Contrary to some banker’s beliefs, third party investor/secondary market fees and charges are not excludable under the “real estate related” exemption to the points and fees calculation in §1026.32(b)(1)(iii). Under this section, real-estate related fees can be excluded from points and fees if:
(A) The charge is reasonable;
(B) The creditor receives no direct or indirect compensation in connection with the charge; and
(C) The charge is not paid to an affiliate of the creditor…
In fact, page 39 of the Consumer Financial Protection Bureau’s (CFPB) Ability to Repay Small Entity Compliance Guide states:
Note that up-front fees you charge consumers to recover the costs of loan-level price adjustments imposed by secondary market purchasers of loans, including the GSEs, are not considered bona fide third-party charges and must be included in points and fees.
While it is a nice thought, there’s no way the CFPB intends for these fees/charges to be exempt from the points and fees calculation.