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Archives for August 2012

Earnest Money: Quick tips and good faith deposits in Dayton

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The Ohio Association of Realtors just produced a video regarding the legal implications of earnest money as it can be one of the most confusing aspects of a real estate transaction, and the video release is timely because I’ve seen a definite shift in seller thinking about earnest money so I thought this would be a good topic to discuss in some general terms. What is “earnest money”, what does it do, and how is it disbursed?

Please note: I’m a Realtor, I am not an attorney and I don’t play one on TV. What is included here is intended as very basic, general real estate information so if you need legal advice, please consult your attorney.

Also note: Real estate is local. If you are reading this from outside the Dayton area, please get specific advice from a local real estate agent.

In Dayton it’s called “Earnest Money Deposit” in other areas it might be called a “Good Faith Deposit” but regardless, the purpose remains the same- to let a seller know that your offer is serious and prevent a buyer from simply walking away from a home because of cold feet or a change of heart without losing something of value. An Earnest Money Deposit (EMD) is an amount of cash that a buyer offers up, to be delivered upon acceptance of an offer. But it’s not given to the seller, it is held in a non-interest bearing escrow account, and is not co-mingled with a broker’s operating funds. Here’s how the EMD is explained in the Dayton Area Board of Realtors (DABR) Purchase Contract:

EARNEST MONEY; DEFAULT. Upon presentation of this offer, Purchaser has delivered to _____ Broker, the sum of $_______ as earnest money, to be (1) deposited in the Broker’s trust account promptly after acceptance of this offer or (2) returned to Purchaser upon request if this offer is not accepted. The earnest money shall be paid to Purchaser or applied on the purchase price at closing. If the closing does not occur because of Seller’s default or because any condition of this Contract is not satisfied or waived, Purchaser shall be entitled to the earnest money. If Purchaser defaults, Seller shall be entitled to the earnest money.

Sellers need to understand that the money is not a deposit for them. It does not go to them at closing, it is not theirs. Buyers need to understand that they can get that money back at closing if the terms of the contract are met. Both parties need to understand that they both have to agree on how the funds are disbursed. More from the DABR Purchase Contract:

The parties acknowledge, however, that the Broker will not make a determination as to which party is entitled to the earnest money. Instead, the Broker shall not release the earnest money from the trust account until one of the following occurs: (1) the transaction closes and the Broker disburses the earnest money to the closing or escrow agent or otherwise disburses money pursuant to the terms of this Contract; (2) the parties provide the Broker with written instructions that both parties have signed that specify how the Broker is to disburse the earnest money; (3) the Broker receives a copy of a final court order that specifies to whom the earnest money is to be awarded; or (4) the funds become unclaimed and the Broker turns them over to the Division of Unclaimed Funds. In the event of a dispute between Seller and Purchaser regarding the disbursement of the earnest money, the Broker is required by Ohio law to maintain such funds in its trust account until the Broker receives (A) written instructions signed by the parties specifying how the earnest money is to be disbursed or (B) a final court order that specifies to whom the earnest money is to be awarded. If within two years from the date the earnest money is deposited in the Broker’s trust account, the parties have not provided the Broker with such signed instructions or written notice that legal action to resolve the dispute has been filed, the Broker shall return the earnest money to Purchaser with no further notice to Seller. Payment or refund of the earnest money shall not prejudice the rights of the Broker(s) or the non-defaulting party in an action for damages or specific performance against the defaulting party.

So, once an offer is accepted, try thinking of the EMD as belonging to both the buyer and the seller and they both have to agree on what happens to that money. As the contract states, if “(1) the transaction closes … the Broker disburses the earnest money to the closing or escrow agent or otherwise disburses money pursuant to the terms of this Contract”. We always defer- we have to do what the contract states, so if the there is a successful closing, the money is disbursed at the closing table, typically to the buyer, or if there are other instructions as to how that is disbursed, then we follow those terms. But what if it doesn’t close? We still follow the contract:

(2) the parties provide the Broker with written instructions that both parties have signed that specify how the Broker is to disburse the earnest money;

There is a specific form that will attach to the contract and gives the broker specific written instructions, agreed upon by both parties. Sometimes the money is just given back to the buyer and everyone moves on, sometimes the two parties split the money and move on, or the seller could end up with the money. It’s all negotiated and agreed-to in writing, or the broker is not allowed to release the funds. But what if the buyer and seller cannot agree to how EMD should be released? Again, we defer to the contract:

(3) the Broker receives a copy of a final court order that specifies to whom the earnest money is to be awarded;

