Request By:
Mr. Lewis P. Williams
Cumberland County Clerk
Burkesville, Kentucky 42717
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter concerns the proper clerk's fee in connection with the recording of a document purporting to assign a multiplicity of mortgages in one instrument. The letter reads:
"Today I received for recording an assignment of mortgages in which Mammoth Cave Production Credit Association assigns Eighty-Seven (87) real estate mortgages to Cumberland Production Credit Co. It is my understanding that each of the assigned mortgages although grouped or listed in one document is a separate interest and assignment and the recording fee for each is the statutory fee of $8.00 (clerk's fee of $7.00 and $1.00 tax)."
The one document of assignment of real estate mortgages actually contains the assignment of eighty-seven (87) real estate mortgages set out in the document by identifying the mortgagor by name and address, the date of the mortgage, and the mortgage book and page number where each mortgage is of record.
Under KRS 64.012, the fee for "recording deed of assignment of real estate mortgage" is five dollars ($5.00). (Emphasis added). The state tax of one dollar ($1.00), pursuant to KRS 142.010, applies to the subject document.
Unfortunately, KRS 64.012 does not speak in terms of a fee for each mortgage effectively assigned in one instrument. In other words, it does not address the cluster technique, which is apparently employed as an economy in language and documents. The fee schedule under KRS 64.012, as applies to an assignment of real estate mortgages, is stated in language that envisions one single document of assignment, regardless of the multiplicity of assignments within the one document. As we said in OAG 82-432, enclosed, if the General Assembly had intended to prohibit "clustering" in such assignments, it could have easily said so by statute. The history of KRS 64.012 reflects that the fee schedule for the county clerks is constructed around a specific fee for the filing of a particular document, i.e., the singular is used. Thus the fee schedule does not deal specifically with the multiple transaction-within-one-document concept. As we wrote in OAG 72-152, copy enclosed, any inequity which may arise from this clustered document approach will have to be remedied by the General Assembly. There are at least four inequities: (1) Regardless of the number of assigned mortgages, for example, the fee schedule contains no provisions taking into account the extra pages involved from the clerk's standpoint of recording. (2) The cluster technique permits a multiplicity of real estate transactions to be recorded without the recording clerk's being able to take that factor into account in applying the fee. (3) The number of transactions that can be crammed into one document under the cluster technique is unlimited. (4) Fees should be established with reason.
The court pointed out, in
Dennis v. Rich, Ky., 434 S.W.2d 632 (1968), that courts may not decide that a legislative body has fixed unreasonable compensation, unless it is clearly shown that the legislative action was not taken in accordance with principles of justice, but was arbitrarily or capriciously effected, without factual basis.
KRS 64.012, on its face, however, has to be strictly construed in favor of government, and the officer concerned is entitled to what is clearly given by law.