Since you have not closed escrow yet, your down payment for the mortgage should be held with escrow, until closing... if you do not record, that money will be returned to you.
I am not an attorney and this is not legal advice.
There are several ways to get your earnest money back, here are a few ideas for you:
1. Review your contract for ways out
2. When you receive the HOA / CIC Document Package, you have a given time to review these documents; if you do not agree with any one of these documents, rules, regulations, etc., you can cancel the agreement, and give them this reason: "I do not agree to the CIC Rules and Regulations". This works if you do it within a certain amount of time of receiving the package.
3. You have until the end of your due-diligence period to cancel based on your dis-satisfaction with the condition of the property; you don't even have to say why.
4. Now, this isn't really moral, and it's not recommended, but... if you don't qualify for financing, or fund by close of escrow date, you don't need to extend escrow, and you can cancel, saying you were unable to satisfy the lending condition prior to your COE date... which is a major contingency of your purchase.
I hope this helps!
Mark Fleysher, MBA, Broker
Soon to be: Sellstate Signature Realty
The Jack Conley Realty Group
C. 702-291-8186, F. 702-946-0843