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Borrower beware of post-locking fees

In previous articles, I took the reader through the various steps involved in shopping for a mortgage, including the selection of the loan provider and locking the price. Those steps should end the shopping process, but unfortunately they don't. When it comes to mortgages, "it isn't over till its over." If you don't watch yourself, you can be victimized by "lender fee inflation" and/or by "contract knavery."

Step 9: COVER YOUR REAR

Lender Fee Inflation: Strange as it may seem, when you lock the price of the loan, you are not locking the whole price. You are locking the market-sensitive part, consisting of interest rate and points. These change from day to day, which is why you need a locking process.

Lender fees specified in dollars, which are designed to defray certain lender costs, are not market sensitive and are not locked. Further, such fees do not usually appear in media ads that show mortgage prices and are seldom volunteered to shoppers. They are shown on the Good Faith Estimate of settlement (GFE), along with all other settlement costs. However, the GFE need not be provided to borrowers until three business days after receipt of an application. This is too late to help shoppers.

But it gets worse. Lenders are not bound by the numbers on the GFE, which are "good faith estimates." The GFE concept made some sense with regard to third party services, such as title insurance. It never made any sense with regard to lender charges, however, because lenders know their own charges with certainty. The GFE has thus provided a cloak behind which some rogue lenders extract additional fees from unsuspecting borrowers.

This is not a problem if you are dealing with a mortgage broker. Brokers know the fees of each lender they deal with. They will not tolerate lender fee inflation, which puts no money in brokers' pockets, at the expense of their clients. The problem arises in dealing with lenders.

Some Internet lenders include their fixed-dollar fees in their price quotes and guarantee that these will be the fees charged at closing. These lenders include ELOAN.com, Homeloancenter.com, Indymac.com, Mortgage.com and Mortgage.ETrade.com.

In soliciting price quotes from other lenders, ask them to guarantee their fixed-dollar fees. If they agree and you want to push your luck, ask if they will include credit check and property appraisal charges, which they order but you pay for. They may be reluctant because these charges can vary from case to case. Your fallback is to ask them to guarantee not to mark them up. To make sure you have no surprises at closing, get it in writing. Fixed-dollar fees should be on the lock confirmation statement.

Contract Chicanery: The mortgage note is a contract between the lender and the borrower, but ordinarily the borrower does not see the contract until the closing, and few read it even then. Generally this is not problematic, but it can be if the lender slips something in that disadvantages the borrower, without the knowledge of the borrower. This is contract chicanery.

When this happens, the offensive provision is likely to be in a rider to the contract. Judging from my mailbox, the most common such rider is a prepayment penalty. The inducement is a significant enhancement in the value of the note, part of which will probably go into the pocket of the loan officer.

It is remarkably easy to prevent this from happening. There is a line on the Truth in Lending (TIL) form you are given after you submit your application that says, "If you pay off your loan early, you [ ] may [ ] will not have to pay a penalty." If there is a check in front of "may," it means that your loan does have a prepayment penalty, no maybes about it. If you have not agreed to a prepayment penalty, then is when you should catch it.

I also see contract chicanery in connection with adjustable-rate mortgages. In the typical case, the borrower is sold an ARM based on one or two features and never confronts the remaining features of the note. Unlike a prepayment penalty, which must come to light if the borrower tries to refinance, disadvantageous ARM features can remain undetected indefinitely.