Q. My husband and I purchased our first home a few weeks ago. The sellers needed some extra time to move out so we agreed to let them stay in the house for up to two weeks after the closing. They paid us rent at the closing equal to what our mortgage cost us for those two weeks. They also gave $1,000 to their attorney to hold to guaranty that they got out on time.
At the end of the two weeks, we went to the house and discovered some of the items that were supposed to go with the house were taken, such as the washer, dryer, attached flat-screen television, water softener and some other smaller items. We called our attorney who immediately called the seller's attorney and informed him of what happened. Our attorney demanded the $1,000 being held by the seller's attorney be paid to us.
The seller's attorney said he cannot get a hold of the sellers; he thinks they have moved out of state and he cannot release the money without a court order. The value of the items taken is well over $2,000 plus now we have to hire an attorney to collect the $1,000. Any ideas on what we can do?
A. If you are a regular reader of this column, you know I often start by suggesting what could have been done better to avoid the problem in the first place. What appears to have occurred here is that the sellers, who obviously are something less than quality folk, decided that, what the heck, no one is ever going to find us, so, for $1,000, let's go shopping. Obviously, $1,000 was not a sufficient guaranty for letting someone stay in your house with your personal property. That number should have been $3,000 or more. Of course, if they put up $3,000, who knows, they may have taken the furnace and air conditioning unit also.
You do not need an attorney to recover the $1,000. Every county has a procedure for filing small claims. Go to the courthouse in the county where you live and ask for help in filing a small claim. The tricky part here will be obtaining service on the defendants. Without service, you cannot obtain a judgment and recover the funds from the seller's attorney.
If you have absolutely no idea where the sellers moved to and there does not appear to be any way to find out where they moved, you could petition the court for alternative service under section 5/2-203.1 of the Illinois Code of Civil Procedure. This section allows alternative service, possibly such as service on the seller's attorney or service by mail at seller's last known address. Most courts will attempt to craft some method to obtain service.
Also, I would not just shoot for the $1,000. File the suit for as much as is reasonable. If you get a judgment for $2,000 and you collect $1,000 from the seller's attorney, you will still have a judgment for $1,000. You can record that judgment in your county. In the future, this could cause the seller's enough grief, possibly as a result of a credit report hit, that they have to settle up with you. If you ever locate the sellers, you could also register the judgment in their new state and perhaps cause some grief there also, though given the amount owed, that may be impractical.
• Send your questions to Attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by email to firstname.lastname@example.org or call (847) 359-8983.