Couple accused of backing out of real estate sale file counterclaim alleging proper termination

Heather Isringhausen Gvillo Nov. 4, 2013, 1:21pm

A St. Clair County couple accused of walking away from a $310,000 real estate contract filed a counterclaim against the plaintiff claiming they properly terminated the sale but never received earnest money they were initially required to pay.

According to the original complaint filed on Aug. 26, Tamadean Goldenhersh claims defendants Ann M. and David A. Miller agreed to buy two Belleville properties for $310,000 from Goldenhersh in April 2010. Goldenhersh alleges that one month later she signed the contract and the defendants agreed to close on the sale in October 2010.

However, the plaintiff claims the couple failed to pay the purchase price by the due date. She then served them with a legal notice of default later that month, the lawsuit claims.

Goldenhersh later sold the properties to a different buyer in July 2012, the suit states.

The Millers filed a motion to dismiss the complaint on Sept. 26, through attorney Thomas R. Ysura of Belleville.

They claim they properly terminated a contract with Goldenhersh. They also say that financing was not approved for the contracted amount because the lender found that the value of properties was about $80,000 lower than the asking price.

The Millers filed a memorandum of law supporting their arguments.

In regards to the financing contingency, they state, “The specific language [of the contract] states, ‘This contract is contingent upon buyer obtaining a mortgage loan commitment.’ There is no question of fact that the plain language of the contract makes obtaining a loan commitment a condition precedent to the contract. There is also no factual dispute that the financing contingency was never satisfied.”

They also argue that they followed the requirements to properly terminate the contract by signing the termination notice within 10 days of the closing date.

On Sept. 26, the Millers also filed a counterclaim against Goldenhersh claiming they followed all the proper procedures for terminating the contract.

They claim that on Sept. 17, 2010, they were notified by Regions Morgan Keegan that they had been denied approval for financing because it found the loan to value amount insufficient. It determined the property value at $228,000, roughly $80,000 less than the asking price.

In return, they blame Goldenhersh for breaching contract by refusing to sign their termination notice and failing to release the $10,000 earnest money the Millers were required to pay.

The Millers also named Chicago Title and Trust Co. a counter-defendant.

The Millers seek a judgment of more than $10,000 in their counterclaim.

Goldenhersh seeks a judgment of more than $83,000 in her original complaint.

St. Clair County Circuit Judge Robert LeChien scheduled a mandatory status conference for Dec. 10 at 9:30 a.m.

Timothy A. Guknecht of Columbia represents Goldenhersh.

St. Clair County Circuit Court case number 13-L-441

More News