17:11C-74 Permitted fees; definitions.

24. a. Notwithstanding the provisions of any other law, a residential mortgage lender, incidental to the origination, processing and closing of any mortgage loan transaction, shall have the right to charge only the following fees: (1) application fee; (2) origination fee; (3) lock-in fee; (4) commitment fee; (5) warehouse fee; (6) discount points; and (7) fees necessary to reimburse the residential mortgage lender for charges imposed by third parties which shall include: (i) an appraisal fee; (ii) a credit report fee; and (iii) such other third party charges as the commissioner may expressly permit to lenders by rule in accordance with a procedure established by rule.

b. Notwithstanding the provisions of any other law, a residential mortgage broker, incidental to the brokering of any mortgage loan transaction, shall have the right to charge only the following fees: (1) application fee; (2) broker fee; and (3) fees necessary to reimburse the residential mortgage broker or lender for charges imposed by third parties, which shall include: (i) an appraisal fee; (ii) a credit report fee; and (iii) such other third party charges as the commissioner may expressly permit to brokers by rule or in accordance with a procedure established by rule.

c. For purposes of this section, the following terms shall have the meanings and permitted uses set forth below:

(1) "Application fee" means a fee imposed by a lender or a broker for taking or processing a loan application, which fee shall not be based upon a percentage of the principal amount of the loan or the amount financed. An application fee may be charged only once with respect to the same mortgage loan application and, where a loan is brokered, may be charged by a residential mortgage lender or a residential mortgage broker, but not by both.

(2) "Appraisal fee" means a fee charged to a borrower by a lender or broker to recover the direct cost of the fee charged by a duly credentialed real estate appraiser for an appraisal in connection with a mortgage loan application. An appraisal fee may be charged to a borrower by a residential mortgage lender or by a residential mortgage broker, but not by both in connection with the same mortgage loan application. A lender or broker may charge a borrower an appraisal fee for a second appraisal provided that requiring a second appraisal is in accordance with duly promulgated rules.

(3) "Broker fee" means a fee that may be charged to a borrower only by a broker and that shall be payable only at closing, which fee may be based on a percentage of the principal amount of the loan or a fraction thereof.

(4) "Commitment fee" means a fee, exclusive of third-party fees, imposed by a residential mortgage lender as consideration for binding the lender to make a loan in accordance with the terms and conditions of its written commitment and payable on or after the borrower's acceptance of the commitment. The amount of the commitment fee shall be reasonably related to its purpose and may be based upon a percentage of the principal amount of the loan. A commitment fee may not be charged or collected unless the borrower receives a written commitment from the lender by midnight of the third business day prior to the day upon which the mortgage loan closing occurs and the borrower has accepted such commitment.

(5) "Credit report fee" means a fee charged to a borrower by a lender or broker in connection with a mortgage loan application to recover the direct cost of the fee charged by a credit reporting agency for obtaining a credit report. A credit report fee may be charged to a borrower by a residential mortgage lender or by a residential mortgage broker, but not by both in connection with the same mortgage loan application. A lender or broker may charge a borrower a credit report fee for a second credit report provided that requiring a second credit report is in accordance with duly promulgated rules.

(6) "Discount point" means a fee charged by a lender based on a percentage of the principal amount of the loan and payable only at the closing of the mortgage loan, which fee operates to reduce the interest rate of the mortgage loan.

(7) "Lock-in agreement" means a written agreement between a lender and a borrower whereby the lender guarantees until a specified date or for a specified period of time the availability of a specified rate of interest or specified formula by which the rate of interest will be determined and, if applicable, the specific number of discount points required to obtain such rate or formula, provided the loan is approved and closed by the specified date. No lender may charge a lock-in fee for a lock-in agreement executed after midnight of the third business day prior to the day upon which the mortgage loan closing occurs.

(8) "Lock-in fee" means a fee that a lender may charge to a borrower for a lock-in agreement, which fee may be payable at closing, but shall in no event be payable prior to the commencement of the lock-in period.

(9) "Origination fee" means a fee that a lender may charge to a borrower for originating a loan and that is based on a percentage of the principal amount of the loan and is payable only at the closing of the mortgage loan. An origination fee may also be referred to as a "point."

(10) "Warehouse fee" means a fee charged by a lender not to exceed the cost associated with holding the particular mortgage loan pending its assignment to a permanent investor, and payable at closing. The fee shall be based on the actual holding period and warehouse rate and the initial coupon rate on the mortgage loan. No profit shall accrue to a lender from collection of a warehouse fee.

d. A residential mortgage lender or residential mortgage broker may use a term for a fee that is different from a term enumerated in this section or in duly promulgated rules implementing the provisions of this section, provided that the lender or broker can document to the department that such fee fits the definition and description of a fee permitted by this section or permitted in accordance with duly promulgated rules implementing the provisions of this section, provided that such fee functions accordingly, and provided that the lender or broker has disclosed such fee in writing to the borrower in conformity with applicable State and federal disclosure rules.

e. No residential mortgage lender or residential mortgage broker may charge any fee not expressly authorized either by this section or by the commissioner by regulation.

f. In addition to the rulemaking authority granted the commissioner with respect to subsections a. through e. of this section, the commissioner shall be authorized to promulgate such rules and forms as may reasonably be deemed necessary by the commissioner to provide for the adequate disclosure to borrowers of fees permitted under this section consistent with the provisions of this section and with applicable provisions of federal regulations and forms.

L.2009, c.53, s.24; amended 2018, c.108, s.13.