- What is the charge for negotiating the agreement of sale, reviewing documents, and giving advice concerning those documents, as well as for being present at the settlement, or for reviewing instructions to the escrow agent or company?
- Will the attorney represent anyone other than you in the transaction?
- Will the attorney be paid by anyone other than you in the transaction?
Before you sign an agreement of sale, here are some important points to consider. The real estate broker probably will give you a pre-printed form of agreement of sale. You may make changes or additions to the form agreement, but the seller must agree to every change you make. You should also agree with the seller on when you will move in and what appliances and personal property will be sold with the home.
title: The “title” refers to the legal ownership of your new home. The seller should provide the title, free and clear of all claims by others against your new home. Claims by others against your new home are sometimes known as “liens” or “encumbrances.” You may negotiate who will pay for the title search, which will tell you whether the title is “clear.”
pests: Your lender will require a certificate from a qualified inspector stating that the home is free from termites and other pests and pest damage. You may want to reserve the right to cancel the agreement or seek immediate treatment and repairs by the seller if pest damage is found.
settlement agent/escrow agent or company: Depending on local practices, you may have an option to select the settlement agent or escrow agent or company. For states where an escrow agent or company will handle the settlement, the buyer, seller and lender will provide instructions.
Types of Loans
Loans can have a fixed interest rate or a variable interest rate. Fixed-rate loans have the same principal and interest payments during the loan term. Variable rate loans can have any one of a number of “indexes” and “margins” which determine how and when the rate and payment amount change. If you apply for a variable-rate loan, also known as an adjustable-rate mortgage (ARM), a disclosure and booklet required by the Truth in Lending Act will further describe the ARM. Most loans can be repaid over a term of 30 years or less. Most loans have equal monthly payments. The amounts can change from time to time on an ARM, depending on changes in the interest rate. Some loans have short terms and a large final payment called a “balloon” payment. You should shop for the type of home mortgage loan terms that best suit your needs.
Often, the price of a home mortgage loan is stated in terms of an interest rate, points, and other fees. A “point” is a fee that equals 1% of the loan amount. Points are usually paid to the lender, mortgage broker, or both, at the settlement or upon the completion of the escrow. Often, you can pay fewer points in exchange for a higher interest rate or more points for a lower rate. Ask your lender or mortgage broker about points and other fees.
Lender-Required Settlement Costs
Your lender may require you to obtain certain settlement services, such as a new survey, mortgage insurance, or title insurance. It may also order and charge you for other settlement-related services, such as the appraisal or a credit report. A lender may also charge other fees, such as fees for loan processing, document preparation, underwriting, flood certification, or an application fee. You may wish to ask for an estimate of fees and settlement costs before choosing a lender. Some lenders offer “no-cost” or “no-point” loans, but normally cover these fees or costs by charging a higher interest rate.
Comparing APRs may be an effective way to shop for a loan. However, you must compare similar loan products for the same loan amount. For example, compare two 30-year fixed rate loans for $100,000. Loan A with an APR of 8.35% is less costly than Loan B with an APR of 8.65% over the loan term. However, before you decide on a loan, you should consider the up-front cash you will be required to pay for each of the two loans, as well.
Another effective shopping technique is to compare identical loans with different up-front points and other fees. For example, if you are offered two 30-year fixed-rate loans for $100,000 at 8%, the monthly payments are the same, but the up-front costs are different:
- Loan A: 2 points ($2,000) and lender-required costs of $1,800 = $3,800 in costs
- Loan B: 2-1/4 points ($2,250) and lender-required costs of $1,200 = $3,450 in costs
“Locking in” your rate or points at the time of application or during the processing of your loan will keep the rate and/or points from changing until settlement or closing of the escrow process. Ask your lender if there is a fee to lock in the rate, and whether the fee reduces the amount you have to pay for points. Find out how long the lock-in is good for, what happens if it expires, and whether the lock-in fee is refundable if your application is rejected.
