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Avoid real estate junk fees at closing

DEAR BENNY: You often advise homebuyers to refuse to pay junk fees at settlement. But how is it done? We are about to close on a refinance. We have done this once before about eight years ago. We have an estimated settlement statement, but the actual settlement statement may differ significantly when we actually get to closing if the lender has added the infamous junk fees.

So at the settlement table what do we do? Do we refuse to sign unless the fees are removed and risk having to walk away from the deal? If we walk away (i.e., if the lender refuses to back down) then we lose the underwriting and appraisal fees and have to find a new lender and go through the whole process again, perhaps with the same result. Is there some other strategy?

I’ve always thought your advice to refuse to pay these fees made sense, but I’ve never quite understood how one would act on that advice during the settlement. – S.A.

DEAR S.A.: There are too many “junk fees” imposed by lenders and title companies (also called “escrow”) when you go to settlement, either to buy a house or refinance an existing loan.

Some of these fees include (1) overcharges on credit reports, (2) tax escrow service, (3) document preparation or (4) underwriting fee. I am sure that some of my lender friends will vigorously disagree with me, but that’s my opinion and, as they say, “I am sticking to it.”

You are correct. In the past, when people went to the settlement/closing table, they suddenly were hit with a number of fees that were not previously disclosed. In fact, I have been in too many settlements over the years where those fees were so high that the borrower/buyer had to scramble to get the extra dollars to avoid losing the property or the favorable loan.

But there is good news. Effective Jan. 1, 2010, all lenders for residential loans are required to provide their potential customers with a comprehensive good faith estimate. This document spells out, in relatively simple terms, all of the various charges — junk fees and all — that will have to be collected at settlement.

So, when you go to closing, don’t sign the GFE until you carefully review and compare it with your HUD-1 settlement statement. If there are new charges — or even higher charges — immediately contact the lender from the settlement table and get an explanation. If you are not satisfied, you have two alternatives: (1) cancel the deal or (2) complete settlement and file a complaint with the Department of Housing and Urban Development.

DEAR BENNY: I live in a medium-sized condominium and our board just enacted a special assessment. A number of us are opposed to that and we want to call a special meeting for the purpose of having the assessment rescinded. Is this possible? – Jannie

DEAR JANNIE: You first have to look to your association legal documents, which are the declaration and bylaws. Does the board have the right to impose a special assessment? If so, is there a dollar limitation over which the board must get approval of at least a majority of the owners?

Assuming that the board has the absolute authority to pass such an assessment, what can you do? You can ask the board to hold a special meeting for the purpose of throwing it out. You have to comply with the special meeting procedures spelled out in your bylaws.

But I am not sure that even if 100 percent of the owners voted to rescind that they would have the authority to do so. If the board has the authority, the owners cannot take it away by a vote.

This does not mean there is no remedy. Arrange to meet with the board and express your concerns. If the board remains firm in its position, you can start a recall petition to “throw the rascals” out of office. Then the newly elected board can rescind the assessment.

Once again, you have to follow the rules spelled out in your bylaws regarding removal of board members. Hopefully if the board members believe they may be removed from office, they may change their mind.

Benny Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

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