Negotiating Mortgage Pre-payment Penalties

November 10, 2006 | Mortgage | 69 comments

There are many negotiable parts of the refinance process and over time we will get into all of them. Some of these include, appraisal fees, processing, administrative, origination, broker points, and for today’s topic pre-payment penalties.

Why would the bank care if you payoff the loan early? Isn’t that what they want?

No. The fact is they want you to keep any loan for at least 18 months and in most cases will see a loss if the loan is paid off within 6 months. As a result, the standard contract between lenders and the mortgage brokers include the “chargeback” of any points or rebates the lender paid to the broker for the loan if that loan is prepayed within 6 months.

Any loan can be aquired without a pre-payment penalty. The lender’s rate quote will be based on how long you guarantee to keep the loan. A borrower who wants the flexibility of no prepayment penalty will pay a rate higher than the borrower who will accept a 1, 2, or 3 year committment. The lender charges the higher rate to insure recapture of loan costs and profitablility sooner.

The standard prepayment penalty is 6 months interest. This can vary but 6 months is by far the most common. The prepayment penalty could be considered HARD (due whether you refinance or sell before the minimum period is up), or SOFT (due if you refinance before the minimum period expires but not if you sell). Some are a combination of the 2 (hard for 6 months, soft for the remainder of 2 years). In all cases it is up to you whether you want to accept it. Expect a rate of a half to 1 full percentage point difference to the rate depending on the type of loan. Longer term loans come with a 3 year prepayment penalty by default.

Long term fixed rates are higher than a fixed rate for 5 years. Why get a long term (over 5 year) fixed rate and not accept a 3 year committment to keep the loan? It is contradictive reasoning. If there is any reasonable doubt that you will be in the home for 3 years then you should be choosing a loan with a shorter term fixed period which will match with a shorter prepayment penalty. A 2 year fixed rate has a 2 year prepayment penalty by default. Again, this is negotiable but the rate you are quoted will be a direct result of this choice.

When applying for a loan the prepayment penalty should be disclosed when the rate is quoted, and certainly by the time and Good Faith Estimate is provided (although it will not appear on the GFE). It is not usually in writing on early documentation so be sure to ask when the rate is quoted.

Next week we will be covering all parts of the Good Faith Estimate.

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Reader Comments

roland on March 28, 2007 at 6:30 pm

Regarding 2yr fixed rate with 3 yr prepayment penalty, I heard that in california there’s a law that you have 90 days to refinance your mortgage after 2 yrs. without penalty even though you have 3 yr prepayment penalty. Is this true?

Tom Voli on March 28, 2007 at 7:38 pm

I have not heard this. It is rare to have a 3 year prepayment penalty on a 2 year fixed rate loan. In fact, this is unethical and whoever sells a loan to a borrower with this type of prepayment penalty should be flogged. This forces the borrower into a year of rising payments with no way out except paying a penalty. I know it is done and I have seen them but I have never heard of a law allowing a borrower to refinance within 90 days after the 2 year period expires. I will check into it and if that is true I will make a post on that subject specifically. It is worthy of its own post.

Thanks for your input and I hope you are not in that position.

Ed Lathrop on April 6, 2007 at 11:39 am

Citicorp has a prepayment penalty on their 1st and 2nd mortgages or, at least, that’s what they told me last year when I was interested in refinancing. They told me they would wave the charge if I refinanced through them. My mortgage is 15 years old.

Tom Voli on April 6, 2007 at 7:47 pm

Something fishy here Ed. There is no prepayment penalty on a loan that you have had for 15 years. Unless this was refinanced within the last few pears that is incorrect. Give me a call at (949) 766 5054 and I will help you with this.

Michelle on May 4, 2007 at 10:16 am

Greetings…I had a loan office I had worked with for many years. There had never been anything regarding working with her that made me suspicious of the last time I refinanced my residence and two rental properties. I asked for a loan with no pre payment penalty and interest only. Rushed though a closing at my kitchen table assuming it was as I thought…no pre payment penalty and interest only payments…in realty I have the mortgage from hell. I have huge pre penalties on all the loans, nothing close to the verbal interest rate she quoted me and a negative amortization payment. Any thoughts?

