Local attorney trying to block sale of home to Tre White

[ExiledInIllinois]

1 hour ago, ICanSleepWhenI'mDead said:

 

According to my brother Darryl, Tre White is already in the middle of this mess, and can't just walk away.  He's a named defendant in the case.

 

You get that the lawyer who made the first offer to buy the house sued not just the current owners of the house, but also sued Tre White individually for tortious interference with contract, right?  The article at the link in the original post contains a copy of the summons and complaint in the case.  Scroll down and read the "First Claim For Relief" at page 11 of the 28 page document. 

 

We don't know whether or not Tre White was aware of the fully executed (i.e., fully signed) contract between the plaintiff and the current owners of the house when he made his own, later offer.  I don't know Orchard Park practice, but in many parts of the country, the listing agent will add "Sale Pending" or "Under Contract" to a yard sign to let other potential buyers know that although they are welcome to submit a back-up offer (which could be accepted if the already pending sale fell through for some reason), an existing contract for sale was already in place.  Even without changing the yard sign, it is certainly possible that the listing agent told Tre White or Tre White's agent about the pre-existing, fully signed contract before Tre or Tre's agent submitted Tre's own, later purchase offer.

 

If Tre somehow didn't know about the pre-existing, fully signed purchase offer from the first buyer, he will win the lawsuit brought against him.   Even if he did know about that pre-existing contract, he might still win the suit, but we would need to know more facts to evaluate his chances.

 

There's nothing wrong with submitting a back-up offer, and my guess is that the current owners or their listing agent are much more likely to be culpable here than Tre, but until more facts come out, that's all it is - - just a guess.

That's a pretty good post Larry!

What does Your other brother Darryl think?

[JohnC]

4 hours ago, Shaw66 said:

I agree with your take on this.  The rational thing to do here if you're second to the party is to get your deposit back and walk away.  Particularly in Tre's case, because he has plenty of dough.  Why would he want to be in the middle of this mess for a year or more?

 

What I was pointing out is that the litigious person in Tre's position could make the claim - it's a really solid claim, written contract for the sale of real estate, it's pretty black letter law - and the seller's lawyer is going to tell the seller that the best thing to do is to pay Tre to make him go away.  It's probably worth $50,000 or more if someone in Tre's position wanted to put up with the headache.  

A very long time ago my parents were involved in a similar situation only on a less pricy scale. My parents bought a house in North Buffalo and put money down and signed a purchase contract. The owners changed their mind and wanted to rescind the deal. My parents wanted the house because they had already made arrangements to move. The issue became a legal dispute. I vividly remember accompanying my mother who didn't speak English very well to the lawyer's office. The lawyer gave a clear and simple explanation of the situation and the strength of our position. He succinctly said we were legally right but it wasn't worth the time and expense to pursue it. He also stated that the lawyer for the seller told our lawyer that he told his clients that they were in the wrong. My parents wisely walked away and bought another house in the area. 

[ICanSleepWhenI'mDead]

1 hour ago, ExiledInIllinois said:

That's a pretty good post Larry!

What does Your other brother Darryl think?

 

He thinks I'm uglier than I used to be, but he hasn't been to the eye doctor in a while.

[Shaw66]

3 hours ago, ICanSleepWhenI'mDead said:

 

According to my brother Darryl, Tre White is already in the middle of this mess, and can't just walk away.  He's a named defendant in the case.

 

You get that the lawyer who made the first offer to buy the house sued not just the current owners of the house, but also sued Tre White individually for tortious interference with contract, right?  The article at the link in the original post contains a copy of the summons and complaint in the case.  Scroll down and read the "First Claim For Relief" at page 11 of the 28 page document. 

 

We don't know whether or not Tre White was aware of the fully executed (i.e., fully signed) contract between the plaintiff and the current owners of the house when he made his own, later offer.  I don't know Orchard Park practice, but in many parts of the country, the listing agent will add "Sale Pending" or "Under Contract" to a yard sign to let other potential buyers know that although they are welcome to submit a back-up offer (which could be accepted if the already pending sale fell through for some reason), an existing contract for sale was already in place.  Even without changing the yard sign, it is certainly possible that the listing agent told Tre White or Tre White's agent about the pre-existing, fully signed contract before Tre or Tre's agent submitted Tre's own, later purchase offer.

