Explaining the K.S.A. 28-115 Fee Schedule, Fees for Medical Assistance Liens, & the $125 Cap

Explaining the K.S.A. 28-115 Fee Schedule, Fees for Medical Assistance Liens, & the $125 Cap Jeffrey pyle Martindell swearer Shaffer ridenour Jeffrey.pyle@martindell.com 620-662-3331

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Recording deeds, mortgages, or other instruments of writing

For second page and each additional page or fraction thereof

Recording real estate mortgage assignment or release for the first page

For second page and each additional page or fraction thereof of assignment or release • Flat fee for assignment or release • Per page fees for tech fees and heritage trust fund fees: • “The register of deeds shall charge and collect an additional fee of $2 per page prior to January 1, 2015, and $3 per page on and after January 1, 2015, for recording: (3) a release or assignment of real estate mortgage.” K.S.A. 28-115(b) (tech fees) • “The register of deeds shall charge and collect an additional fee of $1 per page for recording: (3) a release or assignment of real estate mortgage.” K.S.A. 28-115(i) (heritage trust fund fee) • AGO 2002-32 “With regard to recording a release or assignment of a real estate mortgage, the additional fee is to be $2 per page of such release or assignment.”

Plats, Certificates, Acknowledgements, 58-201 Liens for Materials & Services

Federal Tax Lien Notices & Releases

Federal Tax Lien Notices & Releases (Page 2) 28-115 Filing Fees & UCC Filing Fees? • K.S.A. 28-115(a)(1)(H) provides filing fee for Notice of Federal Tax Liens & Releases • Notices of Federal Tax Liens & Releases filed pursuant to Uniform Federal Lien Registration Act K.S.A. 79-2613 etseq. • K.S.A. 79-2617 “The filing officer shall charge the same filing and information retrieval fees and credit the amounts in the same manner as financing statements filed under part 5 of article 9 of the uniform commercial code and amendments thereto.” • K.S.A. 28-115(c) “For any filing or service provided for in the uniform commercial code, the amount therein provided, shall be charged and collected.” • K.S.A. 84-9-525 “The fee for filing and indexing a record under this part shall be provided by the secretary of state.” • K.A.R. 7-17-4 “The fee for filing and indexing a paper UCC record of one to 10 pages shall be $15.00. The fee for filing and indexing additional pages beyond the 10th page of a UCC record shall be charged at the rate of $1.00 per page.”

K.S.A. 44-717(e)(1) (Page 1) • What are these liens? • K.S.A. 44-701 et seq. is “Employment Security Law” • K.S.A. 44-702 Economic insecurity, due to unemployment, is a serious menace to health, morals, and welfare of the people of this state.Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and such worker's family. The achievement of social security requires protection against this greatest hazard of our economic life. This can be provided by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor-relief assistance.

K.S.A. 44-717(e)(1) (Page 2) • (e)(1) (e)(1) Lien. If any employer or person who is liable to pay contributions, payments in lieu of contributions, benefit cost payments and interest assessments made pursuant to K.S.A. 44-710a, and amendments thereto, neglects or refuses to pay the same after demand, the amount, including interest and penalty, shall be a lien in favor of the state of Kansas, secretary of labor, upon all property and rights to property, whether real or personal, belonging to such employer or person. Such lien shall not be valid as against any mortgagee, pledgee, purchaser or judgment creditor until notice thereof has been filed by the secretary of labor in the office of register of deeds in any county in the state of Kansas, in which such property is located, and when so filed shall be notice to all persons claiming an interest in the property of the employer or person against whom filed. The register of deeds shall enter such notices in the financing statement record and shall also record the same in full in miscellaneous record and index the same against the name of the delinquent employer. The register of deeds shall accept, file, and record such notice without prepayment of any fee, but lawful fees shall be added to the amount of such lien and collected when satisfaction is presented for entry. Such lien shall be satisfied of record upon the presentation of a certificate of discharge by the state of Kansas, secretary of labor. Nothing contained in this subsection shall be construed as an invalidation of any lien or notice filed in the name of the unemployment compensation division or the employment security division and such liens shall be and remain in full force and effect until satisfied as provided by this subsection.

