well here the next case the last case to be argued the now versus hockey  residential real estate transaction and the dispute concerns the deposit paid by the respondent buyer the decision order judgment of the lower court were premised on  credibility determination that that the buyer exercised good faith in trying to attempting to get the mortgage to purchase a premises however in doing so the lower court gave  disregard or gave extremely short shrift to undisputed documentary evidence and admissions made by the buyer in this matter which show he did not comply with the conditions the principle question was whether the defendant was acting in good faith yes and that's inherently a factual question i don't know your honor because actually under the terms of the expressed terms of the negotiated a financing contingency clause there are certain provisions for first of all didn't what did he do that what evidence is there that he acted in bad faith there quite a few things actually as even the agreement to purchase a premises from my clients but before he filed his mortgage application submit his mortgage application for the premises he responded secretly contracted to buy another property but there was nothing that prevented him from doing that well right i mean there was nothing there was no prohibit bishan that he couldn't buy a second property so long as he could fulfill the terms of the mortgage contingency on the one that he had contracted for but your honor there were a couple of things first of all that exhibit bad faith number one is he didn't disclose it to the my client number two he's going to require him to just use it to your client well actually he didn't even disclose it to the mortgage lender now he's signed it on disc you know undisclosed debt acknowledgement and connection with his mortgage application saying he's revealed all his you know any debts that he might be under and the undisclosed obtaining financing because he actually actually first of all also what he did was was it a debt yes it was a debt because he submitted another mortgage application simultaneously with the premises why was that why is that a debt because you it's the testimony from the mortgage broker it was undisputed that you have create the undisclosed debt acknowledged in the first the contingent liabilities as well not only actual liabilities but contingent liabilities also he understated his assets because in his mortgage application because he did not include one hundred twenty five thousand dollars down payment he made it to the flag star so as i understand it land mark was the mortgage broker who placed the application with flag star and he the defendant submitted two applications actually it's the the defendant  simultaneously with exactly the same information on them so they were not different applications and flag star which was chosen by landmark not by the declined his mortgage not on the basis of anything having to do with debt but on four bases the first of which was that he hadn't owned a prior residence in the last three years the second of which was his credit file was too thin meaning there wasn't enough activity and then the can a couple of others but none of the four had to do with that issue your honor the undisputed testimonial evidence was that those check off marks are not exclusive there can be other grounds and they were in fact  undisputed documentary evidence that he never a cane never ordered nor obtain an appraisal for the premises your arguments are are reasonable but that's not the test i mean that the the judge heard the witnesses maybe we might have come out a little bit differently but for us to reverse we've got to be convinced that his findings are clearly erroneous yes your honor but in fact why his findings are clearly erroneous the lower the lower court  made the following errors first of all he had in his decision judge block excluded consideration of the purchase of the premises the the false applique mortgage application submitted to landmark he said he didn't go to the merits of the case now judge judge gold in an x in the sanctions motion expressly said that that was a highly that conduct was highly highly material as to  defendant response good faith judge block adopted that report and recommendation in its entirety expressed in its entirety thereby in fact contradicting himself on that very issue  and the terms also it's important to state the terms were negotiated in a rider the finance a contingency clause it says that as a condition that the denial of the mortgage application has to be with out all on the part of the buyer here there were numerous false actually in fact we had submitted documents from flag star bank which shows the mortgage application was preliminarily approved pending an appraisal and pending the receipt you have to submit this fee upon application and furthermore just anyone's practical experience who's ever bought a house knows that you cannot get approved without a preexisting appraisal because that obviously goes to the central of the banks loan being secured adequately secured and so you have a contradiction also you have admitted lee the defendant engaged in mortgage fraud by submitting false documents fact as your honour's have stated the clearly erroneous stand there is applicable let me ask you about the good faith and the finding of fact when you look at the mortgage clause and you look at it in its entirety it's got two aspects to it one of which has got several requirements of diligence truthfulness and the application has to be proper and then after that there's a clause which says that if it's if the buyer is without fault then the deposit may be returned but what is your support for the judge's determination that diligence truthful nisson propriety are the equivalent of good faith or are those in fact separate requirements which there should have been a separate factual findings with respect to there was a trial and my client had testified that he truly desired to purchase this property was his first choice property and we also had to go through the steps of subpoenaing the independent mortgage broker who my client had never met in person even he didn't even know this lady we had to go through all of these steps to subpoena this mortgage broker this is this was not our expert witness this was an independent mortgage broker who came in testified before the judge before judge blocked and stated that my guy had put in a truthful and proper and complete application in for this mortgage and that he wanted to buy the bottles home he wanted  little bit different it's really about contract interpretation that the court starts off his opinion talking about good faith and makes some findings relating to good faith the contract reads in terms of a series of separate contract requirements which may or may not amount to the umbrella of good faith my question to you is how does one take those separate contractual requirements and extrapolate from that that they only mean quote good  faith i don't know how to answer your question maybe i don't understand your question i know