In Loper v. O'Rourke (86 Misc 2d 441 [Dist Ct, Suffolk County 1976]), the purchasers obtained a conditional mortgage commitment within the 45-day mortgage contingency period. The firm mortgage commitment was issued 25 days later. The parties scheduled the closing. The purchasers wrote to the seller within days before the scheduled closing date advising the seller that they could not proceed because of marital problems. There was no cancellation due to the passing of the 45-day mortgage contingency period. The court held that the purchasers, through their conduct of proceeding under the contract, obtaining a firm commitment, and scheduling the closing, waived the 45-day mortgage contingency period. Since the purchasers willfully defaulted, the seller was entitled to keep the money deposited in escrow.