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New Jersey Land Title Association v. Rone

Superior Court of New Jersey, Appellate Division

February 11, 2019


          Argued December 4, 2018

          On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2077-17.

          Edward C. Eastman argued the cause for appellant (Davison, Eastman, Muñoz, Lederman & Paone, PA, attorneys; Michael J. Fasano, on the briefs).

          Thomas M. Bachman, Assistant County Counsel, argued the cause for respondent (Courtney M. Gaccione, Essex County Counsel, attorney; Thomas M. Bachman and Sylvia Hall, Assistant County Counsel, on the brief).

          Before Judges Yannotti, Rothstadt, and Gilson.


          GILSON, J.A.D.

         The issue presented is whether a county register or clerk has the authority to charge a "convenience fee" for the electronic filing of documents concerning real property. The Legislature has prescribed the fees a county register or clerk may charge for the filing of documents, and a convenience fee is not one of the legislatively authorized fees. Accordingly, we hold that a county register or clerk cannot impose such a fee. We therefore reverse a June 23, 2017 order granting summary judgment to the Essex County Register of Deeds and Mortgages (Essex Register) and dismissing the complaint of plaintiff, the New Jersey Land Title Association (Association). We remand with direction that the Association be granted partial summary judgment on its claim to enjoin, prospectively, the Essex Register from collecting the convenience fee. On remand, the trial court will also address the Association's claim for disgorgement of the fees previously paid.


         Documents affecting real property, such as deeds, mortgages, and liens, are filed in the county where the land is located. N.J.S.A. 46:26A-6(a). The county recording officer is then responsible for recording, indexing, and maintaining those documents. Ibid.; see also N.J.S.A. 46:1-1. The recording officer is either the register or, if the county does not have a register, the county clerk. N.J.S.A. 40A:9-90.

         Documents can be filed as paper documents or electronic documents. See N.J.S.A. 46:26A-1(a). Effective May 1, 2017, all counties were required to offer the option of filing documents electronically. See N.J.A.C. 15:3-9.3. Accordingly, documents can be submitted in person, by mail, or electronically.

         The Legislature has established the fees that a county recording officer can charge, "for entering, filing, recording, registering, indexing, copying and certifying copies" of documents that may be recorded. N.J.S.A. 46:26-1. The authorized fees "shall be the fees prescribed and fixed by the title Fees and Costs." Ibid. Title 22A, in turn, is the title that prescribes fees and costs. Section 4-4.1 of Title 22A sets forth a specific, enumerated list of fees that can be charged by county clerks and registers. N.J.S.A. 22A:4-4.1.

         The Essex Register is responsible for recording and preserving documents affecting real property in the municipalities in Essex County. See N.J.S.A. 46:26A-6(a); N.J.S.A. 46:1-1. The Essex Register began accepting electronically-filed documents in 2006. To provide electronic filing, the Essex Register entered into a shared servicing agreement to use a web-based document management system. That system was originally developed for Monmouth County by a private vendor, Sunrise Systems, Inc. (Sunrise). Essex and at least eight other counties now provide electronic filing through the system hosted by Monmouth County.

         To file a document electronically, the filer connects to an internet portal and sends a scanned copy of the document to be recorded. The filer must either have an escrow account or a bank account so that the filing fee can be withdrawn as an electronic transfer.

         The Essex Register incurs costs to accept electronic filing. Those costs include monies paid to Monmouth County, which in turn pays Sunrise to maintain, operate, and update the document management system. An officer for the Essex Register has also certified that the office incurs additional personnel and equipment expenses to approve, review, record, verify, and issue receipts for electronically-filed documents.

         When the Essex Register began accepting documents electronically in 2006, the Register did not charge a separate or additional fee for such a filing. In 2016, however, the Essex County Board of Freeholders passed an ordinance allowing the Essex Register to charge "a surcharge or convenience fee of $3.00 . . . to offset the cost of electronic receipt transactions with respect to the electronic filing of documents for recordation with the Essex County Register of Deeds & Mortgages paid for by credit card, debit card, automatic clearing house ('ACH') or electronic funds transfer[.]" The Essex Register represents that the $3 fee is designed to offset some of the additional costs incurred in accepting electronically-filed documents. In that regard, an officer of the Essex Register certified that in 2016, the office paid more than $24, 700 to Monmouth County for access to the web portal. The officer also certified that, as of April 2017, expenses associated with electronic filing exceeded the convenience fees collected.

         In May 2016, the Association filed a complaint in lieu of prerogative writs against the Essex Register. The Association sought two forms of relief: (1) to enjoin the Essex Register from charging the convenience fee; and (2) to compel the Essex Register to disgorge and return all "wrongfully charged 'convenience fee[s].'"

         The Essex Register filed an answer and, thereafter, the parties engaged in discovery. The Association then moved for partial summary judgment seeking to declare the convenience fee unlawful and to permanently enjoin the Essex Register from charging the fee. The Essex Register opposed that motion and cross-moved for summary judgment in her favor. The matter was transferred to Hudson County, where the trial court heard oral argument on the motions. On June 23, 2017, the court entered two orders: one order denied summary judgment to the Association, and the second order granted summary judgment to the Essex Register and dismissed with prejudice the Association's complaint.

         The trial court explained the reasons for those rulings on the record on June 23, 2017. It held that the convenience fee was authorized by the Government Electronic Payment Acceptance Act (GEPAA), N.J.S.A. 40A:5-43 to -47, and its regulations, N.J.A.C. 5:30-9.1 to -9.11. The court also reasoned that the convenience fee was consistent with the rules regarding electronically-submitted documents affecting real property, N.J.A.C. 15:3-9.1 to ...

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