggest I provide the court in order to prove my case?
Seems like a solid foundation to me. If there's any correspondence between the parties which could be used to show they agreed there was no damage, I'd throw that in as well. Live witnesses are always good to have too.
2- Would I need to subpoena my attorney as he was the acting escrow agent and basically handled any (if any) correspondence with this buyer or her attorney? Or, can I simply request a suboena duces tecum and have the attorney submit any information he has regarding this matter?
Why not just ask him for copies of any documents you need from him? Just need practice drafting subpoenas? (However, see my comment about live witnesses, above. That applies to attorneys too).
3- If it comes down to this, when exactly would the defendant file a counter-claim? Would she need to file prior to the hearing or can she dupe me on the day of the hearing so that I'm not fully prepared with evidence backing my case?
Technically, it should be filed prior to the court date. As a practical matter, if they appear and tell the court that they'd like an adjournment in order to have time to file a counterclaim, 99 times out of 100, the request would be granted (especially if there were no prior adjournments requested).

If they show up at court and attempt to serve you with a counterclaim, then you can either:
- Refuse service;
- Accept service and advise the court that the case needs to be adjourned because you just got handed a counterclaim; or
- Request a few minutes to look it over and continue the case as planned.

(I'd probably go with option 1 myself, but the choice is yours.)
Thanking you in advance for any responses.
You're welcome in retrospect for any questions. :)
 

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