DIXON, Judge:
Appellant, M.D. Wood, appeals from an order of the Shelby Circuit Court denying his motion to intervene in an action filed by Tax Ease to enforce its Certificates of Delinquency for unpaid real estate taxes on property for which he had also purchased a tax lien. Finding no error, we affirm.
In 2003, Victoria and Kelly Raisor borrowed $45,000 from Citizens Union Bank ("CUB") to purchase property located on Woodlawn Road in Shelby County. To secure repayment on the loan, the Raisors granted CUB a mortgage lien on the property. As is typical in the lending industry, the CUB mortgage contained the following provision related to real estate taxes:
A related provision is contained in the promissory note to CUB signed by the Raisors:
In the years that followed, the Raisors fell behind in paying their real estate taxes. On August 11, 2010, Appellant purchased a Certificate of Delinquency for the Raisors' unpaid 2009 ad valorem taxes on the property, which totaled $509.63 based upon a property tax assessment of $45,000. Due to interest and penalties, Appellant paid $862.91 for the 2009 certificate.
At the time Appellant purchased the certificate for the unpaid 2009 ad valorem taxes, a lawsuit had already been filed against the Raisors by Tax Ease, the holder of the Certificate of Delinquency for their unpaid 2006 ad valorem taxes. It is from the lawsuit filed by Tax Ease that this appeal arises. Both the Raisors and CUB, as the mortgage holder on the property, were named as parties in the lawsuit but, because such was filed some ten months prior to Appellant's purchase of the 2009 certificate, he was not named in Tax Ease's original complaint. When CUB filed its answer in November 2009 setting forth its mortgage lien, the Raisors were current on their monthly principal and interest payments under the mortgage.
At some point during the proceedings in the trial court, the Raisors also fell behind on their mortgage payments. In response, CUB began to work with them to get the Certificates of Delinquency paid, as well as to get the case in such a posture that CUB could enforce the mortgage if necessary. Accordingly, CUB, with the Raisors' agreement and assistance, attempted to obtain payoff quotes from the holders of the various Certificates of Delinquency. At the same time, CUB updated its pleadings in the trial court to add other defendants having an interest in the property. On September 26, 2012, CUB moved for leave to file an amended answer, counterclaim and cross-claim. Therein, CUB sought to dismiss the holders of the Certificates of Delinquency for the 2005 and 2008 ad valorem taxes as they had provided payoff quotes and had, in turn, been paid in full. CUB's motion also sought to add the U.S. Internal Revenue Department (federal tax liens) and Appellant as parties.
CUB's motion was initially scheduled to be heard on October 17, 2012, but CUB's attorney, Donald Prather, sought to reschedule such because he had been unable to secure a payoff amount from Appellant. In fact, as the trial court noted, "[t]he representative for [Appellant] when contacted repeatedly refused to provide a payoff amount for the tax bill confirmed in writing or a recorded verbal confirmation of the amount." Accordingly, in compliance with Kentucky Revised Statutes (KRS) 134.127(3)(e)(1), Prather sent a registered letter to Appellant requesting a "written September payoff, including itemization of all fees." A courtesy copy of the letter was also mailed to Appellant's son, an attorney who later appeared as his counsel in the trial court. Notably, although the letter stated that Prather was CUB's attorney, there is no dispute that the Raisors had, in the mortgage and promissory note, authorized CUB to pay on their behalf. Further, CUB points out that at that time the payoff request letter was mailed to Appellant, it was not known whether CUB or the Raisors would pay the 2009 certificate.
After Appellant failed to respond to the registered letter, Prather took a copy of the payoff demand letter and proof of mailing to the Shelby County Clerk and, pursuant to KRS 134.127(3)(e)(1), was provided a payoff quote for the 2009 Certificate of Delinquency. The Certificate was
On November 2, 2012, one week after the 2009 certificate had been paid, Appellant filed a motion to intervene in Tax Ease's lawsuit against the Raisors. Appellant claimed he was an "indispensable party to this action and he has not been joined in this action and his In Personam and In Rem actions as guaranteed by KRS 134.546(2) concerning his 2009 Shelby County Delinquent Tax Bill # 13696 which remains outstanding and unpaid." Incredibly, however, Appellant continued to refuse to disclose how much he was owed, instead describing the amount of his claim as "$RESERVED$." Further, Appellant's pleading neither challenged the validity of the county clerk's actions in accepting payment nor joined the clerk as a third-party defendant. Subsequently, in January 2012, the trial court entered an order denying Appellant's motion to intervene as moot since his certificate had been paid in full. Appellant thereafter appealed to this Court.
