On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-997-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Coburn.
Defendant appeals from an order of November 7, 2007, granting summary judgment to plaintiffs and denying defendant's cross motion. Plaintiffs as purchaser and defendant as seller entered into a contract for the sale of real estate in June 2006. Plaintiffs sought the return of their $90,000 deposit when they were unable to obtain a mortgage commitment.
Defendant counterclaimed seeking damages, fees and costs incident to plaintiffs' alleged breach of contract based on plaintiffs' "refusal to accept" defendant's offer "to hold the mortgage for plaintiff upon the same terms and conditions as set forth in Paragraph 6 of the mortgage contingency." As a result, defendant by counterclaim seeks the difference between the contract price and ultimate lower sales price of the property, incidental damages, fees and costs.
Paragraph 6 of the contract, entitled "mortgage contingency," provides:
The Buyer agrees to make a good faith effort to obtain a first mortgage loan upon terms listed below. The Buyer has until July 18, 2006 to obtain a commitment from a lender for this mortgage loan or to agree to buy the property without this loan. If this is not done before the deadline, and any agreed upon extensions, either party may cancel this contract."
Significantly, the terms listed checked "conventional" as the "type of mortgage" to be obtained. Reference to another type of mortgage (including to a box for an "other" type) was left blank. There was no box for purchase money or similar wording among the type listed.
We affirm the judgment substantially for the reasons stated by Judge Hector R. Velazquez in his comprehensive oral opinion of November 7, 2007. We agree with his construction of the contract to contemplate "a loan from a lending institution that is a mortgage company, a mortgage lender, not a private seller . . . like the defendant," the reasons for such construction and the reasons a buyer would desire a commercial loan.
We address no portion of the opinion which defendant does not challenge on the appeal.
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