Transfer of Your Loan
While you may start the loan process with a lender or mortgage broker, you could find that, after settlement, another company may be collecting the payments on your loan. Collecting loan payments is often known as “servicing” the loan. Your lender or broker will disclose whether it expects to service your loan or to transfer the servicing to someone else.
Settlement practices vary from locality to locality, and even within the same county or city. Settlements may be conducted by lenders, title insurance companies, escrow companies, real estate brokers or attorneys for the buyer or seller. You may save money by shopping for the settlement agent.
A lender’s title insurance policy does not protect you. Similarly, the prior owner’s policy does not protect you. If you want to protect yourself from claims by others against your new home, you will need an owner’s policy. When a claim does occur, it can be financially devastating to an owner who is uninsured. If you buy an owner’s policy, it is usually much less expensive if you buy it at the same time and with the same insurer as the lender’s policy.
Review Initial Title Report
In many areas, a few days or weeks before the settlement or closing of the escrow, the title insurance company will issue a “Commitment to Insure,” or preliminary report or “binder” containing a summary of any defects in title which have been identified by the title search, as well as any exceptions from the title insurance policy’s coverage. The commitment is usually sent to the lender for use until the title insurance policy is issued at or after the settlement. You can arrange to have a copy sent to you (or to your attorney) so that you can object if there are matters affecting the title which you did not agree to accept when you signed the agreement of sale.
Lenders or title insurance companies often require a survey to mark the boundaries of the property. A survey is a drawing of the property showing the perimeter boundaries and marking the location of the house and other improvements. You may be able to avoid the cost of a complete survey if you can locate the person who previously surveyed the property, and simply request an update. Check with your lender or title insurance company on whether an updated survey is acceptable.
Good-Faith Estimate of Settlement Costs
When you apply for a loan, RESPA requires that the lender or mortgage broker give you a “good-faith estimate” of settlement service charges you will likely have to pay. If you do not get this good-faith estimate when you apply, the lender or mortgage broker must mail or deliver it to you within the next three business days.
Servicing Disclosure Statement
RESPA requires the lender or mortgage broker to tell you, in writing, when you apply for a loan or within the next three business days, whether it expects that someone else will be servicing your loan (collecting your payments).
The ECOA prohibits lenders from discriminating against credit applicants on the basis of race, color, religion, national origin, sex, marital status, age, the fact that all or part of the applicant’s income comes from any public assistance program, or the fact that the applicant has exercised any right under any federal consumer credit protection law. To help government agencies monitor ECOA compliance, your lender or mortgage broker must request certain information regarding your race, sex, marital status and age when taking your loan application.
Prompt Action/Notification of Action Taken
Your lender or mortgage broker must act on your application and inform you of the action taken no later than 30 days after it receives your completed application. Your application will not be considered complete, and the 30-day period will not begin, until you provide to your lender or mortgage broker all of the material and information requested.
Obtaining Your Credit Report
The Fair Credit Reporting Act (FCRA) requires a lender or mortgage broker that denies your loan application to tell you whether it based its decision on information contained in your credit report. If that information was a reason for the denial, the notice will tell you where you can get a free copy of the credit report. You have the right to dispute the accuracy or completeness of any information in your credit report. If you dispute any information, the credit reporting agency that prepared the report must investigate, free of charge, and notify you of the results of the investigation.
The ESPA was enacted because the U.S. Congress felt that consumers needed protection from “unnecessarily high settlement charges caused by certain abusive practices that have developed in some areas of the country.” Some of the practices Congress was concerned about are discussed below. Most professionals in the settlement business provide good service and do not engage in these practices.
It is a crime for someone to pay or receive an illegal referral fee. The penalty can be a fine, imprisonment, or both. You may be entitled to recover three times the amount of the charge for any settlement service by bringing a private lawsuit. If you are successful, the court may also award you court costs and your attorney’s fees.
If you have a problem, the best place to have it fixed is at its source (the lender, settlement agent, broker, etc.). If that approach fails and you think you have suffered because of a violation of RESPA, ECOA, or any other law, you may be entitled to sue in a federal or state court. This is a matter you should discuss with your attorney.