WELLS FARGO BANK, MINNESOTA, N.A. V. COMMONWEALTH OF KENTUCKY, FINANCE AND ADMINISTRATION, DEPARTMENT OF REVENUE, F/K/A REVENUE CABINETAnnotate this Case
RENDERED : APRIL 21, 2011
TO BE PUBLISHED
,*uyrtutt Courf of "tufurkV
WELLS FARGO BANK, MINNESOTA, N .A.
ON REVIEW FROM COURT OF APPEALS
CASE NOS . 2007-CA-000009-MR AND 2007-SC-000833-MR
BULLITT CIRCUIT COURT NO . 04-CI-01100
COMMONWEALTH OF KENTUCKY,
FINANCE AND ADMINISTRATION,
DEPARTMENT OF REVENUE,
(F/ K/A REVENUE CABINET)
CENTRAL BANK OF JEFFERSON COUNTY, INC.,
(F/K/A FIRST BANK, INC .)
ON REVIEW FROM COURT OF APPEALS
CASE NOS . 2007-CA-000009-MR AND 2007-SC-000833-MR
JEFFERSON CIRCUIT COURT NO. 06-CI-00331
COMMONWEALTH OF KENTUCKY,
FINANCE 8v ADMINISTRATION CABINET,
DEPARTMENT OF REVENUE,
(F/K/A REVENUE CABINET)
OPINION OF THE COURT BY SPECIAL JUSTICE LAWRENCE L. JONES II
This consolidated appeal presents two key questions for the Court's
determination : 1) Are general tax liens created pursuant to the former KRS
134.420(2) (now KRS 131 .515) superior to later filed mortgage liens? 2) Does
the doctrine of equitable subrogation act to displace the priority of an earlier
recorded KRS 134 .420(2) general tax lien? The Court resolves that the
Commonwealth of Kentucky's prior-recorded KRS 134.420(2) tax liens enjoy
priority pursuant to the long established first-to-file doctrine . Moreover, the
Court declines to apply the doctrine of equitable subrogation to relieve a
professional lender of a negligent title examination. Accordingly, we affirm the
ruling of the Court of Appeals .
This case arises from the consolidated appeal of Commonwealth v.
Central Bank ofJeff. Co ., Inc., et al ., No . 2007-CA-000009-MR and
Commonwealth v. Wells Fargo Bank, Minn., N.A., et al., No . 2007-CA-000833
MR . In the underlying cases, the respective property owners failed to satisfy
their debt obligations to professional lending institutions, which precipitated
foreclosure proceedings . In both cases, the professional lenders assert that
their respective mortgages are superior to the general tax liens filed pursuant
to KRS 134 .420(2) .
Commonwealth v. Central Bank of Jeff. Co., Inc., et al.
This case arises out of the refinancing of a mortgage . On or about
August 17, 1998, Shannon and Steve Foster executed a promissory note and
mortgage in favor of Commonwealth Bank 8s Trust Company ("CB&T") as
security for the purchase of the subject property (the "Foster Property") .
Almost three years later, the Commonwealth of Kentucky's Department
of Revenue (the "Commonwealth") filed a tax lien against Steve Foster in the
Jefferson County Clerk's Office, pursuant to KRS 134 .420(2), on or about July
11, 2001 .
On or about July 26, 2001, the Fosters executed a promissory note
("Note I") in the amount of $116,250 .00 in favor of Central Bank of Jefferson
County, Inc . f/ k/a First Bank, Inc . ("Central Bank") . Note I was secured by a
Mortgage ("Mortgage I") on the Property, which was recorded on August 17,
2001 in the Jefferson County Clerk's Office . CB&T's mortgage was released on
August 20, 2001 .
According to Central Bank, the Fosters used $110,738 .48 of the proceeds
from Note I to satisfy a mortgage on the Property held by CB&T. The Fosters
also used $5,704 .03 of the proceeds to extinguish certain ad valorem tax liens
on the Property consisting of. (1) a 1998 delinquent tax bill in the amount of
$1,771 .14 ; (2) a delinquent tax lien for the City of Louisville in the amount of
$323 .21 ; and (3) a delinquent tax lien from 1999 and 2000 in the amount of
$3,609 .68. No proceeds were used to pay the Commonwealth's KRS 134.420(2)
lien against the Foster property.
