In short: It depends on the facts, and Florida courts often look at which side could have prevented the loss. In Kleyman v. Etheria, Inc., the sellers of a Miami-Dade condominium delivered their deed and accepted the closing attorney’s trust-account checks, which bounced because the attorney had taken the money. The trial court entered summary judgment for the buyers and their lender, and the Third District affirmed without a written opinion on March 20, 2013.
The Facts
Igor Kleyman and Polina Kogan sold a condominium unit. The buyer was Etheria, Inc., and the purchase was financed by a lender. The closing attorney, Joseph Weisenfeld, served as escrow agent and closing agent. The facts below come from the oral argument, not from a court opinion.
The buyers and the lender sent the purchase money to the attorney’s trust account. At the closing, the sellers’ representative asked for certified funds but was given trust-account checks instead, made out to people the sellers had designated. The sellers’ existing mortgage was paid off by wire. The deed and the new mortgage were recorded about three weeks later. The checks to the sellers’ designees later bounced. The sellers’ lawyer told the panel that a forensic accountant’s affidavit showed the attorney’s trust account held far less than the closing required, that deposits were being taken as they came in, and that the attorney was in jail.
The sellers sued the buyers and the lender for breach of contract, conspiracy and rescission. The trial court entered summary judgment for the defendants. The points below are what the lawyers argued.
- The sellers argued the trial court never decided who owned the money when it was stolen. Because the buyers’ deposits were taken as soon as they arrived, they said, the buyers’ money was gone before closing, so the loss should fall on the buyers, who chose the attorney.
- The buyers argued they fully funded the deal with funds that cleared, that the default happened only when the agent could not cover the sellers’ checks after the deed was recorded, and that the sellers could have insisted on a wire or a cashier’s check before releasing the deed. They said the contract allocated escrow risk and left the sellers a claim against the escrow agent.
- The buyers also argued there was no evidence of any agreement or overt act to support conspiracy, and that rescission was unavailable because the sellers had not offered to put everyone back where they started, including repaying the lender.
The Decision
The Third District affirmed on March 20, 2013. The ACIS docket lists the disposition as “Per Curiam Affirmed,” with no written opinion. The docket also shows an order granting appellate attorney’s fees the same day. Rehearing was denied April 19, 2013, and the mandate issued May 6, 2013.
Because there is no opinion, the case does not tell us which theory the court accepted. The summary judgment for the buyers and lender stands. The affirmance is not a ruling that sellers always bear the loss when a closing agent steals.
The Law
When an escrow agent who holds money for both sides steals it, the loss must fall on someone innocent. Courts in Florida and elsewhere have looked at who owned the funds when they were taken, whether the transaction had closed, what the contract said about the escrow agent, and which party was in the best position to prevent the loss. The lawyers in Kleyman argued over exactly those factors.
The trial court decided the case on summary judgment under rule 1.510. Current law (2026): Florida’s summary judgment rule was amended effective May 1, 2021, to follow the federal standard, which makes summary judgment easier to obtain than in 2013.
A party who is harmed still has claims against the escrow agent personally and, if the agent was a lawyer, may be able to seek reimbursement from The Florida Bar’s Clients’ Security Fund, subject to its limits. Those remedies are often worth less than the money lost.
Lessons
- Sellers should not release a deed for recording until the money is in their account or they hold a cashier’s check or wire confirmation.
- Buyers and sellers should both ask who the closing agent is, whether a title insurer will issue a closing protection letter, and how funds will be disbursed.
- Read the escrow provisions of your contract. They may limit the escrow agent’s liability and decide who bears the risk.
- Rescission requires restoring the other side to its prior position, which is hard when a lender has already funded a mortgage.
- A per curiam affirmance without an opinion decides only this case.
Watch the Oral Argument
These are two uploads of the same oral argument. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
📋 Escrow Agent Stole the Closing Funds — Does the Loss Fall on the Buyer or the Seller?
💼 The Deed Recorded and the Escrow Money Was Gone — Who Held Title to the Cash?
Read the Law on FloridaRules.net
The statutes and court rules discussed in this article, free to read on FloridaRules.net:
Go Deeper
- Lender’s Wired Money Vanished: Did the Escrow Lawyer Owe Him a Duty? (Brock v. Miklas)
- What Happens at a Florida Real Estate Closing: Costs, Liens, and Whether You Need a Lawyer
- Buyers’ $90,000 Deposit Vanished: Officer Not Held Liable (Cruz v. Fernandez)
Frequently Asked Questions
Who is responsible if the closing agent steals the money?
The agent is, but if the agent cannot pay, courts must decide which innocent party bears the loss. That often turns on when the money was taken, what the contract says, and who could have prevented it. In Kleyman, the sellers lost and the Third District affirmed without an opinion.
Should I let the deed record before I get paid?
It is risky. In Kleyman, the deed recorded before the sellers’ trust-account checks bounced, and the buyers argued the sellers could have demanded a wire or cashier’s check first.
Can I get my house back if the buyer's money was stolen?
Possibly through rescission, but you generally must offer to restore the other side to where it was, including the lender’s mortgage. The Kleyman buyers argued rescission failed for that reason, and the summary judgment against the sellers was affirmed.
How do I protect myself from escrow theft at a real estate closing?
Use a reputable closing agent, ask about a title insurer’s closing protection letter, verify wire instructions by phone, and do not release the deed until funds are confirmed in your account.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