If the parties cannot agree, one of the parties has the right to take the issue to small claims court and a judge decides how it disbursed. But even that doesn’t always happen, so then our contract says:

or (4) the funds become unclaimed and the Broker turns them over to the Division of Unclaimed Funds. In the event of a dispute between Seller and Purchaser regarding the disbursement of the earnest money, the Broker is required by Ohio law to maintain such funds in its trust account until the Broker receives (A) written instructions signed by the parties specifying how the earnest money is to be disbursed or (B) a final court order that specifies to whom the earnest money is to be awarded. If within two years from the date the earnest money is deposited in the Broker’s trust account, the parties have not provided the Broker with such signed instructions or written notice that legal action to resolve the dispute has been filed, the Broker shall return the earnest money to Purchaser with no further notice to Seller. Payment or refund of the earnest money shall not prejudice the rights of the Broker(s) or the non-defaulting party in an action for damages or specific performance against the defaulting party.

The contract is very specific about EMD and it’s imperative that everyone understands how they could be impacted by an earnest money deposit. 

How much money should a buyer put down? Everything is negotiable and EMD is no different. Personally, I think the minimum they can get away with and still let the seller know they are serious is best, as a buyer you certainly don’t want to tie up your money unnecessarily as we just discussed it can be a point of negotiation and possible contention. So what’s typical? Well, foreclosures almost always ask for $1000.00, but sometimes a seller will take as low as $250.00 or $500.00 on lower priced properties. It varies from property to property and transaction to transaction, but figure between 5 and 10%. Also, while it is typical for an EMD to be a personal check, and it is customary for the buyer’s broker to hold the EMD, some sellers will want to have the EMD be a certified check and they will ask for their broker to hold the EMD, but remember, how the EMD is handled is determined by the contract, so neither broker can make an independent decision on how or when to release the earnest money.

While we see signs that the market is improving, we are a long way from the days where a seller would simply release the EMD because they knew another buyer was right around the corner. Earnest money is an increasingly critical negotiating tool, and in 2009 the Dayton Area Board of Realtors Purchase Contract changed to provide the detailed instructions you see above, so don’t be surprised if a seller asks for a large EMD to make sure a buyer is serious, or does not agree to Release of Escrow without a fight. Each transaction and each offer will hold some unique circumstances so please ask  your real estate agent or lawyer as many questions you need to feel comfortable with the earnest money.

Looking for some insider baseball? To get the nitty gritty on some legal issues regarding earnest money, check out the Ohio Association of REALTORS Attorneys Peg Ritenour and Lorie Garland as they talk to REALTORS about how to deal with earnest money accounts with regard to Ohio laws.

Image credits:
Dayton Area Board of Realtors
LuMax Art

10 ?’s with Chef Markus Montreuil from Amelia’s Bistro

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Chef Markus Montreuil’s first job in the business was as a bus boy at Carmels.  In his down time he loved to watch the cooks  and would often stand on the side of the line fascinated by the skills and wanting to learn.  He would beg the cooks to teach him and  finally a cook took pity on him and made a deal with him.  If a ticket came into the kitchen in the next 1/2 hour, he’d teach him, if not, Markus would stop asking. Markus was excited and waited anxiously.  And waited.    He wandered out to the dining room and excitedly told the bartender about his upcoming cooking lesson. The bartender explained that they were closed between lunch and dinner and there were no guests to order. But feeling sorry for the kid, he ordered his lunch and that ticket came into the kitchen and Markus learned to make his first dish- nacho’s!

He went on to work at Bob Evans, with a long term goal to attend the Culinary Institute of America. However attending the CIA isn’t cheap and he had to figure out how to fund that dream.  He found work as a machinist, and figured he could do that while he tried to save  money for school.  Life went on, as it does and suddenly 5 years down the road, Markus got injured.

During his rehab he realized that he worked very hard to be successful as a machinist but his heart was not in it.  He dreamed of being a chef and while the CIA still wasn’t in the budget, he had ogther options.  He got a job as a line cook  at the Schindler Banquet Center in the winter of 2006 and soon after enrolled in the culinary arts program at Sinclair College.

Gaint Tortoise Cream Puff filled with brown sugar whipped cream topped with bourbon caramel, chocolate ganache and candied pecans!

As part of the program he interned as a saute cook at Cena, then as a pastry chef at C’est Tout.  He also served as captain of the Culinary Competition Team. Upon graduating he found a job as a prep cook at Amelia’s Bistro and then was recruited back to the Schindler Banquet Center, where he worked his way up to Executive Chef, only to get let go when they lost a major contract and had to cut budgets.  Luckily, the folks as Amelia’s appreciated his skills and work ethic and were able to rehire him.

