My closing process just hit a major roadblock

[Sandisw]

My understanding is that we will get all of the money back if they do not provide the signed documents by the date stated in the contract. You are right, it was dishonest and wrong. Unfortunately, the contract really doesn't address this situation and we are still under contract with them so if I don't want to pay a penalty, I think I have no choice but to wait until the closing deadline of June 26th and then ask for the money back that is being held is escrow. Sound right?

Yes, if they don’t close by the 26th of June, you get the money back and they will owe commission to the broker.

Anything you do prior to that costs you the deposit and they can charge you the commission.

You certainly could ask if sellers would be willing to let you out early

 

[RoseGold]

In fairness, a lot could change by June 26. Maybe they will be able to come up with a notary, one way or another.

 

[robinb]

My understanding is that we will get all of the money back if they do not provide the signed documents by the date stated in the contract. You are right, it was dishonest and wrong. Unfortunately, the contract really doesn't address this situation and we are still under contract with them so if I don't want to pay a penalty, I think I have no choice but to wait until the closing deadline of June 26th and then ask for the money back that is being held is escrow. Sound right?

I'm sorry this is happening to you! I think it's a stretch to say that it was "dishonest and wrong". I'm sure the seller didn't plan on getting caught in Brazil and I'm sure that they don't want to lose their sale.

 

[hlhlaw07]

The clause goes as follows (this is standard wording in the Fidelity contract):

"Upon Seller default, the Buyer may terminate this contract and shall be entitled to the return of any escrow deposits made as Buyer's sole and exclusive remedy. Seller also agrees upon Seller default to pay all expenses including escrow fees, advertising fees, and title exam fees and also to pay Broker's full commission and/or transaction fees."

So we are basically made whole and while the Seller is going to need to pay a bunch, none of it will go to us. So no compensation for wasting our time and effort. But at least we don't lose money which I guess is something.

Just a heads up, I would also look in the contract for a notice of breach provision. I had a contract through fidelity with an international seller who never returned their documents. I waited over 6 months past the close by date for them to return the documents (it was a really good deal that I didn’t want to lose). Once I decided I was done waiting, I had to wait another 30 days after they sent written notification to the seller that they were in breach before the closing company would return my money. My lesson from that is never let the the money leave your bank account until you have been informed the seller has returned all the documents.

 

[squirrel!33]

I'm sorry this is happening to you! I think it's a stretch to say that it was "dishonest and wrong". I'm sure the seller didn't plan on getting caught in Brazil and I'm sure that they don't want to lose their sale.

Yes, maybe it wasn't their intention but they didn't disclose their non-U.S. citizen status to Fidelity and didn't mention to them that they were out of the country. Our initial offer was on April 9th and the contract was signed on April 15th, long after the lockdown situation had started. At the very least, they are guilty of really not thinking through the situation. It would have been nice to know that this could be a possiblity and we would have walked away from the situation before it started. Now I have to go through all of these headaches to get out of this and get my money back and I wasted 3 months which means I won't have points before the window opens for the trip we were planning next year. I am not feeling too much sympathy for them right now.

 

[Best Aunt]

Florida state law will have rules regarding what is required in order for a deed to be recorded. This will include what to do when a document is supposed to be notarized but the person happens to be outside the country. If the people at the company handling the closing don’t know (and they should), tell them to ask their lawyer. This is not a coronavirus issue, it is a florida real estate law issue.

 

[limace]

I wouldn’t consider an American resident who is not a citizen to be an international seller. It’s unfortunate and I would be frustrated in your shoes but I don’t think they lied. Things are just crappy right now and they got stuck.

 

[KAT4DISNEY]

I see no dishonesty in this as described. International seller designation is for owners that reside outside the US afaik - it's not about citizenship. And lots of people travel during the selling process. During normal times it doesn't matter. This is not normal though. It's a sucky situation all around but it's very few if any people that really had any idea how things would go and stretch on.

If you want out OP I think it's a good suggestion to ask if they will let you out of the contract. Since the closing date isn't for over a month though be prepared for them to require you to wait as they also have time invested in this sale and probably want to close on it. If they don't care then they may let you out.

