Re: Forfeit of deposit Yes or No ???

Posted by John T Country Lawyer on March 05, 2007 at 11:11:53 from (66.244.90.5):

In Reply to: Forfeit of deposit Yes or No ??? posted by Sam F. on March 05, 2007 at 10:05:36:

Sam, You got any written agreement or is this all verbal or e mail or what???

Not knowing the particulars or your states law I can still take a "guess" and state (and it depends on the Judge if any had to decide this) theres a decent chance you could keep it as a matter of law (depends on your agreement and verbal is okay but you have the "he said she said" problem absent any writing). This is whats called a "Fact Sensitive" legal problem and the result can depend on several factors such as the agreement and understanding and each parties reasonable expectations and in the absence of specific or written terms, the Court has to fill in the blanks.

NOW to the PRACTICAL side of things, since you have the deposit and tractors in your posession, the onus is upon him to get it back which could cost him legal expense and time plus HE COULD STILL LOOSE if he chose to litigate. Its best for him (and he may come to realize that if he seeks legal advice) financially n practically to NOT loose the deposit by realizing hes EITHER gonna have to cough up the rest of the cash to get the tractors n avoid forfeiting the depoist or else kiss it good bye or else spend a ton of attorney n court fees to take a chance he "MIGHT" get it back. ($2000 in legal fees is hard to justify a CHANCE getting $1000 back)

The law of your state and or a Judge may require (in case you can NOT retain the deposit) you to Mitigate Damages meaning at the least any expenses you spend to readvertise or resell would be retained by you even if you had to return the deposit.

I belive if it were me Id send him a registered letter return receipt (Green Card) clearly stating your position (to retain the deposit unkless) to try n build a paper trail and avoid "he said she said" problems from now on and try n force him in the position to either pay the balance or forfeit the deposit or hire an attorney and thennnnnnnn the balls in his court. Its in your interest to show it was trouble n expense n possibly you lost other sales cuz you took "justifiable reliance" on his agreement (that was your understanding of the deal) the deposit was to hold for him for a certain time period or else you retain the depost as return consideration for keeping the tracors OFF the market...........

FINAL WARNING both the Law and most Judges ABHOR A FORFEITURE and often do what it takes to avoid such a harsh result (i.e. you retain the deposit) UNLESS the facts show you exercised good faith and have "clean hands" and may have lost another sale opportunity and suffered time n expense as a result of his backing out of the deal.

You can obviously keep it unless n until a Court of competent jurisdiction orders its return, so make him get that or shut up or pay the balance, or of course, if your conscience or faith requires otherwise, RETURN IT !!!!!!!! Theres another problem of Jurisdiction since this involves citizens of different states and Im unsure of your atates Long Arm statutes.

You can obviously keep it unless n until a Court orders otherwise and make him do all the work to take a "chance" of getting it back.

John T Country Lawyer

PS This advice is worth what I charged ABSOLUTELY NOTHING seek LOCAL counsel who knows your states laws BEFORE making any decision.

Replies:

• Re: Forfeit of deposit Yes or No ??? Pete7 08:50:13 03/06/07 (0)
• Re: Forfeit of deposit Yes or No ??? Mike (WA) 12:23:26 03/05/07 (0)

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