SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5043-16T2

PIDOR DUONG and SOPHY SUN,

Plaintiffs-Appellants,

v.

DALE STEIN and ELLEN STEIN,

Defendants-Respondents.

__________________________________

Submitted June 18, 2018 – Decided July 5, 2018

Before Judges Fisher and Fasciale.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Docket No. DC002310-17.

Law Offices of David J. Khawam, LLC, attorneys 

for appellants (David J. Khawam, on the 

brief).

Subranni Zauber LLC, attorneys for respondents 

(Scott J. Good, on the brief).

PER CURIAM

This appeal requires consideration of a mortgage contingency 

clause in a real estate contract and whether buyers, who obtained 

a mortgage commitment but failed to meet all the lender's 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-5043-16T2

conditions, was entitled to rescission of the contract. Because 

the factual record leaves no doubt that buyers' failure to comply 

with all the lender's conditions was not an impediment to closing, 

we affirm the motion judge's entry of summary judgment in favor 

of sellers.

This action was commenced in special civil part by plaintiffs 

Pidor Duong and Sophy Sun (buyers) against defendants Dale and 

Ellen Stein (sellers) for a return of a $3000 deposit made pursuant 

to the contract buyers executed, on September 5, 2016, to purchase 

from sellers a Cherry Hill residence for $295,000. Sellers filed 

a counterclaim, asserting their entitlement not only to the deposit 

but also to damages caused by buyers' failure to close.

The parties cross-moved for summary judgment. The motion 

judge denied buyers' motion and granted sellers' motion. The judge 

determined that sellers were entitled to the $3000 deposit and 

$12,000 in damages.

Buyers appeal, arguing:

I. . . . GENUINE ISSUES OF MATERIAL FACTS 

EXISTED WHICH SHOULD HAVE PRECLUDED SUMMARY 

JUDGMENT (Not Raised Below).

II. THE COURT ERRONEOUSLY ASSUMED THAT 

[BUYERS] AND THEIR BANK COLLUDED TO EXIT THE 

CONTRACT WITHOUT MERIT NOR [sic] PROOF.
3 A-5043-16T2

III. THE COURT'S APPLICATION OF THE MALUS[1]

HOLDING WAS INAPPOSITE GIVEN THE NATURE OF THE 

CONTRACT.

IV. THE COURT SHOULD LOOK TO FARREL v. JANIK[2]

. . . OR DAVIS v. STRAZZA[3] . . . FOR HOLDING.

We find insufficient merit in these arguments to warrant further 

discussion. R. 2:11-3(e)(1)(E). We add only the following few 

comments.

The relevant facts were not in dispute. The contract was 

conditioned upon buyers obtaining a $236,000 mortgage and imposed 

on buyers the duty to "supply all necessary information" to the 

proposed lender. That same provision required that buyers deliver

– no later than October 3, 2016 – a written mortgage commitment,

while allowing a five-day extension of that deadline. That clause 

also called for rescission and return of buyers' deposit if buyers 

were unable to obtain the mortgage commitment. That clause, 

however, also declared that if:

the failure to obtain the mortgage commitment 

is the result of [buyers'] bad faith, 

negligence, intentional conduct or failure to 

diligently pursue the mortgage application, 

then [buyers would not be entitled to the 

deposit] without the written authorization of 

[sellers].

 

1 Malus v. Hager, 312 N.J. Super. 483 (App. Div. 1998).

2 Farrell v. Janik, 225 N.J. Super. 282 (Law Div. 1988).

3 Davis v. Strazza, 380 N.J. Super. 476 (App. Div. 2005).
4 A-5043-16T2

The contract contained the buyers' representation that they had 

"all necessary cash assets . . . to complete the [c]losing."

It was also undisputed that the parties agreed to a brief 

extension, and the buyers provided a written mortgage commitment 

on October 6, 2016. The dispute that inspires the issues before 

us concerns the fact that two days before the October 17 closing, 

the lender withdrew the mortgage commitment; its notice advised 

this action was taken because the buyers lacked sufficient funds 

to close.