Tom Voli on May 4, 2007 at 2:32 pm

This is the common MO for a sloppy loan officer or one who is desperate. The unfortunate thing is you trusted the loan officer and they let you down. There is not much you can do but I suggest you get out of the negam loan regardless of the prepay. The interest rate on those loans keeps going up and the rate of negative amortization can be more costly than the prepay. Call me at (949) 766 5054 if you’d like to know what is available.

Steve G on May 26, 2007 at 8:09 am

I have a 5 yr loan with a four pay plan. My interest only rate keeps going up with an adjustable. I think I have a hard pre pay penalty for 36 months which they’ve said I will have to pay the owed interest portion. Is their a way out for a better non-adjustable loan?

Tom Voli on May 26, 2007 at 11:34 am

Yes Steve. There are options available that can stop the adjustable rate yet still leave you with the 4 payment options, or you can change this into a standard 5 - 10 year fixed rate with no negative amortization. Call me at (949) 766 5054 to discuss options available.

Cecil Hicks on June 1, 2007 at 3:25 pm

Hello….I just wanted to to if my wife filled for bankruptcy in my 2005 and will be discharged in Aug 2007 for a fanny mae loan which applies to consider her for a good rate,,,,,,,,,from file date or disgharge date? My mid score is 587 and her score is 680 what should we expeect for a good intrest rate from brokers?

Tom Voli on June 11, 2007 at 10:08 am

The discharge date is what lenders use to determine aging of a BK.

As for rate based on credit scores this would depend on which of you is the primary income earner. A 587 score will not provide a good rate but a 680 is ok. Many lenders will provide a quote based on whoever’s score is lowest. Get that score up before making any moves to purchase.

Kathy Snyder on June 22, 2007 at 4:51 am

When we first took out our mortgage 3 years ago (settlement date) to date in August 23, paper signed…we have a 3 years prepayed penalty charge. We are looking into refinancing now with Countrywide…they claimed that as long as I don’t sign papers before July 1, 2007, that I will not have to worry about any prepaid penalty costs…are they being honest?

Tom Voli on June 22, 2007 at 5:29 am

If your settlement date was August 23rd then August 1st would be the cutoff …not July 1st. Unfortunately, many lender retail reps are very limited in their understanding of prepay enforcement.

Give me a call and I will be happy to make sure the rate, term, etc is what you deserve. (949) 290 - 1795.

Barron on June 27, 2007 at 1:32 am

I was fooled by my mortgage lender on my second mortgage and I signed for a 24-month full prepayment penalty in the amount equal to 20% of the outstanding principal balance. This is after I informed them that I had a house on the market, which could sell within months time, which it just did. I was told to contact them before I make a “full payment,” so I don’t understand why there was a prepayment penalty added. Anyway, there is probably nothing I could do about that. But my question is the 20% of the outstanding principal balance outrageous? Or am I just not understanding? I researched online and it seems that most offer prepayment penalties of 80% of 6 months of interest. Would I be better off to pay the penalty now or just hold the money until the 24-months are up? Please help.

Tom Voli on June 27, 2007 at 6:11 am

You may have this confused.

Typically they will not allow you to PAYOFF more than 20% per year. Doing so would initiate the prepayment penalty of 80% of 6 months interest.

Ty on July 7, 2007 at 12:56 pm

Help, I just re-financed my home about 6 months ago, and now I’m stuck with a 2yr pre-payment penalty. Is there a way that I can get out of it? My broker at that time was a family friend who I thought I can trust, but eventually he screwed me over without letting me know all the details. He told me that I will also get 2 months of deferred payment, and that didn’t happen either. Now i’m stuck with a 5yr fixed with a montly payment that I can’t even afford anymore. Thats not even including tax and insurance. Please Help!!

Tom Voli on July 9, 2007 at 10:12 am

Ty,

Unfortunately there is really nothing you can do to get put of the prepayment penalty. However, some lenders will waive this if you bring the loan back to them (not the loan broker…the lender). Call your mortgage holder and explain the situation and see if they have another product they would be willing to move you into.

