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    bschehl's Avatar
    bschehl Posts: 3, Reputation: 1
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    #1

    Mar 1, 2010, 11:09 AM
    Closing attorney liability for funds disbursement
    I just sold my home. Closed on Friday, Jan 29. I had an FHA loan which required satisfying the loan by the first business day of the month, Mon Feb 1, or I would be charged interest for the entire month of Feb. The closing agent (attorney/real estate agent for buyer) assured me that my lender would receive the funds in time. I asked for a wire transfer, he did not do it. He overnighted a check which was received in time on Mon Feb 1, but it was rejected by my lender because it wasn't certified as required according to the payoff statement. They contacted the attorney and he then sent a certified check which was received on Tue Feb 2. I ended up being charged for the entire months interest. Is he liable? He said it is my responsibility to payoff my loan, not his. He won't give me a cent.
    JudyKayTee's Avatar
    JudyKayTee Posts: 46,503, Reputation: 4600
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    #2

    Mar 1, 2010, 11:22 AM

    What do the legal papers say about forwarding the pay off amount? On one hand it appears that the Attorney, whether actually responsible or not, TOOK responsibility; on the other hand, was it your responsibility or his?

    I certainly think you have an argument here and very well might prevail - once he agreed to send the funds he became liable.

    I hate to see Attorneys sued but I would take this one to Small Claims Court.
    bschehl's Avatar
    bschehl Posts: 3, Reputation: 1
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    #3

    Mar 1, 2010, 11:36 AM

    On the first page of the Payoff Statement issued directly to the attorney by my lender, it states that only certified check, cashier's check or bank wire is acceptable payment. I presented my concerns to him in advance of the closing and he assured both my real estate agent and me that the there should be no issue with the funds. Not once did he ever voice concern for responsibility. He told me that he does thousands of closings a year and never sends a certified check. He is admitting failure to comply with my lenders requirements, but says he is not responsible because he represented the buyer. Isn't it his responsibility as a closing agent for the buyer to disperse the funds? Also, I would think because he said he would do it, and included fees at closing for FedEx in order to send the check, that would make him responsible.
    JudyKayTee's Avatar
    JudyKayTee Posts: 46,503, Reputation: 4600
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    #4

    Mar 1, 2010, 02:32 PM

    My legal argument would be that once he consented/agreed to handle satisfying the loan within a certain time frame he IS responsible for doing just that.

    He will probably argue that he wasn't notified of the time frame and the consequences.

    Whether he took out funds for FedEx, whatever else he did is, in my eyes, immaterial.

    If he said he would handle this in a certain time frame and did not he is responsible for the extra fees/charges - in my opinion.

    I would sue in Small Claims Court. He should consider himself fortunate that you are not reporting him to the Bar Association.
    LisaB4657's Avatar
    LisaB4657 Posts: 3,662, Reputation: 534
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    #5

    Mar 1, 2010, 03:02 PM
    Technically it's the buyer who is responsible for reimbursing you for the additional interest. Your contract was with the buyer, not the buyer's attorney. If you want to sue you will have to sue both the buyer and the buyer's attorney if you want to be safe.
    kendallashton's Avatar
    kendallashton Posts: 7, Reputation: 1
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    #6

    Mar 1, 2010, 10:55 PM

    Report the attorney to the attorney's state bar association.
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