Can someone help me?

Hi guys,

I am new here, living in Perth WA.

Thinking to buy properties in QLD for a while, got finance pre-approval by ING Bank through one finance broker in Perth WA and thought she is very experienced and she told me she could do nationwide finance after I told her I was going to buy in QLD, not WA.

Then I saw a house in QLD late March this year and contacted one seller's agent A of the house, I asked her why the house had been sitting in the market for over 4 months under such hot market, she explained that the house had a seller's agent B before, he did not do a good job for the owner, also there was a very bad property manager not looking after the property well either, made the house look not good enough for buyers, now she took over and fixed some problems for the owner, now the house looks very good, should be able to get tenants in right away. I told her I was going to put an offer on it but the price was a little bit high, she did not want to negotiate prices, so I said ok, please sent me a form of your contract, but I need to do building and pest inspection first. She agreed, after I fund out quite a few problems from the building and pest report, I tried to negotiate the purchase price with her again, but she looked like reluctant to talk to me and did not return my phone calls. Of course I did not sign anything with her and did not return the form of contract to her either.

I was still interested in the house, accidentally noticed another seller's agent B for the same house had exactly same home open date on real estate website, so I rang him and asked him if he was still the seller's agent for the house or not, he confirmed me yes, he was still, A & B was joint seller's agents for the house in the same time.

I told him I had already contacted seller's agent A and done building and pest inspection for the house, lots of issues showed me the asking price should not be so high, I requested a reasonable offer so I can use the rest funds to fix the problems around the house.

After several days negotiation with the seller and the seller's agent B, this early April we signed a contract. This mid April I flew back to Perth from my regional working place, went to see my finance broker to sign some documents in her office first and took a few documents back home with me as well, because my finance broker told me I must get those documents witnessed and signed by an eligible person and certify my ID and also she printed out one piece of paper with the whole list of who is eligible to do those. In the meantime, she sent me an email to remind me there was a post office and chemist not far from her office as well, I could pop in and get them to certify and witness my documents.

So I went to a post office and asked the manager to witness and certify my documents, then mailed them back to my finance broker on that day too.

The end of April I flew back to work in regional WA again, contacted my finance broker and asked her if my finance officially approved or not, she replied yes, early April already approved, then I asked if they notified my settlement agent and the seller's agent B about it, she replied yes, notified them already, I said because I should pay $500 to the seller's agent B after signed the contract, the rest deposit $8500 should pay to the seller's agent B after the finance officially approved, so I clicked my mouse button and paid the rest deposit $8500 to seller's agent agent B after confirmation of finance officially approval from my finance broker.

The settlement date was supposed to be 13th May 2014.

05 May 2014, my finance broker sent me an email and told me that LNG Bank required me to redo my loan documents witness and certification because in QLD the documents must be witnessed by a JP or solicitors, not a manager of post office.

I said to my finance broker what I did was exactly following her instructions and I had proof of her email as well, but she kept saying the lady from ING Bank confirmed her on the phone that a post office or chemist is ok for the witness, but the lady from ING Bank now denied what she said and only requested me to redo my witness then she would approve my settlement agent to book settlement date.

I told my finance broker that I am now still working in regional WA and we do not have JP or solicitors in the camp and we are not allowed to go outside of the camp, I will not be able to redo the documents witness until I get back to Perth home in the end of this May, also I only have a driver's license with me, my ID certification cannot reach 100 points requirements by ING Bank either.  

So my finance broker sent my settlement agent an email requesting extending settlement date to be 30th May, after several days, the settlement agent told me that the seller only could accept it on a condition of extra payment of $10,000 on top of my purchase price

I forwarded such an email to my finance broker, she asked my settlement agent what kind of scenarios in QLD, and it is too rare to hear to charge so much.

After several days, I knew I could not get anything from my finance broker and told my settlement agent to say no to the seller, because it is ridiculous to ask for so much.

15th May 2014, my settlement agent sent me an email that the seller terminated the contract, which means the seller is going to take my deposit money $9000 away by law in QLD.

Now I will lose my deposit $9000 and I do not think it was my fault to cause such lose, can someone tell me what I should do next? How can I get my deposit money $9000 back?

Thank you very very very much in advance!

flyhere
 
First of all your message is way too long, so here is a quick summary:

Signed loan and mortgage documents with incorrect witness. Broker said a JP could witness when in fact a JP was not qualified to witness. Could get to a lawyer in time to redo signatures. Settlement was approaching. Asked for an extension which was denied unless $10k extra paid. Vendor termated contract and kept deposit.