Appellant based his motion to intervene on Kentucky Rules of Civil Procedure (CR) 24.01(1)(b), which provides in relevant part:
On appeal, we review the trial court's order relating to intervention for clear error. Carter v. Smith, 170 S.W.3d 402, 409 (Ky. App.2004). "Under this standard, this Court will only set aside the findings of fact of the trial court if those findings are clearly erroneous." Cardiovascular Specialists, PSC v. Xenopoulos, 328 S.W.3d 215, 217 (Ky.App.2010); see also CR 52.01. "The dispositive question is whether the findings are supported by substantial evidence." 328 S.W.3d at 217. In general, the trial court is given broad discretion in determining whether or not one should be permitted to intervene.
In this Court, Appellant argues that the trial court erred in ruling that his claim was mooted by payment of the certificate under the process set forth in KRS 134.127(3)(e). Appellant does not dispute that the statute permits payment to the county clerk for a Certificate of Delinquency owned by a third-party purchaser. However, Appellant contends that the process used herein was defective because (1) the registered payoff request letter sent by CUB was improper because it requested a payoff amount within three days; (2) the attestation form presented to the county clerk was invalid; and (3) neither Prather nor CUB was authorized to utilize the process set forth in KRS 134.127(3)(e).
KRS Chapter 134 governs the payment, collection and refund of taxes. If an ad valorem tax claim is not timely paid, it is thereafter referred to as a Certificate of Delinquency, which is transferred by the sheriff to the county clerk. See KRS 134.122 and KRS 134.126. After transfer to the county clerk, private persons or businesses may purchase an unpaid Certificate of Delinquency pursuant to a process described in various provisions of Chapter
KRS 134.127 relates to the payment of Certificates of Delinquency. Specifically at issue herein is KRS 134.127(3)(e), which sets forth the payment process when a third-party purchaser either cannot be contacted or refuses to cooperate. Said subsection provides in relevant part:
KRS 134.127(3)(e) is a remedial provision designed to provide a remedy wherein a
Turning now to Appellant's arguments, we find no merit in his claim that the payoff request letter did not comply with KRS 134.127(3)(e)(1) simply because it asked that a payoff amount be provided within three days. The subsection requires only that a letter be sent "indicating a desire to make payment." Had Prather delivered the attestation form to the county clerk three days after mailing the registered letter, there would certainly be an issue as the statute gives the third-party purchaser thirty days to respond. Here, however, the letter was sent on September 24, 2012, and the attestation form was subsequently presented to the Shelby County Clerk thirty-one days later, on October 25, 2012. Accordingly, the request for a payoff amount within three days is wholly irrelevant to the validity of the statutory process.
We are similarly unpersuaded by Appellant's contention that the attestation form presented to the county clerk was invalid because Prather altered it and it was sworn to before a notary public, not the county clerk. First, the "alteration" in the pre-printed attestation form that Appellant takes issue with is as follows:
It is obvious that the language of the above clause provided two alternatives for service of the letter, and Prather merely struck through the inapplicable language and initialed it. The "alteration" did not change the intent or meaning of the provision and, in fact, clarified where the letter was sent. Without question, striking through the inapplicable language was not an impermissible alteration as Appellant suggests, but rather a good faith and proper completion of the form.
Further, we find no language in the statute supporting Appellant's argument that the attestation form was required to be notarized by the county clerk. Subsection (3)(e)(1) states that the form shall require that the "sender ... attest under oath that the letter was mailed to the correct address, and if the letter was not returned, the attestation shall also provide that the third-party purchaser did not respond in writing within thirty (30) days of the date the letter was mailed." The statute does not specify who must administer the oath. Herein, there is no dispute that Prather's signature was notarized by a Kentucky Notary Public whose seal is on the form. Appellant does not challenge the notary's qualifications or her certificate. We believe that the attestation was properly notarized and presented to the county clerk in compliance with the statute.
