NEW JERSEY LAND TITLE ASSOCIATION v. DANA RONE

Annotate this Case

(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5028-16T1

NEW JERSEY LAND TITLE
ASSOCIATION,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
February 11, 2019

v. APPELLATE DIVISION

DANA RONE, COUNTY REGISTER
OF THE COUNTY OF ESSEX,

Defendant-Respondent.
_________________________________

Argued December 4, 2018 – Decided February 11, 2019

Before Judges Yannotti, Rothstadt, and Gilson.

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).

The opinion of the court was delivered by
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

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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

management system. That system was originally developed for Monmouth

A-5028-16T1
3
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

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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

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

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

A-5028-16T1
5 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 -9.13. The Association now appeals the orders denying it summary judgment

and granting summary judgment to the Essex Register.

II.

The central issue is whether a county register or clerk can charge a

surcharge or convenience fee when a document is filed electronically. That is a

question of law because the fees permitted to be charged for filing documents

affecting real property are prescribed by statute. N.J.S.A. 46:26-1; N.J.S.A.

22A:4-4.1. Accordingly, our review of this issue is de novo. See Verry v.

Franklin Fire Dist. No. 1, 230 N.J. 285, 294 (2017) (citing Saccone v. Bd. of

Trs. of Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014)).

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We start with the statutes authorizing fees for filing documents affecting

real property. That authority is set forth in two cross-referenced statutes:

N.J.S.A. 46:26-1 and N.J.S.A. 22A:4-4.1. N.J.S.A. 46:26-1 states that the

permitted fees are those fixed by the statute governing fees and costs:

The fees of the county recording officers and other
officers for entering, filing, recording, registering,
indexing, copying and certifying copies of all deeds and
instruments of the nature or description set forth in
section [46:26A-2] of this title, shall be the fees
prescribed and fixed by the title Fees and Costs. 1

The plain meaning of N.J.S.A. 46:26-1 is that the Legislature has

prescribed the fees that a county recording officer can charge for filing

documents. The authorized fees "shall be the fees prescribed and fixed by the

title Fees and Costs." N.J.S.A. 46:26-1. Title 22A, in turn, is the title that

prescribes fees and costs. N.J.S.A. 22A:1-1.1 to 5-1.

Section 4-4.1 of Title 22A sets forth a specific, enumerated list of fees

that can be charged by clerks or registers for filing documents affecting real

property. N.J.S.A. 22A:4-4.1. That enumerated list does not include a fee for

accepting an electronically-filed document. Instead, N.J.S.A. 22A:4-4.1

1 N.J.S.A. 46:26-1 references the documents set forth in N.J.S.A. 46:16-1.
N.J.S.A. 46:16-1, however, has been repealed and replaced with N.J.S.A.
46:26A-2. L. 2011, c. 217, §§ 1, 2.
A-5028-16T1
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provides that for any document filed, the register or clerk, "shall charge" $30 for

the first page, $10 for each additional page, and $10 for each "rider, insertion,

addition, or any map, plat or sketch[.]" Ibid. N.J.S.A. 22A:4-4.1 goes on to list

charges for other filings and services, such as preparing and transmitting an

abstract of title or entering marginal notations. The statute, however, does not

authorize a fee for accepting an electronically-filed document.

The clear object of N.J.S.A. 22A:4-4.1 is to establish a uniform schedule

of fees to be charged by all county registers or clerks for the filing of documents

affecting real property. See Dugan v. Camden Cty. Clerk's Office, 376 N.J.

Super. 271, 277 (App. Div. 2005) (finding a similar object of N.J.S.A. 22A:2-29,

which establishes a uniform schedule of fees to be charged by county clerks for

rendering other services). In short, neither N.J.S.A. 46:26-1 nor N.J.S.A.

22A:4-4.1 allow a register or clerk to charge a surcharge or convenience fee for

accepting an electronically-filed document.

The Essex Register argues that the fees set forth in N.J.S.A. 22A:4-4.1 are

for the physical act of filing, recording, and entering paper documents. Thus,

the Register contends that the enumerated fees in N.J.S.A. 22A:4-4.1 do not

address the electronic processing of documents. We disagree.

A-5028-16T1
8
In 2012, the Legislature revised the statutes pertaining to the recording of

documents affecting real property to address, in part, electronic documents. L.

