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) (Table, Text in WESTLAW), Unpublished Disposition (Cite as: 81 Mass.App.Ct. 1101, 2011 WL 6004024 (Mass.App.Ct.))

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Only the Westlaw citation is currently available.NOTE: THIS OPINION WILL NOT APPEAR IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE. NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. Appeals Court of Massachusetts. George SURVILLO & another FN1 FN1. Susan M. Survillo. v. Joseph H. McDONOUGH & another.FN2 FN2. Barbara L. McDonough. No. 11P290. Dec. 2, 2011. By the Court (GRAHAM, RUBIN & WOLOHOJIAN, JJ.). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 *1 The plaintiffs (buyers) appeal from a judgment entered in favor of the defendants (sellers) on the parties' cross motions for summary judgment. At issue is whether, as the motion judge concluded, the sellers are entitled to the buyers' deposit under the terms of the parties' residential purchase and sale agreement. Background. We recite the material undisputed facts. See Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 536 (1992). On September 3, 2009, the buyers made an offer to purchase

the sellers' home in Walpole. The offer stated it was subject to home inspection, Radon, Pest & Mortgage Contingencies Not subject to the Sale of any other home. The sellers accepted the offer the following day, September 4, 2009. That same day, the buyers received a conditional pre-approval letter from Leader Bank, stating that subject to certain conditions, the buyers were pre-approved for a first mortgage in the amount of $492,000 and that the anticipated loan was [n]ot based on sale of any residence. The parties entered into a purchase and sale agreement (P & S) on September 15, 2009. Although the P & S was based on a Greater Boston Real Estate Board form, certain provisions throughout were modified by the parties.FN3 The mortgage contingency provision of the P & S provided: FN3. The record is silent as to who generated the first draft of the P & S or who propounded any of the particular changes to the document. In order to help finance the acquisition of said premises, the [buyers] shall apply for a conventional bank or other institutional mortgage loan of $492,000.00 at prevailing rates, terms and conditions. If despite the [buyers] diligent efforts a commitment for such loan cannot be obtained on or before October 5, 2009, the [buyers] may terminate this agreement by written notice to the [sellers] and/or the Broker(s), as agent(s) for the [sellers], prior to the expiration of such time, whereupon any payments made under this agreement shall be forthwith refunded and all other obligations of the parties hereto shall cease and this agreement shall be void without recourse to the parties hereto. In no event will the [buyers] be deemed to have used diligent efforts to obtain such commitment unless the [buyers] submit[ ] a complete mortgage loan application conforming to the foregoing provisions on or before September 17, 2009. The buyers submitted a mortgage loan application to Leader Bank, from which they had previously borrowed money and with which they had a relationship. By October 5, 2009, Leader Bank had approved a

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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.)) first mortgage of $417,000, but had not approved a second mortgage of $73,400. Beginning on October 5, therefore, the parties agreed to a number of short extensions to the mortgage contingency deadline: On October 5, the parties extended the deadline to October 9, based on the buyers' representation that the first loan has been approved and we are just waiting to get approval on the second loan. On October 9, the parties extended the deadline to October 14, based on the buyers' representation that the bank needed to approve the second mortgage. The first mortgage has been approved. *2 On October 14, the date was further extended by agreement to October 15. On October 15, the parties agreed to extend the date to October 19, based on the buyers' representation that the bank need[s] more time to process the second mortgage. The parties last agreed to extend the deadline from October 19 to October 21, 2009, based on the buyers' representation that the bank need[s] to approve the second mortgage. The delay has been the Police Department verifying ... employment/income. All parties involved are working to get the issues resolved. Each of these extensions was agreed to in writing and each reiterated the provision from the P & S that time was of the essence. On October 19, 2009, Leader Bank approved the first and second mortgages subject to certain conditions, one of which was that the buyers list their primary residence FN4 for sale prior to the loan closing.FN5 This condition was unacceptable to the buyers, although they had not disclosed that fact to the bank when they applied for the loan. It does not appear that the buyers notified the sellers either of their unwillingness to list or sell their house.FN6 FN4. The buyers also owned a secondary home. The bank imposed no condition with respect to that property. FN5. The condition imposed by the bank was