On or about July 26, 2001, the Fosters also executed and delivered a
second note to Central Bank evidencing a $15,000 .00 revolving line of credit
("Note II") . Note II was secured by a mortgage ("Mortgage II") on the Property
and was recorded on August 17, 2001 in the Jefferson County Clerk's Office .
According to the Settlement Statement, proceeds were used to satisfy closing
costs, title insurance, prepaid taxes and hazard insurance . Additionally, the
proceeds of Note II were used to satisfy the Fosters' debts to various credit card
On September 6, 2001, the Commonwealth filed a tax lien against
Shannon Foster in the Jefferson County Clerk's Office .
On January 12, 2006, Central Bank initiated a foreclosure action against
the Foster Property in Jefferson Circuit Court. Central Bank moved for
summary judgment, arguing that the Mortgage I lien should be granted priority
over all other liens on the property because the proceeds were used to
extinguish CBB,T's purchase money mortgage and the ad valorem tax liens filed
against the Fosters .
On June 19, 2006, the Jefferson County Master Commissioner issued
his recommendation and finding that Mortgage I would be granted priority to
the extent the proceeds were used to satisfy the purchase money mortgage and
the ad valorem tax liens . The Master Commissioner based his findings on the
doctrine of equitable subrogation .
Both parties filed exceptions to the Master Commissioner's report.
Notably, the Commonwealth argued that KRS 134.420 granted liens created
pursuant to that section a "super priority" and that the doctrine of equitable
subrogation was no longer viable under Kentucky law. The Master
Commissioner issued a new report on August 28, 2006 recommending denial of
the exceptions. Thereafter, on November 30, 2006, the Jefferson Circuit Court
entered a judgment and order of sale granting Central Bank's Mortgage I and II
liens priority over the other liens.
The Commonwealth appealed the Jefferson Circuit Court's ruling. The
Kentucky Court of Appeals resolved that the Jefferson Circuit Court had erred
in reordering the priorities and reversed the judgment .
Commonwealth v. Webs Fargo Bank, Minn ., N.A., et al.
This case arises from the initial purchase and financing of a home by
Joseph A . Clark and Janet M . Clark on or about November 16, 2001 (the
"Clark Property") .
Several years before purchasing their home, the Commonwealth filed a
general tax lien against Joseph A. Clark on June 14, 1996 in the Bullitt County
Clerk's Office, pursuant to KRS 134 .420(2) .
Over five years later, at the time of purchase, the Clarks executed a
mortgage in favor of The Provident Bank, which was recorded on November 29,
2001 (the "Purchase Money Mortgage") . The Provident Bank assigned the
Purchase Money Mortgage to Wells Fargo. Bank, Minn., N.A. ("Wells Fargo"), by
an assignment recorded on February 14, 2003 (the "Assignment") .
After the Assignment, the Commonwealth filed two additional liens
against Mr . Clark, one on August 24, 2004 and another on October 20, 2004 .
On November 9, 2004, Wells Fargo initiated foreclosure proceedings
against the Clark Property. Wells Fargo subsequently moved for summary
judgment and an order of sale granting its Purchase Money Mortgage priority
over the Commonwealth's KRS 134 .420(2) liens . Relying upon Kentucky Legal
Systems Corp. v. Dunn, 205 S.W .3d (Ky. App. 2006), the Bullitt Circuit Court
ruled that a purchase money mortgage takes priority over all other recorded
liens and judgments unless otherwise agreed or specified by statute . The
Bullitt Circuit Court held that KRS 134 .420(2) provides no such exception .
The Commonwealth appealed the Bullitt Circuit Court's ruling. The
Kentucky Court of Appeals resolved that the Bullitt Circuit Court had erred in
reordering the priorities and reversed the judgment .
No mortgage, deed or deed of trust conveying real property is valid
against a purchaser for a valuable consideration, without notice thereof, or
creditors until it is properly filed. KRS 382 .270
A mortgage, deed or deed of
trust shall take effect at the time it is filed. KRS 382 .280. The combined effect
of these statutes is known as the "race-notice" rule . In other words, one must
not only be the first to file the mortgage, deed or deed of trust, but the filer
must also lack actual or constructive knowledge of any other mortgages, deeds
or deeds of trust related to the property.
The common law as it relates to lien creditors is slightly different . This
Court has long held that that the first creditor to file its lien enjoys the first
right to the debtor's property . This general rule of lien preference has become
known as "first in time, first in right." Truck Corp. of Ky. v. Hurry Up Broadway
Co., 1 S .W.2d 990 (Ky . 1928) . It is without question, however, that the
Kentucky General Assembly is empowered to create statutory liens and
establish their priorities ; but, absent a statute giving precedence to a statutory
lien, its rank is determined under the principle of first in time, first in right.