 

If Tre somehow didn't know about the pre-existing, fully signed purchase offer from the first buyer, he will win the lawsuit brought against him.   Even if he did know about that pre-existing contract, he might still win the suit, but we would need to know more facts to evaluate his chances.

 

There's nothing wrong with submitting a back-up offer, and my guess is that the current owners or their listing agent are much more likely to be culpable here than Tre, but until more facts come out, that's all it is - - just a guess.

No, I didn't read the article or the complaint.  Suing Tre for tortious interference is nonsense.   It's an overly aggressive lawyer trying to put as much pressure on the situation as possible.   Unless Tre actually forces a closing to occur, simply signing a contract to buy the house is not tortious interference with anyone.  If Tre doesn't try to close, he hasn't interfered with the other buyer's right to performance of the other buyer's contract.   Tre's got no exposure here, even if he knew the other contract existed.     

[Patience]

25 minutes ago, Shaw66 said:

It's an overly aggressive lawyer trying to put as much pressure on the situation as possible.

 

This.

 

I have a unique perspective - I had the misfortune of working directly for this attorney (Cercone).  One of the worst human beings I've ever had the "pleasure" of meeting, let alone working for.

[Shaw66]

One more thing.   I read through the complaint.  I suspect that, as usual, there's more going on here than meets the eye.  

 

First, the complaint is really overblown.  They claim they suffered emotional distress because they can't buy their dream house, and they also have damages because they had begun to make plans to move.   Well, this all took place about six or seven days ago, so exactly how emotionally attached did they get to this house?   And what had they done to get ready to move?   And their children, oh, their children are suffering because they had their hearts set on this house.   Come on.   When I see a complaint like that, I'm embarrassed for lawyers.  

 

Second, there's stuff in the complaint about the seller's lawyer having approved the contract, and something that suggests the sellers had five days to get the approval.  In other words, the sellers had five days to cancel if their lawyer didn't like the deal.  The original contract was delivered on October 14, and a lawyer claiming to represent the sellers delivered a letter canceling the contract on the 20th.   Lawyers can argue about whether the five days are five business days or five calendar days.  If it's five business days, the cancellation letter was timely, because there's a weekend in there.   On top of that, it will be very important if the contract for purchase says "time is of the essence."  If it does, and if that reference is to every deadline in the contract, then missing the deadline is a problem for seller.  But if no "time is of the essence" provision applies to the five-day lawyer-approval window, then the cancellation notice on the sixth day is timely enough to be effective.   

 

My guess is that there is no time-is-of-the-essence provision, but I don't really know, and I don't know NYS law on the subject.  The reason I'm guessing is that the plaintiffs' lawyer put in all that nonsense about how they had already begun plans to move, the kids had their hearts set on it, blah, blah, blah, so they can show that they relied on the fact that the deadline came and passed.  What are they telling us, that up until midnight on the fifth day they hadn't made any plans to move, but when midnight came, they knew they had a deal and started furiously planning?   The fact is that before noon on the sixth day, they got the notice.   

 

I'm not saying who wins and who loses; all I'm saying is that there almost certainly are two sides to this story, and the plaintiffs' lawyer is only telling one side.   And almost certainly Tre didn't do anything wrong.   The sellers and their agent may have told them about the other contract and told them that contract was being canceled.  Tre doesn't have any obligation to investigate.  He's entitled to rely the representation of the sellers and their agent.   Tre's a defendant because the plaintiffs' lawyer thinks that if he makes a big enough mess out of this, he can force the sellers to sell to the plaintiffs.

 

Still, as we said earlier, simplest thing for Tre is to back out and find another house.  Or to tell the sellers that he'll stay in if the sellers pay his legal fees.  This is not Tre's problem.   

 

Meanwhile, there should be some full-page ads in the News informing the public who the lawyer is who sued Tre in the middle of the season.  

[Patience]

https://roncroftrealty.com/wp-content/uploads/sites/175/2019/11/Contract-of-Sale-Eff.-3_01_18-1.pdf

 

This is the standard residential real estate contract used in Erie County, and likely the one executed in this transaction.  I've only ever used this one in practice. 

[Shaw66]

25 minutes ago, Patience said:

https://roncroftrealty.com/wp-content/uploads/sites/175/2019/11/Contract-of-Sale-Eff.-3_01_18-1.pdf

 

This is the standard residential real estate contract used in Erie County, and likely the one executed in this transaction.  I've only ever used this one in practice. 

Thanks for this.   If anyone is interested in this crap, I think this confirms what I suspected.  

