Seller not releasing EMD within financing contingency

[Gurjot Grewal]

Hello BP,

It's only $1000 but with the language in the contract, it should be returned back to me. My loan was denied due to "excessive obligations" and "lack of income for obligations". I forwarded this to the seller the same day I got the email. The sellers are now trying to claim emd themselves due to an "email stating loan was subject to conditional approval," which I asked to see but they ignored and I dont think exists. I talked to an attorney who said he could write a letter but that since the emd is so low this may not do much as we wont be sueing. 

I want to threaten a lis pendes as they have put the property back on market, but my realtor doesnt want to forward this message as he doesnt want to get into legal trouble. He suggested I could look up the sellers name and make that threat directly, but this doesnt seem like a good idea. Otherwise I wait 2 years once its gone unclaimed and collect it then. 

Does anyone have any tips on how I could get them to release this emd? It's frustrating because the seller partly killed the deal themselves by renewing a lease 400$ under market rents for a full year a couple weeks from closing. 

[Val Peare]

Hi Gurjot,

I'm an investor and a realtor.  I recently had a transaction where the buyer backed out of the contract the day before closing (I had the seller).  When parties can't agree on the disposition of the EM, it will remain with the title company until resolved.  I had my client immediately file a claim in small claims court which costs around $50 to file.  We had a hearing within around 30 days and the judge favored my seller.  After receiving the judgment, I sent it to the title company and they released the funds.  That would be my suggestion.  There's no need to get attorney's involved.  Bring relative documents though, emails, contracts, etc.  Best of luck to you.