Midland-Guardian Co. v. McElroy, 563 S .W.2d 752 (Ky . App. 1978) .
Kentucky's Tax Lien Statute
"The power to tax is inherent in the sovereignty of the state, and is
essential to its existence ." Reynolds Metal Co. v. Martin, 269 Ky. 378, 382, 107
S .W.2d 251, 253 (1937) . Except to the extent that the Commonwealth's taxing
power may be prohibited or limited by the State's Constitution, or that of the
United States, it may be exercised without limit. See id.
Every citizen of the Commonwealth of Kentucky has an enforceable duty
to pay taxes properly levied . In an effort to protect its tax base and to aid in
the collection of past due tax revenue, the Kentucky General Assembly created
certain "tax liens" with the passage of KRS 134 .420.
Prior to its amendment during the 2009 legislative session, KRS 134.420
contained five subsections . Subsection 1, which is the current version of KRS
134 .420, related to ad valorem taxes, or taxes based upon the value of real or
personal property. Because this case does not involve ad valorem taxes, this
provision is inapplicable to this case . The remaining subsections of the old
KRS 134 .420 addressed general tax liens .
For purposes of resolving this case, subsections 2 and 4 are particularly
applicable . The prior version of subsection 2, which is now contained in KRS
131 .515, provided that :
If any person liable to pay any tax administered by the
Department of Revenue, other than a tax subject to the provisions
of subsection (1) of this section, neglects or refuses to pay the tax
after demand, the tax . . . shall be a lien in favor of the
Commonwealth . The lien shall attach to all property and rights to
property owned or subsequently acquired by the person neglecting
or refusing to pay the tax.
The prior version of subsection 4, now KRS 131 .515(3), provided that the
lien created by the statute "shall not be valid as against any purchaser,
judgment lien creditor, or holder of a security interest or mechanic's lien until
notice of the tax lien has been filed . . . with the county clerk . . . ." Id. Moreover,
"[t]he recording of the tax lien shall constitute notice of both the original
assessment and all subsequent assessments of liability against the same
Both lenders in this case argue that the old KRS 134 .420(1) provided a
super priority' for ad valorem taxes, but that the general tax lien provision
enjoys no special priority . We disagree .
Subsection 4 fixes the priority of general tax liens . See Liberty Nat'l Bank
& Trust Co. of Lou. v. Vanderkraats, 899 S .W.2d 511 (Ky. App . 1995)
("[C]onsidering section (4) in light of section (2), we see that section (4) is indeed
a priority statute .") (emphasis in original) . See also Commonwealth v. Hall, 941
1 Both lenders argue that the following language creates the super priority for ad valorem taxes: "This lien shall not
be defeated by gift, devise, sale, alienation, or any means except by sale to a bona fide purchaser, but no purchase of
property made before final settlement for taxes for a particular assessment date has been made by the sheriff shall
preclude the lien covering the taxes."
S.W .2d 481, 483 (Ky. App . 1997) . Indeed, subsection 4 clearly and explicitly
states that a properly filed tax lien shall be valid against any purchaser,
judgment lien creditor, or holder of a security interest . It is undisputed that a
mortgage is a security interest and that the professional lenders in this case
are holders of those security interests . Allen v. Shepherd, 162 Ky. 756, 760,
173 S .W. 135, 136 (Ky. 1915) ("The rule in this State in reference to mortgages,
whether on personal or real estate, is, that they are mere securities for the
Wells Fargo relies upon Kentucky Legal Systems Corp. v. Dunn, 205
S.W .2d 235 (Ky. App . 2006) for the proposition that a "purchase money
mortgage" enjoys an absolute priority over all liens . The holding in Dunn,
however, was much narrower .
In Dunn, the Kentucky Legal Systems ("KLS") argued that its judgment
lien was senior to the lender's purchase money mortgage pursuant to the "first
in time, first in right" doctrine . Id. a t 236. KLS also argued that the lender
was on "constructive notice" of the judgment lien and that the lender "failed to
exercise due care" before making the loan. Id. After concluding that neither
KRS 382 .270 nor KRS 382 .280 "foreclose the possibility of an exception for
purchase money mortgages to the ordinary rules of priority" the court of
appeals held that Kentucky should adopt the Restatement (Third) view that
"third parties who lend money used to purchase real estate in exchange for a
mortgage hold special priority over all other recorded liens and judgments
except where agreed otherwise by the parties or specified by statute." Id. at 237
(emphasis added) . Further, the Dunn court held that the lending institution as
a "purchase money lender, did not need to search for judgment liens, as they
should be given a first priority over a judgment lien regardless of whether they
had notice of any kind of interest ." Id.
