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Question: On the loan types allowed, what is the maximum amount we can charge for a returned check fee? Does this same amount correspond to the NSF Paid/Returned Fees on checking accounts? I find nothing that limits us on the amount of this fee - only competition.
Answer: NSF fees (i.e., the fees you charge your accountholder for writing a check when there are insufficient funds in the account) are not regulated. NSF fees must be disclosed under Truth in Savings on consumer accounts, thus competitive factors are the only consideration.
The short answer regarding fees for dishonored checks written to your bank as loan payments is that, for all practical purposes, the maximum is always $30. Now, for the long answer:
Finance Code Chapter 342 prohibits all fees and charges that are not specifically authorized in Section 342.502. Section 342.502 references Tex. Rev. Civ. Stat. Ann. Article 9022 with respect to the fee charged for a dishonored check, but Art. 9022 was repealed in 2001. In 2003, Texas Business & Commerce Code (BCC) Section 3.506(a) was amended to increase the dishonored check fee from $25 to $30. Although Section 342.502 continues to reference repealed Art. 9022, BCC Section 3.506(a) expressly authorizes a $30 fee. So, I believe that for a Chapter 342 loan, you may charge a maximum of $30 as a dishonored check fee. Just don't add it on to the loan, as it is not authorized to be added on to the loan per Finance Code Section 342.308. If you are wondering, Chapter 342 loans are consumer loans, both unsecured and secondary mortgage loans, with interest rates greater than 10% per year.
Section 342.005 sets out the loans for which Chapter 342 is applicable. However, for Chapter 342 loans, except real estate secured consumer loans, Finance Code Section 303.017 provides that "notwithstanding Section 342.005..." on non-real property secured loans, a lender "...may charge all reasonable expenses and fees...." (Section 303.017 only applies to banks, savings associations, savings banks, or credit unions.) Although this says you may charge a reasonable fee, there could be some question as to whether it trumps BCC Section 3.506(a). Because the fee will certainly be "reasonable" if it is $30 or less, most banks apply this maximum across the board.
For commercial loans, a returned check fee also may not to exceed the maximum fee authorized in BCC Section 3.506, Business & Commerce Code ($30), on any check, draft, order, or other instrument or form of remittance that is returned unpaid or dishonored for any reason. [See Finance Code 306.006]
For both commercial and consumer loans, you can charge post-maturity interest on the outstanding amount that was not paid timely, which is usually described in the note as the highest rate allowed by law (18%) on the entire balance. But, of course, you'd need to check your note.
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