If not it still may make sense to refi pout of your current loan into a loan morew affordable. This would require having some equity in the house. Call me at 949 766 5054 to review options available.

Bryan Biggs on July 25, 2007 at 5:30 pm

I am a competitor and am surprised you are not aware of California Civil Code Section 1916.5.5 that states, “The borrower is permitted to prepay the loan in whole or in part without a prepayment charge within 90 days of notification of any increase in the rate of interest.”

This is exactly the law that mortgage brokers send to the payoff department when refinancing loans that have a prepayment penalty that is longer than the fixed term of the loan. The payoff department must remove the prepayment penalty in this case or they are referred to the California State Attorney’s office for violation of California Civil Code.

Tom Voli on July 25, 2007 at 6:05 pm

This is great information Bryan. Thanks for sharing. I was not aware of that civil code.

todd on August 12, 2007 at 5:49 pm

i have a 3 yr pre-penalty on my mortgage with one year left. what happens if i have to refinace due to my income/business dropping because i can not afford the monster payment anymore?

Tom Voli on August 14, 2007 at 7:45 am

If you have to refinance prior to the prepayment penalty period expiring you will pay a prepayemnt penalty as per your contract. This usually equates to apx 80% of interest for a 6 month period.

Dominique on August 25, 2007 at 12:41 pm

Good Afternoon Tom:
The first two years of our loan was fixed. I have an adjustable loan and our payments are set to increase beginning September. Since my husband is being recalled into the military he will take a paycut. We have tried to refinance but are stuck with a penalty fee. The prepayment rider states “if more than 20% of the original principal amount of this note is prepaid in an 12-month period within 3 years after the date of this loan, I agree to a prepayment of six months interest…” Are we stuck? We closed in July 2005. Do we have to wait till July 2008 to avoid the penalty?

Tom Voli on August 25, 2007 at 12:48 pm

This can be refinanced without penalty.

As Brian Biggs quoted: Civil Code Section 1916.5.5 that states, �The borrower is permitted to prepay the loan in whole or in part without a prepayment charge within 90 days of notification of any increase in the rate of interest.�

Anurag Naik on December 6, 2007 at 5:32 pm

We purchased our condo in March 2006, have two loans, both are IO loans, so we have not built any equity yet. Our monthly payments are $2700, not including taxes, HOA and insurance. We want to re-finance, but not sure if we can, since we have a 3yr Pre-payment penalty. Please help.

Wendy on December 7, 2007 at 9:45 am

I have been working w/ Accredited Home Lenders on tryingt to get a prepay waived, the loan was originated by Home Funds Direct. I was put into a 2 year ARM and a prepayment penalty that lasts 6 month’s after the adjustment. I was wondering if you might have any info on this type of situation?

Tom Voli on December 12, 2007 at 9:26 am

They MUST remove that prepayment penalty if it extends past the first adjustment period. They can not lawfully require you to hold that loan if you want out of it.

Unfortunately, these lenders employ various levels of $8 - $12 per hour employees that have no authority to get this done for you. You need to ask for a manager…several times….till you get the 1 that can get things done.

If that fails you may need to hire an attorney. There is no way you should have to pay a prepayment penalty.

Tom Voli on December 12, 2007 at 9:28 am

Anurag,

You will need to have cash in hand to refinance. You are probably in a negative equity position and will not be able to refinance easily.

Young on December 28, 2007 at 4:49 pm

I have a 3 yr.prepayment penalty on my mortgage(30yr.fix.) with 8 months left. I need to refinace now due to my high debt. I’ve read recently that the Federal Reserve Board proposed the rule which would be adopted under HOEPA on Dec.18,2007.; Prepayment penalties would only be permitted if certain conditions are met, including the condition that no penalty will apply for at least sixty days before any possible payment increase.
I don’t get it clearly. Does that rule effect on my case?
Is there no way to avoid pay penalty fee,if I refinance right now? Is there any chance to negotiate ? Thanks in advance!

