Posted by Marian_in_CA on 2/18/13 3:49pm
Msg #456385
Court ruling of interest for CA notaries...
...but what gets me is the lousy $75.00 fee. Eeegads.
http://www.lexology.com/library/detail.aspx?g=e3c097b4-2c74-45cb-afa6-d0ab8006cd1b
IN other words, this upholds what most of us already know. We're perfectly allowed to charge additional fees for additional services outside of the fees charged for notarial acts. But... the caution here is that we make is VERY clear that they are separate.
You'll note something of caution that I've been telling people for years. Don't use lump sums in your invoices, folks. ITEMIZE!! Make sure you detail those notarial act fees from the other services you perform. Even if you never actually send an invoice... keep your own records separate to match your journal entries. If you read the article closely, you'll note that the plaintiff may have actually had a case based on the fact that the notary charged a single lump sum fee, but lost on a technicality...and a few other things.
| Reply by FeliseSoCal on 2/18/13 4:18pm
Msg #456394
Great article! Thanks Marion!
| Reply by FeliseSoCal on 2/18/13 4:19pm
Msg #456395
Sorry, Marian.
| Reply by sueharke on 2/18/13 4:32pm
Msg #456398
Simple solution is to offer two levels of service to a client before starting services as follows:
1. Notarizations from CA notary is Z time N notarizations = notarization fees @ $10 each
2. Printing fee for documents
3. Assistiance of the customer signing/initialing other forms
4. Travel fee
5. Time charge for more than XYZ time to complete a signing.
Minimum fee for this job : #1, #2, #4
If you want help with #3, then there is an extra fee.
The extra fee may make the total fee higher than the agreed fee with the SS and TC. All fees would have a minimum amount for each charge.
Think of it as going to a tax preparer who bills by the type and number of forms, plus a time charge.
If this is what this type of client wants and is willing to pay, I say go for it.
| Reply by Marian_in_CA on 2/18/13 4:39pm
Msg #456405
I already do this, myself. It tends to confuse some companies. But then, it also really enlightens them when they see my fees itemized out... funny how it all adds up so quickly. When it comes to loan packages, I tend to charge less than the $10.00 per signature fee because there are just so many... I wish more notaries had the guts to say, "Hey, this package has 20 signatures that need notarizing.... so by law I'm allowed to charge up to $200 for this, and that's just for the notarial acts. Let's add on the printing, the travel and other associated tasks involved....and I'm allowed to charge for those as well."
| Reply by Notarysigner on 2/18/13 4:33pm
Msg #456399
Interesting indeed Marian, thanks.
Two things though, most settlement statements usually shows Notary Fees $200.00 plus (with the SS getting a portion). Does that mean the notary is responsible for the entire amount that is paid to the SS or just when the notary is named, it wasn't clear?
I have worked for some where the fees are stated as such, ..fees paid to (notary name) $xxx and I don't see a problem with that.
I have had a couple of borrowers tell me they thought I was being paid too much but someone suing in court? What is this world coming to? Thanks as always for the post.
| Reply by 101livescan on 2/18/13 4:33pm
Msg #456401
Interesting...escrow companies will need to rephrase that line item if it is to include a mobile notary service. Thanks for posting. Lexology is a great resource.
| Reply by Marian_in_CA on 2/18/13 4:46pm
Msg #456408
Yeah, I think that's really the point here.... the wording used. If it just says, "Notary Fees" or "Notary Services" then yeah... it can easily be a case for overcharging. But, if they change it to say "Mobile Signing Services" or something like that, then they are essentially covered.
I think in this particular case, the plaintiff may have won if it were for those technical issues, and the opinion pretty much said as much. Of course, that's not something the notary can always control... but what we CAN control ar eour own invoices and records that show exactly how much of our fee covered what aspects of the service we provide. It's a bit anal retentive, yes... but when you consider that overcharging for notary services is a crime, then it's better to keep your records straight.
That's why I itemize my invoices and receipts... always. Mobile service fees, printing fees, etc. are always separate from each individual notarization fee so there is never any question what they're paying for.
| Reply by GOLDGIRL/CA on 2/18/13 5:11pm
Msg #456412
How about all notarizations are "free"...
but the rest: "traveling, presenting docs, showing where to sign or inital, answering questions, etc." is what the borrower is paying for because we're are not charging them a dime to notarize.
Anyway, I loved the part where escrow argued they weren't liable because the notary was a third-party contractor, precluding escrow for any violation. Hmmm? The notary wouldn't have the job if escrow hadn't called her, escrow set the fee at (a pathetic) $75, but somehow or another they have nothing to do with the notary? Love the way they cut us loose at the first sign of trouble. LOL.
| Reply by GOLDGIRL/CA on 2/18/13 5:14pm
Msg #456413
And to continue ...
