#3163 - 09/15/0403:58 PMSSCRA wants earnest money back and not in military
Anonymous
Unregistered
I am a landlord and have a sales contract in the works, the sales contract was signed by a civillian and is in her name only, she also signed a temp lease agreement. Last month we were notified that she got married and wants to move closer to home, therefore wants to terminate the lease and sales contract. Her husband is in the military and had been called to active duty. Her name is the only name on the lease and sales agreement, she qualified for both on her own. We have no problem letting her out of the lease with notice and will return her security deposit, but feel she has no claim to the non-refundable earnest money. Anyone have any advice or where I can get some answers? I feel that they are trying to abuse the SSCRA to try and get out of a signed contract. (the contract was signed in May, way past the option period)
#3164 - 09/16/0405:03 PMRe: SSCRA wants earnest money back and not in military
Anonymous
Unregistered
I'm not a lawyer (but I did stay at a holiday inn express last night), but if this happened to me, I would keep the earnest money. The EM is associated with the land contract, NOT the lease. Section 305 of the SCRA describes termination of residential or motor vehicle leases, but there no language in the Act describing earnest money in a land sales contract. I presume the non-refundable clause was in the land sales contract she signed.
#3165 - 09/17/0411:03 AMRe: SSCRA wants earnest money back and not in military
Anonymous
Unregistered
Even if you are legally able to keep the earnest money, why would you? They're newlyweds and he's off to war. This comes off as being greedy when she and her husband are going through a hardship for the good of us all. Give them the money. You'll get earnest money from the person(s) who ends up buying your property so you won't be out anything.
#3166 - 09/17/0411:20 AMRe: SSCRA wants earnest money back and not in military
Dan Persfull
Compliance is my life
Registered: 08/28/02
Posts: 16057
Loc: Bloomington, IN
I guess I'm confused. Why would you have a sales contract and a lease agreement?
If the sales contract was an option to buy the property after a period of time in the lease, then the sales contract could very easily be construed as part of the lease.
Don't get me wrong, because I fully support our troops and the intent of the SCRA, but IMHO she is not entitled to the relief in this situation. How is she materially affected in her ability to repay because she married a person in the military after entering into the obligations.
Sec. 308. EXTENSION OF PROTECTIONS TO DEPENDENTS. Upon application to a court, a dependent of a servicemember is entitled to the protections of this title if the dependent's ability to comply with a lease, contract, bailment, or other obligation is materially affected by reason of the servicemember's military service.
If you are set on protesting this, then it would be wise to engage your attorney for advice.
_________________________
The opinions expressed are mine and they are not to be taken as legal advice.
#3167 - 09/17/0412:00 PMRe: SSCRA wants earnest money back and not in military
SoccerMomQueen
Power Poster
Registered: 04/09/01
Posts: 2632
Loc: Glistening in the South!
Cigi, Is this really an issue that you want to pursue? Even if all the laws are on your side, you will be out the money that you spent on the lawyer. You are also taking the chance that the judge will be sympathetic to the wife of a serviceman that has been activated.
Even if you are legally entitled to keep the money, how will you feel about yourself and how will others feel about you? Remember, you are going to get earnest money from someone else when you do sell. If you no longer have the money available to give to her, perhaps she would be willing to compromise or work out a payment arrangement.
I vote (& it's just my opinion) to return the money just because I believe it's the right thing to do in this situation.
_________________________
Compliance-—"It’s not about having a piece of paper, it’s about reading it." -----Ken Golliher
#3168 - 09/17/0401:50 PMRe: SSCRA wants earnest money back and not in military
Anonymous
Unregistered
You'll get earnest money from the person(s) who ends up buying your property so you won't be out anything.
You are out of the time and effort expensed to make this contract. You aren't being greedy, the lady knew full well the earnest money was non refundable (assuming she read the contract, which is her responsibility). This isn't any different than a non-refundable fee some banks charge to apply for a loan.
#3169 - 09/17/0402:12 PMRe: SSCRA wants earnest money back and not in military
Anonymous
Unregistered
Quote: This isn't any different than a non-refundable fee some banks charge to apply for a loan.
Ok so there's your choice - you can act like an institution or like a caring human being.
Quote: Even if all the laws are on your side, you will be out the money that you spent on the lawyer. You are also taking the chance that the judge will be sympathetic to the wife of a serviceman that has been activated.
Even if you are legally entitled to keep the money, how will you feel about yourself and how will others feel about you?
Treat her as you would want your daughter to be treated in a similar situation.
