957 N.E.2d 1131
81 Mass.App.Ct. 1101, 957 N.E.2d 1131, 2011 WL 6004024 (Mass.App.Ct.)
(Table, Text in WESTLAW), Unpublished Disposition
(Cite as: 81 Mass.App.Ct. 1101, 2011 WL 6004024 (Mass.App.Ct.))
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
first mortgage of $417,000, but had not approved asecond mortgage of $73,400. Beginning on October 5,therefore, the parties agreed to a number of short ex-tensions to the mortgage contingency deadline:
On October 5, the parties extended the deadline toOctober 9, based on the buyers' representation that
the first loan has been approved and we are justwaiting to get approval on the second loan.
On October 9, the parties extended the deadline toOctober 14, based on the buyers' representation that
the bank needed to approve the second mortgage.The first mortgage has been approved.
On October 14, the date was further extended byagreement to October 15.
On October 15, the parties agreed to extend the dateto October 19, based on the buyers' representationthat
the bank need[s] more time to process the se-cond mortgage.
The parties last agreed to extend the deadline fromOctober 19 to October 21, 2009, based on the buy-ers' representation that
the bank need[s] to approvethe second mortgage. The delay has been the PoliceDepartment verifying ... employment/income. Allparties involved are working to get the issues re-solved.
Each of these extensions was agreed to in writingand each reiterated the provision from the P & S thattime was of the essence.
On October 19, 2009, Leader Bank approved thefirst and second mortgages subject to certain condi-tions, one of which was that the buyers list their pri-mary residence
for sale prior to the loan closing.
This condition was unacceptable to the buyers, alt-hough they had not disclosed that fact to the bank when they applied for the loan. It does not appear thatthe buyers notified the sellers either of their unwill-ingness to list or sell their house.
FN4. The buyers also owned a secondaryhome. The bank imposed no condition withrespect to that property.
FN5. The condition imposed by the bank wasmore beneficial to the buyers than the moretypical condition that a borrower's existinghome be sold before the loan closes.
FN6. The fact that the buyers did not maketheir offer
of theirhome is not the equivalent of notifying thesellers that they (the buyers) were unwillingto sell their home or that they did not plan tosell their home. It reflects only the absence of a
that might otherwise make theoffer less attractive to the sellers.
Two days after receiving their loan approval, inother words on October 21, 2009, the buyers notifiedthe sellers (through their agent) that they had
notreceived a loan commitment with acceptable condi-tions and thereby terminate [ ] said agreement [the P &S] as provided therein.
On October 23, 2009, the sellers asked that thebuyers provide further information regarding theirefforts to obtain financing, as well as any responsesfrom the bank. At that point, the buyers notified thebank of their unwillingness to sell their existing home.The bank then responded, on October 27, 2009, bydenying the mortgage application based on the factthat the
[b]orrower would be carrying three mortgagepayments and the debt to income is to[o] high.
It is undisputed that, before the ex-tended mortgage
deadline of October 21,the buyers received a commitment from the bank fortwo mortgages totalling $492,000. The P & S's mort-gage
was accordingly satisfied unless thebank's requirement that the buyers list their home for
was not a
term or condition.
The undisputed record shows that a typical loancondition for most borrowers is to require them to sellan existing home before the new loan closes. Thecondition here required only that the buyers list, notsell, their home and it was accordingly not a typicalcondition. The buyers argue that because the conditionwas unusual, it was not a
conditionwithin the meaning of the contingency clause of the P& S, despite the fact that the condition was more fa-vorable to them than the standard condition.
Statedotherwise, the buyers' position can be understood to bethat: if the loan had been approved conditioned uponselling their existing home, the mortgage contingency