Judgment liens and tax liens are two different creatures, created by two
different statutes . They also serve different public policy purposes, one favors
collecting on civil judgments, the other favors collecting tax revenue that is
necessary to fund our government . Judgment liens are created by KRS
426.720, which does not create a special priority for such liens . KRS 134 .420,
however, specifically establishes a priority for the tax liens created therein .
Accordingly, because Dunn addressed judgment liens, not KRS 134 .420(2) tax
liens, we find it to be inapposite to this case .
In the case sub judice, we hold that the Kentucky General Assembly
acted within its power to enact a law that serves a very important public policy
purpose . Without tax revenue, our government would screech to a grinding
halt. It is imperative that the citizens of this Commonwealth pay their fair
share to provide the Commonwealth with the means to provide essential
government services . Without tax revenue, our schools, our roads, and indeed
even our public safety would be seriously jeopardized . Therefore, it is equally
imperative that the Commonwealth has the means to effectively enforce its tax
With this underlying policy in mind, the legislature created the
machinery for collection of its taxes -KRS 134 .420(2)-and provided those tax
liens priority over subsequent holders of security interests, including purchase
money lenders . As the Vanderkraats court noted, lenders can protect
themselves against what they consider to be an unjust result by requiring that
the tax liens are satisfied before lending money for the purchase of the
property. See Vanderkraats, 899 S .W.2d at 511 . Alternatively, the lender can
choose not to lend .
Accordingly, we hold that the plain language of KRS 134 .420(2) and (4)
establishes that a tax lien created and filed in accordance with those sections
enjoys a priority over all subsequent purchasers, judgment lien creditors,
security interest holders, and mechanic's lien creditors .
Kentucky common law recognizes an equitable "exception" to the "first in
time, first in right" rule, known as the doctrine of equitable subrogation . This
Court's predecessor long ago recognized the doctrine of equitable subrogation .
Louisville Joint Stock Land Bank v. Bank ofPembroke, 9 S.W.2d 113 (Ky. 1928) .
However, Kentucky courts have rarely addressed the specifics of the doctrine,
and we therefore draw upon cases from other jurisdictions . Equitable
subrogation permits a creditor who pays the debt of another to stand in the
shoes of the original creditor, enjoying all rights and remedies of the original
creditor . In essence, "[t)he doctrine allows a later-filed lienholder to leap-frog
over an intervening lien and take a priority position ." Hicks v. Londre, 125 P.3d
452 (Colo. 2005) . This doctrine, however, "is a creature of equity, and rests
upon principles of natural justice ." Id. at 114 .
A party seeking to invoke the doctrine of equitable subrogation bears the
burden of proving the applicability of the doctrine . "Although [equitable]
subrogation is a highly favored doctrine, it is not an absolute right, but rather,
one that depends on the equities and attending facts and circumstances of
each case ." Universal Title Ins. Co. v. U.S., 942 F .2d 1311, 1315 (8th Cir. 1991) .
"Subrogation cannot be invoked where it would violate sound public policy, or
result in harm to innocent third parties ." Ripley v. Piehl, 700 N .W .2d 540, 545
(Minn . App . 2005) (citing Universal Title, 942 F.2d at 1315) . "It is axiomatic
that as an equitable doctrine, subrogation `aids the vigilant, and not the
negligent.' Ripley, 700 N.W .2d at 545 (quoting Sinell v. Sharon, 289 N .W. 44,
Courts across the United States have developed three approaches for
determining whether to apply equitable subrogation when a third party holds a
lien on the property at the time a second lender pays off the principal
encumbrance . See Louisville/Jefferson Co. Office for Econ. Develop. v.
Manufacturers and Traders Trust Co., 2004 WL 259083 *2 (Feb . 13, 2004) (Ky.
App .) (hereinafter, "LEDCO") (citing Houston v. Bank of America Fed. Savings
Bank, 78 P.3d 71 (Nev . 2003)) .
