PIDOR DUONG v. DALE STEIN

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                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-5043-16T2

PIDOR DUONG and SOPHY SUN,

             Plaintiffs-Appellants,

       v.

DALE STEIN and ELLEN STEIN,

          Defendants-Respondents.
__________________________________

             Submitted June 18, 2018 – Decided July 5, 2018

             Before Judges Fisher and Fasciale.

             On appeal from Superior Court of New Jersey,
             Law Division, Camden County, Docket No. DC-
             002310-17.

             Law Offices of David J. Khawam, LLC, attorneys
             for appellants (David J. Khawam, on the
             brief).

             Subranni Zauber LLC, attorneys for respondents
             (Scott J. Good, on the brief).

PER CURIAM

       This appeal requires consideration of a mortgage contingency

clause in a real estate contract and whether buyers, who obtained

a   mortgage     commitment     but   failed    to   meet   all   the   lender's
conditions, was entitled to rescission of the contract. Because

the factual record leaves no doubt that buyers' failure to comply

with all the lender's conditions was not an impediment to closing,

we affirm the motion judge's entry of summary judgment in favor

of sellers.

     This action was commenced in special civil part by plaintiffs

Pidor Duong and Sophy Sun (buyers) against defendants Dale and

Ellen Stein (sellers) for a return of a $3000 deposit made pursuant

to the contract buyers executed, on September 5, 2016, to purchase

from sellers a Cherry Hill residence for $295,000. Sellers filed

a counterclaim, asserting their entitlement not only to the deposit

but also to damages caused by buyers' failure to close.

     The parties cross-moved for summary judgment. The motion

judge denied buyers' motion and granted sellers' motion. The judge

determined that sellers were entitled to the $3000 deposit and

$12,000 in damages.

     Buyers appeal, arguing:

          I. . . . GENUINE ISSUES OF MATERIAL FACTS
          EXISTED WHICH SHOULD HAVE PRECLUDED SUMMARY
          JUDGMENT (Not Raised Below).

          II. THE COURT ERRONEOUSLY ASSUMED THAT
          [BUYERS] AND THEIR BANK COLLUDED TO EXIT THE
          CONTRACT WITHOUT MERIT NOR [sic] PROOF.




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            III. THE COURT'S APPLICATION OF THE MALUS[1]
            HOLDING WAS INAPPOSITE GIVEN THE NATURE OF THE
            CONTRACT.

            IV. THE COURT SHOULD LOOK TO FARREL v. JANIK[2]
            . . . OR DAVIS v. STRAZZA[3] . . . FOR HOLDING.

We find insufficient merit in these arguments to warrant further

discussion. R. 2:11-3(e)(1)(E). We add only the following few

comments.

       The relevant facts were not in dispute. The contract was

conditioned upon buyers obtaining a $236,000 mortgage and imposed

on buyers the duty to "supply all necessary information" to the

proposed lender. That same provision required that buyers deliver

– no later than October 3, 2016 – a written mortgage commitment,

while allowing a five-day extension of that deadline. That clause

also called for rescission and return of buyers' deposit if buyers

were    unable   to   obtain   the   mortgage   commitment.   That   clause,

however, also declared that if:

            the failure to obtain the mortgage commitment
            is the result of [buyers'] bad faith,
            negligence, intentional conduct or failure to
            diligently pursue the mortgage application,
            then [buyers would not be entitled to the
            deposit] without the written authorization of
            [sellers].


1
    Malus v. Hager, 
312 N.J. Super. 483 (App. Div. 1998).
2
    Farrell v. Janik, 
225 N.J. Super. 282 (Law Div. 1988).
3
    Davis v. Strazza, 
380 N.J. Super. 476 (App. Div. 2005).

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The contract contained the buyers' representation that they had

"all necessary cash assets . . . to complete the [c]losing."

    It was also undisputed that the parties agreed to a brief

extension, and the buyers provided a written mortgage commitment

on October 6, 2016. The dispute that inspires the issues before

us concerns the fact that two days before the October 17 closing,

the lender withdrew the mortgage commitment; its notice advised

this action was taken because the buyers lacked sufficient funds

to close.