Tom Voli on December 28, 2007 at 5:22 pm

The prepayment penalty will still be in effect till that 60 days prior to the 1st adjustment.

KAREN on January 4, 2008 at 8:29 am

I am unsure at this time what my PrePaid Penalties are for my currant Mortgage. I have a 3 yr Adjustable and My rate is now going up and I am Refinancing. My question is, will I be due back any money when I from my currant Mortgage Co.? Is this considered paying off my loan to early if it is adjustable?. I am new at understanding this Pre-paid Penalties and do not know what I can do. My new Mortgage Co I have locked in with are putting on the PPP. Please give me some advise.
Thank you Karen

Tom Voli on January 4, 2008 at 8:51 am

Karen,

If you have a 3 year ARM (meaning, it was fixed rate for 3 years and is now converting to adjustable) you have the right to refinance that loan within 60 days of the first expected rate adjustment WITHOUT a prepayment penalty. Some lender try and get away with this but an experienced loan professional can force the issue.

As for your new loan, there are many very good programs available with NO prepayment penalties.

Feel free to give me a call at (949) 766 5054 and I will cover some of this with you.

donna bryan on January 20, 2008 at 10:20 am

I have very bad credit. I am not looking for a miracle. Our mortgage was with Nova Star Mortgage. Nova Star sold our mortgage to Saxon. My husband lost his job and this caused us to have to move to another state. To my knowledge, I never received notice of this transfer. I did call Nova Star and speak to them, as my payment was late. They did tell me that our loan had been sold to Saxon. I called Saxon repeatedly and they kept telling me the sell was still in process and they had no information on our loan. Our loan is only 1 yr. and 8 mths. old. We have found a buyer. Saxon now tells us that we will be paying $13,390.44 in late fees and payoff penalties. Our actual loan payoff is $ 133,999.55. We are only asking

donna bryan on January 20, 2008 at 10:31 am

We have had our mortgage loan for 1 yr. and 8 mths.. In August of 2007, my husband lost his job of 8 years. Our loan was with Nova Star Mortgage. Due to unemployment, of course, my payments were way behing. I called Nova Star and they told me they had sold our mortgage to Saxon. I called Saxon and they said they had no information, since the sell was so new, they had to get all the information from Nova Star. We have now found a buyer. We have agreed to sell for $ 150,000. It took 3 weeks for me to get the payoff amount from Saxon. I wish I hadn’t asked. The actual payoff is $ 133,999.55, but they have added $ 13,390.44 in late fees and pre-payment penalties. So they want $ 147,389.99. We also owe back taxes of $ 3, 966.43. I know that I got myself into this mess, but are any of these fees negotiable? Please help! The buyers are anxious. We only received the payoff amount yesterday.

ShereeDavidson on January 20, 2008 at 12:47 pm

I settled for a mortgage which I now know that I should not have. I am now thinking about refiancing with another company but the old loan has a prepayment penalty. If I pay off the old mortgage with the new mortgage before the effective date that my prepaid penaltly will start (starting the 1st thru 36th months) would I still have to pay the fee. The effective date was starting the 1st month and not the date the loan was made.

Wendy on February 4, 2008 at 9:06 pm

Dear Tom,
Thank you for your response to my question on December 12th.

I am still fighting this with Accredited Home Lenders about the prepayment penalty. I am in a 2 year ARM that is set to adjust September 08. The prepay expires 6 months after the 1st adjustment. I am currently working with another company to secure an FHA loan. Accredited finally after weeks of arguing back and forth agreed to drop it by 4k. The original prepayment was 9600.00 You stated that I would have to get an attorney, where should I go for that. Accredited is holding to their guns that I signed the prepay rider during closing, but truthfully my broker never explained it to me. I just want this over with so I can move on. I am able to get the financing, it’s the pre-pay that is doing me in. I know you say it is unlawful for them to do this, I just don’t know where else to start. I really need all of it waived. Any advice would be appreciated.

