If you have not removed the financing contingency in writing and you cannot get your loan without the HOA information, have your lender give you something showing you cannot get the loan now and why. If the seller will not extend contract and they do a cancellation of contract, make sure you do not sign it unless it states you will get your EMD back. You should get your EMD back as long as the financing contingency has not been removed by you in writing.
Q 10. Must a buyer remove a contingency regarding a disclosure that the buyer has not yet received from the seller?
A No. Even if the contingency period has passed, under the RPA-CA Paragraph 14B(3), the buyer is not legally obligated to remove the contingencies if any report, disclosure or information for which seller is responsible is not delivered within the time specified in Paragraph 14A. The buyer still has the latter of the 17 days (if this default time is used) or 5 days after the seller gives the buyer the above-mentioned report, disclosure or information to remove those contingencies.
If the contingency period ended on Wednesday, July 7th but the seller gave the buyer the common interest disclosures (HOA documents) on Friday, July 9th, then the buyer has 5 days from the 9th, until Wednesday, the 14th at 11:59 pm (under the RPA-CA contract "days" means calendar days), to remove this contingency without being in breach of contract.
On the other hand, if the contingency period ends on Wednesday, July 7th but the seller gave the buyer the common interest disclosures on Thursday, July 1st, the buyer still has until Wednesday, July 7th to remove this contingency--the full contingency period not just 5 days.
If the contingency period ended on Wednesday, July 7th but the seller gave the buyer the common interest disclosures (HOA documents) on Tuesday, July 6th, then the buyer would have 6 days (not 5) from the 6th, until Monday, July 12th at 11:59 pm. If the 5th day falls on a Sunday, the buyer has until Monday to perform.
Note: Although "days" means "calendar days" in the RPA-CA, if the last day for performance falls on a Saturday, Sunday, or legal holiday, then the principal (buyer or seller) has until the next day to perform. This definition applies to every provision in the contract.
DO NOT remove the contingencies in writing until your lender has the HOA information they need. If you do and your loan does not get approved, you will NOT get your EMD back. If the contingencies are still in effect, you should be able to get your EMD back if contract cancels. As Gregorio stated below, the HOA may not qualify for the type of financing you are doing. Contact your lender and/or escrow officer to get answers. Again, DO NOT remove contingencies until HOA information is satisfactory to your lender - unless you don't care if you lose your EMD.
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