The Wednesday Closing Disclosure and the Friday Closing
Tomas is buying a $525,000 townhouse with 20% down, leaving a $420,000 loan. Consummation is scheduled for Friday, June 12, at 10:00 a.m. On Tuesday, June 2, the lender locks the rate, and the loan estimate shows a 4.125% note rate and a 4.31% APR. On Wednesday, June 10, at 4:00 p.m., the settlement agent emails Tomas the closing disclosure, with e-delivery consent on file. The CD shows the same note rate but a 4.49% APR because the lender added a $1,100 discount point and a $650 courier fee that were not on the loan estimate. Tomas's real estate agent tells the loan originator, Ben, that the seller will cancel if closing slips and asks whether Tomas can just sign a waiver. Tomas says he is willing to sign anything to close Friday.
1. Assuming no other changes, was the CD delivered in time for a June 12 consummation? Explain the counting.
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No. For the CD waiting period, a "business day" is every calendar day except Sundays and federal holidays, so Saturday counts and only Sunday is excluded.
The consumer must receive the CD no later than three business days before consummation. The CD was received Wednesday, June 10, with e-delivery consent. Counting days after receipt and excluding the consummation day itself:
- Thursday, June 11: day 1
- Friday, June 12: consummation day; it does not count toward the wait
- Saturday, June 13: day 2
- Sunday, June 14: excluded
- Monday, June 15: day 3
The earliest consummation on the original CD would be Monday, June 15. A June 12 closing would occur after only one countable business day, which is a violation even if Tomas signs a waiver.
Ben should have worked backward: to close Friday, June 12, the CD needed to be received by Monday, June 8 (Tuesday, Wednesday, and Thursday would be the three days). Delivering on the Wednesday before a Friday closing is a two-day shortfall, not a rounding issue.
2. How does the APR change from 4.31% to 4.49% affect the transaction?
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The APR increased by 0.18 percentage points (4.49 minus 4.31). For a regular transaction, an increase of more than 0.125 percentage points (one-eighth) between the CD and the most recent loan estimate means the CD is no longer accurate for waiting-period purposes. A corrected CD must be delivered, and a new three-business-day wait begins when the borrower receives it.
This is separate from the original late-delivery problem. Even if the first CD had been delivered on time, the APR increase alone would force a corrected CD and restart the clock.
Assume the corrected CD is delivered Thursday, June 11. Counting after receipt: Friday, June 12 (day 1), Saturday, June 13 (day 2), Sunday excluded, Monday, June 15 (day 3). Consummation could occur Tuesday, June 16 at the earliest, not Monday.
The added discount point is the cause. Ben should confirm whether the point is a genuine borrower choice or an error. If it was a lender-side pricing change, the better fix may be to remove the point, restore the original APR, and avoid both the tolerance cure and the reset.
3. Can Tomas waive the waiting period because the seller threatens to cancel?
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No. TRID provides no waiver mechanism for the closing disclosure waiting period. The narrow bona fide personal financial emergency waiver applies to the pre-application and loan estimate timing rules, not to the CD three-business-day wait. A seller's threat to cancel, a rate lock expiration, or a borrower's willingness to sign are not grounds to consummate early.
If the parties consummate before the wait expires, the violation occurs regardless of consent, and the lender faces liability. The correct response is to delay consummation to the permissible date and manage the contract separately: request an extension from the seller, document the reason, and keep the borrower informed. Ben should not send a waiver form for signature, because doing so creates evidence that the lender knew the rule and proceeded anyway.
The $650 courier fee also needs review. If it is a lender-required service with a lender-selected provider, it carries zero tolerance against the loan estimate and must be cured. If it is a shoppable third-party service, it belongs in the 10% cumulative tolerance bucket and the aggregate must be tested. Either way, silently adding it to the CD is not a neutral change.