K.S.A. 44-717(e)(1) (Page 3) • Lien on Property • Real = Recording • Personal = UCC Filing

K.S.A. 44-717(e)(1) (Page 4) • (e)(1) (e)(1) Lien. If any employer or person who is liable to pay contributions, payments in lieu of contributions, benefit cost payments and interest assessments made pursuant to K.S.A. 44-710a, and amendments thereto, neglects or refuses to pay the same after demand, the amount, including interest and penalty, shall be a lien in favor of the state of Kansas, secretary of labor, upon all property and rights to property, whether real or personal, belonging to such employer or person. Such lien shall not be valid as against any mortgagee, pledgee, purchaser or judgment creditor until notice thereof has been filed by the secretary of labor in the office of register of deeds in any county in the state of Kansas, in which such property is located, and when so filed shall be notice to all persons claiming an interest in the property of the employer or person against whom filed. The register of deeds shall enter such notices in the financing statement record and shall also record the same in full in miscellaneous record and index the same against the name of the delinquent employer. The register of deeds shall accept, file, and record such notice without prepayment of any fee, but lawful fees shall be added to the amount of such lien and collected when satisfaction is presented for entry. Such lien shall be satisfied of record upon the presentation of a certificate of discharge by the state of Kansas, secretary of labor. Nothing contained in this subsection shall be construed as an invalidation of any lien or notice filed in the name of the unemployment compensation division or the employment security division and such liens shall be and remain in full force and effect until satisfied as provided by this subsection.

K.S.A. 44-717(e)(1) (Page 5) • Fees for the notice of lien: • Financing Statement. “The register of deeds shall enter such notices in the financing statement record” • + K.A.R. 7-17-4(a) The fee for filing and indexing a paper UCC record of one to 10 pages shall be $15.00. The fee for filing and indexing additional pages beyond the 10th page of a UCC record shall be charged at the rate of $1.00 per page. • Recording Fees. “and shall also record the same in full in miscellaneous record and index the same against the name of the delinquent employer.” • + K.S.A. 28-115(a) (2) For the following documents received and filed on and after January 1, 2015, but prior to January 1, 2016, the fees shall be: (A) For recording deeds, mortgages or other instruments of writing, for first page, not to exceed legal size page-8 ½ ″ x 14″, a fee of $8; • + $4 Tech fees and heritage trust fund fees of per page • = $27 for first page fees for the notice of lien • Normally paid at time of filing; what about here?

K.S.A. 44-717(e)(1) (Page 6) • (e)(1) (e)(1) Lien. If any employer or person who is liable to pay contributions, payments in lieu of contributions, benefit cost payments and interest assessments made pursuant to K.S.A. 44-710a, and amendments thereto, neglects or refuses to pay the same after demand, the amount, including interest and penalty, shall be a lien in favor of the state of Kansas, secretary of labor, upon all property and rights to property, whether real or personal, belonging to such employer or person. Such lien shall not be valid as against any mortgagee, pledgee, purchaser or judgment creditor until notice thereof has been filed by the secretary of labor in the office of register of deeds in any county in the state of Kansas, in which such property is located, and when so filed shall be notice to all persons claiming an interest in the property of the employer or person against whom filed. The register of deeds shall enter such notices in the financing statement record and shall also record the same in full in miscellaneous record and index the same against the name of the delinquent employer. The register of deeds shall accept, file, and record such notice without prepayment of any fee, but lawful fees shall be added to the amount of such lien and collected when satisfaction is presented for entry.Such lien shall be satisfied of record upon the presentation of a certificate of discharge by the state of Kansas, secretary of labor. Nothing contained in this subsection shall be construed as an invalidation of any lien or notice filed in the name of the unemployment compensation division or the employment security division and such liens shall be and remain in full force and effect until satisfied as provided by this subsection.

K.S.A. 44-717(e)(1) (Page 7) • The register of deeds shall accept, file, and record such notice without prepayment of any fee, but lawful fees shall be added to the amount of such lien and collected when satisfaction is presented for entry. • $27 unpaid for first page of notice of lien (For calendar year 2015) • First page fees for UCC Filing, Recording, Tech and Heritage Trust Fund Fees • Release will be on additional page • + $15 for UCC Release (K.A.R. 7-17-4) • + $7 “recording release or assignment of real estate mortgages” (K.S.A. 28-115(a)(2)(D)) • +3 Tech Fees (K.S.A. 28-115(b)) • +1 Heritage Trust Fund Fee (K.S.A. 28-115(i)) • = $53

K.S.A. 44-717(e)(1) (Page 8) • Why is this lien release charged as “recording release or assignment of real estate mortgages?” • Option 1: “for filing releases of tax liens and certificates of discharge under the internal revenue laws of the United States or the revenue laws of the state of Kansas, a fee of $8” K.S.A. 28-115(a)(2)(H) • Is this lien for revenue? Probably not. • “Kansas cases have recognized this distinction between police power and revenue raising measures and that the analysis of the State’s authority depends on which power is being exercised.” AGO 2002-45 • Police power statute or revenue statute? • “Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and such worker's family.” K.S.A. 44-702 • The language indicates it is probably a police power statute. • Because it is a police power statute, it is not a revenue law for purposes of collection of recording fees.