2011, c. 217; N.J.S.A. 46:26A-1 to 26C-3. At that same time, the Legislature

directed the Division of Archives and Records Management (DARM) 2 to adopt

regulations "to establish format and technical requirements for recorded

documents to foster state-wide uniformity in title recordation[.]" N.J.S.A.

46:26C-1; cf. N.J.A.C. 15:3-9.1 to -9.13 (regulations promulgated pursuant to

this directive). The Legislature also directed DARM to collect data and prepare

reports on the number of documents recorded and fees collected by all county

registers and clerks. N.J.S.A. 46:26C-3(a) to (c). Further, the Legislature

provided that, based on those reports, it will consider establishing standard per

document filing and recording fees for each type of document filed or recorded.

N.J.S.A. 46:26C-3(e). In that regard, the statute states:

Five years after the date of adoption of N.J.S.[A.]
46:26A-1 et al., the Legislature shall consider the
establishment of standard per document filing or
recording fees for each type of document which is filed
or recorded with a county recording officer. Standard

2 In 2012, the records management, records storage, imaging, and micrographic
functions of DARM were transferred to the Division of Revenue and Enterprise
Services in the Department of the Treasury pursuant to an intergovernmental
agreement. Currently-pending legislation proposes to transfer "all records
management functions, powers and duties" to the Department of the Treasury.
S. 2338 (2018).
A-5028-16T1
9
per document filing and recording fees shall be set so
that the per document fee is no less than the average fee
for the filing or recording of the document as set forth
in the final report required to be issued pursuant to
subsection c. of this section.

[Ibid.]

Moreover, the Legislature has provided a mechanism by which

technological upgrades are to be funded. In 1986, the Legislature enacted a new

section of Title 22A titled "Funds to upgrade services." L. 1985, c. 422, § 7; see

N.J.S.A. 22A:4-17.1. That section directed the county treasurer to return "$1.00

of each fee received for the recording, filing or cancelling of a document in the

office of the county clerk or register of deeds and mortgages" to be "used to

upgrade and modernize the services provided by their offices." L. 1985, c. 422,

§ 7. In 1990, this amount was increased to $2. L. 1989, c. 301, § 1; see N.J.S.A.

22A:4-17.1. In 2002, the Legislature enacted another section of Title 22A

requiring planning for the use of fee revenues, "which are dedicated to upgrading

and modernizing the services provided by the offices" including registers of

deeds. L. 2001, c. 370, § 13; N.J.S.A. 22A:2-51.1. Registers and county clerks,

as well as other county offices, were directed to create a "five-year capital plan

setting forth the capital purposes to which the . . . fee revenues are to be

applied[.]" N.J.S.A. 22A:2-51.1(a).

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These statutes demonstrate that the Legislature has explicitly addressed

both the fees to be charged to the public and the source of funding from which

registers of deeds are to draw if they seek to upgrade or modernize their services.

Accordingly, the Legislature has comprehensively preempted the field of filing

fees for documents affecting real property. The fees in N.J.S.A. 22A:4-4.1 are,

therefore, the comprehensive fees authorized by the Legislature for county

registers and clerks to perform their services as the county recording officer. If

a fee is not listed in N.J.S.A. 22A:4-4.1, it cannot be charged.

Moreover, neither the register nor the county can authorize a new fee for

these services. "When the Legislature has preempted a field by comprehensive

regulation, a [local] ordinance attempting to regulate the same field is void if

the [local] action adversely affects the legislative scheme." Plaza Joint Venture

v. City of Atlantic City, 174 N.J. Super. 231, 238 (App. Div. 1980) (citing Fair

Lawn Educ. Ass'n v. Fair Lawn Bd. of Educ., 79 N.J. 574, 586 (1979); Summer

v. Teaneck, 53 N.J. 548, 554 (1969)). Instead, the Legislature controls and

establishes the allowed fees for processing both paper and electronic documents.

That control by the Legislature ensures that the fees charged are uniform

statewide.

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III.

The Essex Register argues that her authority to charge a convenience fee

is found in N.J.S.A. 40A:5-45, and that statute's implementing regulations,

N.J.A.C. 5:30-9.1 to -9.11. The Essex Register also contends that the $3

convenience fee is consistent with the regulations regarding

electronically-submitted documents, N.J.A.C. 15:3-9.1 to -9.13. Alternatively,

the Essex Register contends that she should be allowed to collect the

convenience fee based on the doctrine of quantum meruit. We will address each

of these arguments in turn.