 

The provision requiring attorney approval creates a three business day time frame within which the contract can be canceled.   It appears that the cancellation notice from the attorney arrived the morning of the fourth business day. 

 

There is a provision about "time is of the essence," but it only applies to the closing.  By implication, time is NOT of the essence with respect to other time periods, so the sellers had a "reasonable time" after the deadline to still exercise the right to cancel based on the lawyer's review.  The morning of the fourth day is certainly a reasonable time.   

 

Having said that, there's probably New York case law about blowing deadlines like this, but unless that case law makes that three-business-day period iron-clad, from what we've seen I think there's a good chance the plaintiffs lose this, that their contract was in fact properly canceled, and that Tre probably can buy the house.  

 

To whom should I send my bill?

Edited October 28, 2020 by Shaw66

[Augie]

People will do crazy stuff when it comes to getting out of deals.

 

We had a buyer one time who got cold feet and wanted out of a house purchase he was committed to. The sellers, naturally, still insisted the deal close. He had already met his financing contingency, but he went out and leased a Mercedes with a monthly payment north of $800! There is a clause in the loan commitment allowing the lender to back out, in case you lose your job or something prior to closing. This met the criteria and he no longer qualified because he messed up his debt/income ratio, but he did have a sweet ride for a while! 

 

Another cute old guy said to us “you realize I’m 84 years old and you are giving me a 30 loan, right? Have you done the math there?”   Haha

 

 

.

Edited October 28, 2020 by Augie

[JohnC]

1 hour ago, Shaw66 said:

One more thing.   I read through the complaint.  I suspect that, as usual, there's more going on here than meets the eye.  

 

First, the complaint is really overblown.  They claim they suffered emotional distress because they can't buy their dream house, and they also have damages because they had begun to make plans to move.   Well, this all took place about six or seven days ago, so exactly how emotionally attached did they get to this house?   And what had they done to get ready to move?   And their children, oh, their children are suffering because they had their hearts set on this house.   Come on.   When I see a complaint like that, I'm embarrassed for lawyers.  

 

Second, there's stuff in the complaint about the seller's lawyer having approved the contract, and something that suggests the sellers had five days to get the approval.  In other words, the sellers had five days to cancel if their lawyer didn't like the deal.  The original contract was delivered on October 14, and a lawyer claiming to represent the sellers delivered a letter canceling the contract on the 20th.   Lawyers can argue about whether the five days are five business days or five calendar days.  If it's five business days, the cancellation letter was timely, because there's a weekend in there.   On top of that, it will be very important if the contract for purchase says "time is of the essence."  If it does, and if that reference is to every deadline in the contract, then missing the deadline is a problem for seller.  But if no "time is of the essence" provision applies to the five-day lawyer-approval window, then the cancellation notice on the sixth day is timely enough to be effective.   

 

My guess is that there is no time-is-of-the-essence provision, but I don't really know, and I don't know NYS law on the subject.  The reason I'm guessing is that the plaintiffs' lawyer put in all that nonsense about how they had already begun plans to move, the kids had their hearts set on it, blah, blah, blah, so they can show that they relied on the fact that the deadline came and passed.  What are they telling us, that up until midnight on the fifth day they hadn't made any plans to move, but when midnight came, they knew they had a deal and started furiously planning?   The fact is that before noon on the sixth day, they got the notice.   

 

I'm not saying who wins and who loses; all I'm saying is that there almost certainly are two sides to this story, and the plaintiffs' lawyer is only telling one side.   And almost certainly Tre didn't do anything wrong.   The sellers and their agent may have told them about the other contract and told them that contract was being canceled.  Tre doesn't have any obligation to investigate.  He's entitled to rely the representation of the sellers and their agent.   Tre's a defendant because the plaintiffs' lawyer thinks that if he makes a big enough mess out of this, he can force the sellers to sell to the plaintiffs.

 

Still, as we said earlier, simplest thing for Tre is to back out and find another house.  Or to tell the sellers that he'll stay in if the sellers pay his legal fees.  This is not Tre's problem.   

 

Meanwhile, there should be some full-page ads in the News informing the public who the lawyer is who sued Tre in the middle of the season.  

If the seller's contract stated five days needed for a legal review without specifying business days before the deal is completed then technically/b] the buyer has a case. Whether there is a "time is of the essence" clause or not I would think that the operating clause would relate to the days for legal review. One can assume that business days was the intention but the language/words in the contract didn't specify that. This is an example of sloppy contract writing. 

