On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-03041-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2007
Before Judges Graves and Sabatino.
This case involves a residential real estate transaction. Plaintiff Judith Hepps entered into a written contract to sell her residence located at 120 St. Vincent Court, Cherry Hill (property), to defendants Christopher and Jodi Sgouros (buyers), for the sum of $775,000. Defendant Thomas J. Shusted, Jr. (Shusted), an attorney, represented the buyers in the real estate transaction. Plaintiffs, Judith Hepps and her husband, Michael Hepps, appeal from two summary judgment orders entered on January 12, 2007, in favor of the buyers and their attorney. We affirm the summary judgment order in favor of defendant Shusted, but we reverse the order granting summary judgment to the buyers.
The contract of sale, which is dated January 18, 2006, was signed by the buyers on February 22, 2006, and by Judith Hepps on February 23, 2006. The contract stated that buyers needed the proceeds from the sale of their residence located at 102 Sandringham Road, Cherry Hill, as well as a mortgage loan in the amount of $520,750, to complete the transaction. Paragraph forty of the contract also contained the following language: "This Contract may be changed only in writing signed by both Buyer and Seller. ANY REPRESENTATIONS OR AGREEMENTS NOT CONTAINED IN THIS CONTRACT ARE OF NO EFFECT."
Paragraph nine of the contract, the mortgage contingency clause, and paragraph forty-two, which made the sale of the property contingent upon the sale of buyers' residence, read as follows:
9. MORTGAGE CONTINGENCY, PLACEMENT FEE (POINTS), COMMITMENT DATE:
If payment of the purchase price requires a mortgage loan other than by the Seller or other than assumption of Seller's mortgage, the Buyer shall apply for the loan in writing on lender's standard form within seven (7) days after the expiration of the Attorney Review period (Paragraph 1) and use their best efforts to obtain it. The Buyer shall supply all necessary information and fees required by the proposed lender and shall authorize the lender to communicate with the real estate broker(s) and involved attorney(s). The Buyer shall obtain a written commitment from an established mortgage lender to make a loan on the property under the following terms.
Principle Amount: $520,750.00 Type of Mortgage: () VA () FHA (XX) Conventional () Other.
Term of Mortgage: 30 years, with monthly payments based on a 30 year payment schedule.
The written mortgage commitment must be delivered to the Seller's agent who is the Listing Broker identified in Paragraph 33 no later than the 7th day of March, 2006. Should Buyer require additional time to obtain the written mortgage commitment, the commitment date shall automatically be extended for a period not to exceed 7 days. If such extension shall cause the commitment date to extend beyond the settlement date specified in [P]aragraph 14 then the settlement date shall be extended for ___ days after the revised commitment date. In the event the mortgage commitment is not delivered by the specified date, or any extended date permitted by the Seller, this Contract shall be deemed null and void. In that event, the deposit monies paid by the Buyer, shall be returned to the Buyer unless failure to obtain the mortgage commitment is the result of the Buyer's negligence or intentional conduct or failure to diligently pursue the mortgage application.
42. ADDITIONAL CONTRACT PROVISIONS.
Seller agrees to remove the house off the market at the time of the signing of this Agreement. If Buyers do not have an Agreement of Sale on their house at 102 Sandringham Road, Cherry Hill by April 20, 2006[,] the Seller will be permitted at ...