For legal issues, I consult with an attorney.  There are consequences to actions(or lack thereof) typically shown in a purchase agreement which vary by state/jurisdiction.   

Most of the time we try to cancel asap if they did not wire EMD in 3 days and move on to a next one. Why would you want to be stuck in a legal action instead of moving a next buyer who is ready/willing/and able? 

Here in NC, without consideration, you have no Contract.

I would definitely consult your attorney about this.

Nope.  You need to serve a notice to perform.

The contract is void in my eyes...

The contract is between buyer and seller, so no action against buyer's agent.  When EMD doesn't show up within the specified period of time, issue a Notice to Perform.  Unless the buyer removed all contingencies with the offer, they can cancel during the contingency period without losing their deposit, had it arrived.

I agree with Michael Jacobs 

Nope.

You need to serve a notice to perform.

It happens with cash buyers, write better counters to lock them in!

I suspect something-At least an agent, even when new, would consult their broker and at least understand this is a legal issue and if you are an agent... need to step back as agents cannot practice law. Seller/selling agent is the same as buyers' agent. If you are somehow indeed an agent, find a new mentor and perhaps another broker.

Many great answers by the other responders.

My guess is that you're a for-sale-by-owner, and the buyer's agency is supposed to hold the earnest money.... and they never deposited it??

I'm not an attorney, so this should not be considered legal advice... but if the contract called for deposit of earnest monies, and the buyer's agent ignored those deadlines... yes, I would think you could take legal action.

btw... yes, a contract has to have "consideration" to be legal (consideration is the exchange of something valuable... like money)... but the "promise" of earnest money has been proven to be "consideration" for the purpose of contracts.  Even without the actual e.m. in place.. the contract could be valid and enforceable.

Consult with a real estate attorney.

This needs the advice of an attorney. But without depositing emd as stated in the contract into an appropriate trust fund, that agent is in for a world of hurt. It might void the contract but I don't know for sure.

Check with an attorney.  In CA, I'd send a notice to perform for the EMD.  Then it's the seller's call if they want to cancel.  Since out here it would be 3 days in to the escrow, it could be difficult to show grounds for legal action.

Personally, sounds like the buyer is a real pip.  Might be better off letting them go and finding someone else who won't cause you mountains of stress.

In earnest money is not deposited within the specified contract time than the seller may issue a 3 day cancellation 'cure' and cancel the deal unless the buyers performs within the 3 days.  Time for a call to that agents broker - or have your broker call the broker if agent is holding up the deal and not the buyer. Not good.

Your question is very confusing and you definitely should discuss with a lawyer.  Did the buyer agent steal the money?  Your direction seems to be toward the buyer agent and not the buyer. How would this ever be a buyer getting a cash deal with zero contingencies?  Again, very confusing.   Your first step might also be to call the buyer agent's broker.  

As others have stated, without consideration (the escrow deposit), there was no valid contract.

If I were a judge I could answer that, but since I am not I will share what I would do. 

ask yourself, is is really worth it to sue your client?

Just shake it off and move on to the next deal.

Regardless of the legal options, IMHO, if a buyer wants to void a contract you might as well let them... or it's going to turn into the transaction from you know where.  I say move on!  

That said, though, agents do have legal responsibilities and there can be consequences for not fulfilling them.

For legal advise is best to ask an attorney. 

BA can't come up with an excuse for this one. Hello board! That's not going to solve your problem though is it?

Michael Jacobs nailed this one!

Consult a lawyer in the relevant jurisdiction for legal advice.

There is no contract at this time and any legal action would be point less. 

I don't understand. I am not an attorney but if the buyer does not perform then there are consequences in the contract. Does the buyer want to back out? Talk with your broker to protect your seller.

EM is not required unless it is stated in the contract. Oops. So, if the buyer did not submit the earnest money as stated in the contract, then you no longer have a contract. You void the contract and make the home available for the next prospect. You don't pursue the buyer's agent for any damages.

For those of us in Arizona, Anna Banana Kruchten, CRS answered your question.

I would recommend a call to a real estate attorney.

   Go after the license of the Buyer's Broker. 

This happened to us.  Our seller, per the terms of the contract, sued on the basis of the note and won. 

Legal question

send cure notice

Well, the contract is invalid when that happens.

Check with the buyer's agent if the EMD is sent - and find out where it could be.

If the buyer's agent had the money and didn't deposit it timely he may be subject to discipline from the state real estate commission. 

Difficult and if the seller gets in a lawsuit it can affect the ability to sell.

I believe a real estate attorney would be best to question.  Follow your contract.  What's it state? 

IMO there is no contract - not sure about your area

In my neck of the woods, the listing agent's office makes the deposit of the earnest money.... or the seller's attorney.... 

This is not as clearcut as it would seem-  Was the check just held byt he buyers agent and not deposited?  How long has it been?

DId you follow up to make sure the money was depostied in a timely manner? Did you send a notice to perform when it was not done in 3 days?  If it has been, say, 2 weeks, and nothing was done, and the seller not notified, I think some responsibility may lie with the listing agent as well. 

Hopefully its only been 4 days and they arent depositing.- I would move ahead and find a new buyer, 

Sounds like a legal issue. Buyer agent should have submitted EMD to seller's agent for broker to deposit in escrow a/c or pass on to attorney or title co to deposit. Sounds like buyer agent acted inappropriately and now you know why.

Depends on how long you want to be tied up. Me I just cancel

Follow the terms of the contract. In the CA contract ... we give a notice to perform. They have two days to respond. If no response - seller can cancel and bring in back up offer or go back on the market and find another buyer. 

Alternatively, seek legal council.

If the EMD was a condition of the deal...you then have no deal

A lot of issues here an attorney can address!

This is best handled by the legal procedures written for your state.

My State will take action against the buyer's broker. All EMD's have to be deposited within five business days of contract acceptance.

You do not want the expense of legal actions. 

I would suggest the seller consult with a real estate attorney.