引用文章Can it be fun?

My friend S asked me the following interesting question in her email (Re: Fw: Merry Christmas! Thu, January 7, 2010 11:48:16 AM):

What happened?

**** Here is my reply  ****

Thank you for asking me what happened?

It is very possible for me to turn this ugly duck house into a beautiful swan, i.e. a $20,000 deal makes me at least $70,000 profit as I did in the purchase of $16,000 (I sold it for $85,000) in which you worked as my buyer's agent.  As you witness in my past deals, you know I am not bragging.

So I lost a lot after I found this gold nugget from the banker's dumpster.  But, as I am used to say, I strive to uphold my principle: Everyone dealing with me has to be happy.

ET

p.s. Enclosed herewith are two emails which are enough to self-explain the process.

Email I:

----- Forwarded Message ----
From: E T

To: M

Cc: Kim @ziprealty.com; rl@reo***.com
Sent: Sat, January 2, 2010 10:14:10 PM
Subject: The Correct Version of Buyer's Proposals on Durango Dispute

First, thank you for giving us this educational opportunity to research Arizona property law. Even I have a master degree in legal science and worked as an administrator at a Los Angeles law firm, I am certainly a layman to Arizona legal system.

After research, I am sure by AAR General Counsel Michelle Lind that the general rule is a seller is required by AZ law to do disclosure, including septic and well, when the use of AAR SPDS form is not mandatory. A violation will put the seller under civil penalty. Sure, there is a law, there are exceptions. However, in our specific transaction, no exception to the rule is for the seller to qualify.

Facts are:

1. The seller is NOT exempted from SPDS since the Seller is not acting as a trustee in doing a "trustee's sale."

2. The buyer or his agent didn't agree or sign "AAR As Is addendum" to further obligate ourselves.

3. The Seller is the person who voluntarily asked us to incorporated those addenda of septic tank and well inspection and made them parts of our purchase contract.

4. Both Seller and Buyer agreed certain duties and instructed the escrow officer to close the escrow per the instruction given. Maureen, the escrow officer, has NO choice but to follow the instruction to cause the escrow closed.

5. Now the COE is past due. Without all docs or fund in place, It is NOT the escrow officer's fault being unable to close.

So far, there are 2 situation preventing the escrow from closing. They are:

A. The Seller refused to do specific performance when requested by Maureen, such as refusal to deliver needed docs of well certificate or septic tank inspection for her to file in the Request of transfer as legally requested by county authorities and voluntarily promised by the seller.

B. The Buyer didn't send in sufficient fund into the escrow.

There are at least 5 parties involved in this purchase transaction. So far I don't think the escrow and two agents are responsible for the delay of close of escrow. That leaves us two parties responsible for the cause: the principals, i.e., the Seller and the Buyer.

There is one of governing game rules in our contract: the contract requires the escrow shall be closed on or by Dec 22, 2009. I believe we'd still have time to close as set forth in the contract even after we reached the new purchase price.

Another governing rule is the 10 days inspection period. But there are some exceptions to the rule; otherwise, we don't have to have "5 days after receipt of the SPDS, whichever is later" clause in 4a of our contract. Let's be fair to ask a question:

Does our (buyer's) right to exercise "disapproval of contingency" pass due since the inspection period was over while I am still waiting for the SPDS?

Let's further examine the cause of delay.

As the buyer, I do everything I have to do upon Maureen's request after we re-negotiated and reached the new purchase price within the law (kind of rescind time; or maybe it can be considered as a possible "legal cancellation" within the time frame of contingency removal if no agreement on price is accepted by both parties.) 

Furthermore, there is one fact that stops us closing the escrow on time. That is no "sufficient fund" in the escrow account. I'd like to send that fund to Maureen if she required and had my attention to it. But did I know how much the sufficient fund is two days ago?  No notice was given to the Buyer as to this matter until I re-initiated my 2^nd request to M, the escrow officer. Do I look like a genius to know how much I have to pay before the charge or billing statement is sent to me?

Sorry to say, if I could have the amount of it, I'd send the fund in time. At my last request made on the 31st day of December, it is the first time the escrow officer M emailed me the numbers for me to review (with a correction of mobile home past due tax which I found on the 30^th day of December.) Yesterday is the new year, almost every office is off. Is there anything else I could do about it?   My conclusion is: clearly it is not the Buyer who shall be blamed as the cause of COE delay.

That will leave the Seller the only cause for delay. If the seller could perform all the obligations agreed and required by the Contract, there would be no problem for the escrow to have the "sufficient fund" to close. But is it the seller at default? Please let's hear the explanation from the seller before we make that accusation.