K.S.A. 44-717(e)(1) (Page 9) • Why is this lien release charged as “recording release or assignment of real estate mortgages?” • Option 2: Other instruments of writing • Other Instruments of Writing = “Every instrument in writing . . . whereby any real estate may be affected, proved or acknowledged, and certified in the manner hereinbefore prescribed.” K.S.A. 58-2221 • Would charge first page fees; second page & additional page fees; tech fees; and heritage trust fund fees • Option 3: Lien is a mortgage. • “The words ‘mortgage of real property’ shall include every instrument by which a lien is created or imposed upon real property, notwithstanding that the debt secured thereby may also be secured by a lien upon personal property.” K.S.A. 79-3101 • Because K.S.A. 44-717(e)(1) creates a lien that is imposed upon real property, it is a mortgage.

K.S.A. 44-717(e)(1) (Page 10)

K.S.A. 44-717(e)(1) Additional Pages (Page 11) Second and additional Page fees for recording mortgage Second page of release of mortgage

K.S.A. 44-717(e)(1) (Page 12) Fees to charge to employees for lien for ineligible benefits • K.S.A. 44-717(e)(1) creates a lien against an employer’s real and personal property • K.S.A. 44-701 et seq.“Employment Security Law” also requires an employee to repay benefits that were ineligibly received • When an employee files a release, the fees are identical to those charged to the employer: • K.S.A. 44-719(d)(3) “Unless collection is waived by the secretary, any such amount shall be collectible in the manner provided in K.S.A. 44-717, and amendments thereto, for the collection of past due contributions.”

K.S.A. 39‐709(g) Medical Assistance Lien • K.S.A. 28-115(c) “No fee shall be charged or collected for any filing made by the secretary of health and environment or the secretary's designee pursuant to K.S.A. 39-709, and amendments thereto.”

K.S.A. 39‐709(g) Example of Lien

K.S.A. 39‐709(g) Example of Release

Uniform Commercial Code Fees

K.A.R. 7-17-4 • (a) The fee for filing and indexing a paper UCC record of one to 10 pages shall be $15.00. The fee for filing and indexing additional pages beyond the 10th page of a UCC record shall be charged at the rate of $1.00 per page. The fee for filing and indexing an electronic UCC record, excluding a termination statement, shall be $5.00. The fee for filing and indexing a termination statement electronically shall be $1.00. • (b) The fee for a paper UCC search request shall be $15.00 per debtor name. The fee for an electronic UCC search request shall be $8.00. • (c) The fee for copies of UCC documents shall be $1.00 per page, or page equivalent for electronically transmitted responses. • (d) The fee for a certified copy shall be $7.50 in addition to any copying expenses. • (e) The fee for customers to receive information by telefacsimile communication from the filing office shall be $1.00 for each page. • (f) No fee shall be collected for filing a court's findings of fact and conclusion of law pursuant to K.S.A. 58-4301 and amendments thereto.

K.A.R. 7-17-4 • (a) “The fee for filing and indexing a paper UCC record of one to 10 pages shall be $15.00.” Includes: • Original financing statement • Amended financing statement • Continuation statement • Financing statement indicating assignment • Assignment of financing statement • Statement of release of all or a part of any collateral described in filed financing statement • Termination Statement • Real Estate mortgage subject to FIXTURE FILING

K.A.R. 7-17-4 • (a) “The fee for filing and indexing additional pages beyond the 10th page of a UCC record shall be charged at the rate of $1.00 per page.” • Includes: • Attachments per page after first ten pages • (c) The fee for copies of UCC documents shall be $1.00 per page, or page equivalent for electronically transmitted responses. OR • (e) The fee for customers to receive information by telefacsimile communication from the filing office shall be $1.00 for each page. • Includes: • Copy request per page • K.S.A. 79-2616(d) Copy of Federal Tax Lien Per Page

K.A.R. 7-17-4 • (b) “The fee for a paper UCC search request shall be $15.00 per debtor name. The fee for an electronic UCC search request shall be $8.00.” • Includes: • Written UCC information request, per debtor name • (d) “The fee for a certified copy shall be $7.50 in addition to any copying expenses.” • Includes: • Certified copy, in addition to any copying expenses • K.S.A. 79-2616(d) Federal Tax Lien Certificate

