[WSBARP] Earnest Money Deposit Issue

[David Faber]

Thanks all. My theory was also that the transmittal of the signed Form 51
is simply an offer of rescission and not sufficient to give grounds for
anticipatory breach, but was trying to find some authority to either
support my gut or give support to my client's preference (that it is
anticipatory breach).

Best,
David J. Faber
Faber Feinson PLLC
210 Polk Street, Suite 1
Port Townsend, WA 98368
(360) 379-4110

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On Wed, May 9, 2018 at 9:45 AM, <nestor at pplsweb.com> wrote:

> I would add that the contract does survive the death like any other
> contractual obligation except of course a personal services contract.
>
>
>
> Nestor Gorfinkel, Attorney at Law
>
> Licensed in Washington & Florida
>
> Florida Civil-Law (International) Notary
>
>
>
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> *From:* wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.
> wsbarppt.com> *On Behalf Of *Kary Krismer
> *Sent:* Wednesday, May 9, 2018 8:37 AM
> *To:* wsbarp at lists.wsbarppt.com
> *Subject:* Re: [WSBARP] Earnest Money Deposit Issue
>
>
>
> I would agree with Eric, but also point out that you should probably
> review the offer carefully to make sure it was properly filled in and
> enforceable before some buyer's attorney gets involved doing the same
> thing.  Annie has been focusing a lot on Form 17 lately in her agent
> education, and there are very few transactions that have properly filled in
> Form 17s if you use the strictest standards and some contracts don't even
> have valid legal descriptions.
>
> I would also question whether the contract survives the death of the
> seller.  I don't remember the answer to that question.
>
> Kary L. Krismer
>
> 206 723-2148
>
> On 5/8/2018 4:18 PM, Eric Nelsen wrote:
>
> I don't think an offer/ask to rescind is a breach of the PSA, so Seller
> isn't entitled to the EM. Seller just needs to reject the offer to rescind
> and inform Buyer that the Seller Estate intends to close as agreed. Unless
> Buyer actually says something affirmative like "I'm not going to close on
> this," I don't think you have anticipatory breach.
>
>
>
> Sincerely,
>
>
>
> Eric
>
>
>
> Eric C. Nelsen
>
> SAYRE LAW OFFICES, PLLC
>
> 1417 31st Ave South
>
> Seattle WA  98144-3909
>
> phone 206-625-0092
>
> fax 206-625-9040
>
>
>
> *From:* wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.
> wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>] *On Behalf Of *David
> Faber
> *Sent:* Tuesday, May 08, 2018 4:01 PM
> *To:* wsbarp
> *Subject:* [WSBARP] Earnest Money Deposit Issue
>
>
>
> List:
>
>
>
> I'm representing the PR of an estate for a decedent who was under contract
> for the sale of real property here in Jefferson County at the time of
> death. When Buyer (B) was informed that seller had died, B signed and
> transmitted a MLS form 51 Rescission Agreement attempting to beg out of the
> PSA and for the refund of the earnest money deposit. I was, quite frankly,
> surprised to see B try to rescind considering the closing date on the PSA
> is not until later June and there was no notification to B that the estate
> would be unable to close the transaction as the successor-in-interest to
> the decedent. PR now want to boot B out of the transaction but keep the
> earnest money deposit as liquidated damages under the theory that B
> signing the rescission agreement is sufficient to indicate that B intends
> to fail without cause to close the transaction. Either way, PR is quite
> annoyed by B for rushing to exit the PSA when their father died.
>
>
>
> I am unable to find case law on point here and wondering if anyone has any
> thoughts or would be willing to discuss this issue with me?
>
>
> Best,
>
> David J. Faber
>
> Faber Feinson PLLC
>
> 210 Polk Street, Suite 1
>
> Port Townsend, WA 98368
> (360) 379-4110
>
>
>
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