As a mortgage expert, you most likely have been paid an origination fee at a point in time or read it on a term sheet or settlement documentation. However, very few know the implications of an origination fee regarding limitations on loan terms and usury. The origination fee is a token amount paid by the borrower to the lender or, in some cases, the broker. This is different from a lender point which is a fee paid to the lender by the borrower to get some more favorable loan terms such as a reduced interest rate.

Only residential mortgage loans covered by Regulation Z (often referred to as the “Truth in Lending Act” or “TILA”) are subject to federal laws and regulations governing lender origination fees. Origination costs are only subject to federal regulation for loans secured by real estate and utilized for personal, family, or household reasons. Therefore, loans for business purposes or loans backed by property other than a home are exempt from federal regulations.

In contrast to federal law, state law has ramifications for consumer and corporate-purpose loans. Regardless of whether federal legislation applies, lenders should take the following factors into account before approving a loan:

  • Which state has the governing law?
  • Does any disclosure requirement exist under the relevant state law?
  • Are there limitations on the amount of the origination fee?
  • Is the origination fee to be paid in advance of closing the loan?
  • Is a license required to make a loan under relevant state law?
  • Is the origination charge factored into the usury calculation under the rules and statutes of the governing law state?

A lender should seek advice from a professional who can effectively represent the lender in other states and understand the restrictions imposed by the state in which it generally makes loans. To read more on origination fees and regulations surrounding it for lenders to be aware of, click here.

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