Noohi v. Toll Bros., Inc.

708 F.3d 599 (4th Cir. 2013)

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Nature of the Case

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Facts

P contracted with D for the construction of a home in Maryland. P contracted with D for the construction of a home in Maryland. The Agreement required that P seek approval of a mortgage, and included an arbitration provision. P received a 'Mortgage Loan Commitment' letter from at least one lender that was later rescinded, and though several other of their mortgage applications were all denied, D sought to keep $77,008 in P's deposits. On February 17, 2008, P made an 'initial reservation deposit' of $5,000. On February 24, 2008, they entered into the Agreement with D to purchase a pre-construction home for $1,006,975. P made an additional deposit of $45,348 and later deposited another $26,660. P was obligated to obtain mortgage financing. P agreed to make a good-faith, 'truthful and complete application to TBI Mortgage and any other lender of [their] choosing,' accept a loan commitment and comply with all terms imposed by the lender. If P was not approved for a mortgage after 60 days, D could either extend the mortgage application period in order to submit a mortgage request on behalf of P or declare the Agreement 'null and void' and refund P's deposit. P's TBI application was rejected. P then applied for a =mortgage with First Preferred Financial, Inc., which provided them with a 'Mortgage Loan Commitment' letter for $906,275 on April 24, 2008. Though Plaintiffs accepted the letter, First Preferred Financial informed P on June 13, 2008, that it could no longer provide them with financing in light of a recent Maryland law prohibiting 'stated income' loans. P also sought to secure a mortgage from GMAC but were unsuccessful. P demanded a refund. D demanded that P contact APEX Funding Group. APEX Funding Group gave P a loan commitment letter but then declined to approve them for a mortgage. P also sought mortgage approvals from other lenders but were unable to secure financing. D refused a refund. P filed a class action suit. D filed a motion to dismiss or stay Plaintiffs' complaint pending arbitration based on the Agreement's arbitration provision. After determining that the arbitration provision required only P to submit disputes to arbitration, the court held that Section 13 of the Agreement was unenforceable for lack of consideration. D appealed.