According to buyers' moving certification, the lender's 

requirements about the source of certain deposited cash was not 

met because that information was in Cambodia,

4 even though this 

 

4 Buyer Sophy Sun certified that the lender determined her account 

was "short $10,463" to close the transaction, causing her lastminute communications with her father in Cambodia. She explained 

that:

15. On October 12, 2016, my father gifted me 

$20,000 which was wired into my bank account. 

Those funds were to be used to cover the 

$10,643.

16. I notified the Bank of the $20,000 gift.

17. On October 13, 2016, at 6:46 a.m., the day 

before the Bank required satisfaction of the 

conditions to the mortgage commitment, the 

Bank requested additional information to 

document the $20,000 gift, including, but not 

limited to, a gift letter which had to be 
5 A-5043-16T2

condition had been made known to buyers when the lender issued its 

mortgage commitment.

In seeking summary judgment, sellers asserted that the 

lender's condition was met prior to the closing, as buyers' moving 

papers acknowledged, and that sellers expressed a willingness to 

extend the time for closing until October 31. There is no dispute 

that the buyers declined this extension offer, which would have 

provided additional time to secure the lender's reinstatement of 

the commitment, claiming only – without explanation – "it would 

not benefit either party." Sellers contend the buyers simply chose 

not to proceed further – that they were concerned about the cost 

of flood insurance – and attempted to justify their withdrawal 

from the transaction by the loss of the mortgage commitment.

 

signed by my father and my father's account 

statements from his bank in Cambodia.

18. At the time of the Bank's request, my 

father was home in Cambodia, which is eleven 

(11) hours ahead of Eastern Standard Time. By 

the time I received the Bank's request, it was 

after business hours in Cambodia.

19. As a result, I was unable to provide the 

requested documents before October 14, 2016.

20. On October 14, 2016, the Bank sent me a 

Notice of Action Taken which denied our loan 

application.

[Citations omitted.]
6 A-5043-16T2

There was also no dispute that, on October 28, 2016, buyers 

contracted to purchase another Cherry Hill residence and obtained 

a mortgage loan from the same lender. That transaction closed on 

November 18, 2016. Meanwhile, sellers put their residence back on 

the market but were unable to sell their property until May 2017. 

They also realized approximately $17,000 less than they would have 

had buyers not failed to go to closing in October 2016.

The judge found no relevant factual dispute and concluded 

that buyers' failure to close the transaction after securing the 

mortgage commitment warranted a judgment in sellers' favor. He 

also determined that sellers were entitled to damages, as evidenced 

by the undisputed fact – among other things – that they realized 

approximately $17,000 less from a later transaction; the deposit 

was forfeited to sellers and $12,000 damages were awarded because 

the special civil part jurisdictional limit permitted no greater 

award. See R. 6:1-2(a)(1).

We agree that sellers were entitled to summary judgment and 

affirm in all respects. Buyers provided no sworn statements that 

would create a genuine issue of fact regarding their failure to 

close. They rely only on a contention that the lender's withdrawal 

of the commitment because of the absence of sourcing of a monetary 

gift justified their withdrawal from the transaction. Even if a 

good faith failure to meet all the conditions of the mortgage 
7 A-5043-16T2

commitment was a cause for excusing their failure to close – we 

have held to the contrary, Malus, 312 N.J. Super. at 487 

(concluding that an "unknowing and blameless seller" was entitled 

to damages when a buyer lost a mortgage commitment because he lost 

his employment two days before closing) – the record one-sidedly 

reveals that buyers' attempts to justify their failure to meet one 

of those conditions – all others having been satisfied – was not 

the real basis for their failure to close. Instead, as the record 

reveals, even if this was a real concern and not a "dog-ate-myhomework" excuse as it very much appears, the sellers provided 

buyers with an opportunity to meet that condition and buyers simply 

chose to walk away and purchase some other property rather than 

honor their promise to buy. Even at the summary-judgment stage, 

the buyers' actions here could not be equated with good faith.

Affirmed.