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Dealing with old contract

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quincy

Senior Member
It's very common for contract cases, other than in small claims court, to go to a jury trial. The main categories of civil cases between private parties (i.e. where the government is not a party) that don't go to a jury in most states are small claims court cases, family court matters (divorce, custody, child support, etc), and probate cases.
When there is a jury trial looming (with its promise of additional costs to both parties), there can be greater incentive to come to a settlement. Very few cases on the whole will actually make it before a jury.
 


When there is a jury trial looming (with its promise of additional costs to both parties), there can be greater incentive to come to a settlement. Very few cases on the whole will actually make it before a jury.
I would hope...but..the sellers stated that they do not want this man to have the home as they are selling another 92 acres and he has given them so much trouble that they are afraid he will cause problems when they sell the land. He already tried to force stipulations on the land that the sellers refused to abide by. Therefor, no settlements.. Just have to wait to see what happens. In the mean time, we are in a good position. We don't have to sell our home before purchasing, it is house buying season and lots of properties are coming on the market and we can get out of the contract if we want and get our Ernest money back. so.....we wait.
 

Taxing Matters

Overtaxed Member
When there is a jury trial looming (with its promise of additional costs to both parties), there can be greater incentive to come to a settlement. Very few cases on the whole will actually make it before a jury.
There are pressures to settle whether the case is to a jury or to a judge (bench trial). Over 90% of all civil cases are settled prior to actually going to trial. So you're right, either way it's likely that this gets settled before trial. How long before trial is another matter; I've seen a number of cases settle just a few days before trial or even the day of trial. So a settlement might not get this resolved for the OP much before the set trial date. You just never know.

For most ordinary cases (those that don't involve a high profile person, etc) the cost of the jury trial itself is usually not a great deal more than going to a bench trial. Yes, the jury trial will take more time, primarily in picking the jury. So when paying the lawyer by the hour, you'll have perhaps a couple of extra hours there for that. The time the jury takes for deliberation is time that the lawyer isn't working and thus doesn't add to the client's bill. Compared to the overall cost of going to trial, that extra cost for a jury trial is typically a rather small part of it. Most of the time, the choice to have a jury or not is not made primarily based on cost of jury trial vs bench trial.
 

quincy

Senior Member
I would hope...but..the sellers stated that they do not want this man to have the home as they are selling another 92 acres and he has given them so much trouble that they are afraid he will cause problems when they sell the land. He already tried to force stipulations on the land that the sellers refused to abide by. Therefor, no settlements.. Just have to wait to see what happens. In the mean time, we are in a good position. We don't have to sell our home before purchasing, it is house buying season and lots of properties are coming on the market and we can get out of the contract if we want and get our Ernest money back. so.....we wait.
Waiting is all you can do. It is fortunate that you are in the position where waiting doesn’t hurt you.
 
There are pressures to settle whether the case is to a jury or to a judge (bench trial). Over 90% of all civil cases are settled prior to actually going to trial. So you're right, either way it's likely that this gets settled before trial. How long before trial is another matter; I've seen a number of cases settle just a few days before trial or even the day of trial. So a settlement might not get this resolved for the OP much before the set trial date. You just never know.

For most ordinary cases (those that don't involve a high profile person, etc) the cost of the jury trial itself is usually not a great deal more than going to a bench trial. Yes, the jury trial will take more time, primarily in picking the jury. So when paying the lawyer by the hour, you'll have perhaps a couple of extra hours there for that. The time the jury takes for deliberation is time that the lawyer isn't working and thus doesn't add to the client's bill. Compared to the overall cost of going to trial, that extra cost for a jury trial is typically a rather small part of it. Most of the time, the choice to have a jury or not is not made primarily based on cost of jury trial vs bench trial.
the man doing this is an attorney...and he had a cash deal for all of this, no financing contingency. I dont think money is a problem for him. I feel like he is doing this as he wants to punish the family......I feel for them. All they wanted to do was sell their deceased parents home and land. very sad
 
Update. With all the closings due to Covid-19, I went online to see when they would be going into mediation. The date did change but then, I was shocked. On the website was the actual legal document with their law suit!!!!!!!! I read the whole thing. The suit states that they signed a contract in June and they were unable to close in June or July because the title of the home had a problem and so they extended the contract until November and then the house was not sold to them.

