Posted by Ronda Roaring on 12/7/08 8:09am
Msg #271314
EFS Bankruptcy
If you are a notary and part of the EFS Bankruptcy, you should be interested in this matter.
Notary fees in NYS are established by the state. I contend that for the bankruptcy court to offer notaries 10% of the fee owed ($2 per signature) is basically trying to negotiate the state's fee. If the court feels it has the right to negotiate the state's fee, then it should be negotiating that fee with the state and not with the notary.
In addition, in NYS, if an entity acquires a marriage license, a driver license or any other document for which the state assesses a fee and then reneges on the fee (the check bounces or whatever), the license becomes invalid.
So there are two issues here: 1. does the bankrupty court have the right to negotiate state-established notary fees and 2. is a notarization that was acquired under false pretenses (no payment of the state established fee) invalid. (Keep in mind that we're only talking about EFS here and not notarizations in general for which a fee may not have been charged.)
Here's an explanation of what the court is trying to do and what I contend.
Let's say that I conducted a closing and that there were a total of 20 signatures notarized. The value of those notarizations according to the state is $40. But I charged $150 for the closing. The other $110 may be travel, photocopying expenses and other office-related expenses. The court wants to pay 10% of the overall fee or $15. I contend that 1. I must get at least the $40 notarization fee and that this fee is not negotiable because it's established by the state and 2. if the court feels it has the right to negotiate the fee, it must do so with the state and not the notary as it is the state who established the fee.
The hearing on the matter of the bankruptcy court having the authority to alter the fees of a notary of the State of NY is due to be heard on 12/23 at 10:00. If you have some pertinent comment to make on this matter, send it to Judge Jeffrey A. Deller, US Steel Tower, 600 Grant St., Pittsburgh, PA 15219.
| Reply by Marian_in_CA on 12/7/08 8:52am
Msg #271315
Here's where I see a huge problem with your logic, Ronda. Are the fees set... or are those fees simply the MAXIMUM fee you can charge?
From the NYS website:
"A notary public may charge a fee of $2.00 for administering an oath or affirmation or for taking an acknowledgment or proof of execution. Unless otherwise authorized by law, a notarial fee may not exceed this amount."
It's not the same thing as a mandated fee. California is the same. The max fees for acks/jurats is $10, but we don't have to charge that much. A lot of notaries make the mistake of telling people that it is a state mandated fee, when it is not. I don't have to charge anyone a single dime if I don't want to... I just can't charge them more than $10 a pop if I do.
When you start telling people it is a state-mandated fee, they get the impression the money goes to the state and not the notary. If you contend that the court must negotiate the fee with the state, you are again giving the impression that the state gets the fee... not you.
And, here's another issue. Bankruptcy is a FEDERAL issue, not a state one. As far as the Feds are concerned, you are a private business venture like all other debts in the bankruptcy and will be treated as such. Frankly, you're lucky they're offering you anything at all. In the majority of BK cases, creditors get nothing.
Finally, you said, "The value of those notarizations according to the state is $40. But I charged $150 for the closing. The other $110 may be travel, photocopying expenses and other office-related expenses."
'May be'? Don't you know for sure? Having been to court before I can assure you that you better know and you better have it itemized to justify your expense/fee.
If I go to the ER and get bill for $15,000 -- it would NOT be okay if they said, "Well, $4,00 of it was for the CT scan, but the rest of it may have been for other things like the ultrasound, medication, time and other hospital related expenses."
HOw can you charge $150 and not know why you're charging it? Furthermore, by your logic, those of us in CA would be charging upwards of $310 for signing: 20 sigs @ $10, plus $110 for "other stuff". HAH! When you accept the $150 fee, you essentially prorate your notarial fees as well meaning you accept less than the state's maximum. That's why the state has no business negotiating your fees... because you are acting in the role of a private business person.
Besides, have you even contacted the state to ask if they are willing to go to bat for you on this? You might consider that first before taking it up with a federal judge.
| Reply by Linda_H/FL on 12/7/08 10:17am
Msg #271320
Ronda, all I'm going to say is I hope you have case law to back you up if you try to pursue this line of thinking...I agree with Marian 100%...the state sets allowable maximum fees and that's it - the notary takes it from there...
As for your "contentions"....1. you MUST get $40 because the state set that fee? No, they did not - you chose to charge the maximum allowed fee; and 2. the court must negotiate the fee with the state - NO - the fee charged is yours and is, therefore, negotiated with YOU, not the state.
I'd wager the hearing is probably NOT to hear arguments as to their authority to alter notary fees - it's probably to compromise the claims of all creditors...I'd have to pull my copy of the hearing notice. I'd also suggest no one contact the Judge - that's what the attorney for the creditors and/or the Trustee are there for...contact them, but for heavens sake I'd say don't use this argument!!
This is my fifth draft of a response to this post - and my most polite...still scratching my head trying to figure out where you come up with this stuff. My biggest suggestion to you, Ronda, is if you feel strongly enough about this "position", then find an attorney willing to argue it for you in BK court.
Good Luck.
| Reply by Susan Fischer on 12/7/08 5:40pm
Msg #271334
Ditto Marian & Linda. You are darned lucky to be getting
anything - many are not.
Not a lawyer, but - your arguments do not hold water. First, the State does not REQUIRE you to charge a fee, it says you "may." Second, see the First.
If you waste the court's time, you may find yourself listening to, or readng, a not-so-pleasant-response. "Pertinent" comment on the matter could include, say, the fact that the company ows you not for one signing, but for others, which, inadvertently were not included in your original claim. That *might* be pertinent.
had a new-construction cleaning business. A builder built his fabulous home, then immediately declared bankruptcy - and we received about 23 cents on the dollar. That didn't begin to pay for my expenses to travel out of town, pay employees, blah blah. But, I did get a few bucks to buy some beer to cry in, along with the Steve the plumber, whose bill was $60,000, and Andy the tile guy, whose bill was $43,000. They lost a whole truckload more than I.
Take heart tht some percent of something is better than no percent. Take your $15, be thankful you got it, and go away happy.
| Reply by Glenn Strickler on 12/7/08 6:25pm
Msg #271338
Bankruptcy is held in federal court and under
federal law, which trumps state law. This argument is DOA.
The other issue is that a chapter 11, which I assume this is, is to liquidate the assets of the failed company and then the judge will determine how to distribute the proceeds. You may get something, maybe nothing, but it will not be full price. The money is not there.
Remember, the company went to court because it did not have enough money to pay the bills, so you can't get blood out of a turnip. Of course, I guess you could always apply to the government for a bail out.
Of course, I am not an attorney so this is just my opinion. Have had experience in bankruptcy court, though.
| Reply by Glenn Strickler on 12/9/08 12:09pm
Msg #271495
S/B Chapter 7, not 11 n/m
| Reply by MikeC/NY on 12/8/08 10:10pm
Msg #271472
NY does NOT mandate notary fees
The MAXIMUM you can charge is $2 per signature. You can also charge nothing (many banks offer notary services for free). What this means is that the fee charged is at the notary's discretion, up to the maximum the state will allow.
I'm not a lawyer, but I don't think you have a prayer on this one. I'm not aware of any case law in NY where a transaction was invalidated because someone refused to pay the notary fee, but if you intend to pursue this it might be useful to spend some time in a law library doing some research. Judges generally are not tolerant of the "in my opinion" argument...
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