This one might be an issue for you.

To put the above in clear language: Assume that in the Loan Estimate, the sum of all charges subject to the 10% tolerance rule equals $1,000. if the creditor does not include a charge of $10 for a notary fee on the Loan Estimate, but the consumer is actually charged a notary fee, then the creditor does not incur a tolerance violation as long as all amounts in the "10% tolerance bucket" do not exceed $1,100. This is even if the individual notary fee was not disclosed at all.

This is based on the assumption that the notary fee is a type of charge that falls in the 10% tolerance bucket.

Your situation gets a little dicey because they charged a fee that you did not disclose and failed to charge the fee that you did disclose. Therefore, when it comes to calculating the possible tolerance violation, I do not believe you get to use the amount of the fee that you did disclose, as it is no longer a part of the transaction. To utilize numbers to make it clearer, if all of the charges in the 10% tolerance bucket, including your Closing Fee of $400, added up to $1,000 and the Closing Fee of $400 actually did happen, then you would have had $100 to "play with" for the fee that was not disclosed. However, as the $400 closing fee did not get charged, your 10% tolerance bucket drops down to an aggregate amount of $600 ($1,000 - $400). In this case anything over $660 {$600 + (10% * $600)} is a cost to cure. Unless you can somehow prove that the fee that was actually charged is inherently the same thing as the $400 Closing Fee that was disclosed, then the outline above is how I would view this.