Deal is falling apart, advice on Affidavit of Memorandum

[Martin Tirmenstein]

Hello all, just made my account here on the site to get some advice. This is the messiest deal and worst real estate agent I've ever had the displeasure of doing business with. Please feel free to skip the details and someone may be able to answer my direct question at the bottom of the post.
 
I executed a contract with a seller on Sep 28 with a closing date of Oct 17. On the last day of my option period, after considering all of my exit strategies and considering different lenders, the only way I could make this deal pencil out at the previously agreed price was to push the closing back by 11 days. This was the absolute earliest I could be funded. I sent over an amendment to extend close for Oct 28.

I guess the seller and the listing agent had some sort of dispute and seller ended up firing the agent in the middle of my option period! The brokerage assigned somebody higher up to work with the seller, supposedly this particular agent's supervisor. This is where all the trouble began. 
New agent refused to take my calls or answer texts. Will not speak to me directly. Option period has now expired without a signed amendment to extend the close. So my earnest money deposit of $4500 has gone hard. I have emailed the new agent representing the sellers the amendment for extension of close plus the manager at this real estate agent's office. Only person still communicating with me is the original agent. I am told he is the only one ALLOWED to speak with me.

It takes a couple of days after my option period has expired and EMD has gone nonrefundable, but the original agent tells me we now have a verbal agreement to extend close to the 28th as I was requesting. Good news, in my mind.

Several days go by, still no signed amendment. I am pushing hard for over a week to get a signature to extend the close by a mere 11 days. I cannot get a straight answer for the hold up. Communication is SEVERELY lacking from all the agents involved plus the brokerage.
Finally, I just drive to the sellers house in person and knock on the door. I need to get a straight answer. 

I have a short and sweet chat with both the husband and wife. All of 12-15 minutes. They explain they are ready to move out of the house asap and want to sell the house asap. They tell me they have no issue at all with extending the close to Oct 28th! Furthermore, they tell me THIS IS THE VERY FIRST TIME THEY ARE EVEN HEARING MY REQUEST TO EXTEND CLOSE. I leave their house feeling confident we are all in agreement and the sale can move forward. They request the amendment be sent to their new agent who in turn will pass it to them.

Over the next 48 hours, the new agent has gone completely dark. Doesn't answer my calls, doesn't answer the first agent's calls, doesn't answer the seller's calls. I am fighting to get this amendment signed, but alas, nothing. It is now Oct 17th the date of closing, and we have made zero progress. Another call to the seller on date of closing. They have heard nothing from their agent, and have not been sent the amendment. I offer to send them the amendment myself but they insist it needs to go through their agent. They confirm they are still on board with a date pushback of 11 days. 

Oct 18th arrives. Day after our close was scheduled. The original agent emails me to say the sellers have chosen not to move forward and I am in breach of contract. My earnest money has been lost. I'm furious at this point, not only for the financial loss but also for hours upon hours of wasted time and running in circles.

So here is the entire point of my post and ultimately my question; 
In clear language on our executed contract, I have included "X LLC reserves the right to file an affidavit of memorandum on the property." Will I still be permitted to file an affidavit of memorandum EVEN THOUGH my closing date has now come and gone and I am technically in breach of contract? I still have equitable interest in the property, by virtue that I've deposited $4500 to the title company.
TLDR; Do you NEED to be within the contract timelines (after execution but before closing date) to file an affidavit of memorandum? 

Thank you to anyone who can provide me some advice on the matter. Given the situation, I think I may have a possible lawsuit on my hands against this brokerage / agents who have been completely screwing me around. 

[Theresa Harris]

First where is your agent in all of this?  If you know the sellers didn't see the offer to extend and verbally agreed, I'd tell the listing agent that (call using someone else's phone).  I'd then put in another offer-same as before  but for $4500 less explaining that the deposit the realtor has because they failed to present the amendment to the seller is the seller's money and therefore you are offering $4500 less (because they will get that money).  I'd also go in with your own agent.

I'd bet the listing agent's company is keeping the deposit even though it is meant to be in trust.  Once this is all done, I'd also report the broker and both agents to the real estate board.