Gina on February 6, 2008 at 10:56 am

Hi -

We have a mortgage with a real problem. We signed in October 2005 with a two year prepay penalty. Our mort company - NEW CENTURY turned over our loan to another servicing company right before they fell off the face of the lending earth. Problem is that the new servicer has what I believe to be a fraudulent document stating there is a 3 year prepay penalty. I have sent them the copy we have of the original document and they refuse to accept as it is not the original. So, according to them, I still have 8 months before I can get past the prepay clause and my payoff to refinance now is $6K higher than the original loan amount. Something is just so wrong with this.

Karen Moody on February 24, 2008 at 11:41 am

My credit score has gone down since I purchased my home 1.5 years ago due to some high credit card balances which I plan to pay off but my high mtg is eating that intention away. There is a 2 yr pre-pay penalty on my mtg which I intend to refinance and wonder how will my current credit affect the refinancing process. I do need someone experienced with the current policies regarding refiancing as my mortgage company is no longer doing refinancing…they are going bankrupt.

Angela on April 15, 2008 at 3:25 pm

Hi! We are looking for relief at our 2 year fixed, with a 3yr Pre-pay penalty. I found this is the documents:
I am a little confused

California Civil code 1916.5.5 and .8
States

The borrower is permitted to prepay the loan in whole or in
part without a prepayment charge at any time, and no fee or other
charge may be required by the lender of the borrower as a result of
any change in the interest rate or the exercise of any option or
election extended to the borrower pursuant to this section.

Am I reading this correctly? Can we get out with no penalty?

cathy on April 20, 2008 at 9:17 pm

We took out our loan on Oct.,2006. It is a 2 year ARM, with a prepayment penalty charge if the loan is paid off sooner then 36 months. We are now in the adjustable stage but not out of the prepayment penalty stage. Is this legal? We are trying to sell our home and we may before the 36 months is up. Should we still get charged the fee?
Thanks for your time.

Kate on April 22, 2008 at 12:27 pm

We are selling our house b/c my husband is active duty and has received orders to move out of state. I received my payoff statement and it had a hefty prepayment charge. I was under the impression that if the military orders you to move that they must/can wave the prepayment. Also the prepayment period will end approximately 45 days after the sale of our house. Could this help negotiate waving the prepayment if needed?

Nick Ducas on April 29, 2008 at 4:26 am

30 year fixed rate and a pp of 5 years in excess of 20%.Is there a less expensive way to overide it? This company has bought my mortgage and seems this company according to people that have commented is the mortgage company from hell. The first mortgage company let me pay $60K toward the loan in the first year with no penalty…Then this mortgage company sold the contract…It is 4 years old…Any ideas?

Nick Ducas

Ken on May 4, 2008 at 4:02 pm

I’ve got a 3-year pre-payment penalty and am selling my home about 9-months early due to military PCS orders. I know that under any other circumstance I’d be required to pay the pre-payment penalty of 6 months advance interest…however, considering that I’m forced to move due to military PCS orders, can the Pre-payment penalty be waived? Maybe this is covered under the Servicemembers relief act or some other Civil Code that I’ve missed in my research?

TRUDY on May 15, 2008 at 9:52 pm

Is it legal to have a prepay penalty for the entire life of the loan?

Gina on August 27, 2008 at 11:33 am

Tom,
I’ve tried unsuccessfully to get the prepayment waived on a mortgage. The sale price of our home is less than the payoff (including the prepayment). Otherwise, we could pay off the principal + interest. The lender isn’t willing to budge. We’re now facing foreclosure.
Any suggestions?

Tom Voli on September 8, 2008 at 1:28 pm

Trudy,

Absolutely not.

Tom Voli on September 8, 2008 at 1:29 pm

Gina,

This is a tough case. Unfortunately, I do not have any suggestions for you that may help. Many lenders are willing to waive the prepayment penalty if you refinance the loan through them, but to sell the home or payoff the loan completely without refinance gives them no incentive to waive it.

Andrea on September 11, 2008 at 10:41 am

My husband wants to join the air force active duty, we have a prepayment penalty of 5% od the amount paid over 10% of the principle amount. Is there something that states that we don’t have to pay the penalty for active duty military if he is relocated?

