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Failure to Apply For Mortgage Causes a Loss of Down Payment

A husband and wife entered into a contract to purchase a home. They deposited $35,000 as a down payment. When they didn’t close on the real estate transaction, the seller sued them for breach of contract.

Applying for a Mortgage

The issue in the lawsuit was whether the purchasers diligently applied for a $280,000 mortgage. When the mortgage application was turned down by the financial institution, the purchasers demanded that the sellers return their $35,000 deposit.

Purchasers Not Entitled to Refund of Down Payment

Justice Tom Feinman, sitting in a the Supreme Court located in Nassau County, found that the defendants “failed to properly, diligently pursue a mortgage loan as required by the contingency provision of the contract.” Justice Feinman found that the defendant, Edwin Silvey, did not apply for a mortgage. Only his wife, co- defendant Barbary Silvey, applied for the mortgage. The mortgage was turned down because she did not have sufficient income to obtain a $230,000 mortgage loan. The court held that both the husband and the wife, pursuant to the terms of the real estate contract, needed to apply for the mortgage. Since they both didn’t apply, they failed to make the diligent and good faith effort required under the real estate contract to obtain a mortgage. Since they failed to fulfill their obligations under the contract, they were not entitled to their $35,000 deposit back.

Foreclosure Defense Attorney

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