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Last year, I was purchasing some vacant residential land up in the mountains. The seller is a small bank. A week after the contracts were signed, the HOA met and changed the covenants dramatically and I decided not to go through with the closing. The bank filed suit against me for Specific Performance (which is not the proper remedy in this situation) and we have been slugging it out ever since (I am pro se). The bank was just seized and shuttered by regulators on Friday and everything was divided between FDIC and another bank. This is a small amount of money ($16k) and I could not believe that they were going to go balls to the wall over such a small amount. My question is who will the plaintiff be now that the bank has been closed?
Can't determine on those facts. The bank's claim against you will be likely sold or assigned to some successor in interest. If the bank is represented by counsel you will likely see a motion to substitute party filed at some point.
1. They are likely in receivership with the FDIC, which will sell them to another bank.
2. The successor bank will likely still have a claim as an assignee.
3. Specific perfromance usually is a remedy in real estate claims, unless the contract specifically bars it.
4. Most contracts that deal with property subject to HOA or COA covenants have some sort of due dilligence period or other contingency where the purchaser reviews and approves the covenants. You will want to see if this contingency still exists in the contract.
5. Contracts are very date/deadline sensitive. Due to the FDIC receivership, it will likely be at least 30-60 days before anyone pays attention to your contract. It is very possible that the Seller will either miss the closing date or some other deadline in the contract in that lapse, which will likely cause the seller to default under the contract. Wait until that date passes, then ask for your EM back.
6. Please dont post any half naked S&M photoshoots on this board.
1. They are likely in receivership with the FDIC, which will sell them to another bank.
2. The successor bank will likely still have a claim as an assignee.
3. Specific perfromance usually is a remedy in real estate claims, unless the contract specifically bars it.
4. Most contracts that deal with property subject to HOA or COA covenants have some sort of due dilligence period or other contingency where the purchaser reviews and approves the covenants. You will want to see if this contingency still exists in the contract.
5. Contracts are very date/deadline sensitive. Due to the FDIC receivership, it will likely be at least 30-60 days before anyone pays attention to your contract. It is very possible that the Seller will either miss the closing date or some other deadline in the contract in that lapse, which will likely cause the seller to default under the contract. Wait until that date passes, then ask for your EM back.
6. Please dont post any half naked S&M photoshoots on this board.
1) Per the article I saw in the paper, the split is between FDIC and Bank of North Carolina.
2) Just trying to figure out if FDIC is involved in this part, where is it going to end up.
3) Specific Performance as a remedy is usually for the buyer, not the seller since land has uniqueness to it. As a purchaser, I have no uniqueness for the transaction. All the cases that I have found have been in favor of the purchaser for SP. I’ve found a handful of cases where they were as close as could be expected to my case where the courts have come back and said the change in the covenants altered the contract...
4) This is a standard NC Real Estate contract prior to the 2011 ones that came out so it is rather ambiguous. Just says to look at the HOA rules...
Quick recount of the events:
11/15/10 I made an offer to purchase for $16k
11/30/10 Bank/Seller accepts
12/04/10 HOA changes the rules
12/17/10 I refuse to close because of the new rules
12/30/10 I send in Termination request
01/24/11 Bank/Seller files suit for Specific Performance to force me to purchase
5) The trial was scheduled for 10/10/11 (last week) but plaintiff requested additional time for items I requested in discovery and was granted till 11/02/11 to send it. Trial has been rescheduled for 01/09/12.
6) I’m sure not going to post FULL naked S&M pics....
It's a moot point at this juncture but if the HOA change covenants after you agreed to purchase, wouldn't that alter the conditions of the deal and be a legitimate reason to terminate the deal?
That’s my position - with the new covenants and restrictions (went from 3 pages of simple rules to 21 pages) it substantially changes the property I bargained for....
I also have an email from the Bank/seller to their attorney stating what a mess this change has caused, how its going to be expensive for them to try and combat and correct, and how its not an expense that they want to get into.
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