Tom Voli on October 17, 2008 at 7:19 am

This would be up to the lender. I am not aware of any federal laws pertaining to waiving prepayment penalties for relocation of military families.

Patty on November 16, 2008 at 5:09 pm

NovaStar sold their mortgages to Saxon mortgage 11/1/07. Saxon insists that they own them outright and NovaStar is out of the mortgage business. NovaStar insists that they only sold servicing rights. Which is correct?
I see they are all bundled in a ton of litigation suits.

Tom Voli on November 20, 2008 at 12:10 pm

Patty,

In most cases, the customer service personel will not have that information and will just tell you what they think. Where did you get conflicting information from? I am not sure what the terms of the buyout were so this is anybodies guess.

Patty on November 20, 2008 at 12:35 pm

Legal department where I ordered a “corporate assignment”. She noted that she was looking at it and put in a request to have it sent to me. Same person put in another request for this after we didn’t receive it. This was odd that communication was ceased after this - and the corporate assignment never was received. I was just wondering if you had knowledge of the sale between the out of business NovaStar Mortgage and Saxon Mortgage last November, 2007.

Tom Voli on November 20, 2008 at 12:59 pm

I am unclear why you need a corporate assignment? The only thing that changes for you is where you send the payment which they should have clearly notified you of. The sale of the mortgage does not affect you as the homeowner. Terms are bound by your note not the sale of the mortgage company.

Patty on November 20, 2008 at 2:27 pm

I want the corporate assignment to document who owns my property. Both companies say they own it. One says the other is just a “servicer”. I know where I send my monthly payment. This isn’t the concern - I want to clairfy which party is correct. The county doesn’t show the corporate assignment as filed and tells me that often times they are not properly filed and still exist.

Tom Voli on November 20, 2008 at 2:32 pm

May require more pressure. A good title company can get to the bottom of it, or real estate attorney.

Patty on November 20, 2008 at 2:49 pm

Great answer - I have outside company rep trying to put more pressure. Tried title company, they hit same dead end and finally real estate attorney had no luck either!! This is reason I contacted you - wondered if you might have insight into NovaStar - they appear to be in many lawsuits if you google them! Thank you for trying - I’ll consider another title company.

Chris on November 22, 2008 at 10:39 am

I have a 3 yr ARM which will become variable July 1, 2009, which has prepayment penalties through December 2009. I have two questions:
1) Is the law you mentioned in your previous posts a federal law (that they cannot penalize you for “prepayment” once the loan has adjusted to the variable rate)? Or does that only apply to the state of California? (I’m in MN.)
2) I have just received notice that this loan has been sold to a new mortgage lender, does this sale provide me any opportunity to re-finance without penalty?
Thank you.

Tom Voli on November 24, 2008 at 2:10 pm

Chris,

Something is not right. Whe you took the loan it would have had a 3 year prepayment penalty…not 3 1/2 years. They should be at the same time.

Steve P. on March 19, 2009 at 6:09 am

We have a $4M commercial loan on a multi-unit residential property at a fixed rate of 7%. The loan allows for no prepayment at all in the first 5 years, then a 6-5-4-2-1 penalty for the next 5 years. The first 5 years are up in a couple of months.

Payments have consistently been on time.

What are the chances of getting the bank to allow us to refinance with them without being hit for the prepayment? If so, what’s the best way to approach it?

Tom Voli on March 19, 2009 at 6:32 am

Steve,

Are you sure about this? I am familiar with commercial loans and have done my fair share of them for multi-family units however I have never heard of a loan with no prepayment for the first five years and a prepayment starting in year 6. This makes no sense. It encourages people to refinance out of the loan prior to 5 years which contradicts a lenders benefits. It would seem more logical that the loan had the prepayment for the first 5 years (which is very common the way you describe) and no prepayment thereafter.

I would be very happy to help you with this. Call me at (949) 290-1795.

Steve P. on March 19, 2009 at 6:40 am

LOL - no, not that there’s no prepayment penalty in the first 5 years, it’s that there’s no prepayment allowed at all in the first 5 years.

Tom Voli on March 19, 2009 at 6:49 am

LOL…ahh…this makes more sense.

