Posted by Stacy (AZ) on March 17, 2000 at 01:32:36:
Nope, only you have to sign the MOA, in the presence of a notary…well I guess the notary signs it, too. I’ve only done one of these in the recent past, and when I sent a copy of the recorded document to my seller who was flaking-out, she immediately got VERRRY cooperative.
Stacy
Title Company ignored recorded Memo of Agreement and issued title insurance policy - Posted by Irwin(CA)
Posted by Irwin(CA) on March 16, 2000 at 19:51:38:
Interesting situation. I had a re purchase contract with a seller and was ready to close the escrow when the seller decided she wanted more money and refused to complete the transaction. I then recorded a Memorandum of Agreement to try and protect my interests.
It’s now 3 weeks later and I just found out that the house was sold and title insurance issued despite the recorded MOA. Funny thing, I received an abusive nastygram from Seller’s “lawyer” dated three days after the deed recorded demanding that I remove the cloud on the property’s title.
Any suggestions from the Pro’s as to the best course of action. Thanks in advance.
Irwin
Record a Lis Pendens next time - Posted by Michael Morrongiello
Posted by Michael Morrongiello on March 17, 2000 at 13:34:24:
If you know that a seller is going to Flake out on you and you really want to force them to deal with you or perhaps pursue a specific performance lawsuit on the sales contract then I would seek legal help and record a “lis pendens” against the title of the property.
When a “Lis Pendens” is recorded is puts the world on notice that there is something wrong with the title to this property and that pending litigation may be forthcoming. Most title companies will NOT ignore this type of warning and insure over it. It effectively stops the sale of this property by the seller to anyone without first dealing with you.
Seek legal assistance for further input on the use of this type of lien.
Michael Morrongiello
Additional answer to your question - Posted by JoeB(Atlanta)
Posted by JoeB(Atlanta) on March 16, 2000 at 22:15:01:
Sorry Irwin, I explained the details in my prior post, but I didn’t answer your question of what to do next…
If you feel that the Seller breeched your contract and just walked away for no good reason and took another higher offer, then I’d consider making a claim against her and the title insurance policy of the new Buyer.
You might want to contact your own atty to represent you in this claim (and I’d ask his/her opinion of your odds, but I’d guess they’re good, since the Seller lied when she signed the Affadavit that covers the recording gap). You might be able to settle for several thousand dollars or more, if you and your atty can show that this was your ‘lost revenue’.
Best of success,
Joe Brillante
Re: Title Company ignored recorded Memo of Agreement and issued title insurance policy - Posted by JoeB(Atlanta)
Posted by JoeB(Atlanta) on March 16, 2000 at 22:07:17:
Hi Irwin, the title examiner probably didn’t pickup your Memorandum because it ‘fell in the recording gap’. That means that there is a lag (of 4-6 months in Atlanta) between when you record/file a Memorandum (or any deed) and when it actually ‘pops out’ in the actual Deed Books. This period can be from several days to several weeks to several months.
This ‘gap’ is covered at closing by a document/Affadavit that the Seller signs warranting that they have not done anything to effect their property during that gap in time (no other liens, judgement or contracts).
So your Memorandum was recorded but didn’t show up in the Deed Books by the time the title examiner went to check them. Now, the atty is probably annoyed because he sees that the date you recorded it is around when the Seller went under contract with her new Buyer. So I’m guessing that the atty thinks you did this out of spite because you ‘lost out’ to another investor.
What we ALWAYS do that helps prevent this: the DAY we get a house under contract we record that Memorandum ON EVERY HOUSE. And yes, it has earned us some money from devious sellers that have tried to sell it someone else–the seller or buyer then had to ‘pay us off’ to remove our Memorandum (if we chose not to go through with our purchase).
Best of Success,
Joe Brillante
Additional question to your answer - Posted by LeonNC
Posted by LeonNC on March 16, 2000 at 23:34:51:
Does the seller have to sign a memorandum of agreement? My attorney or at least one I was going to use told me that the seller needed to sign it. Is this a state by state thing? Not much of a secret weapon if the seller has to sign it.
LeonNC
Re: Additional answer to your question - Posted by Irwin(CA)
Posted by Irwin(CA) on March 16, 2000 at 22:30:47:
Hi Joe,
Funny thing is that the MOA was recorded about 3 weeks before sale. And in this County, recorded stuff is indexed the same day and is is available on line the next day. I gotta believe the title company just ignored it and hoped I will go away. They’re wrong!
Interesting that you do a MOA on all your deals. I almost never do them and only do them when there appears a definite problem brewing. Never had a problem until this.
Later.
Irwin