Request By:
Mr. H. H. Hardesty
Branch Manager
Borg-Warner Acceptance Corporation
3060 Harrodsburg Road
Lexington, Kentucky 40533
Opinion
Opinion By: Steven L. Beshear, Attorney General; Elizabeth E. Blackford, Assistant Attorney General
You have stated that you recently tendered a style UCC-3 form to the clerk's office which contained an amendment of the creditor's branch address and a continuation statement. The clerk returned the document unfiled saying that the two actions, though contained on a single form, are separate and require two separate filing fees. You have asked what is the proper filing fee for continutation statements and for amendments. You have also asked whether both fees are to be charged when the two items are contained on the same document.
The correct filing fee for a continuation statement is $6.00. See OAG 79-147 (copy enclosed); KRS 64.012; KRS 355.9-403(5). Inasmuch as no specific fee is set forth for filing an amendment to a financing statement, it falls into the "catchall" provision of KRS 64.012 which provides:
"Filing miscellaneous documents for which no specific fee is set, provided the entire record thereof does not exceed three (3) pages . . . 5.00 exceeding three (3) pages, each additional page . . . 1.50."
Thus the proper filing fee for an amendment is $5.00 if the document is three or less pages long, with an additional $1.50 fee for each page in excess of three pages. 1
Both fees are to be charged even when the amendment and the continuation statement are submitted on the same form. See In Re Leckie Freeburg Coal Company, 405 F.2d 1043 (6 cir., 1969) wherein the Court held that when someone tenders a multipurpose document to the clerk (in that case it was a single document which acted as a lease and as a security agreement to perfect a security interest in certain mining equipment) the party must provide the clerk with duplicates of the document, must inform the clerk as to the purpose for which each is to be filed, and must pay the appropriate fee for each filing. Thus, while it does not seem that you, as the creditor, are obliged to amend the original financing statement to reflect a change in address of one of your branch offices 2 if you choose to do so, you must pay the $5.00 or more fee, (depending on the length of the document) even though the amendment is submitted on the same form as the continuation statement.
Footnotes
Footnotes
1 KRS 64.010, the precursor to KRS 64.012, did not contain a catchall provision which set the fee to be charged for filing miscellaneous documents where no other specific fee was stated. Under that statute, there was no provision of any sort for a fee to be charged for filing an amendment. Therefore, this office opined that no fee was to be charged therefore. OAG 72-298. Inasmuch as that situation has been remedied by the inclusion of the "catchall" provision in KRS 64.012. OAG 72-298 is hereby withdrawn.
2 Kentucky takes the liberal, notice filing approach to filing under the Uniform Commercial Code. Under this approach a filed financing statement operates to perfect a security interest even if the creditor's address is not contained in the financing statement so long as the omission of the address does not operate to prejudice the position of a subsequent creditor. Biley v. Miller, Ky.App. 549 S.W.2d 314 (1977). Likewise, a creditor is not required to amend the financing statement under the liberal notice approach simply because the debtor has changed addresses so long as a subsequent creditor will not be seriously misled by the original financing statement. In Re McCoy, 330 F.2d 533 (U.S.D.C. Kan., 1971). Thus, under a logical extensin of this rule a creditor would not be required to amend the original financing statement in order to show a change in address of one of its branch offices if the original financing statement is not seriously misleading absent the amendment, and if the position of subsequent creditors is not likely to be prejudiced if no amendment is made. Therefore, you, as creditor, may not need to amend the financing statement. However, if you do wish to amend the financing statement, you must pay the appropriate fee.