 

[SirDuff]

No, they never mentioned that they were not U.S. citizens before we signed the contract. Honestly, I am not sure if that would have changed by mind but it might have given that the pandemic was already in full swing. The agent said she didn't know either and said since they were located in the U.S. it would not have been a big deal to close the deal other than they have to withhold some income taxes. The issue is now that the wife is not in the U.S. to sign. I guess it has to be a U.S. notary so even though Brazil has their own notary-type system, that is not accepted here. It really seems like there should be some exceptions made given the situation and how unprecedented it is. Is anyone else experiencing something like this? Do you know of a title company that would handle it differently than Mason Title?

Why? Most non-citizens living in the US, have an SSN and pay taxes in the same way as citizens. When I lived in the US (I‘m Canadian), my citizenship status didn’t change anything in terms of payroll or real estate taxes. Or any other taxes that I encountered.

 

[poofyo101]

I have been in contract for over 3 months now on a contract as they cannot acquire the notary. Full escrow was sent over 2 months ago. Has not been easy for them with coronavirus.

 

[sethschroeder]

I've heard really good things about Mason Title and the reason they use a notary is to prove the seller actually signed the document so I'm not sure there is any other options.

Electronic Notary Services are legal in the state of Florida and enforceable.

Some companies are just slow to adopt technology. http://notaries.dos.state.fl.us/education/elecnot.html

 

[squirrel!33]

Electronic Notary Services are legal in the state of Florida and enforceable.

Some companies are just slow to adopt technology. http://notaries.dos.state.fl.us/education/elecnot.html

Thank you. After doing some research last night, I found the same information and forwarded it on to my agent at Fidelity. She had already requested permission to use an online notary with Mason Title and they said no. I am hoping maybe with a little more pushing, this policy will change. Without that, there is really no other way for this to be resolved. And I really do want this contract - my desire is not to start over again.

 

[Lumpy1106]

Doing a little sleuthing on the ROFR thread and the DVC resale site - yes, that's a great deal, but looks like there's a reason they accepted your offer. I'd move on. I imagine they needed this to go through more than you did. There are LOTS of other contracts out there, some not too far off from the deal you had in progress. No hurry right now anyway.

 

[Best Aunt]

Thank you. After doing some research last night, I found the same information and forwarded it on to my agent at Fidelity. She had already requested permission to use an online notary with Mason Title and they said no. I am hoping maybe with a little more pushing, this policy will change. Without that, there is really no other way for this to be resolved. And I really do want this contract - my desire is not to start over again.

They said no because they think the law does not allow it? Or they just don’t feel like dealing with it?

 

[UtahDon]

I am pretty sure that since Brazil is part of the Apostille Convention. The seller should be able to get it notarized by a tabeliões (Brazillian Notary), authenticated by Brazillian authorities, and then send the official sealed document to the US and it is valid in the US. My understanding is that this is the path for most international business contracts between US and Brazillian entities. This can be viewed on the DC dot Gov official government site by searching "Foreign Notarial Acts Frequently Asked Questions"

Also I don't get why the title company would not allow an electronic notary, that is fully legal and enforceable in Florida.

 

[sethschroeder]

They said no because they think the law does not allow it? Or they just don’t feel like dealing with it?

Mason Title likely does not want to deal with it and put in policies as its never really been a requirement of business.

I know a few national title companies have been aggressively changing policies and implementing new processes but its not instant and since each state is different its not a turnkey solutions today.

Possibly some day there will be federal laws in place to address it like there is for electronic signature.

 

[bcuinohio]

If you find a major US international law firm with offices in Brazil, chances are that they will have a US notary on their staff.

maybe someone like White & Case? Or Baker McKenzie?

I'm a notary in Ohio. In order to notarize a document, I have to be within the border of Ohio to legally notarize a document.

 

[spunkylouamanda]

Would another closing company work?

This is my thought. There are other title companies that would insure over that issue if there is a secure notary service available to her. They are insuring over all kinds of non-traditional "stuff" right now due to Covid.

 

[spunkylouamanda]

This is my thought. There are other title companies that would insure over that issue if there is a secure notary service available to her. They are insuring over all kinds of non-traditional "stuff" right now due to Covid.

My thought is have your agent speak with First American Title.

 

[suemom2kay]

You might try calling Mason Title yourself. Then you can ask why not online and what alternatives. If they won't play ball, get another Title company. Mason is great and fast. Definitely worth a phone call.