Daily Development for Monday, January 19, 2009
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri
NOTARIES; FEES; RECORDATION OF NOTARIAL ACTS: Title company notarites could not charge statutory $2 fee for notarization of documents if they did not further record the relevant notarial information in their notarial journals.
Finnegan v Old Republic Title Insuranc Co. of St. Louis, 246 S.W. 3d 948 (Mo. 2008)
Plaintiffs participated in the carrying out of various real estate transactions through several different title insurance companies. In each case, it appeared, the closing statements charged plaintiffs $2 per notarization as part of the costs of the transaction.
The statute permitted a $2 fee where a notary both notarized a signature and “properly recorded the notarial act in their notary journal.” Otherwise only a $1 charge was permitted for an act of notarial service.
The notaries were employees of the involved title companies. In addition to the fee refund, the plaintiffs argued unjust enrichment and a violation of the Missouri Merchandising Practices Act. The basic statute provides that the employer is liable if the employee notary acted within the scope of employment and the employer consented. The court noted that the court below had granted summary judgment for the title companies based upon a misconstruction of the statute (which now was reversed) so the question of employer consent was a factual issue. Good luck with that one.
Comment 1: This was not styled as a class action, but the plaintiffs took the case to the Missouri Supreme Court, one assumes for more than the $30 or $40 in overcharges. So we may see more of this issue over time.
Comment 2: The author is unaware of whether to keep a journal is a common practice among title company closers. There were four companies and different closing officers involved here, suggesting that it was a common practice at the time in St. Louis. The sums are small, but can some trial lawyer pump this issue into something?
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