There is no ability to vary the law regarding signatures. I am sure the documents would clearly have stated that they needed to be signed in front of an eligible witness. But the broker gave you incorrect advice - in writing it seems. You suffered a loss because you relied on this advice so you may have a claim against the broker. Their defence will be that the loan documents clearly had who could witness and that you are responsible. You also would have had time to resign the new documents but could do get time off work - which is no fault of the broker. Vendor also offered to extend settlement period.

You could be sued for more than the deposit as well. If the vendor sells the property for less than your contract you could be liable for the difference as well as the agent's commission (x2) and advertising and other costs.

Seek legal advice.
 
Thanks a lot Terry!

Very much appreciated your good thoughts and advices!

Does that mean I still should go back to buy the house paying the seller extra $10,000?
 
It looks like a case of the broker not knowing the rules. Rules regarding witnessing of mortgage docs is a state by state requirement, it doesn't vary by bank. Anyone who has experience with Qld mortgage documents should know who can and cannot witness. The fact that the mortgage broker needed to ask ING about who can witness is telling.

The mortgage pack should have included a list of acceptable witnesses for Qld mortgage documents. It should also have included a checklist for you to confirm that you've read everything and included everything.

You might have a case against the mortgage broker. Whether the legal costs and potential loss justifies legal action, only you can answer.

Many lessons here, not only for you but for others:

Lesson 1: read and understand every document. You trusted your broker when you should have read the actual documents sent by the bank.

Lesson 2: understand your own limitations. You don't know anything about this process. How can you tell whether the broker is experienced or not? Did you ask them how often they deal with loans for Qld properties?

Lesson 3: if there's a chance you might not be available to deal with emergency situations (e.g. you're overseas or otherwise unavailable), have a Power of Attorney prepared beforehand authorising someone else to sign on your behalf.
 
After several days, I knew I could not get anything from my finance broker and told my settlement agent to say no to the seller, because it is ridiculous to ask for so much.

Did you actually realise the legal implications of this? That you are confirming you're not completing the contract?
 
Thanks a lot alexlee !

No, I did not realize the legal implications of this? I thought the seller would still sell the house to me at the original contract price because the seller is desperate to get rid of the finance trouble
 
No, I did not realize the legal implications of this? I thought the seller would still sell the house to me at the original contract price because the seller is desperate to get rid of the finance trouble

Where did you find the settlement agent and why didn't you use a solicitor instead?

Lesson 4: don't mistake the law for what you might think is reasonable or common sense.
 
Signed loan and mortgage documents with incorrect witness. Broker said a JP could witness when in fact a JP was not qualified to witness.

QLD registration of mortgage documents do allow a JP to witness them. The clearest summary I found is here:
http://www.lexilaw.com.au/mortgage_prompt.html

I do agree that the 'experienced' broker isn't so experienced in QLD transactions. Also in my experience lenders do send out written instructions about this issue in their mortgage documents.

Also, people have a habit of ignoring this. I've had several clients have documents witnessed incorrectly despite clearly instructing them to visit a JP or solicitor.

QLD is also quite nasty on rescission notices. If you miss settlement, the vendor can keep your deposit and the property pretty much immediately. Additionally in QLD the norm tends to be 30 day settlements which is very unforgiving of errors which are usually very simple to fix. Most other states are far more reasonable in several ways and have a reasonable grace period for rescission. Unfortunately this does mean that the vendor can get away with asking for an additional $10k.

Unless it's a very low value property, I'd probably proceed and come up with an additional $10k. Keep in mind that ING are unlikely to fund this, you'll probably have to come up with it as cash.
 
Where did you find the settlement agent and why didn't you use a solicitor instead?

Lesson 4: don't mistake the law for what you might think is reasonable or common sense.

I fund it in this forum, they are not bad, but the truth is I have to think about everything first myself to give them instructions when they ask for my instructions
 
I got my finance broker here as well, quite a few guys recommended her here, that's why I thought she is very experienced.

Yes, I do agree that I have to take my own responsibilities as well, should not believe what she instructed me in the first place.

From dealing with her a while, felt like she does not have any experiences for QLD finance or settlement at all, not like she told me she could do nationwide finance, maybe just WA only very familiar with.