The majority of courts addressing the issue find that actual knowledge of
an existing lien precludes the application of the doctrine of equitable
subrogation, but constructive knowledge does not. See, e.g., United Carolina
Bank v. Beesley, 663 A.2d 574 (Me. 1995) ; United States v. Baran, 996 F.2d
568, 572 (2d Cir . 1993) (applying New York law) ; Dietrich Indus., Inc. v. United
States, 988 F .2d 568, 572 (5th Cir. 1993) (applying Texas law) ; Brooks v.
Resolution Trust Corp., 599 So.2d 1163, 1165 (Ala . 1992) . Critics of the
majority approach contend that it fosters deliberate ignorance by encouraging
lenders to forego title searches so that they might later claim the absence of
actual knowledge of existing liens.
Under the second approach, equitable subrogation is barred where the
subsequent lienholder has actual or constructive knowledge of an existing lien.
See, e.g. Harms v. Burt, 40 P .3d 329, 332 (Kan . Ct. App . 2002) . Some have
criticized this approach as obviating the doctrine completely .
The final approach, which has been adopted by the Restatement (Third) of
Property, allows a court the discretion to disregard both actual and
constructive knowledge of a prior lien if the junior lien-holder is not prejudiced
by the court's reordering of priorities . See East Boston Savings Bank v. Ogan,
701 N.E.2d 331 (Mass. 1998) . The rationale for the Restatement's approach "is
that the junior lienholder suffers no actual prejudice (i .e ., no change in
position) by the mere substitution of the first lienholder -except to the extent
that more money is borrowed and the security raised." LEDCO, 2004 WL
at *2 .
As it relates to mortgage lenders, this Court concludes that a balancing
of the equities favors the second approach . In doing so, the Court observes
that equity demands that sophisticated businesses, like professional mortgage
lenders, should be held to a higher standard for purposes of determining
whether the lender acted under a justifiable or excusable mistake of fact in
failing to duly investigate prior liens. Ripley v. Piehl, 700 N.W .2d 540, 545
(Minn. App . 2005), review denied, 2005 Minn . LEXIS 630 (Minn. Oct. 18,
2005) . See also Universal Title, 942 F .2d at 1317 (8th Circuit Court of Appeals
noting that "Minnesota courts impose stricter standards on professionals than
lay persons in assessing whether mistakes are `excusable' for purposes of the
doctrine of legal subrogation .")
Equity also demands that the responsibility for a defective title
examination be allocated to the party who is most culpable . See First Federal
Savings Bank of Wabash v. United States, 118 F .3d 532 (7th Cir. 1997) . In First
Federal, the 7th Circuit addressed the question of whether a lender who
advances funds for a refinancing, but misses an intervening tax lien because of
the negligence of its title insurer, can rely upon the doctrine of equitable
subrogation to reorder the priorities of the liens. The court noted that:
It is . . . not obvious at first glance where the equities lie. On the
one hand, although it may be imprecise to characterize the
government's elevation to first lienholder as a windfall, it is true
that applying equitable subrogation would not make the
government worse off than it was prior to the release of the first
Id. a t 534 . "[A] s a sophisticated lender with no use for the mortgaged property
other than as collateral, [the Lender] was able to obtain title insurance to
contract against the risk of errors such as the one that occurred here." Thus,
"the title insurer, whose negligence apparently caused this mess in the first
place, presumably must bear the loss . . . ." Id.
Other courts have also been reluctant to apply the doctrine of equitable
subrogation to bail out a negligent title insurer . See Lawyers Title Ins. Corp v.
Capp., 369 N .E .2d 672, 674 (Ind . Ct. App. 1977) . The Lawyers Title court,
echoing the Washington Supreme Court, aptly stated its position with regard to
title insurance companies : "Either they insure or they don't. It is not the
province of the court to relieve a title insurance company of its contractual
obligation." Id . (quoting Coy v. Raabe, 418 P.2d 728 (Wash . 1966) (internal
quotations omitted) .
The Court finds this reasoning persuasive . The equities favor holding the
most culpable party responsible for the loss . In this case, the most responsible
party is not a party to the case . However, the Court presumes that both
lending institutions involved in this case have viable claims against their
respective title insurance companies . Those title insurers are engaged in the
very profitable business of assuring that their lending institution customers
receive a clear title by insuring such . If the title insurer's examiners bungle the
title search, no matter how innocent the mistake might be, then the title
insurers must ultimately be held liable. To parrot the Lawyers Title court,
"Either they insure or they don't ." Accordingly, this Court holds that the
equities weigh against applying the doctrine of equitable subrogation in cases
where the title insurers fail to identify properly recorded liens .