The rest, as they say, is history.  Markus earned the Executive Chef title at Amelia’s this past January and is now enjoying creating menu’s and producing perfectly plated meals, as demonstrated by his restaurant week specials.  Speaking of which, Amelia’s Bistro will be extending their restaurant deal for a second week, so stop by and taste Chef Markus Montreuil’s specialties on the 3 course pre fixe menu for $25.12, a few of which are pictured below:

 

And now, Chef Markus answers our ten questions:

Grilled Pork Chop topped with Fried Onions finished with a Caramelized Onion Barbecue Sauce and served with Mashed Potato and Vegetable

What is your favorite ingredient to cook with?

There are so many ingredients I love, I don’t know if I could pick only one.  My top three would have to be Duck, Pork and Garlic, and not necessarily in that order.

 

What ingredient do you dread? 

There isn’t much cooking wise I don’t like, but if you put a gun to my head I would say Offal. I know that in itself is not a specific ingredient, but rather a category of glands and organs. And I don’t dread it, it is just my least favorite.  (Offal is everything from the heart, liver, lungs, and entrails of an animal, to the tail, feet, and head, each part with its own unique  flavor. The word “offal” actually comes from the Old English “off” and “fall,” referring to the pieces that fall from an animal carcass during butchering.)

 

What’s your favorite dish to make?

I know it is not a dish, but stock is my all time favorite thing to make. It is a slow meticulous process, but I love it.  There are so many things you can do with, and the difference between home made a store bought is like night and day.

 

What’s your favorite pig out food?

Nachos are the first thing I learned to cook in a restaurant when I was a busboy at Carmel’s as kid, and they have been my favorite ever since.

 

House Cut Filet served with Mashed Potatoes, Vegetables finished with Fraser Sauce & Green Onion Oil

What restaurant, other than your own do you like to dine at in the Miami Valley? 

I don’t eat out much, but when I do my favorite place to go is Cheng’s Gourmet. It is a little place in Xenia (and I mean 3 or 4 tables little) but the food is incredible.

 

What’s your best advice for home chefs? 

Focus more on the journey and less on the destination. Remember that recipes are guidelines not laws. Be fearless and above all else have fun in the kitchen!

 

If you could invite any 4 guests to a dinner party who would they be and why?

I would have to say Sun Tzu, Albert Einstein, Jean Michel Basquiat and Julia Child. They were all innovators in their varying fields and I am fascinated by all of them. Plus I can’t imagine there would be any shortage of dinner conversation.

 

Pan Seared Almond Crusted Salmon over Sautéed Zucchini and Rice Pilaf and Finished with Mango Lobster Sauce

Who do you look up to in the industry and why?

Some of my favorites are Emeril Lagasse, Art Smith and Homaro Cantu. In spite of the over commercialization Emeril has always been my favorite. Art Smith is just an incredible Chef and person. And Homaro Cantu made the best meal I have ever eaten!

What do you do on a day off?

I really like to go to movies and festivals with my wife and kids, but I probably spend a few too many of days off reading and writing recipes, sorry Honey.

Share a kitchen disaster, lucky break or other interesting story:

I would say my lucky break was being hired at Amelia’s Bistro. It was the first fine dining job (that wasn’t an internship).  In about three years I have gone from a part time lunch pantry position to Pastry Chef then on to Sous Chef and then at the beginning of this year I was named Executive Chef. So I would say that is a pretty lucky break.

 

Chef Markus created a recipe especially for DaytonDining:

Lemon and Dill Grilled Chicken Salad Lettuce Wraps

4 boneless/skinless chicken breast (grilled and diced)

¾ cup mayo

½ cup lemon curd

½ cup red onion (fine dice)

3 Tablespoons Fresh Dill (chopped)

Zest and juice of one lemon

½ teaspoon pepper

¼ teaspoon salt

2 heads Bibb lettuce

 

In a large bowl, toss the chicken, red onion and lemon zest. Mix in the mayonnaise, lemon curd, lemon juice, fresh dill, and salt and pepper. Serve the salad in lettuce cups and roll up to eat.

 

Jazz Spotlight: Gene Walker + Upcoming Local Jazz – August 1-14

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Three veteran musicians and the owner of an iconic club are among the latest to be recognized by the National Endowment for the Arts as Jazz Masters: Saxophonist Lou Donaldson, pianist-songwriter Mose Allison and Latin jazz bandleader Eddie Palmieri join the owner of New York City’s Village Vanguard, Lorraine Gordon, as the 2012 recipients of the A.B. Spellman NEA Jazz Masters Award for Jazz Advocacy.

Many people in our area may not know who some of the better jazz artists who perform locally on a regular basis.  The following is my attempt to rectify this shortcoming:

Jazz Spotlight: Who is Gene Walker?