 

In my prior post I thought it would be wise for White to not get involved in this morass. It might also be wise for the seller to just go ahead and sell it to the first buyer and avoid the legal entanglement that will cost him more in legal fees and aggravation than he would gain from the higher offer he could have gotten from White.

 

Most lawyers are honorable people who are there to protect the interests of their clients. And some lawyers are sharks and obnoxious priiiiicks who are unyielding and not willing to come to some reasonable resolution. 

 

 

 

 

[Shaw66]

13 minutes ago, JohnC said:

If the seller's contract stated five days needed for a legal review without specifying business days before the deal is completed then technically/b] the buyer has a case. Whether there is a "time is of the essence" clause or not I would think that the operating clause would relate to the days for legal review. One can assume that business days was the intention but the language/words in the contract didn't specify that. This is an example of sloppy contract writing. 

 

In my prior post I thought it would be wise for White to not get involved in this morass. It might also be wise for the seller to just go ahead and sell it to the first buyer and avoid the legal entanglement that will cost him more in legal fees and aggravation than he would gain from the higher offer he could have gotten from White.

 

Most lawyers are honorable people who are there to protect the interests of their clients. And some lawyers are sharks and obnoxious priiiiicks who are unyielding and not willing to come to some reasonable resolution. 

 

 

 

 

The time is of the essence is specific to the closing.  

 

If the cancelation. Was void, as I would guess it is, then the seller closing with first buyer means the seller has to worry  that Tre will sue him. Not that i would advise that, but Tre would have case. 

 

The problem is the seller signed two contracts, and the seller is in a bind.  

 

 

[snafu]

2 hours ago, Shaw66 said:

One more thing.   I read through the complaint.  I suspect that, as usual, there's more going on here than meets the eye.  

 

First, the complaint is really overblown.  They claim they suffered emotional distress because they can't buy their dream house, and they also have damages because they had begun to make plans to move.   Well, this all took place about six or seven days ago, so exactly how emotionally attached did they get to this house?   And what had they done to get ready to move?   And their children, oh, their children are suffering because they had their hearts set on this house.   Come on.   When I see a complaint like that, I'm embarrassed for lawyers.  

 

Second, there's stuff in the complaint about the seller's lawyer having approved the contract, and something that suggests the sellers had five days to get the approval.  In other words, the sellers had five days to cancel if their lawyer didn't like the deal.  The original contract was delivered on October 14, and a lawyer claiming to represent the sellers delivered a letter canceling the contract on the 20th.   Lawyers can argue about whether the five days are five business days or five calendar days.  If it's five business days, the cancellation letter was timely, because there's a weekend in there.   On top of that, it will be very important if the contract for purchase says "time is of the essence."  If it does, and if that reference is to every deadline in the contract, then missing the deadline is a problem for seller.  But if no "time is of the essence" provision applies to the five-day lawyer-approval window, then the cancellation notice on the sixth day is timely enough to be effective.   

 

My guess is that there is no time-is-of-the-essence provision, but I don't really know, and I don't know NYS law on the subject.  The reason I'm guessing is that the plaintiffs' lawyer put in all that nonsense about how they had already begun plans to move, the kids had their hearts set on it, blah, blah, blah, so they can show that they relied on the fact that the deadline came and passed.  What are they telling us, that up until midnight on the fifth day they hadn't made any plans to move, but when midnight came, they knew they had a deal and started furiously planning?   The fact is that before noon on the sixth day, they got the notice.   

 

I'm not saying who wins and who loses; all I'm saying is that there almost certainly are two sides to this story, and the plaintiffs' lawyer is only telling one side.   And almost certainly Tre didn't do anything wrong.   The sellers and their agent may have told them about the other contract and told them that contract was being canceled.  Tre doesn't have any obligation to investigate.  He's entitled to rely the representation of the sellers and their agent.   Tre's a defendant because the plaintiffs' lawyer thinks that if he makes a big enough mess out of this, he can force the sellers to sell to the plaintiffs.

 

Still, as we said earlier, simplest thing for Tre is to back out and find another house.  Or to tell the sellers that he'll stay in if the sellers pay his legal fees.  This is not Tre's problem.   

 

Meanwhile, there should be some full-page ads in the News informing the public who the lawyer is who sued Tre in the middle of the season.  

 

It says a lot that they didn’t attach the contract to the complaint.

