Can they keep the deposit?

[Account Closed]

Hi all!

I made an offer on a house, mortgage fell through due to not getting the documents in time. My realtor mae the selling agent aware before the contract deadline of August 24th that the mortgage fell through. The listing agent said the sellers would like to keep half of my deposit. My realtor checked off the mortgage contingency, the listing agent said that my realtor forgot to check off line 707. 

Are the sellers entitled to my deposit? Help!!!!!

My realtor checked off this part in the AOS:

If this Agreement is terminated pursuant to Paragraph S(FX2), or the mortgage loans) is not obtained for settlement, all
deposit monies will be returned to Buyer according to the terms of Paragraph 26 and this Agreement will be VOID. Buyer
will be responsible for any costs incurred by Buyer for any inspections or certifications obtained according to the terms of this
Agreement, and any costs incurred by Buyer for: (1) Title search, title insurance and/or mechanics' lien insurance, or any fee
for
cancellation; (2) Flood insurance, fire insurance, hazard insurance, mine subsidence insurance, or any fee for cancellation;
(3) Appraisal fees and charges paid in advance to mortgage lender(s).

The listing agent says my realtor forgot to check this part off:

Buyer and Seller agree that if there is a dispute over the entitlement to deposit monies that is unresolved_______days (180 if not specified) after the Settlement Date staled in Paragraph 4(A) (or any written extensions thereof) or following termination of the
Agreement, Whichever is earlier, then the Broker holding the deposit monies will, within 30 days of receipt of Buyer's written request
distribute the deposit monies to Buyer unless the Broker is in receipt of verifiable written notice that the dispute is the
subject of litigation or mediation. If Broker has received verifiable written notice of litigation or mediation prior to the receipt of
Buyer's request for distribution, Broker will continue to hold the deposit monies until receipt of a written distribution agreement
between Buyer and Seller or a final court order.
Buyer and Seller are advised to initiate litigation or mediation for any portion of
the deposit monies prior to any distribution made by Broker pursuant to this paragraph. Buyer and Seller agree that the distribution
of deposit monies based upon the passage of time does not legally determine entitlement to deposit monies, and that the parties
maintain their legal rights to pursue litigation even after a distribution is made.

What to do? I do not know if I can trust my realtor.

THANK YOU!!!!!

[Kevin Sobilo]

@Account Closed, I believe your agent is correct.

You are likely entitled to your money back because you couldn't get financing. However, there could be some details that change that. You mention not getting documents in time? What documents? There is more to the mortgage contingency than what you have. For example you are required to apply for the mortgage within 7 days. So, if the documents you're talking about were part of getting that done then you didn't live up to your obligation. So, you may not be entitled to the deposit.

As for the 2nd paragraph, there is no "checking" of that section needed. All it says is that if nobody fights for the deposit in court or mediation you are entitled to it back.

If you are really entitled to the deposit, the seller is probably trying to shake you down for it because you either need to fight to get it or wait 6 months. So, if you need that deposit, that is their leverage to give up some of it. It isn't nice or honest, but unfortunately not everyone is honest.