As Marian pointed out many loan pkgs have far more notarizations than the signing fee would cover (at $10 per). So how would you invoice 18 notarized signatures when the signing fee was, for example, $!00. That's why you wouldn't charge them to notarize. The $100 is for everything else....?
| Reply by Shoshana/AZ on 2/18/13 5:33pm
Msg #456419
It's pretty much the same in AZ
When i went to the SOS notary education workshop they say, it's pretty much your business as long as you don't overcharge the notarial fees. Itemizing is the key.
| Reply by Bear900/CA on 2/18/13 6:09pm
Msg #456422
Thanks for the report Marian.
Two quick questions:
1. Do you use a Notarial Evidence Form to track the quantity of your signatures or something similar?
2. Depending on the number of signatures you are charging for (I assume the price adjusts up and down per signature) do you adjust your other fees (not travel) up and down as well to compensate?
| Reply by DaveCA/CA on 2/18/13 6:43pm
Msg #456426
Wow...some people have lots of time on their hands
Thanks Marian. I do need to be better at that. I just can't believe the borrower found an attorney to run with this. Really? For what they thought was $55 too much. And in the end, a bunch of people lost because of all the extra time. Amazing...
| Reply by Marian_in_CA on 2/18/13 7:06pm
Msg #456431
Re: Wow...some people have lots of time on their hands
My guess is that is was a way to somehow invalidate the loan, in general. If they could figure out a way to prove that some small aspect of the loan was fraudulent or illegal, such as being overcharged for notary fees, then it could be argued that other aspects of the loan may have been fraudulent as well.
| Reply by 101livescan on 2/18/13 7:30pm
Msg #456440
Re: Wow...some people have lots of time on their hands
Any little excuse to "take down" a corporate giant in the Title biz. Nickels and dimes, it was a bigger issue than that.
I can't believe it when a borrower tells me he doesn't think he should have to pay for notary fees when he can get the same service for free. I explain the entire concept of confidentiality, E&O requirements, background check and lenders and title co's strict requirements for approved notaries. Not just any notary can notarize loan docs. When you amortize $100 or $200 over the life of the loan, it's squat. I'd be arguing over the broker's take, or the lender's origination fee, not the piddley little notary fee.
Did you know that every time a loan is about to fund, not only is the borrower's information, credit, work, financial, etc. rechecked, but also the lender, the notary, E&O, bond, etc. licensing are all reverified prior to funding? My name once came up on the DHS (I thought it was the dept of health services, but it was the Department of Homeland Security). It turned out to be some chick in Cypress, CA who was under investigation whose name was spelled exactly like mine. I had to fill out a SOI to prove my identity and my current address, etc. even though all my information was current as an approved notary with the title company to prove my background was clean and that I had never lived (nor had I ever visited) Cypress, CA.
Good Grief!
| Reply by Marian_in_CA on 2/18/13 8:03pm
Msg #456447
Re: Wow...some people have lots of time on their hands
"Not just any notary can notarize loan docs."
Well, technically... that's not true. Any fully commissioned notary is authorized to notarized a signature on document for which they are authorized. There are no provisions in the law that restrict loan documents to certain notaries only.
No whether it's wise or not is a different story. I sure can attest to that... after my latest cleanup job. ( Msg #455931 )
| Reply by 101livescan on 2/18/13 8:28pm
Msg #456455
Re: Wow...some people have lots of time on their hands
Certain Title Companies will only use their approved notaries.
| Reply by JanetK_CA on 2/19/13 1:41am
Msg #456465
Re: Wow...some people have lots of time on their hands
I think the difference is just semantics. Technically - and literally - any notary can "notarize" loan docs, but I'm guessing that the intended point is that not every notary is qualified to handle a loan signing. In fact, the actual notarizing could be considered relatively incidental (altho necessary) to the entirety of what we do to complete a signing. I'm thinking Goldgirl's idea of not charging for notarizations, but considering them a freebie, after we get paid for everything else, may have some merit... When all is said and done, the actual notarizing may represent a small portion of our total time and cost for completing a signing.
