Can I Sue for a Breach of Contract by a New York Real Estate Buyer?

If you are selling property in New York, you may wonder what options you have if a buyer breaches the real estate contract with you. A breach means the buyer does not fulfill their obligations after they have made an offer on the property and you have accepted it, which created a contract. These cases can get contentious pretty fast which is why working with a New York real estate lawyer can help get things resolved in your favor. Common breaches of contract in New York real estate include:

  • A buyer failing to obtain agreed-upon financing prior to the closing date, which is a common point on which most real estate contracts hinge;
  • A buyer cannot complete the purchase because they have not sold their home prior to closing on the property in question;
  • Failing to pay on time; and
  • A buyer’s failure to properly deliver the deed of property.

If the real estate contract to purchase property is accompanied by the usually earnest money deposit equaling 10% of the purchase price, the circumstances of the breach will dictate if the buyer is entitled to a refund of the money. It is generally assumed a seller will retain the earnest money deposit if the buyer doesn’t uphold their end of the purchase agreement, but it’s best to avoid conflict and write these terms into the sales contract to make this a binding term.

If a buyer breaches and backs out of the contract, whether the buyer had a valid reason to breach determines if they get back their earnest money deposit. If a buyer simply changes their mind, they would likely forfeit their deposit; unlike a situation where they were denied proper financing and notified seller as provided under the terms of the contract.

As a seller, if the buyer breaches the real estate contract there are usually three remedies available to them:

  • Filing a lawsuit for breach of contract;
  • Keeping the initial earnest money deposit and subsequently terminating the contract; and
  • Bringing a suit for specific performance.

If both buyer and seller believe they are entitled to the money after a breach, the seller can sue for breach of the real estate contract. However, it’s important to remember in most situations, the terms of the sales contract may place limitations on a seller’s options.

If a seller is ready, willing, and able to sell and the buyer defaults for reasons other than those permitted by the contract or contingency provisions, the seller can properly terminate the sales contract and keep the earnest money – usually even if the amount of the payment exceeds the seller’s damages from the buyer’s breach. The seller can sue and receive specific performance only if monetary damages will not adequately compensate them and their sales contract does not solely limit them to liquidated damages limited to the amount held in escrow. When suing for breach of contract, the seller will only receive monetary damages above the earnest money amount if the seller can show that after the buyer’s breach they were only able to sell the property for less than offered by the buyer.

New York Real Estate Lawyer

In a breach of contract situation and not sure what to do? Get in touch with a New York real estate lawyer at MOWK law to learn about your options and how we can help get things resolved quickly. We look forward to hearing from you!

How Does New York’s No-Fault Law Affect My Recovery for My Car Accident Injuries?

When someone is injured in a car accident, it’s only natural they want to be compensated for damages sustained because of the accident as well as for pain and suffering as a result of injuries inflicted by someone else’s negligence. New York, as one of only 12 states in the country that has adopted no-fault laws, makes it easy for victims to receive some compensation from an insurance company quickly following their accident. Under No-Fault Law, a car accident victim is entitled to compensation from an insurer for personal injury expenses they incurred such as hospital bills or wages lost due to missed work without proving fault or another party’s negligence.

Even though New York’s No-Fault Law has simplified and streamlined the compensation process for these harms, it does not allow victims to pursue damages for pain and suffering through this same process. A victim must choose within 30 days from their accident whether they want to take advantage of New York’s No-Fault insurance laws or else run the risk of receiving no compensation for medical bills and lost wages.

There is a $50,000 financial award limit under New York’s No-Fault Law that is meant to cover a meaningful portion of:

  • Reasonable, necessary medical expenses for treatment related to the accident,
  • Lost wages (up to 80% with a maximum of $2,000 per months for up to 3 years),
  • Reasonable, necessary transportation costs incurred traveling to and from locations for medical treatment, and
  • Household assistance and other reasonable, necessary expenses.

In the case of a fatal car accident, the No-Fault Law in New York also provides a victim’s estate an additional death benefit.