that my client applied for the mortgage he administered a good faith he wanted to buy the property he still wants the property this property was perfect for him the fact that the bundles were able to sell it for the same purchase price of one point two five million dollars right away just proves how desirable of a property it was my client to this day has not even moved into the other property that he purchased that new property required so much work and renovation that he's putting so much money into it he wanted the panos home the greenway north home it was move in ready applying to bike to places so this is the way it turned out he saw the greenway property that's the bundles home he wanted this property his profession is a doctor it's on a main road it's perfectly set up for him to practice his profession out of the property and it's in moving can into the so once he goes into contract for greenway north the bottles home he contacts the mortgage broker and the mortgage broker says hey this contract that you executed requires you to apply for a seven hundred fifty thousand dollar mortgage that's a jumbo mortgages not even a fannie mae conforming  loan it's a very very stringent loan application and loan dollar amount this is a young guy he has no prior real estate experience he doesn't know what's going on based on those dim prospects that he received he understood that he would still have to apply and he honestly hoped that he would still get approved for the greenway property but another property came along with his second choice property and he applied for that property as well that clearly reduce his chances of getting the jumbo loan by taking on another contingent obligation your honor absolutely not the mortgage broker purposely submitted the applications to two separate banks so that neither bank would know so that neither bank would know about the pending application at the end of the day if you would have gotten approved for both properties he would have gone through with both properties he has a mother and the mother would have at the end of the day supported him and provided the funds for him to approved you don't have to get the loan from the bank but our issue at hand is whether or not he would have had to close on the bundles home and he would have had find out and that would in terms of the contingent if he had been approved on both he could have purchased both or he could have said to the bank i don't want to long he could if you would have gotten approved for both loans he would have closed their mortgage contingency clause in the second contra yes your honor and that mortgage your honor was a completely different mortgage that was for a four hundred thousand dollars loan that's a fannie mae conforming loan the seven hundred fifty thousand dollars loan is a jumbo conforming loan  it's not something that can be flipped over to fannie mae it has much string stringent requirements and layer past is the independent mortgage broker had testified in great great length on the difference is she had stated something like they're they're not apples and oranges or they're mars and earth they're completely different he still wants the bottles home to this very day i promise you that through all of my conversations with this gentleman he's a nice guy and he's a young guy and he exerted his good faith effort and he deserves to have his money returned to him promptly that's the whole reason why the mortgage commitment contingency clauses in the contract in the first place the fact that the bottles executed a contract with a seven fifty mortgage commitment contingency clause so so be it that's that's how it was and that's how it is art thank you there are a couple points i would also want to mention that the district judge in his own decision and in his comments the trial explicitly relied on irrelevant considerations and reaching his decision he basically said that my clients were greedy because they hadn't been harmed at all because they two years later they managed purchase another premises not only was that incorrect because they had paid the additional surcharge and this is a capital gain that accrued over sixty years and tremendous amount they also had an occupied house for two years when they tried to sell it they incurred significant damage but even more importantly under controlling authority in new york state law when you have a liquidated damages clause whether or not you make didn't lose any money or even made more money subsequently is irrelevant it's to as a matter of law to consider that and the judge decided that his decision is one of the grounds where is the justification and his his own comments during the trial said that was his main motivation he's basically said to be  i think i understand that but i want to come back from minute to you said that there was a direct contradiction between what the district judge did in his first opinion and then in his opinion adopting the decision on sanctions with respect to the magistrate judge recall to do largely with the filing of the list pendens but the also went further could you highlight for us please this specific contradiction that you were referring to what happened here was the specific contradiction goals comments were recorded in august date in the august twenty seventh yes august twelfth he did not he contracted to buy even before you submitted the mortgage application for our my client's premises he lied about it i brought a roulette i ask but i just want to if you can really just get right to the point and focus on where the git district judge said one thing in his initial decision and where he essentially said something else in a different actually in the mag material because it lends credence to the you know its claim that it had the desired desired to board his contract an obligation to purchase now that's a very very prominent finding in the decision and what happens is judge  was highly material the good thing and now his decision rendering judgment for the defendant said he excluded that information that he didn't go to the merits he didn't consider it there is a clear contradiction here i mean judge had a lot of experience in this matter spent a lot of time to argue i mean there must have been about ten court appearances before him he after this also came to light he strongly suggested to the defendant defense counsel that they just you know surrendered to deposit that he saw a really basically no issue you know as to the bad faith that this was clear bad faith on their part suggested the defense counsel the word possible sanction that he withdraws counsel  block took takes no issue with this one just finish up ok and i would also say that there's a fundamental in inconsistency between the the story that they're saying now and what happened before they're saying they always wanted the property  and still want the property but the testimony of the mortgage broker his witness was that the application was a marginal one for seven hundred fifty thousand dollars now if it was truly marginal adding another eight hundred fifty thousand dollars application we