In this case, Central Bank's title examiner clearly missed the intervening
tax lien that was filed by the Commonwealth before Central Bank lent funds to
refinance the Foster Property. Central Bank characterizes the missed lien as
an "innocent mistake" for which it should not be punished . See Central Bank's
Brief for Appellant (incorrectly styled as Brief for Appellee) at pp . 9, 14 and
Central Bank's Reply Brief at p . 4 (incorrectly styled as Reply Brief for
Appellee) . However, whether something is an "innocent mistake" or "actionable
negligence" is usually in the eye of the beholder.
Indeed, the professional lender, not the Commonwealth or other lawful
lien holders, chooses its own title examiner and procures "title insurance"
(usually at the expense of the borrower no less) to guarantee that the title is
free of defects . If the professional lender chooses, by necessity or by mistake,
to lend in spite of a cloudy title, the professional lender shall bear the risk that
the borrower will default before the end of the loan term. To hold otherwise,
would be to ignore the principles of equity upon which the doctrine was
A purchase money mortgage, like that upon which Wells Fargo seeks
recovery, presents a host of different concerns. Simply stated, a purchase
money mortgage is different than a refinancing in that the proceeds advanced
by the lender are used to purchase the mortgaged property. The Restatement
(Third) of Property offers a more thorough explanation :
In real estate transactions, it is common for a vendor of real estate
to convey title to the purchaser, receive part of the purchase price
in cash, and take back a mortgage on the real estate to secure a
promissory note for the balance of the purchase price . Such a
mortgage is frequently referred to as a "vendor purchase money
mortgage ." In an alternative and more common form of the
transaction, third party institutional financing is used to "cash
out" the vendor. In this situation, the vendor receives part of the
purchase price in cash from the purchaser and the balance in cash
from a third party lender who takes the purchaser's promissory
note secured by a mortgage on the purchaser's newly acquired real
estate . This type of mortgage is usually termed a "third party
purchase money mortgage." Some land transactions utilize both
types of purchase money mortgages. This section focuses on the
priority accorded purchase money mortgages of either type over
other liens or claims arising through the purchaser that antedate
the purchase money transaction, and also on the priority
relationship between the two types of purchase money mortgages .
Restatement (Third) of Property : Mortgages, Section 7.2 cmt. a (1997) .
It is true that many jurisdictions elevate purchase money mortgage liens
to the detriment of all other lien holders . See id. at Reporter's Notes (citing
Belland v. O.K. Lumber, Inc., 797 P.2d 638 (Alaska 1990) ; Sunshine Bank of Fort
Walton Beach v. Smith, 631 So .2d 965 (Ala. 1994) ; Garrett Tire Ctr., Inc. v.
Herbaugh, 740 S .W .2d 612 (Ark . 1987) ; Mercantile Collection Bureau v. Roach,
15 Cal. Rptr . 710 (Cal. Ct. App . 1961) ; County of Pinellas v. Clearwater Fed.
Sav. & Loan Ass'n, 214 So.2d 525 (Fla . Dist . Ct. App . 1968) ; Associates
Discount Corp. Gomes, 338 So .2d 552 (Fla. Dist . Ct. App. 1976) ; Aetna Casulaty
& Sur. Co. v. Valdosta Fed. Sav. & Loan Assn, 333 S.E.2d 552 (Ga. Ct. App .
1985); Liberty Parts Warehouse, Inc. v. Marshall County Bank, 459 N.E .2d 738
(Ind . Ct. App. 1984) ; Midland Savings Bank FSB v. Stewart Group, 533 N.W .2d
191 (Iowa 1995) ; Resolution Trust Corp. v. Bopp, 850 P.2d 939 (Kan . Ct . App.
1993) ; Hill v. Hill, 345 P .2d 1015 (Kan. 1959) ; Libby v. Brooks, 653 A.2d 422
(Me . 1995) ; Stewart v. Smith, 30 N .W. 430 (Minn . 1886) ; Commerce Sav.
Lincoln, Inc. v . Robinson, 331 N.W .2d 495 (Neb. 1983) ; 'Fleet Mortgage Corp. v.
Stevenson, 575 A.2d 63 (N.J. Super. Ct. 1990) ; Slate v. Marion, 408 S .E.2d 189
(N .C . Ct. App . 1991), review denied, 412 S.E.2d 75 (N.C . 1991); Giragosian v.
