C.A. 5th

The Fifth Appellate District affirmed a judgment and, in the unpublished portion of its opinion, reversed a postjudgment award of attorney fees. The court held that a borrower was not charged an excessive fee for the services of a notary in connection with his loan closing where the notary provided a myriad of services above and beyond the mere execution of two notarized signatures.

Brent Hutton refinanced his home. He used Fidelity National Title Company as the escrow company for the refinancing.

Fidelity, in turn, arranged for independent contractor Lauri Kilpatrick to perform the loan closing. Kilpatrick, a notary and certified signing agent (CSA), did business as “A Good Deed Document & Notary Service.” Fidelity often made use of third party mobile notaries such as Kilpatrick for loan closings. Using mobile notaries spared Fidelity’s escrow officers the burden of participating in loan closings, which sometimes took up to two hours and often occurred at the borrower’s residence outside of normal business hours. The mobile notaries billed Fidelity for their services. Fidelity paid them, and then passed that charge along to the borrower.

Kilpatrick later declared that the services she provided to a borrower customarily included traveling to the borrower’s home, presenting some 60 to 150 pages of loan documents to the borrower, making all necessary disclosures required by those loan documents, explaining the purpose of each loan document, answering any questions the borrower may have about the loan documents or the loan closing process in general, indicating where the borrower must sign each loan document, taking an acknowledgment of the borrower’s signature when necessary, with notarized signature. She provided these services for Hutton’s loan closing.

Kilpatrick billed Fidelity $75 for her services in the Hutton closing. Fidelity paid that amount and passed the charge along to Hutton.

Hutton sued Fidelity for charging him a notary fee in excess of the $10 per signature permitted by Gov. Code §8211. Hutton averred that he needed only two signatures notarized and thus should not have been charged more than $20.

Fidelity moved for summary judgment, introducing Kilpatrick’s declaration and noting Hutton’s own statement that the woman who assisted him with the closing traveled to his home to do so.

The trial court granted summary judgment to Fidelity.

The court of appeal affirmed, holding that the undisputed record showed that Kilpatrick performed services above and beyond notarizing two documents.

Kilpatrick’s own notary journal, which was submitted into evidence, indicated a fee of $10 per signature for each of two acknowledgements taken in connection with the Hutton closing. Both the journal and Kilpatrick’s declaration made clear her understanding that $10 per notarized signature was all she could charge for that particular function, notwithstanding the fact that she billed a flat fee of $75 for the entirety of her signing services, which fee was not broken down or itemized. The court found the record showed that the $75 fee charged to Hutton included a myriad of services, including travel to his home, above and beyond the mere execution of two notarized signatures. There was thus no violation of §8211 and no error in the trial court’s grant of summary judgment.

The court found that other theories of liability raised by Hutton on appeal could not be addressed because they were not part of the pleadings in the trial court. The court explained that, for purposes of a summary judgment motion, the pleadings set the boundaries of the issues to be resolved. Fidelity, therefore, met its burden as the moving party when it negated the sole basis of Hutton’s claims—namely, the alleged excessive notary fee under §8211. It was not incumbent on Fidelity to refute liability on some theoretical possibilities not included in the pleadings.