WALTER J. BROWN AND MURIEL A. BROWN, HIS WIFE, AND FLORIDA EXECUTIVE REALTY, INC., APPELLANTS,
v.
PAUL E. MATTON, APPELLEE
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The court reversed a trial judgment that returned a buyer's deposit under a real estate contract contingent on obtaining mortgage financing. The court held that the contingency clause clearly placed the burden of securing financing on the buyer, not the seller, and remanded for a new trial on whether the buyer made a good-faith effort to obtain the mortgage.
The contingency clause clearly placed the burden of obtaining financing on the buyer, not the seller or real estate agent. The trial judge's interpretation was incorrect, and the case must be remanded for a new trial to determine whether the buyer made a good-faith effort to secure financing.
[1] A contract provision making the agreement subject to the purchaser securing a mortgage requires a reasonable, good faith effort to obtain the specified financing.
[2] A purchaser's failure to submit a loan application for the amount specified in the contract, or to provide sufficient information to a lender, may constitute a failure to…
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Join FLexlaw to unlock all legal intelligence“the language employed quite clearly places the burden of obtaining the financing upon the buyer”
Establishes the court's interpretation that the contingency clause obligates the buyer, not the seller, to secure the mortgage.
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Join FLexlaw to unlock all legal intelligenceA real estate contract between the Browns and Matton contained a contingency provision requiring the buyer to secure an 85% mortgage at current rates …
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LETTS, Chief Judge.
This appeal comes to us from a final judgment which returned the deposit on a real estate contract to the buyer because the contract was contingent upon the buyer securing a mortgage which he failed to obtain. We reverse.
The particular contingency provision read as follows:
This contract is contingent upon buyers securing an 85% mortgage at financial institution at current rate and terms within 30 days.
During the non-jury trial of this cause, considerable evidence was introduced by both sides about whether or not the buyer made a good faith effort to secure the financing. Normally the resolution of such a question would be one which we would leave to the trier of the facts. However, in this particular instance the judge’s final order unequivocally returned the deposit to the purchaser solely because:
The way the contract is written, the responsibility for providing such financing is upon the seller or the real estate agent within thirty (30)days if either are to declare a forfeiture. In this case the plaintiff went further in attempting to close the transaction than was required by the contract.
We believe that the trial judge was wrong in so interpreting the contingency provision. Not only are we of the opinion that the quoted contingency does not place the responsibility of securing the financing upon the seller or the real estate agent, to the contrary we feel that the language employed quite clearly places the burden of obtaining the financing upon the buyer. Notwithstanding our disagreement with the trial judge’s reasoning we would nonetheless affirm if we were convinced that he had the right result although for the wrong reason. See Firestone v. Firestone, 263 So. 2d 223 (Fla.1972). However, our perusal of the record on the question of whether the purchaser made a good-faith effort to secure the financing is not convincing one way or the other and the trial judge made no such finding.
As a consequence, this cause is reversed for a new trial on the issue of whether or not the buyer made a good-faith effort to secure financing from an institutional mortgage lender at current rates and terms within thirty (30) days.
REVERSED AND REMANDED.
ANSTEAD and HERSEY, JJ., concur.
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Arthur Rutenberg Corp. v. Pasin, 506 So. 2d 33 (Fla. 4th DCA 1987)…hat the buyer exercised due diligence and good faith in seeking a mortgage. This conclusion was supported by the evidence, and no abuse of discretion has been shown. Cf. Biersbach v. Landin, Ltd., 454 So. 2d 779 (Fla. 4th DCA 1984); Brown v. Matton, 406 So. 2d 1269 (Fla. 4th DCA 1981); Meyers v. Cunningham, 415 So. 2d 802 (Fla. 3d DCA 1982). Accordingly, we reverse and remand for modification of the final judgment as to the cross-claim by entering judgment for the buyer for the entire deposit. The award of co…
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AHL v. RSM Developers & Assocs. Ltd. & RSM Developers, Inc., 418 So. 2d 471 (Fla. 4th DCA 1982)…f at the time the Plaintiff undertook that; the risk being, if one didn’t drop the purchase price to where it would have taken, there was a risk of losing the amount of money which was deposited. We would reaffirm our conclusion in Brown v. Matton, 406 So. 2d 1269 (Fla. 4th DCA 1981), to the effect that in a non jury trial the question of whether a purchaser makes a good faith effort to secure the financing is a question of fact to be resolved by the judge. However, we have read the entire transcript of this…
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Quirch v. Coro, 842 So. 2d 184 (Fla. 3d DCA 2003)…32 So. 2d 110 (Fla. 3d DCA 1994); Dennard v. Tri-Corp. Custom Homes, Inc., 583 So. 2d 811 (Fla. 2d DCA 1991); Fin. Servs., Inc. v. Sheehan, 537 So. 2d 1111 (Fla. 3d DCA 1989); Meyers v. Cunningham, 415 So. 2d 802 (Fla. 3d DCA 1982); Brown v. Matton, 406 So. 2d 1269 (Fla. 4th DCA 1981) are inappropriate as the judgments entered in these cases were not entered pursuant to a motion for summary judgment.…
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- Firestone v. Firestone, 263 So. 2d 223 (Fla. 1972)