Could a Kentucky county clerk refuse to record a mortgage amendment because it changed loan terms?

Plain-English summary

Kentucky's Attorney General concluded that a county clerk could not refuse to file a duly prepared mortgage amendment simply because it made a substantive change or carried a different document title. KRS 382.300 required clerks to record mortgages lodged for record that met the legal requirements, and KRS 382.297 contemplated amendments changing a term, dollar amount, or interest rate when both the mortgagor and secured party signed.

The AG emphasized the recording laws' notice purpose for later purchasers and lenders. It cited an earlier opinion treating a mortgage extension or similar agreement as recordable on the same basis as a mortgage if it met the general recording requirements. If the legitimacy of a filing was disputed, the AG said that issue was for a court to decide.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could a clerk reject an amendment because it changed the mortgage amount or rate? A: The AG said KRS 382.297 contemplated those changes when the mortgagor and secured party signed the amendment. Its recording conclusion assumed the instrument otherwise met the general requirements.

Q: Did the document have to be titled “mortgage amendment”? A: No. The opinion said the document's title was irrelevant to recordability. It relied on an earlier AG opinion treating a qualifying extension or modification agreement as recordable as a mortgage.

Q: Who decided whether a disputed filing was legitimate? A: The AG said any question about the legitimacy of the filing was for a court of law, not a reason for the clerk to refuse a qualifying instrument.

Background and statutory framework

A legislator asked whether county clerks had to record duly prepared substantive mortgage amendments. The AG read KRS 382.300's recording duty alongside KRS 382.297, which expressly addressed amended mortgages. The latter provision allowed changes to terms, amounts, and interest rates with signatures from the mortgagor and secured party. The opinion also cited KRS 446.080(1)'s liberal-construction rule and an earlier AG opinion on extension agreements.

Citations and references

• KRS 382.300: county clerk's recording duty.
• KRS 382.297: amended mortgages and signatures for substantive changes.
• KRS 446.080(1): statutory-construction rule quoted by the AG.
• OAG 94-32: earlier opinion about mortgage extensions and modifications.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_9941bef9-0ae5-4b1a-bcb6-5e42b5cea41c/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_9941bef9-0ae5-4b1a-bcb6-5e42b5cea41c

Original opinion text

OAG 09-002

March 20, 2009

Subject: The filing of an amended mortgage by the County Clerk.

Requested by: Representative Scott W. Brinkman 32nd District

Written by: Ann Louise Cheuvront
Assistant Attorney General

Syllabus: The County Clerk does not have the authority to refuse to file amended mortgages.

Statutes construed: KRS 382.300; KRS 446.080; KRS 382.297

OAGs cited: OAG 94-32

Opinion of the Attorney General

Representative Scott W. Brinkman has requested an opinion on a letter issued by Richard A. Vance regarding the following:

1. Whether or not the county clerk must record all duly pre- pared and submitted substantive types of mortgage amendments.

There is no specific statute that sets forth what is required of a county clerk. The responsibilities of the office are set forth in various statutes. One for example, is KRS 382.300 which requires every county clerk to “record all deeds, mortgages and powers of attorney that are lodged for record, properly certified, or that are acknowledged OAG 09-002 Page 2

or proved before him as required by law.” The statute does not specify that the document has to be titled mortgage or a mortgage amend- ment. The statute just requires county clerks to record all mortgages.
As Mr. Gerhard opined in OAG 94-32, which you attached to your request, “although styled as an ‘extension agreement’ or ‘modification agreement’ such an instrument, in our view, is recordable as a mort- gage. Whether in terms of common usage of language, or as a techni- cal term of the law (KRS 446.080(4)), a ‘mortgage’ is an instrument pledging real property to a creditor as security for payment of a debt. In our view an extension of a mortgage, or substantially similar agree- ment, meets such definition. Assuming that a given extension of a mortgage meets general requirements for recordation of a mortgage, an extension of a mortgage may be recorded on the same basis as a mortgage.”

KRS 446.080(1) provides:

All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature…

The clear intention of the recording statutes is to give notice to future purchasers and lenders or lien holders. The title of the document is ir- relevant. KRS 382.297 specifically allows for the recording of amended mortgages. Though the first sentence states “a recorded mortgage may be amended by an affidavit of amendment prepared by an attor- ney to correct clerical errors or omitted information,” this is not exclu- sive to what an amended mortgage may contain to be filed. It goes on to state “an amendment may not change any term, dollar amount, or interest rate in the mortgage, unless signed by the mortgagor and se- cured party.” Therefore, KRS 382.297 does contemplate that amended mortgages may change dollar amounts, interest rates or terms of the original mortgage with the agreement of the parties to the transaction.

If there is any question on the legitimacy of the filing it is for a court of law to make that ruling.
Yours truly,
OAG 09-002
Page 3

JACK CONWAY
ATTORNEY GENERAL

Ann Louise Cheuvront
Assistant Attorney General