DIVORCING SELLERS and SERVED WITH A SUBPOENA:
James L. Goldsmith, Esquire
Q. Sellers are husband and wife who engaged the services of a broker to market their home. For some reason (or perhaps no reason other than to be contrary), the husband wants the listing broker to pull the property from the multi-list and cease all efforts to sell it. The wife, on the other hand, tells their sales agent to maintain her effort to find a buyer for the property. What is the broker to do?
A. Your experience tells you that accepting a listing from a divorcing couple is many times more likely to result in trouble and hard work! One spouse's instructions may be contradicted by the other spouse. What to do? If you have no other business and are willing to risk your time and effort, go forward. Do your best and hope for a positive result. Maintaining good communication and memorializing your advice is also important. No conversation should go undocumented; keep all of your email, both those to and from you.
When cooperation ceases or if the demands made by the couple are excessive, consider firing them! Terminating the listing is your broker's decision and should be preceded by correspondence advising that you will terminate the relationship unless you have absolute cooperation. This is good advice when dealing with any seller who is uncooperative, or whose demands are unreasonable. There's always another broker who will take the listing so the sellers are not without options.
Served with a Subpoena:
Q. After settlement, a dispute between the buyer and seller arises when the buyer discovers a defect to the property. If you are not directly involved in the litigation, it is possible that you will be served with a subpoena compelling your attendance at a hearing or trial. A recent HotLine caller explained that she was undergoing medical treatment, was in a weakened condition, and could not testify. What to do?
A. There are many reasons why you might be inconvenienced by a subpoena compelling your attendance at a deposition or hearing at a date and time that you did not select. In many cases, the party on whose behalf the subpoena was served will be willing to accommodate your schedule. The subpoena will identify on whose behalf you've been called to testify. Contact the attorney for that person (that name will be indicated on the paper served upon you) and advise of the situation that makes difficult your attendance. Attorneys would generally prefer to have a happy witness than one inconvenienced and will do what is reasonably possible to reschedule to a date and time that better meets your own calendar. In some cases the attorney will have no ability to change the trial date, but may nevertheless be able to accommodate you. If all parties agree, trial testimony may be taken by deposition days, weeks or even months before the start of trial. Again, contact the attorney who subpoenaed you to see if this is possible.
If your reasonable request for some accommodation is ignored or denied, it will be necessary to contact your own attorney who may seek to quash the subpoena (quash sounds like squash and is somewhat similar) and who will better know what action can be taken to best accommodate your circumstances.
If the attorneys in the litigation do not agree to accommodate your situation, you must take action! Once when my subpoena to a witness was ignored, the judge issued a bench warrant and directed the sheriff to bring the uncooperative witness to the courtroom. I know gas is expensive, but this is not the type of escort you seek!