Yes, many commercial lenders do waive prepayment penalties if you are bringing them the loan. As to the best way to negotiate that I suggest letting them know that if they can not waive the penalty you will take it elsewhere.

Steve P. on March 19, 2009 at 7:41 am

OK. Many thanks for the input!

Tom Voli on March 19, 2009 at 7:44 am

My pleasure.

If they refuse to waive it call me. I can get you a loan without that kind of prepayment penalty.

Steve P. on March 19, 2009 at 8:11 am

If they don’t waive it, I think the amount of the penalty would make to too prohibitive to refi.

I’m confident the bank will work with us, though.

donna on March 25, 2009 at 7:39 pm

Hi, My husband just passed away and I wanted to pay off my mortgage with his insurance. Now they are telling me that I have a prepayment penalty. The first person I talked to said that it had expired aug of 200 which would have been three years from the mortgage date which is what I thought. The next person told me that the date was extended to a 5 year prepayment penalty is that legal. How long can they hold this prepayment over your head and is there any way to get out from under it? The way it stands now I would be better off to take the moeny I was going to pay off my mortgage with and go down the street and buy a new home. I would save $55,000 and with this money I could buy furniture and a new car. What incentive do I have to do the right thing when they will not work with me. I explained that with the way that the property values have dropped that I owe more than the value of the house in the first place. Is there anything I can do?

Tom Voli on March 26, 2009 at 5:43 am

Donna,

No, this is not legal. They can not change a prepayment penalty from 3 years to 5 years. The first thing I would do is review your copy of what was signed when the loan was originated. The prepayment terms will be in those documents. If you do not have these you will need to contact the loan servicer and request a copy of the NOTE in writing. I would send this request via some type of delivery confirmed mail. The original note will have the terms. Once you have this you can force them to honor the original prepayment terms. I am sorry for your loss and to see that a lender could try to take advantage of you in this time is extremely discomforting. What lender was it?

Erica on June 24, 2009 at 10:37 pm

Hi Tom,

I have a HELOC that at the time of signing offered a fixed rate conversion option…which was the only reason I chose this type of loan. I recently learned this is no longer an option as of two months ago and the lender admits to not providing any written notification of this change. I feel that this no longer the same loan I agreed to and if I refi, I will have a $750 prepay penalty doesn’t sound too bad compared to others, but I feel since they offered no notification of this change - we no longer have the same agreement & shouldn’t be subjected to this fee. Can they make such a change w/out notice & the agreement still be the same? Is this lawful?

Tom Voli on June 25, 2009 at 6:23 am

Erica,

Most HELOC aggreements have provisions in them allowing the lender to change terms at any time. Unfortunately, I would say there is little chance of getting them to waive the fee. Usually this period for the prepayment penalty is about 3 years. It may be a better idea to ride it out till that is over. If the HELOC is based on Prime it has been pretty stable and should not see enough of an increase to be worthy of the $750 fee. I personally feel the HELOCS based on prime are an excellent tool to accelerate principal on the first mortgage. Check out http://www.loanstomper.com for more info on this.

Erica on June 25, 2009 at 6:24 pm

Thank you for your response! I also read the Aug 21 2007 article, New Mortgage Acceleration Products Now Offer Flexibility, and I’m getting your message…so very glad I stopped by! While, in a haste - being angry at my HELOC lender - I began a refi process w/ my mortgage lender to possibly get out of the HELOC - he talked rates that seemed enticing but when the loan write-up came in the mail — I didn’t like what I read…I currently have a conventional fixed rate that I like and never really wanted to be bothered with an ARM and I have no idea how I didn’t hear that piece (?). Lucky me - the process isn’t complete, in fact just got a call from appraiser! But after reading everything - I don’t want to refi, still angry about the HELOC situation - but I see your point. I think I will stop right where I am—calm down— and explore your suggestion more. Thank you very much, Tom!

Tom Voli on June 26, 2009 at 4:56 am

You are very welcome Erica. Call me if you want a detailed explanation of how you can use your current heloc to pay down the first mortgage faster. (949) 290 1795