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more beneficial to the buyers than the more typical condition that a borrower's existing home be sold before the loan closes. FN6. The fact that the buyers did not make their offer contingent upon the sale of their home is not the equivalent of notifying the sellers that they (the buyers) were unwilling to sell their home or that they did not plan to sell their home. It reflects only the absence of a contingency that might otherwise make the offer less attractive to the sellers. Two days after receiving their loan approval, in other words on October 21, 2009, the buyers notified the sellers (through their agent) that they had not received a loan commitment with acceptable conditions and thereby terminate [ ] said agreement [the P & S] as provided therein. On October 23, 2009, the sellers asked that the buyers provide further information regarding their efforts to obtain financing, as well as any responses from the bank. At that point, the buyers notified the bank of their unwillingness to sell their existing home. The bank then responded, on October 27, 2009, by denying the mortgage application based on the fact that the [b]orrower would be carrying three mortgage payments and the debt to income is to[o] high. Discussion. It is undisputed that, before the extended mortgage contingency deadline of October 21, the buyers received a commitment from the bank for two mortgages totalling $492,000. The P & S's mortgage contingency was accordingly satisfied unless the bank's requirement that the buyers list their home for sale was not a prevailing term or condition. The undisputed record shows that a typical loan condition for most borrowers is to require them to sell an existing home before the new loan closes. The condition here required only that the buyers list, not sell, their home and it was accordingly not a typical condition. The buyers argue that because the condition was unusual, it was not a prevailing condition within the meaning of the contingency clause of the P & S, despite the fact that the condition was more favorable to them than the standard condition.FN7 Stated otherwise, the buyers' position can be understood to be that: if the loan had been approved conditioned upon selling their existing home, the mortgage contingency

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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.)) would not have protected them; but since the loan was approved subject to an atypical (but more advantageous to them) condition, they were entitled to walk away from the deal. FN7. In their reply brief, the buyers also argue that as owners of more than one residential property, they do not fit the profile of the average residential buyer who would be expected to sell their home to qualify for mortgage financing. We do not address this argument as we see no indication in the record before us that it was raised below. See Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 Mass. 663, 688 (2010) (claim deemed waived when raised for first time in reply brief). We note that although the record indicates the buyers filed a memorandum in support of their motion for summary judgment, the record does not appear to contain a copy. See Shawmut Community Bank, N.A. v. Zagami, 30 Mass.App.Ct. 371, 372373 (1991), S. C., 411 Mass. 807 (1992). *3 This argument fails because we have previously held that terms of a mortgage contingency presuppose[ ] that the buyers will accept commercially reasonable loan terms.... If less is required, the condition becomes an option. Lynch v. Andrew, 20 Mass.App.Ct. 623, 626 (1985) (construing a mortgage contingency clause that specified prevailing interest rates). The standard of reasonableness is objective. Ibid. The buyers do not seriously contest that the condition imposed by the bank was commercially reasonable. Instead, the buyers contend that, even if reasonable, the condition was unduly onerous, ibid., because they had not decided whether to sell their existing home. This argument fails if for no other reason than that it is insufficiently supported by the record. The record does not suggest, let alone demonstrate, that the buyers notified the bank before October 19 (the date on which the bank approved the loan) that they were unwilling to accept a loan that required them to list their home for sale.FN8 Likewise, there is nothing in the record to show that the buyers notified the sellers that they, the buyers, were unwilling to list or sell their existing home, nor did they insert a proviso to that effect into the mortgage contingency

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clause. Absent such express language, the buyers' post-hoc statement that the condition imposed by the bank was unacceptable because the buyers had not decided whether to sell their home did not make the bank's condition unduly onerous. FN8. Subsequent events suggest that if the buyers had timely disclosed their intentions to the bank, the loan would have been disapproved, which may well have given the buyers the shelter they seek under the mortgage contingency clause. See Alfeo v. Dinsmore, 68 Mass.App.Ct. 249, 253 (2007) (the buyer ... is the usual proponent and primary beneficiary of a mortgage contingency clause, which serves as a safety valve when she is unable to obtain financing). For the reasons set out above, we affirm the judgment.FN9 FN9. Deciding as we do, we need not (and do not) consider the issue of whether summary judgment was properly granted in the buyers' favor on the issue of the diligence of their efforts to obtain financing. So ordered. Mass.App.Ct.,2011. Survillo v. McDonough 81 Mass.App.Ct. 1101, 957 N.E.2d 1131, 2011 WL 6004024 (Mass.App.Ct.) END OF DOCUMENT

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