I agree with whomever said there was probably more to it than just the notary issue. We've all probably met people who commented about the quantity of "junk" fees - and some with very valid complaints. They may have just been looking for a convenient victim to go after, when their gripe is with the title company as a whole. I've been wondering myself (although I wouldn't say anything), about charges I see on a HUD for "e-documents" on top of the notary fee. Is that supposed to be for slapping them onto a scanner?!
| Reply by JanetK_CA on 2/19/13 2:07am
Msg #456467
Re: Wow...some people have lots of time on their hands
After reading the rest of the posts up to this point, it occurs to me that considering the notarizations as "free" could be a problem if someone intends to take the SE tax exemption...
| Reply by 101livescan on 2/19/13 8:43am
Msg #456477
Re: Wow...some people have lots of time on their hands
$75 is a paltry fee. The notary may have been contracted by Bancserv, a low ball service owned by Fidelity, to conduct the signing for the Bakersfield Fidelity branch office.
| Reply by Marian_in_CA on 2/18/13 7:49pm
Msg #456444
1. Do you use a Notarial Evidence Form to track the quantity of your signatures or something similar?
I've actually never used that form yet, for all those that have reported one it, I've not been asked to use one, thought I probably wouldn't object to it, provided I was paid for my time in completing it.
2. Depending on the number of signatures you are charging for (I assume the price adjusts up and down per signature) do you adjust your other fees (not travel) up and down as well to compensate?
I do...but this depends on the client. I have agreements with some, and others vary based on the signing itself. For me, my "base" signing agent fee actually includes up to 10 notarized signatures. I don't say they are "no charge" --- because that's not really true. I charge for those notarizations, but the actual fees charged might fluctuate given different circumstances. Beyond 10, I usually charge a flat rate of $5.00 per signature.
Now, with travel (for loans only) ... my "base fee" includes up to 15 miles of travel... which, in my area is basically just my own town. Beyond that, I charge 0.85 a mile right now. That number is based on a formula of vehicle costs and time. I'm actually about to raise that some because the price of gas right now is way high. That travel fee includes to and from borrowers as well as courier and package delivery/drop off travel.
Now all of that is subject to negotiation or adjustments... because a lot of the time these companies just want to deal with flat rates rather than itemized numbers. So, in my head, I have flat rates to give to them, but my books and invoices are always itemized whether the other company wishes to see it or not.
Having these things itemized actually REALLY helps with figuring expenses and profit margin. It makes you far more aware of your business needs so you can make adjustments where necessary.
| Reply by SheilaSJCA on 2/18/13 7:24pm
Msg #456437
Very interesting. Thanks for sharing this Marian.
I guess this also might be wake- up call to those "point and sign notaries public" who are fond of saying " I am just the notary" or "I am just here to witness your signatures",when they are in fact, being paid for more than being "just the notary".
| Reply by Priscilla Witman on 2/18/13 8:13pm
Msg #456451
I have a spreadsheet for all of my appointments (I call them orders), including signings.
For each "order" line in my spreadsheet, I annotate how many notarizations there were in the GNW or signing appointment, if applicable. That helps me to remember. I provide invoices if requested by SSs/TCs/etc, but I have never thought to itemize further than the print/travel fee. I will be revamping my invoices, I guess. If it was ever questioned, I would have proof anyway, but it doesn't hurt to have all your ducks in a row.
In this respect, the MoJo has a very very handy block: Reference #. I always use that to indicate the order number from the hiring party, and I use the Additional Information block to indicate who is paying the fees. It is an excellent cross-reference, IMO.
Like most, I have a feeling this was more than just a gripe about fees charged.
| Reply by GOLDGIRL/CA on 2/19/13 12:38am
Msg #456464
And the notary was ....
The following is from the lawsuit Marian posted. It names the notary (who lives in Bakersfield and is currently commissioned). I don't want to detract from the point of the lawsuit by focusing on the fee ... but $75? Really? She was a Fidelity-approved notary, meaning she could have commanded a fee at least double that. Not that working for $150-$200 would have alleviated any of the trauma she must have gone through, but at least it wouldn't have been a complete embarrassment adding insult to injury. It's also interesting that she presented evidence on behalf of Fidelity Title (the defendant), yet Fidelity threw her under the bus in its motion for summary judgment, saying that she was an independent contractor and that Fidelity could not be held liable for any of her actions. (Which incidentally the court agreed with!) Proving yet once again there is no loyalty in this business.
" An On December 23, 2010, defendant filed its motion for summary judgment. We have already summarized above the grounds upon which that motion was made. In support of the first ground for the motion (i.e., that section 8211 was not violated), defendant presented, among other evidence, the declaration of the individual notary who was involved in the document signing in this case—namely, Lauri E. Kilpatrick (Kilpatrick). In her declaration, Kilpatrick described a variety of services that she typically provided in connection with the signing of loan refinance documents in her capacity as a notary and a “certified signing agent” (or CSA). As a CSA, she is familiar with the various documents necessary in the loan closing process and is able to answer questions. Her declaration stated: “Generally, during a loan closing, I will (a) present all of the loan documents to the borrower which generally consists of about 60 to 150 pages, (b) make all necessary disclosures required by those loan documents, (c) explain the purpose of each loan document, (d) answer any questions the borrower may have about the loan documents or the loan closing process in general, (e) indicate where the borrower must sign each loan document, and (f) take an acknowledgment of the borrower‟s signature when necessary. I provided these services for Mr. Hutton’s 2007 refinance closing. [¶] … The majority of my loan signings are mobile loan signings where I will travel to the borrower‟s home, the lender‟s office, or the escrow holder's office.” Of the services mentioned by Kilpatrick, the taking of acknowledgments (or the notarizing of signatures) was merely one minor part. Defendant's motion noted plaintiff's testimony in which he (plaintiff) recalled that “a lady” (Kilpatrick) came to his home to conduct the signing of plaintiff's 2007 loan refinance papers, but he recalled little else about it. Defendant's motion also pointed out that the $75 charge, as it appeared in the closing statement (the HUD-1 form), included an explicit reference to the fact that Kilpatrick was also a CSA. Specifically, the HUD-1 form stated: “Notary to Lauri Kilpatrick, APN & CSA.”
