December 4, 2018
appeal from Superior Court of New Jersey, Law Division,
Hudson County, Docket No. L-2077-17.
C. Eastman argued the cause for appellant (Davison, Eastman,
Muñoz, Lederman & Paone, PA, attorneys; Michael J.
Fasano, on the briefs).
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).
Judges Yannotti, Rothstadt, and Gilson.
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.
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.
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,
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.
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.
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
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
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.
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].'"
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
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 ...