If a New York car accident victim wants to seek monetary compensation for their pain and suffering, they must first prove another party was negligent or otherwise at fault for the accident and their injuries. Then, even after establishing fault, a victim’s injuries must be grave enough to satisfy certain New York insurance law requirements. Under New York State Insurance Law §5102 (d), the victim must meet at least one of the conditions below to recover pain and suffering damages:

  • As a result of the car accident the victim died, lost a limb (was dismembered), lost a fetus, or suffered a significant amount of disfigurement or scarring.
  • The victim suffered broken bones, parts of bones, or teeth in the accident.
  • Due to the accident, the victim has suffered the “significant limitation,” “permanent loss,” or “permanent, consequential limitation” of the use of at least one bodily system, part, or function.
  • For at least 90 days of the 180 days immediately after the accident, the victim’s injuries have limited them in some way.

New York Personal Injury Lawyer

Looking for a top New York personal injury lawyer to help you get money following an accident? Look no further than the talented team of attorneys at MOWK Law. Aggressive, experienced and always working hard to make sure our clients get paid as quickly as possible – call us today.

What Happens in the New York Mortgage Foreclosure Process?

If you have fallen behind on your house payments to a mortgage holder like a bank or finance company in New York, it’s common to wonder what you can expect if you are unable to get back on track repaying your debt. Because New York is a judicial foreclosure state, the lender must file a lawsuit against you to enforce their rights – only if they win and get a court judgment can they auction off your property. However, there are a few steps leading up to foreclosure you can also expect. Here is a general sense of what you can expect during this type of New York real estate foreclosure process.

Pre-Foreclosure

Acceleration Letter – A lender must send this to a delinquent borrower after a default but before filing a foreclosure suit. The letter must tell the borrower they intend to accelerate the entire mortgage amount if the overdue money is not provided by a certain date.

90 Day Pre-Foreclosure Filing Notice – New York law requires a lender to provide a special notice to the borrower at least 90 days prior to filing a foreclosure lawsuit. It must include specific language as well as provide the borrower the names of at least 5 nonprofit housing counseling agencies near them.

Foreclosure in New York

Lender Files a Foreclosure Summons and Complaint – To begin the foreclosure process, the lender must file a Lis Pendens as well as a Summons and Complaint in court. The Lis Pendens advises the public the property title is involved in litigation, and the Summons and Complaint officially start the lawsuit.

Lender Files Request for Judicial Intervention, Affidavit of Service and Attorney Affirmation – The lender has to serve the Summons and Complaint on the borrower and file an affidavit with the court stating when and how the borrower was served these documents. The lender should simultaneously file a Request for Judicial Intervention advising the court a Mandatory Settlement Conference must be scheduled – if they do not, the borrower may file this. The lender also needs to file an Attorney Affirmation with the court.

Borrower Files an Answer to the Complaint – You must file an Answer to the Complaint within a prescribed time period (which is set based on how the Summons and Complaint were served). Failing to file an Answer results in a default judgment, which allows the lender to ask the court for an Order of Reference appointing a referee to calculate the amount owed to the lender. After this is done, the lender can request the court enter a Judgment of Foreclosure and Sale, which allowed the lender to schedule the property for auction.

Mandatory Settlement Conference – The court will hold a mandatory settlement conference within 60 days of filing the Affidavit of Service to try and get the lender and borrower to come to a mutually agreeable resolution. You’ll receive a notice from the court with the conference time, date, and location, as well as a list of anything you should bring to the conference.

Litigation and Discovery Phase – If the settlement conference is unsuccessful, litigation begins and the parties request documents from each other the discovery phase. The lender may also file a Motion for Summary Judgment in this phase if they believe the borrower does not have a meritorious defense – if this is successful the court will grant the motion and the lender can seek an Order of Reference and an auction date.

Trial – If neither settlement nor a motion can resolve the case, the foreclosure lawsuit will then go to trial.

New York Real Estate Law Firm

It is important to be aware of the foreclosure process in order to be proactive in protecting your rights and avoiding very costly missteps. This is why it is highly advisable to consult an experienced real estate litigation attorney to help preserve your rights and secure the best outcome possible in your situation. At MOWK Law, we can help with all your residential and commercial real estate issues, including handling a foreclosure situation. Our consultations are designed to answer all your questions and get your legal problems solved—get in touch with us today!