Walker, Eugene tenor sax; He got his BME at The Ohio State University. Solo performances have included many notable musicians and entertainers such as Brook Benton, Wilson Picket, Aretha Franklin, Etta Jones, Benny Green, Wild Bill Davis, Bobby Shew, Jimmy Scott, Charles Earland, Lloyd Price, Jimmy Reed, The Isley Brothers, Neil Diamond, Melba Moore, Billy Daniels, Charli Persip, Elvin Jones and Irene Reid.  Jazz saxophonist, composer, bandleader, studio recording and educator Gene Walker lives in Columbus, Ohio where he currently performs with his own groups, Gene Walker’s Generations and The Cotton Club Orchestra. He began performing and touring in 1958 with such groups as Sam Cooke, Jackie Wilson, and The Chris Columbo Quintet. In 1965 he toured with the Beatles, playing in Shea Stadium along with King Curtis.

Gene was a member of the faculty of Ohio State University, held three Ohio Arts Council residencies and has taught saxophone yearly in Jamey Aebersolds’ Summer Jazz Clinics since 1998.  He’s toured Italy, England, the Netherlands with the Jimmy McGriff Quartet, playing at the prestigious London Club, Ronnie Scott’s, and in 1997 Gene performed with the Hank Marr Quartet at the North Sea Jazz Festival in Holland. In addition, he has made a number of distinguished appearances, including at Carnegie Hall and Town Hall, NY; Ronnie Scott’s Jazz Club, London, U.K.; North Sea Jazz Festival, The Hague, Holland; and Umbria Jazz Festival, Italy.  Recently Gene Walker and jazz organist Hank Marr were honored during a ceremony at the Lincoln Theatre Walk of Fame in Columbus. The Lincoln Theatre Walk of Fame honors Columbus natives who have made outstanding contributions in their respective professional careers. You will be able to catch this outstanding jazz saxophonist on Saturday, August 1 when he performs a benefit concert at Jazz Central in Dayton for the Gabriel Foundation.

 Jazz Calendar

Here are some (not all) of the upcoming jazz events for the next couple of weeks:

Wednesday, August 1 – Lizz & Rex Quartet plays their regular gig at The Dayton Event Connection as does Dave Greer’s Classic Jazz Stompers at Neal’s also in Dayton.
Thursday August 2 – is again big band night with Joe Aceto and his Orchestra at Riverscape MetroPark and the Dayton Jazz Orchestra performs at the Dayton Art Institute.

Friday August 3 – Catch the Shawn Stanley Trio at Carvers Steaks & Chops in Centerville and in London, Ohio (not too far away) there’s a Jazz & Rib Fest on Friday and Saturday (Aug 4) details at: https://www.facebook.com/LondonRibandJazzFest

Saturday August 4 – Deron Bell’s Smooth Jazz Band will be at Riverscape MetroPark, JT Fredrick’s Sax Groove will be at Gilly’s in Dayton and can catch Dave Koz with special guest BeBe Winans at the Fraze Pavilion in Kettering.

Sunday August 5 – the Hoo Doo Soul Band plays the Rumba Café in Columbus and Jazz Central’s regular Jazz Jam continues in Dayton.

Monday August 6 -Vaughn Wiester’s Famous Jazz Orchestra is at the Clintonville Woman’s Club in Columbus and the John Taylor Trio is at the Brio Tuscan Grille in Beavercreek.

Tuesday August 7 – the Part St. Tavern has a Jazz Jam and Tony Monaco Trio is at the Rumba Café in Columbus and Ed Moss & the Society Jazz Orchestra is at Schwartz’s Point in Cincinnati.

Wednesday August 8 – Blue Wisp Big Band performs at the Blue Wisp in Cincinnati, Rich Lopez is at Rigsby’s in Columbus and Dave Greer’s Classic Jazz Stompers holds fort at Neil’s Heritage House in Dayton.

Thursday August 9 – Riverscape Metro Parks presents Pam Noah and Her Big Band and the Retrospect Jazz Quartet featuring Elisabeth Hayse is at Jazz Central in Dayton.

Friday August 10 – Doc Broadnax and the Thompson House in Newport presents Ralph Peterson Fo’tet with Edwin Bayard.

Saturday August 11 – World-class jazz saxophonist Gene Walker will perform a benefit concert for the Gabriel Foundation at Jazz Central in Dayton and George Benson is at the Fraze in Kettering.

Sunday August 12 – Phil DeGreg Trio performing at Dee Felice in Covington, Ky. and Jazz Central offers its regular Jazz Jam in Dayton.

Monday August 13 – Sandy Suskind continues their long running jazz jam at the Blue Wisp in Cincinnati and Vaughn Wiester’s Famous Jazz Orchestra is at the Clintonville Woman’s Club in Columbus.

Tuesday August 14 – Derek DiCenzo Trio plays at Local Roots in Powell, OH

More info and jazz listings can be found at JazzAdvocate.com