Hey Isis, yes it's all about Chinese Algebra!
I found an interesting argument couching anticipatory repudiation in terms of conditions precedent (and control of such). There are other items that look interesting in support of the excuse of the duty to perform where duty has been thwarted by an (anticipatory) breach of contract.
In re Food Management Group, LLC, 372 BR 171 - Bankr. Court, SD New York 2007 is a bankruptcy case and federal analysis in NY.
"It is true that a condition precedent may be excused if the party whose performance is predicated on that condition somehow blocks its occurrence. `It is a well settled and salutary rule that a party cannot insist upon a condition precedent, when its non-performance has been caused by himself") (citations omitted);
A H.A. Gen. Constr., Inc. v. New York City Hons. Auth., 92 N.Y.2d 20, 31, 677 N.Y.S.2d 9, 699 N.E.2d 368 (N.Y.1998) ("A condition precedent is linked to the implied obligation of a party not to `do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the
193*193 contract'") (citation omitted) ---- Note a long list here, many examples to choose
And
The Doctrine of Prevention of Performance is articulated in RESTATEMENT (FIRST) OF CONTRACTS § 295 (1932) as follows:
§ 295 Excuse Of Condition By Prevention Or Hindrance
If a promisor prevents or hinders the occurrence of a condition, or the performance of a return promise, and the condition would have occurred or the performance of the return promise been rendered except for such prevention or hindrance, the condition is excused, and the actual or threatened nonperformance of the return promise does not discharge the promisor's duty, unless
(a) the prevention or hindrance by the promisor is caused or justified by the conduct or pecuniary circumstances of the other party, or
(b) the terms of the contract are such that the risk of such prevention or hindrance as occurs is assumed by the other party.
My personal thoughts are how can a servicer control notices and contracts and not fulfill those elements of incomplete performance (and conditions precedent) which ultimately thwart the fruits of the contract and use that as a basis for foreclosure? You know, things such as not returning a counter-signed document, refusing to apply payments and declaring default through their own non-performance or actually sending notices affecting rights to cure, etc. In particular, for example, Ocwen has a pattern and practice that is well documented that it delayed notices (substantially beyond the time to respond) and prevented performance of obligations incurred by the delayed notices (borrower's performance thwarted). We all have individual examples of such shennanigans that destroy the contract and performance at the hands of the lender. I have couched these as lack of good faith and fair dealing, which is based on the lender's ability to perform according to its own discretion and not in contract (because contract is silent as to things like timing).