They didn't close for unknown reasons. Then it says this "To the extent they are consistent herewith; the contents of the preceding defenses are incorporated herein by reference. Plaintiff and XXXX , as the purchasers, and Defendant, as the seller, entered into the Agreement related to certain real property. The Agreement was amended/modified by the June Addendum, August Addendum and September Amendment. ELECTRONICALLY FILED -Pursuant to the Agreement, as modified by the September Amendment, November 8, 2019 was established as the closing date (“Closing Date”). Plaintiff and XXXXX failed to proceed with the closing by November 8, 2019 and no amendment/addendum was entered into extending the Closing Date. Plaintiff was provided a written notice of default and was advised of Defendant’s election to terminate the Agreement by letter dated November 20, 2019 (“Notice of Termination”). Given that the Agreement was terminated, Plaintiff is not entitled to specific performance."

They state that yes, there was a problem with the title in June and July...but...in August, September and October, when the contract was extended, they were told they must close by November 8th. Here is what it says, I made some alterations in names..." In response to the allegations contained in paragraph 11 of the Complaint, Defendant craves reference to the Agreement, the June Addendum, and the August Addendum. In further response to the allegations contained in paragraph 11, Defendant would note that the Agreement indicates the closing was to occur no later than 5 PM on or before August 30, 2019." Then it said " Defendant respectfully asserts that efforts taken established the defendant was ready, willing and able to provide Plaintiff with marketable title prior to closing day contained in the September Amendment. Not withstanding, the Plantiff and XXXX failed to proceed with the closing as required by the Agreement as amended.

I also found this in the counter claim "Paragraph 23(B) of the Agreement reads as follows: (B) If Buyer defaults in the performance of any of the Buyer's obligations under this Contract ("Default"), Seller may: (i) Deliver Notice of Default to Buyer and terminate Contract; and (ii) Pursue any remedies available to Seller at law or equity; and (iii) Recover attorneys' fees and all other direct costs of litigation if Buyer found in default/breach of Contract. Based on the foregoing, Defendant’s attorney sent the Notice of Termination." and finally it also says this "The following is set forth in bold font in paragraph 1(G) of the Agreement: “Time is of the essence with respect to all provisions of this Contract stipulating time, deadlines, or performance periods.” 88. The September Amendment reads in pertinent part as follows: “The closing date is hereby extended to November 8, 2019, TIME BEING OF THE ESSENCE as to closing by said date.” (Emphasis added). Plaintiff and XXXX failed to proceed with the closing on or by the Closing Date as ELECTRONICALLY FILED - required by the Agreement and the September Amendment. 90. Failure to proceed with the closing in a timely manner constitutes a breach of the Agreement. 9h of the Agreement,

So, with that now being known and understood that they missed multiple closings, that financing was not a stipulation of the contract, were the sellers were within their legal right to cancel the contract? They said that "Plaintiff has failed to act in a fair, just and/or equitable manner and therefore does not have clean hands regarding the allegations in his Complaint" whatever that means. They also said "Upon information and belief, Plaintiff, through this litigation, threats and other means, has improperly interfered with the contract between Defendant and the third-party. Plaintiff’s actions were done for an improper purpose, in part, to prevent Defendant’s ability to sell and/or market Defendant’s property. As a direct and proximate result of Plaintiff's willful and wanton acts, Defendant has and will suffer damages and/or injury. Defendant is entitled to recover damages from Plaintiff both actual and punitive damages in amounts to be determined appropriate at the trial of this case. Thoughts?????
 

Taxing Matters

Overtaxed Member
Thoughts?????
My thoughts are that you've quoted selected parts from what I assume is the defendant's answer and seem to be taking those denials and allegations as true. But there are two sides to this dispute, and the plaintiff's version of things surely differs from the defendant's. Without reading the entire complaint and answer, and reading the actual contract with all addendums, it it not possible to say how strong the case is for either side. Don't rely too much on what either side says in its pleadings. Those just set out their initial position in the case. As discovery goes forward and pre-trial motions are heard and decided, those positions are likely going to shift one way or the other.
 
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you are correct. It will all boil down to one question. The plaintiff states he didn't close on 11/8 because the title of the home was not marketable (not sure what that means) AND there was a handwritten note on the contract that said they would continue to extend for the title issues. The defendants (sellers) state that they had a marketable title on 11/8 AND they had some sort of wording in the contract that gave them the right to not extend and to cancel, which they did. So, was the title of the home marketable on 11/8 or not. If it was, we will win. If it was not, then the other party will win. They go to mediaton in July.
 

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