Hi @Joe Splitrock & @Sam Shueh,
My total EMD is $10k. I already told them I won't cancel escrow unless they release my deposit. They still refuse to do so. It seems that they have already opened under a new escrow company. There's some conflicting information about what can happen if they open with a new company.
The attorneys I talked to said that they recently had a case where the seller closed escrow with a new company while the previous buyer still had his escrow open with them. So it appears that it is still possible to sell. However, the seller put the listing as pending with conditions of cancellation of original escrow. So maybe they're waiting it out? They said if I don't cancel then they'll come after me for damages. Not sure what that entails.
As far as the my steps going forward. The attorney advised me that it may be beneficial to wait until the seller closes with a new buyer. Depending on the sale price, which they can verify through the MLS, if the property sold for the same amount that I was going to buy it for then the seller cannot claim my deposit. Doing so will be an act of punishing the old buyer which is illegal. Well they didn't say illegal but I guess there's case studies of it not being allowed. If they do end up selling it for the same price I can get all of it back.
If I take it to small claims court before they sell it then I might lose because technically it is my fault we are in this situation and in the contract it gives the seller liquidated damages up to 3% of the purchase price. If they sell it under then I am liable for the difference. Or a portion of it, depending on how the attorneys negotiate it. What I do pay out, I can go after my lender because he fudged it all up.