K.S.A. 79-2616(d) Federal Tax Lien Certificate & Copy of Tax Lien Certificate • K.S.A. 79-2616(d) “Upon request of any person, the filing officer shall issue a certificate showing whether there is on file, on the date and hour stated therein, any notice of lien or certificate or notice affecting any lien filed pursuant to this act or pursuant to the uniform federal tax lien registration act, K.S.A. 79-2608 et seq., and amendments thereto, as it existed prior to the effective date of this act, naming a particular person, and if a notice or certificate is on file, giving the date and hour of filing of each notice or certificate. Upon request, the filing officer shall furnish a copy of any notice of federal lien, or notice or certificate affecting a federal lien.”

K.S.A. 79-2616(d) Federal Tax Lien Certificate & Copy of Tax Lien Certificate (2) • Notices of Federal Tax Liens & Releases filed pursuant to Uniform Federal Lien Registration Act K.S.A. 79-2613 etseq. • K.S.A. 79-2617 “The filing officer shall charge the same filing and information retrieval fees and credit the amounts in the same manner as financing statements filed under part 5 of article 9 of the uniform commercial code and amendments thereto.” • K.A.R. 7-17-4(d) “The fee for a certified copy shall be $7.50 in addition to any copying expenses.” • K.A.R. 7-17-4(c) “The fee for copies of UCC documents shall be $1.00 per page, or page equivalent for electronically transmitted responses.”

UCC Search Request Form, Certified Copy & Copy Charges

$125 Mortgage Cap Revisited Or, How to Distribute the funds when the cap applies

$125 cap applies only to: • Single Family Mortgages on • Principal Residences AND • Where the principal debt or obligation secured by the mortgage is $75,000 or less. K.S.A. 28-115(j)

$125 cap limits the total collected under: • Recording deeds, mortgages or other instruments of writing (first page and additional pages) • Tech Fees for the registers of deeds; county clerks; and county treasurers • Heritage Trust Fund Fees

K.S.A. 28-115 does not specify how to distribute fees when the $125 cap applies • BUT: • The County Treasurer’s duties are defined by statute • These statutorily defined duties include provisions on how to distribute fees

The County Treasurer’s Duties • K.S.A. 19-506 “It shall be the duty of the county treasurer to receive all moneys belonging to the county, from whatsoever source they may be derived, and all other moneys which are by law directed to be paid to him or her. In all cases when such payment is made to the county treasurer by personal check, such check shall be cashed as expeditiously as possible. All money received by him or her for the use of the county shall be paid out by him or her only on the orders of the board of commissioners, according to law, except where special provision for the payment thereof is or shall be otherwise made by law.”

The County Treasurer’s Duties • “As a general rule, the county treasurer may only pay money out of the county treasury on orders of the board of county commissioners. However, where ‘special provision’ for the payment of money out of the county treasury is made, the general rule is not applicable, and the county treasurer must make such payments out of the treasury as required by such special provision of the law.” AGO 80-206. • When a special fund is created by statute, it does not become part of the county general fund, and the county treasurer must submit funds to the special fund as provided by statute. Board of Comm’rs of Wyandotte Cnty. v. Ferguson, 159 Kan. 80, 151 P.2d 694 (1944) • Thus when a special statutory fund exists, the county treasurer must remit all payments as directed by the statute and must make such payments as required by such special provision of the law.

The Tech Fees and Heritage Trust Fund Fees are Special Statutory Funds • The treasurer deposits tech fees into special accounts and not the county general fund. K.S.A. 28-115(b) • Register of Deeds tech fund is a “Special Fund.” K.S.A. 28-115a(d) • County Clerk tech fund is a “Special Fund.” K.S.A. 28-180(d) • County Treasurer tech fund is a “Special Fund.” K.S.A. 28-181(d) • The treasurer deposits the Heritage Trust Fund fees with the state treasurer and not the county general fund. K.S.A. 28-115(i) • Heritage Trust Fund is a special fund because the money is for a specific purpose. • K.S.A. 75-2729(a)(1) All moneys deposited in the heritage trust fund shall be used for the purpose of awarding grants to assist historic preservation projects involving property included in the national register of historic places or the state register of historic places • Because these funds are special funds, these funds must be paid first whenever the cap applies.

Questions?

Explaining the K.S.A. 28-115 Fee Schedule, Fees for Medical Assistance Liens, & the $125 Cap