Not only that, they didn’t file a motion for an injunction, just the complaint. This is a pressure move by buyer #1. 

 

[Shaw66]

51 minutes ago, snafu said:

 

It says a lot that they didn’t attach the contract to the complaint.

Not only that, they didn’t file a motion for an injunction, just the complaint. This is a pressure move by buyer #1. 

 

Interesting.  So it's just sword rattling. 

[snafu]

10 hours ago, Shaw66 said:

Interesting.  So it's just sword rattling. 

 

You said it best: Tre should just walk away from this.  There are other houses out there to buy.  

I’d wager that’s exactly the plaintiff’s motivation. The plaintiff has no attorney fees to pay.

 

[Captain Caveman]

Tre doesn't really have any reason to walk away.  He's not in any jeopardy, and I'm sure he has a capable attorney who's handling all this for him.  These people were pissed that the contract was cancelled during attorney review (probably unethically, but not illegally) and are using the courts to throw a tantrum.  ***** 'em.

[snafu]

The defendants/sellers filed a motion to dismiss the case.  Looks like they canceled the contract within the 3 business days.

I’m not sure if this link will work:

 

https://iapps.courts.state.ny.us/nyscef/DocumentList?docketId=g/iLhEW89j4FlWR75Ca3ag==&display=all&courtType=Erie County Supreme Court&resultsPageNum=1

 

 

[Bermuda Triangle]

On 10/29/2020 at 9:15 PM, snafu said:

The defendants/sellers filed a motion to dismiss the case.  Looks like they canceled the contract within the 3 business days.

I’m not sure if this link will work:

 

https://iapps.courts.state.ny.us/nyscef/DocumentList?docketId=g/iLhEW89j4FlWR75Ca3ag==&display=all&courtType=Erie County Supreme Court&resultsPageNum=1

 

 

That motion to dismiss is so poorly drafted.  It reads as if it's written by a 12-year old, complete with poor grammar (and misspelling of the name of the attorney's own client!).  Proof read much?

 

The cancellation notice from the seller's attorney was timely delivered, apparently.

 

I'd be surprised if the case isn't withdrawn with respect to Tre in the very near future.  IMO, Tre was named as a defendant primarily to create some buzz and publicity...and it worked. If not for Tre's involvement, who would be talking about this?  Seems like an over-litigious attorney who is pissed off that he's not getting his way.  And lawyers wonder why they get a bad rap...

[Patience]

2 hours ago, Bermuda Triangle said:

That motion to dismiss is so poorly drafted.  It reads as if it's written by a 12-year old, complete with poor grammar (and misspelling of the name of the attorney's own client!).  Proof read much?

 

The cancellation notice from the seller's attorney was timely delivered, apparently.

 

I'd be surprised if the case isn't withdrawn with respect to Tre in the very near future.  IMO, Tre was named as a defendant primarily to create some buzz and publicity...and it worked. If not for Tre's involvement, who would be talking about this?  Seems like an over-litigious attorney who is pissed off that he's not getting his way.  And lawyers wonder why they get a bad rap...

 

Did you read the accompanying exhibits?  The first email from Marco indicates he intended to name the "new purchasers" before he knew that Tre White was that purchaser.  He asked the selling agent for their identities.  He always intended to name them.  Then in the second email he is confirming that it is Tre White, and in that email he does confirm he intended to go to the media. 

[Bermuda Triangle]

I did not read the exhibits, only the affirmation from defendant's counsel.

 

my understanding is that Tre subsequently cancelled his purchase contract, so I'm not sure why he is still a named defendant.

[JohnC]

12 hours ago, Bermuda Triangle said:

That motion to dismiss is so poorly drafted.  It reads as if it's written by a 12-year old, complete with poor grammar (and misspelling of the name of the attorney's own client!).  Proof read much?

 

The cancellation notice from the seller's attorney was timely delivered, apparently.

 

I'd be surprised if the case isn't withdrawn with respect to Tre in the very near future.  IMO, Tre was named as a defendant primarily to create some buzz and publicity...and it worked. If not for Tre's involvement, who would be talking about this?  Seems like an over-litigious attorney who is pissed off that he's not getting his way.  And lawyers wonder why they get a bad rap...the 

Would it be worthwhile for the seller and the legal rep to file a complaint to the bar against the first buyer who apparently was legally denied the purchase? The complaint probably won't have much consequences other than it would be on his record that a complaint was filed against him for questionable tactics.