Request By:
Bobbie Holsclaw
Jefferson County Clerk
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Statutes construed: KRS 64.012, KRS 134.126
OAG's cited: OAG 72-152, OAG 79-313, OAG 82-432, OAG 84-197, OAG 84-260
Opinion of the Attorney General
KRS 134.010(1) defines a certificate of delinquency as "a tax claim on real property for taxes that [r]emains unpaid" three months and fifteen days after the due date and "[h]as been filed with the county clerk pursuant to KRS 134.122." Pursuant to KRS 134.128, the county clerk may sell certificates of delinquency to third-party purchasers, who may then assign the certificates to others under KRS 134.126(7). The clerk is to record the initial assignment to the third-party purchaser pursuant to KRS 134.126(5)(b). Subsequent assignments are to be recorded pursuant to KRS 134.126(7).
Jefferson County Clerk Bobbie Holsclaw has requested an opinion on the following question: "What is the proper fee for a county clerk to charge a [third] party buyer of a certificate of delinquency to assign that instrument to a subsequent purchaser? " There being no prior opinions or published cases on the issue, we begin with the plain language of the statutes. Cf. OAG 79-313.
KRS 134.126(5)(b) states as follows:
If payment in full is made by a person other than the person primarily liable on the certificate, the person making the payment may request that the payment be treated as an assignment. Upon such request, the county clerk shall:
1. Note the assignment on the certificate of delinquency [;]
2. Record the encumbrance represented by the certificate of delinquency in the same manner as a notice of lis pendens; and
3. Include as part of the encumbrance recording the information required by KRS 134.490(3)(f) [ i.e., the name, address and telephone number of the third-party purchaser] .
For recording the assignment and encumbrance, the county clerk shall receive the fee provided in KRS 64.012.
(Emphasis added.) KRS 64.012(33) specifically provides that the county clerk shall receive a fee of $ 27.00 for "[n]oting the assignment of a certificate of delinquency and recording and indexing the encumbrance under KRS 134.126 or 134.127."
Meanwhile, KRS 134.126(6) states:
After the initial recording of an assignment of a certificate of delinquency ? as provided in subsection (5)(b) of this section, all subsequent actions relating to that certificate of delinquency ..., including assignments and releases shall be made in accordance with the general laws and procedures governing land records, except the additional information required by KRS 134.490(3)(f) shall be included. The applicable fees established by KRS 64.012 shall apply.
(Emphasis added.) KRS 64.012(1)(a), in pertinent part, provides the following fees for recording and indexing of a:
4. Deed of assignment;
?
12. Release of any recorded encumbrance other than state liens;
?
22. Recording with statutory authority for which no specific fee is set, except a military discharge; and
23. Filing with statutory authority for which no specific fee is set.For all items in this subsection if the entire thereofdoes not exceed three (3) pages$ 12.00And, for all items in this subsection exceedingthree (3) pages, for each additional page$ 3.00And, for all items in this subsection for each additionalreference relating to same instrument$ 4.00
The question, therefore, is whether the subsequent reassignment of a certificate of delinquency from the initial third-party purchaser to a subsequent third-party purchaser entitles the county clerk to the $ 27.00 fee provided in KRS 64.012(33) , or only to the $ 12.00 general fee provided in KRS 64.012(1)(a).
We start from the premise that the law should be construed so as to give effect to all parts of a statute whenever possible.
George v. Scent, 346 S.W.2d 784, 789 (Ky. 1961). "All statutes are presumed to be enacted for the furtherance of a purpose on the part of the legislature and should be construed so as to accomplish that end rather than to render them nugatory."
Com. ex rel. Martin v. Tom Moore Distillery Co., 287 Ky. 125, 152 S.W.2d 962, 967 (1939).
If the language in KRS 134.126(6), stating that after an initial assignment "all subsequent actions relating to that certificate of delinquency [,] including assignments [,] shall be made in accordance with the general laws and procedures governing land records," is to be given any meaningful effect, we must recognize that a subsequent assignment is to be treated differently from an initial assignment. Under the "general law" embodied in KRS 64.012(1)(a), the clerk's fee for filing a subsequent assignment of a certificate of delinquency is $ 12.00, with an additional $ 3.00 for each page in excess of three.
There is no inequity in the law's allowing the county clerk a lesser fee for recording a subsequent assignment of a certificate of delinquency than for the initial assignment, since more duties are required of the clerk in the case of an initial assignment. When a certificate of delinquency is first sold to a third-party purchaser, the county clerk must receive and record the payment (KRS 134.126(1)(a)); issue a receipt (KRS 134.126(2)); report to various public officials (KRS 134.126(3)) and allocate the portions of the payment due to each entity (KRS 134.126(4)); note the payment on the certificate along with the purchaser's name and address (KRS 134.126(5)(a)); note the assignment on the certificate (KRS 134.126(5)(b)(1)); prepare and record the instrument (KRS 134.126(5)(b)(2) ), including the name, address, and phone number of the purchaser (KRS 134.126(5)(b)(3)); and index the assignment (KRS 382.290(5)).
By contrast, for a subsequent assignment by the third-party purchaser under KRS 134.126(6) pursuant to "the general laws and procedures governing land records," the county clerk is only required to record the privately prepared instrument (KRS 382.110); note the assignment on the certificate of delinquency with the name, address, and phone number of the assignee (KRS 134.126(6)); and note the assignment in the filing system (KRS 382.290(5)). Accordingly, both the letter of the law and the realities of the transaction dictate that the $ 12.00 fee provided in KRS 64.012(1)(a) should apply to a subsequent assignment from one third-party purchaser to another.
Finally, it is appropriate that in the interest of clarity we address the so-called "cluster technique," by which multiple certificates of delinquency are reassigned through a single instrument filed with the county clerk. The Attorney General last spoke to this issue in 1984 in the context of what was then the $ 5.00 fee for recording mortgage assignments:
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, ? 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, ? any inequity which may arise from this clustered document approach will have to be remedied by the General Assembly.
OAG 84-197. In OAG 84-260, this office clarified that in the case of such multiple assignments, the clerk should be entitled to an additional $ 2.50 "for making marginal notations on each real estate mortgage affected."
The "cluster technique" was codified by subsequent revisions to KRS 64.012, as was the remedy for the potential fee inequities we had examined in OAG 84-197. Under the current version of the statute, the clerk's additional fee is $ 4.00 "for each additional reference relating to [the] same instrument."
Therefore, it is our opinion that the county clerk is entitled to a $ 12.00 fee for recording a subsequent reassignment of a certificate of delinquency by a third-party purchaser, with an additional $ 3.00 for each page in excess of three. For an instrument containing subsequent reassignments of multiple certificates of delinquency, the clerk is entitled to $ 12.00 for recording the instrument, with an additional $ 3.00 for each page in excess of three and an additional $ 4.00 for noting the reassignment on each affected certificate in excess of one.