A. N.J.S.A. 40A:5-45 and Its Regulations

N.J.S.A. 40A:5-45 allows local government units to establish systems to

accept payment of fees and other obligations owed to the unit by credit card or

electronic fund transfers. Specifically, the statute provides:

Subject to the provisions of [ N.J.S.A. 40A:5-47 and
N.J.S.A. 2B:1-5], a local unit may establish a card
payment system or electronic funds transfer system
upon passage of a resolution of the governing body.
The resolution shall specify those types of charges,
taxes, fees, assessments, fines, or other obligations
approved for card based or electronic funds transfer
payment, except that credit card payment shall not be
authorized for the payment of delinquent local unit
obligations or for the redemption of local unit liens.

[N.J.S.A. 40A:5-45.]

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That statutory provision is part of GEPAA, N.J.S.A. 40A:5-43 to -47.

GEPAA is a statute allowing for electronic payment of obligations owed to a

local government unit, such as a county register. GEPAA authorizes only one

type of assessment: charges related to accepting electronic payments. N.J.S.A.

40A:5-46. In that regard, section 5-46 of GEPAA states: "local units are

authorized to assess and collect service charges related to obligations owed to

or collected by the local unit when credit cards, debit cards or electronic funds

transfer systems are utilized." N.J.S.A. 40A:5-46. "Service charge" is defined

as "a fee charged by the Supreme Court, the Superior Court, Tax Court or local

unit in excess of the total obligation owed by a person or organization to offset

processing charges or discount fees for the use of a card payment system or an

electronic funds transfer system." N.J.S.A. 40A:5-44.

The Essex Register argues that the word "obligation" in N.J.S.A.

40A:5-44 should be construed to mean that she can collect fees to pay the

contractual obligation she has under the shared service agreement with

Monmouth County. The Register also argues that since the payment for an

electronically-filed document is also made electronically, she can impose an

additional $3 fee. A plain reading of GEPAA, however, does not support such

a construction.

A-5028-16T1
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The "obligation" referenced in N.J.S.A. 40A:5-44 is any obligation that

an individual or entity owes to the local unit, such as "taxes, fees, assessments

[or] fines." N.J.S.A. 40A:5-45. Thus, "obligation" does not refer to the

obligations the local unit may owe to vendors or other entities in performing the

unit's functions.

More to the point, N.J.S.A. 40A:5-45 does not authorize a local unit to

collect additional payments or fees from persons or entities paying an obligation

owed to the local unit beyond the service charge for processing an electronic

payment. Instead, the statute allows the local unit to set up a system to accept

such payments by credit card and electronic fund transfers and to "offset

processing charges or discount fees for the use of a card payment system or an

electronic funds transfer system." N.J.S.A. 40A:5-44.

The regulations promulgated under GEPAA also do not authorize the

collection of fees beyond recouping processing charges. See N.J.A.C. 5:30-9.1

to -9.11. The regulations explain their purpose as: "rules and guidance for local

government units to utilize credit cards, debit cards, and electronic fund transfer

mechanism as means of collecting local unit obligations." N.J.A.C. 5:30-9.1(a).

The regulations then limit the fee that can be collected to the cost of handling

and processing the electronic transaction:

A-5028-16T1
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When permitted to be charged by the processor, local
units may charge a percentage of the transaction or a
flat fee to offset the costs of electronic receipt
transactions. Such fees shall not exceed the cost of
handling and processing the transaction to the local
unit.

[N.J.A.C. 5:30-9.9(a).]

The Essex Register is charging the $3 convenience fee to offset the cost

of maintaining a web-based system to accept electronically-filed documents.

The $3 fee is not being used to offset processing charges or discount fees for the

use of a card payment system or electronic funds transfer system. In that regard,

an officer of the Essex Register has certified that the $3 fee is to pay for the

web-based management system hosted by Monmouth County and other related

costs. While the ordinance authorizing the $3 convenience fee references that

electronically-filed documents are "paid for by credit card, debit card, automatic

clearing house ('ACH') or electronic funds transfer," the $3 fee is not used to

offset processing charges or discount fees related to the electronic payment.