Well, my experience in law firm advises me to stay away from legal entanglement that is a waste of time and concentrate doing things more fun, creative and profitable. Life is miserable to some degree; let us not be the one making it more miserable. Always, I believe that everyone has to be happy in closing a deal with me and I made it one of my life philosophy. I don't need this piece of property to make someone uncomfortable. There are a lot of properties out there for us to have fun. 

Evaluation of the current situation and possible solutions:

I don't really know what cause the seller adopted an uncooperative approach to the close of the escrow. I don't want to spend my time to guess since I spent too much time of my Happy New Year on this small deal. Let's not argue further and move to propose an acceptable solution.  

Solution 1:

If the Seller regrets to sell me the subject property at the price and terms, I will do my best to let him or her off the hook.

Since I am a naturalist, I don't want to force anyone to do something regrettable.  It is my tradition of doing business is everyone has to be happy out of the deal.   I decide to get nothing out of the deal. However, I have to consider the other 3 parties who have worked hard. I believe it is unfair for them to work for nothing. 

So, here is my preferred #1 proposal: 

Both parties (the Seller and the Buyer) agree to cancel the subject escrow under the following 2 conditions: 

1. The Seller agrees to deposit $1,830 into the escrow to pay the following items of costs and expenses:

A. escrow fee of $460 to First American Title

B. brokers' commission of $1,200 to listing and selling agents.

C. Courier and postage charge of $80 +$60=$140

D. Buyer's wire fee of deposit of $30. 

2. The earnest deposit of $1,000 is fully released to the Buyer. 

We as the buyer hereby agree that the escrow is automatically cancelled without our further signatures upon the Seller's fund of $1830 is deposited into the escrow. 

(Sorry, the Seller has to pay it to be fair to others; but it is the price for a mistake made if the Seller didn't like the deal. At least consider it is lucky: the Seller should be happy to keep the "bad apple" in their bulk purchase as wished.)  

Solution 2:

Let's hire a mediator or arbitrator to settle the dispute. May I suggest: how about AAR commission for this purpose? Sure, the prevailing party shall pay nothing for this process and deserves everything by the contract.  Agree or not?  

Solution 3:

Let's move to close the escrow as we agreed without any further excuse. Then, we need to extend the date of closing to a reasonable degree ( Here, the Buyer agrees to send the sufficient fund into escrow in one business day after receipt of an escrow notice of ALL needed documents or inspection reports are at hand.)

If it is impossible or too much trouble for the Seller to perform those obligations at Seller's expense, the Seller still insists the Buyer to do them outside escrow on behalf of the seller? They are clearly not the jobs the buyer agreed and expected to do. There is no reason for the Buyer to do them at Buyer's expenses, right?  We already rejected that groundless suggestion.

Then, what are those costs or expenses? Sure, the Seller knows better than the Buyer. Well, let us compromise. We'd like to hear at what price the seller is willing to pay (sort of hire) us for the bother?

In case of that there are other smarter alternatives to the above 3 proposals from the Seller, we are open to review them. 

M, please give the above legal notice and proposals to the Seller ASAP.

Thank you for all of you,

ET 

p.s. We are scheduled to have a Cashier's Check and to notarize two documents as you requested.  We are wondering if we have to send the check and documents on Monday Jan. 4 or next day when we can reach an acceptable settlement on this purchase deal.   We'll email you a copy of cashier's check to show you our sincere cooperation.  However, judging the current situation, we are not sure we can have the same cooperation from the seller.  If this escrow is cancelled, there is no need to waste money to fedex them to you.  So we may send all the documents with the Cashier Check by Fedex overnigh upon your receipt of all the docs needed for you to make complete mandated transfer to authorities.  What do you think?   

Email II: 

Re: Mutual Cancellation Tue, January 5, 2010 9:28:44 AM

From:	ET Add to Contacts
To:	"M"
Cc:	Kim ; Eu
	2 Files  View Slideshow  Download All eugendoc.jpg (70KB); my cancellation.jpg (89KB)

Hi! M***, Here we go.  Enclosed is the signed docs. Please make one check of $1,170 payable to  me and send it to my California mail address: P. O. Box ****, CA  91***

Looking forward to working with you very soon.

Thanks, ET

From: M
To: Kim ; ETs
Sent: Tue, January 5, 2010 7:44:07 AM
Subject: Mutual Cancellation

Hi there can you please send me the mutual cancellation so I can cancel and disburse the funds on this escrow.