My question involves real estate located in the State of: New York
I have previously posted on this site regarding a seller who left the country to evade warrants for his arrest. This is well documented with both state and federal law enforcement officials. He is not returned and we do not expect him to return. We went through our closing without the seller showing up and then waited the required period of time to essentially render the contract null and void. We has placed a deposit in escrow with the sellers attorney and they are not returning this deposit since they need the seller to agree to the return. They are ready and willing to return the funds, but don't want to do it without a court judgment. We filed a small claims, but he cannot be served via the last known address since the postal service is returning mail that is sent to him. I have a couple of questions:
1. For small claims in NYS, does the defendant need to be contacted and reply to the court to proceed with a trial? There is no possibility that he will reply to a letter that might be sent to an alternate address, but we do have an address that we believe will not be returned. We had made our claim against BOTH the seller and the law firm. Is a reply required to proceed with the small claims?
2. Does the small claims need to be against both the seller AND the law firm or will the court hear a case against the law firm holding the escrow? Filing just against the law firm will be much easier given the sellers situation.
3. We asked that the law firm to consult with the NYS bar association to obtain documentation that allows them to release the funds from the escrow (IOLA) account. They law firm has indicated that the bar association does not have jurisdiction over IOLA accounts and will not contact the bar association. Who has jurisdiction of IOLA accounts that we might use to help encourage release of the funds?
4. Does the seller need to be served if we go the non-small claims litigation route? If so, does this leave us in the same spot as we are with the small claim?
5. Any ideas on how we might be able to pursue this without litigating? If the money remains in escrow and we do not litigate and the seller does not return, what happens to the escrow money?
Thanks,
Devin
I have previously posted on this site regarding a seller who left the country to evade warrants for his arrest. This is well documented with both state and federal law enforcement officials. He is not returned and we do not expect him to return. We went through our closing without the seller showing up and then waited the required period of time to essentially render the contract null and void. We has placed a deposit in escrow with the sellers attorney and they are not returning this deposit since they need the seller to agree to the return. They are ready and willing to return the funds, but don't want to do it without a court judgment. We filed a small claims, but he cannot be served via the last known address since the postal service is returning mail that is sent to him. I have a couple of questions:
1. For small claims in NYS, does the defendant need to be contacted and reply to the court to proceed with a trial? There is no possibility that he will reply to a letter that might be sent to an alternate address, but we do have an address that we believe will not be returned. We had made our claim against BOTH the seller and the law firm. Is a reply required to proceed with the small claims?
2. Does the small claims need to be against both the seller AND the law firm or will the court hear a case against the law firm holding the escrow? Filing just against the law firm will be much easier given the sellers situation.
3. We asked that the law firm to consult with the NYS bar association to obtain documentation that allows them to release the funds from the escrow (IOLA) account. They law firm has indicated that the bar association does not have jurisdiction over IOLA accounts and will not contact the bar association. Who has jurisdiction of IOLA accounts that we might use to help encourage release of the funds?
4. Does the seller need to be served if we go the non-small claims litigation route? If so, does this leave us in the same spot as we are with the small claim?
5. Any ideas on how we might be able to pursue this without litigating? If the money remains in escrow and we do not litigate and the seller does not return, what happens to the escrow money?
Thanks,
Devin
Closings and Escrow: Seller is a Fugitive and Recovery of Deposit in Escrow
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