    According    to   buyers'   moving   certification,   the   lender's

requirements about the source of certain deposited cash was not

met because that information was in Cambodia,4 even though this



4
 Buyer Sophy Sun certified that the lender determined her account
was "short $10,463" to close the transaction, causing her last-
minute communications with her father in Cambodia. She explained
that:

            15. On October 12, 2016, my father gifted me
            $20,000 which was wired into my bank account.
            Those funds were to be used to cover the
            $10,643.

            16. I notified the Bank of the $20,000 gift.

            17. On October 13, 2016, at 6:46 a.m., the day
            before the Bank required satisfaction of the
            conditions to the mortgage commitment, the
            Bank requested additional information to
            document the $20,000 gift, including, but not
            limited to, a gift letter which had to be


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condition had been made known to buyers when the lender issued its

mortgage commitment.

     In   seeking   summary   judgment,   sellers   asserted   that   the

lender's condition was met prior to the closing, as buyers' moving

papers acknowledged, and that sellers expressed a willingness to

extend the time for closing until October 31. There is no dispute

that the buyers declined this extension offer, which would have

provided additional time to secure the lender's reinstatement of

the commitment, claiming only – without explanation – "it would

not benefit either party." Sellers contend the buyers simply chose

not to proceed further – that they were concerned about the cost

of flood insurance – and attempted to justify their withdrawal

from the transaction by the loss of the mortgage commitment.



           signed by my father and my father's account
           statements from his bank in Cambodia.

           18. At the time of the Bank's request, my
           father was home in Cambodia, which is eleven
           (11) hours ahead of Eastern Standard Time. By
           the time I received the Bank's request, it was
           after business hours in Cambodia.

           19. As a result, I was unable to provide the
           requested documents before October 14, 2016.

           20. On October 14, 2016, the Bank sent me a
           Notice of Action Taken which denied our loan
           application.

           [Citations omitted.]

                                   5                             A-5043-16T2
     There was also no dispute that, on October 28, 2016, buyers

contracted to purchase another Cherry Hill residence and obtained

a mortgage loan from the same lender. That transaction closed on

November 18, 2016. Meanwhile, sellers put their residence back on

the market but were unable to sell their property until May 2017.

They also realized approximately $17,000 less than they would have

had buyers not failed to go to closing in October 2016.

     The judge found no relevant factual dispute and concluded

that buyers' failure to close the transaction after securing the

mortgage commitment warranted a judgment in sellers' favor. He

also determined that sellers were entitled to damages, as evidenced

by the undisputed fact – among other things – that they realized

approximately $17,000 less from a later transaction; the deposit

was forfeited to sellers and $12,000 damages were awarded because

the special civil part jurisdictional limit permitted no greater

award. See R. 6:1-2(a)(1).

     We agree that sellers were entitled to summary judgment and

affirm in all respects. Buyers provided no sworn statements that

would create a genuine issue of fact regarding their failure to

close. They rely only on a contention that the lender's withdrawal

of the commitment because of the absence of sourcing of a monetary

gift justified their withdrawal from the transaction. Even if a

good faith failure to meet all the conditions of the mortgage

                                6                           A-5043-16T2
commitment was a cause for excusing their failure to close – we

have   held   to   the   contrary,   Malus,   312   N.J.   Super.   at   487

(concluding that an "unknowing and blameless seller" was entitled

to damages when a buyer lost a mortgage commitment because he lost

his employment two days before closing) – the record one-sidedly

reveals that buyers' attempts to justify their failure to meet one

of those conditions – all others having been satisfied – was not

the real basis for their failure to close. Instead, as the record

reveals, even if this was a real concern and not a "dog-ate-my-

homework" excuse as it very much appears, the sellers provided

buyers with an opportunity to meet that condition and buyers simply

chose to walk away and purchase some other property rather than

honor their promise to buy. Even at the summary-judgment stage,

the buyers' actions here could not be equated with good faith.

       Affirmed.




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