Finally, Appellant argues that neither Prather nor CUB was a member of the statutorily delineated class permitted to utilize the remedy set forth in KRS 134.127(3)(e). Accordingly, he contends that he was entitled to ignore Prather's payoff request letter. We disagree.
There are two provisions within KRS 134.127 which make reference to who is authorized to pay a Certificate of Delinquency. KRS 134.127(1) provides, in relevant part:
KRS 134.127(3) provides:
Appellant argues that subsection (1) applies only when the Certificate of Delinquency is owned by the taxing jurisdiction and in the possession of the county clerk. Thus, pursuant to KRS 134.127(1)(a)(1) and/or (2), CUB only had the authority to pay the 2009 Certificate while it was in the possession of the county clerk. However, Appellant contends that once he purchased the certificate, KRS 134.127(3)(a), while allowing him to accept payment from anyone, only required him to accept payment from the "delinquent taxpayer or any person having a legal or equitable estate in the property covered by a certificate of delinquency." Appellant argues that CUB was neither and did not have the authority to utilize the process under KRS 134.127(3)(e) to pay the county clerk.
CUB responds that Appellant has misconstrued the language of KRS 134.127(3)(e). It is CUB's position that the process under subsection (3)(e)(1) applies to anyone "entitled to make payment under this section ... [,]" and the section referred to is the whole of KRS 134.127.
We are inclined to agree with Appellant that CUB's interpretation is not altogether logical when the statute is read as a whole. Clearly, KRS 134.127(1) refers to payment of a certificate owned by the taxing jurisdiction and in the possession of the county clerk. Accordingly, there would be no instance where a person entitled to make payment would be having difficulty locating the third-party purchaser. Viewing the statute as a whole, it is unclear whether the use of the word "section" in KRS 134.127(3)(e)(1) expresses the intent of the legislature or is merely an ambiguous reference.
Notwithstanding whether CUB was authorized to pay the certificate pursuant to KRS 134.127(1), we do conclude that the payment was authorized under KRS 134.127(3)(a). There is no dispute that Prather was working with the authorization and assistance of the Raisors to obtain a payoff amount and that the subsequent payment to the county clerk came from the Raisors' accountant. Accordingly, we believe that the payment came from the "delinquent taxpayer." Contrary to Appellant's argument, CUB makes no claim that it somehow now owns the 2009 certificate. Such was paid and released by the county clerk.
We also agree with the trial court that "CUB, as mortgage holder on the Woodlawn Road property, has a `legal or equitable' interest in the ... property and could utilize the statute." While Appellant is correct that Kentucky is a "lien theory" state, he erroneously argues that a mortgagee has no legal or equitable rights. To the contrary, in Wiedemann v. Crawford, 158 Ky. 657, 166 S.W. 185 (1914), Kentucky's highest court described a mortgage as being an equitable estate in the context of merger of title. The Court noted:
166 S.W. at 186. Again, it is significant to note that CUB does not now claim ownership to the 2009 certificate and has not become, contrary to Appellant's belief, "a lien holder equal to that of the Commonwealth...." Rather, the lien was simply paid and released.
Finally, we are troubled by Appellant's belief that as a winner of the "tax bill lottery" he is entitled under the statute to refuse a payoff so that he can continue to charge interest and fees. We agree with him that third-party purchasers serve a valuable purpose in that they assist taxing entities in maximizing their cash flow. Clearly, our legislature agrees: "The General Assembly recognizes that third-party purchasers play an important role in the delinquent tax collection system, allowing taxing districts to receive needed funds on a timely basis...." KRS 134.452(5). Nevertheless, we find no indication that it was
Appellant bore the burden of demonstrating how his omission from the case would "as a practical matter impair or impede [his] ability to protect [his] interest." CR 24.01(1)(b). We agree that the trial court properly found that he failed in that burden, and that the matter was moot since his 2009 Certificate of Delinquency had been paid to the Shelby County Clerk and released of record. Accordingly, the motion to intervene was properly denied.
For the reasons set forth herein, the order of the Shelby Circuit Court is affirmed.
ALL CONCUR.