In support of the second ground for the motion, defendant presented evidence that Kilpatrick was an independent contractor who charged and retained the entire fee, and that she was not an agent or employee of defendant. Preliminarily, defendant asserted that as an escrow company, it frequently made use of third party mobile notaries (like Kilpatrick) for loan closings. Defendant did so for several reasons, including that it freed up their escrow officers for other critical tasks since loan signings may take one to two hours, and because loan signings often involved travel to the borrower's residence and often occurred outside of normal business hours to accommodate a borrower's schedule. Defendant disbursed a check to Kilpatrick for $75 after she submitted an invoice for a “loan signing.” Defendant's evidence showed that Kilpatrick was an independent contractor doing business since 2005 as “A Good Deed Document & Notary Service.” Kilpatrick was on defendant's approved list of third party notaries for closing loans, based in part on her completion of a “Notary Approval Request” packet that included an “Independent Contractor Status Test.” Defendant further asserted that Kilpatrick had her own business office, had other clients besides defendant, made her services available to other escrow companies, set her own hours and did not take instructions from defendant on how to perform her essential work. At a typical loan signing, Kilpatrick's practice was to disclose to the borrower that she was an independent contractor and was not an employee of the lender or the escrow holder. Plaintiff filed opposition to the motion for summary judgment, arguing that the fees charged were unlawful under section 8211 even if other services were provided because, allegedly, the only essential notary function performed was the taking of two acknowledgments and the HUD-1 described the fee as “Notary to Lauri Kilpatrick, APN & CSA.” Plaintiff's opposition further argued that even if the fees were not unlawful, they were potentially unfair or fraudulent under the UCL because (1) defendant did not itemize or disclose the various services being provided and (2) Kilpatrick's answering of questions would constitute the unauthorized practice of law. According to plaintiff, since defendant's motion did not negate these other potential theories, defendant did not meet its initial burden as the moving party. Additionally, plaintiff's opposition argued that there were triable issues of fact whether Kilpatrick was defendant‟s agent, based in part on defendant's guidelines regarding its approved notaries, which guidelines may, according to plaintiff, indicate a degree of control over the manner of performing services. For these and other reasons, plaintiff argued that the motion for summary judgment should be denied.
Defendant's reply in support of its motion responded that all of plaintiff's claims were premised on violation of section 8211 and that no other theories were alleged in the complaint. Since in summary judgment proceedings the material issues are framed and limited by the pleadings, defendant's reply insisted it was not necessary for defendant to negate theories that were not pled. Additionally, defendant argued that the material facts showing Kilpatrick to be an independent contractor were not in dispute and, therefore, that issue could properly be decided as a matter of law.
The hearing of the motion for summary judgment was held on March 14, 2011. Following oral argument, the trial court took the matter under submission. On May 13, 2011, the trial court issued its written order granting the motion for summary judgment. The court granted the motion because “no overcharge occurred as … [section] 8211 only sets a price for taking an acknowledgment,” and it “does not limit what notaries can charge for services which are not listed in that statute.” Secondly, the trial court concluded that Kilpatrick was a third party independent contractor and, therefore, defendant was not liable even if there was an overcharge. On June 17, 2011, the trial court entered judgment in favor of defendant. Plaintiff timely appealed from that judgment.
| Reply by BrendaTx on 2/19/13 6:38am
Msg #456472
Can we be sure that was all the notary was paid?
We know it was on the HUD, but we do not know what the notary was actually paid. I have seen notary fees on the HUD when I was pay much more.
| Reply by GOLDGIRL/CA on 2/19/13 12:06pm
Msg #456511
Re: Can we be sure that was all the notary was paid?
I would think that when it came to a court case that Fidelity and the notary would have to come clean as to the exact notary fee paid. Also, I think I read somewhere in all these posts that she said she did get paid $75. (I know, that's hard to imagine).
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