Thus, while the $3 fee is collected from some payers electronically, it is an

additional fee beyond any processing cost. 3

3
The Essex Register has represented in certifications from her office that some
payers have established escrow accounts and other payers, who submit
documents electronically, are required to use bank accounts that will allow for

A-5028-16T1
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B. Rules Regarding Electronically-Submitted Documents Affecting
Real Property

DARM has promulgated regulations pursuant to N.J.S.A. 46:26C-1

regarding electronically-submitted documents affecting real property. N.J.A.C.

15:3-9.1 to -9.13 (Electronic Regulations). Those regulations direct that by May

1, 2017, "all county recorders shall accept electronic documents and electronic

document packages[.]" N.J.A.C. 15:3-9.3. The Electronic Regulations,

however, do not authorize the imposition of fees for accepting electronic

documents. Instead, the only additional fees that can be collected are processing

fees related to accepting electronic payment. See N.J.A.C. 15:3-9.10; N.J.A.C.

5:30-9.1 to -9.11. In that regard, N.J.A.C. 15:3-9.10 provides:

Each county recorder receiving electronic documents
shall accept payment of recording fees by electronic
means. Each county recorder may collect fees from
electronically submitted electronic documents or
electronic document packages in a manner compatible
with its internal software, financial practices, and
N.J.A.C. 5:30-9.

electronic transfer of payment. Approximately fifteen percent of the payers
submitting electronically-filed documents had escrow accounts and the other
eighty-five percent of the payers use bank accounts.
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In short, nothing in the Electronic Regulations authorizes a county or a

county register to impose a $3 surcharge or convenience fee for accepting an

electronically-filed document.

C. Quantum Meruit

Finally, the Essex Register argues, in the alternative, that she should have

the right to collect the $3 fee based on the doctrine of quantum meruit. We

disagree.

Quantum meruit means, literally, "as much as is deserved." Kas Oriental

Rugs, Inc. v. Ellman, 394 N.J. Super. 278, 286 (App. Div. 2007). Quantum

meruit applies when "one party has conferred a benefit on another and the

circumstances are such that to deny recovery would be unjust." Ibid. (quoting

Weichert Co. Realtors v. Ryan, 128 N.J. 427, 437 (1992)). To recover under a

theory of quantum meruit, a party must establish "(1) the performance of

services in good faith, (2) the acceptance of the services by the person to whom

they are rendered, (3) an expectation of compensation therefor, and (4) the

reasonable value of the services." Starkey, Kelly, Blaney & White v. Estate of

Nicolaysen, 172 N.J. 60, 68 (2002) (quoting Longo v. Shore & Reich, Ltd., 25 F.3d 94, 98 (2d Cir. 1994)). That party must also establish a "reasonable

expectation of payment" and that the services were performed "under

A-5028-16T1
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circumstances that should have put the beneficiary on notice" that the party

expected to be paid. Weichert Co. Realtors, 128 N.J. at 437-38.

The doctrine of quantum meruit does not apply here. Indeed, this

argument lacks sufficient merit to warrant extended discussion.

R. 2:11-3(e)(1)(E). Parties submitting documents affecting real property are not

enriching themselves by filing those documents electronically. Instead, they are

filing those documents to protect their interests and are paying an associated fee

established by the Legislature. As already explained, the Legislature has

established a uniform schedule of fees to be charged by county registers or clerks

for the filing of documents affecting real property. See N.J.S.A. 22A:4-4.1.

Accordingly, a filer would not reasonably expect to have to make a payment

beyond those statutory fees.

It is the responsibility of a register's office to budget and pay for the costs

associated with performing its functions. See N.J.S.A. 40A:9-89.1; N.J.S.A.

22A:2-51.1(a). If county registers or clerks believe their offices are incurring

costs that are not covered by the fees set forth in Title 22A, their recourse is to

petition the Legislature to provide some means to address those costs, by

allowing the collection of an additional fee or in some other manner .

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In summary, no statute or regulation authorizes the Essex Register to

impose a $3 convenience fee in connection with electronically filing a

document. Consequently, we reverse the June 23, 2017 order granting summary

judgment to the Essex Register and dismissing the Association's complaint. We

remand with the direction that the complaint be reinstated and that the

Association be granted partial summary judgment on its claim to prospectively

enjoin the Essex Register from collecting the convenience fee. We also remand

for further proceedings on the Association's claim for disgorgement of the fees

previously paid.

Reversed and remanded. We do not retain jurisdiction.

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