Clement, 604 N.Y .S.2d 983 (N.Y . App. Div. 1993) ; Hursey v. Hursey, 326 S .E .2d
178 (S.C . App. 1985) ; United States v. Dailey, 749 F.Supp . 218 (D . Ariz . 1990) ;
Royal Bank of Canada v. Clarke, 373 F .Supp. 599 (D .V.I . 1974)) . Some
jurisdictions, however, grant purchase money security interests a super
priority via statute . See, e.g., West's Ann. Cal. Civ. Code § 2928 ; 42 Pa. Stat . §
814(l) . Without the advanced funds, the purchaser ordinarily would not be
able to acquire the property.
Wells Fargo correctly notes that we have previously allowed a purchase
money security interest created pursuant to Kentucky's UCC Article 9 to defeat
a prior-filed general tax lien . See Whayne Supply Co., Inc. v. Commonwealth of
Kentucky Revenue Cabinet, 925, S .W.2d 185 (Ky. 1995) . In Whayne Supply,
however, our holding hinged upon the fact that the Kentucky General Assembly
had provided a "super-priority" to Article 9 purchase money security interests
with the enactment of KRS 355.9-312(4) . Yet, there is no specific statute that
grants a purchase money mortgage holder a similar super-priority . Therefore,
we believe our holding in Whayne Supply is distinguishable from the present
Wells Fargo also urges us to adopt the rule contained in the Restatement
(Third) of Property: Mortgages, Section 7.2 . Subsection (b) provides that : "A
purchase money mortgage, whether or not recorded, has priority over any
mortgage, lien, or other claim that attaches to the real estate but is created by
or arises against the purchaser-mortgagor prior to the purchaser-mortgagor's
acquisition of title to the real estate ." Such a bright line rule, however, would
ignore the equities of each individual case, a rather important consideration
when determining whether or not to apply the doctrine of equitable
As it relates to Wells Fargo's predecessor in interest, The Provident Bank,
it is without dispute that The Provident Bank either missed or ignored the lien
altogether . As Wells Fargo admits in its brief, had the lender been required to
satisfy the Commonwealth's tax lien, "in all likelihood [the lender] never would
have made the loan." Wells Fargo's Brief for Appellant at p . 8. Indeed, these
are the sound lending practices that our society deserves, especially in the
aftermath of this nation's 2008 financial meltdown .
The liens in both cases could have been easily discovered with due
diligence . The Commonwealth's liens would rarely be satisfied if a lender were
allowed to overlook the lien -either by inadvertence, negligence or
incompetence . Notably, the lenders are not without a remedy in this situation ;
presumably, the lenders may seek recompense from the title examiner's errors
and omissions insurance carrier . Accordingly, we hold today that a
professional lender who has actual or constructive knowledge of an earlier
recorded general tax lien may not benefit from an equitable reordering of the
For the foregoing reasons, we affirm the decision of the Court of Appeals,
and remand these matters to the respective Circuit Courts for such further
proceedings as are consistent with this opinion .
Minton, C .J . ; Cunningham, Schroder, Scott and Venters, JJ., Special Justice
Lawrence L. Jones II and Special Justice Robert L. Elliott, sitting . All concur.
Abramson and Noble, JJ ., not sitting .
COUNSEL FOR WELLS FARGO BANK, MINNESOTA, N.A. :
John W . Wooldridge
Waller & Wooldridge
200 S . Buckman, 2nd Floor
PO Box 670
Shepherdsville, Kentucky 40165
David Eric Johnson
Lerner, Sampson 8, Rothfuss
PO Box 5480
Cincinnati, Ohio 45201-5480
COUNSEL FOR COMMONWEALTH OF KENTUCKY,
FINANCE AND ADMINISTRATION,
DEPARTMENT OF REVENUE, (F/K/A REVENUE CABINET) :
Barbara Curtin Kenney
Department of Revenue
Finance and Administration Cabinet
PO Box 5222
Fair Oaks Lane, 5th Floor
Frankfort, Kentucky 40602-5222
COUNSEL FOR CENTRAL BANK OF JEFFERSON COUNTY, INC .
(F/K/A FIRST BANK, INC.) :
Thomas Dupont Murphy II
Ackerson 8s Yann, PLLC
One Riverfront Plaza, Suite 1200
401 West Main Street
Louisville, Kentucky . 40202