Bankoftn, this is a really good question.
Even though your compensation plan is based the total volume, I am concerned that because your compensation varies by the dollar amount it could be considered basing the compensation on a term of the transaction. For example, even though you are not technically paying varied rates for each transaction, in the end this policy provides incentive for the loan officer to increase the amount of each loan because he/she is indirectly compensated based on loan amount. The portion of the commentary referenced above states that it is acceptable to pay a loan originator based on a percentage of the amount of credit extended as long as the percentage is fixed and doesn’t vary with the amount of credit extended – it doesn’t say only for individual transactions. And although the example given involves a single transaction, I don’t think it was intended to be exclusive. If you look at Paragraph 36(d)(1)-2.iA, this is where it states compensation based on total volume is acceptable, but it also references 36(d)(1)-9, the paragraph you quoted above. In the plan you described the compensation does vary with the amount of credit extended so I would recommend a fixed percentage.
We’ll see if Jack has any additional thoughts.