As someone who just kept a couple of earnest money deposits from buyers who really weren't ready to buy, I have to chime in. I've been paying a house payment and lost opportunity to see the joint because I agreed to sell it to someone who didn't end up buying, but asked me to take down the forsale sign. This isn't greedy, it's what earnest money is for. Military or non-military, if she entered into a contract, and it's legal to keep the funds, don't think badly about yourself for keeping them. She must have known when she entered into the contract that it was a contract, and that she was involved with someone who might be moving at the whim of the government. If she didn't know the ugy when she entered the contract, is it your obligation to suffer because of her romantic entanglement? I think not!
_________________________
Dawn Coursey VP/CRA Queen
CRA Rating is in...Once again...OUTSTANDING Woo Hoo
#3171 - 09/17/0403:19 PMRe: SSCRA wants earnest money back and not in military
Anonymous
Unregistered
Cigi, as a business person, I'm sure you have "eaten" your share of money that you didn't have to.
Your original post questioned whether SSCRA (now SCRA) covers earnest money in a land sales contract. No one quoted that portion of the regulation that did. Instead, what you get is many equating your decision to keep the NON REFUNDABLE earnest money as greedy, or "non-human".
If you are a first time visitor to bol, this may be a little shocking. You have to get used to it. If people don't agree with the position of another poster (especially if you are unregistered) they resort to questioning your integrity & compassion. Most of them don't own their own business like you do, so they don't walk in your shoes to keep a business going - they rely on someone else to give them a paycheck.
#3172 - 09/17/0403:55 PMRe: SSCRA wants earnest money back and not in military
SoccerMomQueen
Power Poster
Registered: 04/09/01
Posts: 2632
Loc: Glistening in the South!
Quote: Most of them don't own their own business like you do, so they don't walk in your shoes to keep a business going - they rely on someone else to give them a paycheck.
But in a lot of cases the posters here are consultants or vendors and they do have their own business. Many others have a spouse who has their own business. So, I beg to differ that some of us do understand what it is to run a business and I would bet that most of us have purchased and/or sold a home or two in our time.
Cigi, when the poster is anon, you really don't know whether they are a banker, bank vendor, or a public visitor. I think most of the previous posters agreed that you may be legally entitled to keep the money, only a lawyer can properly advise you on this. Right or wrong, some offered their opinion of whether you should and how far you might get in court.
Best of luck to all concerned, regardless of how you decide to proceed.
_________________________
Compliance-—"It’s not about having a piece of paper, it’s about reading it." -----Ken Golliher
Quote: Even if you are legally able to keep the earnest money, why would you? They're newlyweds and he's off to war. This comes off as being greedy when she and her husband are going through a hardship for the good of us all. Give them the money. You'll get earnest money from the person(s) who ends up buying your property so you won't be out anything.
As a parent and parent-in-law of military men I must weigh in on this one. The act was designed to protect those who, due to unforseen / unavoidable circumstances, could be financialy impacted by a call to service. I don't see how this meets either the letter or spirit of the law.
1) the person involved is not the service member.
2) the contract was not signed by the service member prior to entering military service.
Absent those two triggers, SCRA does not apply. (I'm not an attorney, but I just re-read the statute and two different commentaries before replying.)
It's your call, but I'd keep at least 1/2 just for the aggrivation, I might even keep it all.
Edited by Greg (09/17/0404:21 PM)
_________________________
If you approach life with pure logic you can avoid almost all of the fun.
Registered: 06/11/04
Posts: 3236
Loc: Back in New Orleans
Cigi - I think the honorable thing to do would be to give me the earnest money. I won't refund it to the lady, but I will have a barbeque that you both can attend. There will be ribs, pork chops, country sausage, boudin, and maybe even some bratwurst. And plenty of beer. Then, after you've both eaten your fill and drank too much, you can both commiserate that neither one of you has the funds.
But hey, that's just my thoughts on this. Oh, and teh rest of you BOLers are invited as well!
_________________________
WC done for US - let's hope we fare better in the Tour de France
#3175 - 10/12/0403:18 PMRe: SSCRA wants earnest money back and not in military
NEBroncosfan
New Poster
Registered: 08/30/04
Posts: 4
Loc: Central Nebraska
Your question: Is she entitled to relief under the SCRA? As I read your fact situation, she entered into a contract before she was married and before her husband moved to active service. You also stated the she qualified for all products on her own merit.
Given those facts, it is my opinion that she is not entitled to relief. The servicemember (the person Congress intended to protect) is not a party to any agreements. Similarly, he is not liable on any of the obligations. Since he has no liability, she is not entitled to relief.
Folks, we haven't walked in this landlord's shoes. Consider this: if she/he were truly greedy, they could enforce the lease AND keep the earnest money. Instead, they ended the lease and kept the earnest money. This might be a reasonable compromise that avoids placing all the burden on the landlord or the newlyweds. Afterall, the landlord didn't arrange the marriage, why should the landlord be forced to absorb these costs?
_________________________
Opinions are mine, not my employer's. (But, my employer pays to hear my opinions;).
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