[Chris Seveney]

Quote from @Martin Tirmenstein:

Hello all, just made my account here on the site to get some advice. This is the messiest deal and worst real estate agent I've ever had the displeasure of doing business with. Please feel free to skip the details and someone may be able to answer my direct question at the bottom of the post.
 
I executed a contract with a seller on Sep 28 with a closing date of Oct 17. On the last day of my option period, after considering all of my exit strategies and considering different lenders, the only way I could make this deal pencil out at the previously agreed price was to push the closing back by 11 days. This was the absolute earliest I could be funded. I sent over an amendment to extend close for Oct 28.

I guess the seller and the listing agent had some sort of dispute and seller ended up firing the agent in the middle of my option period! The brokerage assigned somebody higher up to work with the seller, supposedly this particular agent's supervisor. This is where all the trouble began. 
New agent refused to take my calls or answer texts. Will not speak to me directly. Option period has now expired without a signed amendment to extend the close. So my earnest money deposit of $4500 has gone hard. I have emailed the new agent representing the sellers the amendment for extension of close plus the manager at this real estate agent's office. Only person still communicating with me is the original agent. I am told he is the only one ALLOWED to speak with me.

It takes a couple of days after my option period has expired and EMD has gone nonrefundable, but the original agent tells me we now have a verbal agreement to extend close to the 28th as I was requesting. Good news, in my mind.

Several days go by, still no signed amendment. I am pushing hard for over a week to get a signature to extend the close by a mere 11 days. I cannot get a straight answer for the hold up. Communication is SEVERELY lacking from all the agents involved plus the brokerage.
Finally, I just drive to the sellers house in person and knock on the door. I need to get a straight answer. 

I have a short and sweet chat with both the husband and wife. All of 12-15 minutes. They explain they are ready to move out of the house asap and want to sell the house asap. They tell me they have no issue at all with extending the close to Oct 28th! Furthermore, they tell me THIS IS THE VERY FIRST TIME THEY ARE EVEN HEARING MY REQUEST TO EXTEND CLOSE. I leave their house feeling confident we are all in agreement and the sale can move forward. They request the amendment be sent to their new agent who in turn will pass it to them.

Over the next 48 hours, the new agent has gone completely dark. Doesn't answer my calls, doesn't answer the first agent's calls, doesn't answer the seller's calls. I am fighting to get this amendment signed, but alas, nothing. It is now Oct 17th the date of closing, and we have made zero progress. Another call to the seller on date of closing. They have heard nothing from their agent, and have not been sent the amendment. I offer to send them the amendment myself but they insist it needs to go through their agent. They confirm they are still on board with a date pushback of 11 days. 

Oct 18th arrives. Day after our close was scheduled. The original agent emails me to say the sellers have chosen not to move forward and I am in breach of contract. My earnest money has been lost. I'm furious at this point, not only for the financial loss but also for hours upon hours of wasted time and running in circles.

So here is the entire point of my post and ultimately my question; 
In clear language on our executed contract, I have included "X LLC reserves the right to file an affidavit of memorandum on the property." Will I still be permitted to file an affidavit of memorandum EVEN THOUGH my closing date has now come and gone and I am technically in breach of contract? I still have equitable interest in the property, by virtue that I've deposited $4500 to the title company.
TLDR; Do you NEED to be within the contract timelines (after execution but before closing date) to file an affidavit of memorandum? 

Thank you to anyone who can provide me some advice on the matter. Given the situation, I think I may have a possible lawsuit on my hands against this brokerage / agents who have been completely screwing me around. 

 it appears you are out of luck, as the other post mentioned - where is your agent (or attorney) in all of this? If you did not use one - unfortunately its an expensive lesson learned that in real estate transactions this is why you use the paid experts. Not trying to beat you down but its important to understand real estate can get very complex. 

[Joe S.]

I feel your frustration. Filing an affidavit of contract when your original contract is no longer valid in order to cloud title is not advisable. I don’t have anything nice to say about the realtor that went silent, but it is what it is.