Several Missouri cases have considered the applicability of the pleadings requirements of Mo.R.Civ.P. 55 to actions brought in the associate circuit court. In Flores v. Baker, 678 S.W.2d 884, 887 (Mo.Ct.App. 1984), the Missouri Court of Appeals held that Rule 55 "shall not apply to civil actions originating before an associate judge, but which are pending before a circuit judge unless the court orders the application of Rule 55 or specified portions of it." The court of appeals specifically held that Mo. R.Civ.P. 55.08 and 55.16, which require affirmative defenses to be specifically pleaded, do not apply to actions originating in the associate circuit division of the circuit court.
"A financing contingency in a real estate contract is a condition subsequent, not a condition precedent, which may be raised, if not fulfilled, to void the contract." Flores v. Baker, 678 S.W.2d 884, 886-87 (Mo.App. 1984). In effect, the buyer and seller have no sale until the buyer obtains financing.
A provision in a real estate contract that makes the contract contingent upon the buyer's obtaining financing is a condition. Dygert v. Crouch, 36 S.W.3d 1, 5 (Mo.App. 2001); Koontz v. Lee, 737 S.W.2d 766, 768 (Mo.App. 1987); Century 21 Al Burdack Realtors v. Zigler, 628 S.W.2d 915, 916 (Mo.App. 1982); Flores v. Baker, 678 S.W.2d 884, 886-87 (Mo.App. 1984); Berger v. McBride Son Builders, Inc., 447 S.W.2d 18, 19 (Mo.App. 1969). A condition is defined as "an event, not certain to occur, which must occur unless its non-occurrence is excused before performance under a contract is due."
We realize that "subject to financing" provisions in contracts for the sale of real property are sometimes construed as conditions subsequent. See, e.g., Koontz v. Lee, 737 S.W.2d 766, 768 (Mo.App. 1987); Flores v. Baker, 678 S.W.2d 884, 886-87[1] (Mo.App. 1984). Nevertheless, other precedents, never overruled, hold unequivocally that "subject to financing" clauses are conditions precedent to the purchaser's duty to perform; Doerflinger Realty Company v. Maserang, 311 S.W.2d 123, 128 [4, 5] (Mo.App. 1958); others indirectly hold as much. Highland Inns Corp. v. American Landmark Corporation, 650 S.W.2d 667, 672-674 [6-9] [10] [11] (Mo.App. 1983). For our purposes, it is unnecessary to resolve the apparent conflict of authority.
The presence of such a provision does not invalidate the contract. The provision is a condition subsequent, Maynard v. Bazazzadegan, 732 S.W.2d 950, 954 (Mo.App. 1987); Flores v. Baker, 678 S.W.2d 884, 886-87 (Mo.App. 1984); Century 21 Al Burack Rltrs. v. Zigler, 628 S.W.2d 915, 916 (Mo.App. 1982); Berger v. McBride Son Builders, Inc., 447 S.W.2d 18, 19-20 (Mo.App. 1969), that is, "one which by its express terms provides for an ipso facto cancellation on the happening or non-occurrence of a stipulated event or condition." Berger v. McBride Son Builders, Inc., supra, at 19.