QLD registration of mortgage documents do allow a JP to witness them. The clearest summary I found is here:
http://www.lexilaw.com.au/mortgage_prompt.html

I do agree that the 'experienced' broker isn't so experienced in QLD transactions. Also in my experience lenders do send out written instructions about this issue in their mortgage documents.

Also, people have a habit of ignoring this. I've had several clients have documents witnessed incorrectly despite clearly instructing them to visit a JP or solicitor.

QLD is also quite nasty on rescission notices. If you miss settlement, the vendor can keep your deposit and the property pretty much immediately. Additionally in QLD the norm tends to be 30 day settlements which is very unforgiving of errors which are usually very simple to fix. Most other states are far more reasonable in several ways and have a reasonable grace period for rescission. Unfortunately this does mean that the vendor can get away with asking for an additional $10k.

Unless it's a very low value property, I'd probably proceed and come up with an additional $10k. Keep in mind that ING are unlikely to fund this, you'll probably have to come up with it as cash.
 
Thanks a lot for saying that to me today!

Considering quite a few aspects, I am going to negotiate with the seller to buy his house adding extra $10000 on top of the original contract price.

Nope it doesn't mean that. Whether you buy this or not will depend on a number of factors which you should investigate/
 
Thanks a lot for these lessons learned!

Yes, I should have done these before hand myself!



It looks like a case of the broker not knowing the rules. Rules regarding witnessing of mortgage docs is a state by state requirement, it doesn't vary by bank. Anyone who has experience with Qld mortgage documents should know who can and cannot witness. The fact that the mortgage broker needed to ask ING about who can witness is telling.

The mortgage pack should have included a list of acceptable witnesses for Qld mortgage documents. It should also have included a checklist for you to confirm that you've read everything and included everything.

You might have a case against the mortgage broker. Whether the legal costs and potential loss justifies legal action, only you can answer.

Many lessons here, not only for you but for others:

Lesson 1: read and understand every document. You trusted your broker when you should have read the actual documents sent by the bank.

Lesson 2: understand your own limitations. You don't know anything about this process. How can you tell whether the broker is experienced or not? Did you ask them how often they deal with loans for Qld properties?

Lesson 3: if there's a chance you might not be available to deal with emergency situations (e.g. you're overseas or otherwise unavailable), have a Power of Attorney prepared beforehand authorising someone else to sign on your behalf.
 
I would offer the seller an extra 5k. It's worth a shot and might save you 5k. If no proceed with the sale and 10k lesson learnt.
 
Thanks a lot for saying that!

5k sounds better to me, but the house itself had two seller's agents in the same time, there were more than $10,000 price differences between them, I signed the contract with the lower agent, so the higher agent must be very angry and disturbing the seller about that was big lose for the property, that might be the reason behind the seller asked for $10,000 extra when I requested extending the settlement date, so the seller could feel a little bit better.

And now the seller had the higher price agent to advertise his house still at a higher price on website and updated the web page, looks like just newly came out to the market.
 
If the seller had a standard contract with the first agent then the first agent will likely have a claim for commisson from the vendor as well as the second and this is because the first agent introduced you to the property
 
Possibly, I really do not understand why one house two seller's agent and also two different prices in the same time same page in the market
 
Thank you very much for everyone's so many good advices here to me!

I contacted one seller's agent last night, told him that I would add extra $10,000 on top of the contract price to settle the house with the seller, the seller's agent replied me right away and said he would speak to the seller first, let me know soon.

This morning the seller's agent told me that the seller had not got any buyers yet, he would accept my suggestion to settle the house with me on 30th May.
 
Thank you very much for everyone's so many good advices here to me!

I contacted one seller's agent last night, told him that I would add extra $10,000 on top of the contract price to settle the house with the seller, the seller's agent replied me right away and said he would speak to the seller first, let me know soon.

This morning the seller's agent told me that the seller had not got any buyers yet, he would accept my suggestion to settle the house with me on 30th May.

Hasn't the contract been terminated? If so I would think a new contract is in order.
 
Hasn't the contract been terminated? If so I would think a new contract is in order.

Yes, I was told the contract been terminated, but now one seller's agent who was the one sold me the house, told me the seller still had not got any buyers, so the seller accepted my extra $10,000.00 on top of the original contract.

I did ask the seller's agent about if we needed to revise the contract or not, he replied the contract now was in solicitor's place, the solicitors could do that for us. But I still do not know how to go ahead with such extra payment?
 
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