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We have set late charges at 10% of a loan payment amount, with a minimum of $10. Our jumbo loan contract just sets a 10% late fee, with no mention of a minimum of $10. Can we omit the $10 minimum from our jumbo loan contracts? – IBA Compliance Connection

We have set late charges at 10% of a loan payment amount, with a minimum of $10. Our jumbo loan contract just sets a 10% late fee, with no mention of a minimum of $10. Can we omit the $10 minimum from our jumbo loan contracts?

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We don’t see any problem with omitting your minimum charge policy in the loan agreement for jumbo loans (where the loan principal is greater than $250,000), provided there is no chance that a 10% charge could be lower than $10. Section 5e of the Banking Act states that a bank may “elect to contract for and receive interest, fees, and other charges” subject only section 4(1) of the Interest Act and any laws applicable to “credit secured by residential real estate.” 205 ILCS 5/5e. Similarly, Section 4(1) of the Illinois Interest Act allows banks to charge any interest rate that a customer agrees to pay — it authorizes banks “to receive or contract to receive and collect interest and charges at any rate or rates agreed upon by the bank or branch and the borrower.” 815 ILCS 205/4(1). Section 4(1)(l) explicitly allows a bank to contract for and charge any compensation relating to a loan secured by a mortgage on real estate. 815 ILCS 205/4(1)(l). The only provisos are that the customer must agree to the charges and that the bank must set its fees based on its “prudent business judgment and safe and sound operating standards.” 205 ILCS 5/5e