PATRIOT RESORTS CORPORATION vs. REGISTER OF DEEDS FOR THE COUNTY OF BERKSHIRE, NORTHERN DISTRICT & others. [Note 1]

GREEN, J. At issue is the proper interpretation of G. L. c. 262, § 38, which specifies the fees for recording documents with a registry of deeds. [Note 2] The plaintiff, Patriot Resorts Corporation (Patriot), assigned a number of mortgage interests to a single assignee, under a single instrument of assignment. The defendant register of deeds (register) assessed recording fees based on the

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number of mortgages assigned. Patriot, contending that the fee should instead have been based on the single instrument of assignment, sought declaratory relief in the Superior Court. A judge of the Superior Court agreed with the register's position, and Patriot appealed. We reverse.

Background. Patriot develops and sells so-called time share estates in resort properties. See generally G. L. c. 183B, §§ 1 et seq. Incident to its sales of time share estates, Patriot often accepts payment of a portion of the purchase price by extending a loan to the purchaser; in those transactions the loan is represented by a note, and secured by a mortgage executed in Patriot's favor. After recording a number of such purchase money mortgages, Patriot typically assigns the mortgage interests (and associated notes) to an institutional lender as collateral security for credit extended by such a lender to Patriot.

The fees for recording documents with the register of deeds are set by statute. As in effect at the times relevant to the present case, [Note 3] G. L. c. 262, § 38, as amended through St. 1985, c. 515, provided, in pertinent part, as follows:

"The fees of registers of deeds, except as otherwise provided, to be paid when the instrument is left for recording, filing or deposit shall be as follows: For entering and recording any paper, certifying the same on the original, and indexing it and for all other duties pertaining thereto, ten dollars for the first four pages. The fee for recording a deed or conveyance shall be twenty-five dollars for the first four pages. The fee for recording a mortgage shall be twenty dollars for the first four pages. If the deed, conveyance, mortgage or other paper contains more than four pages, the rate shall be one dollar for each page after the first four pages.

. . .

"For entering any additional marginal reference or references

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when required, one dollar for each reference." [Note 4], [Note 5]

In addition to the basic recording fees, G. L. c. 44B, § 8, inserted by St. 2000, c. 267, § 1, imposes a surcharge, as follows:

"(a) The fees of the registers of deeds, except as otherwise provided, to be paid when the instrument is left for recording, filing or deposit shall be subject to a surcharge of $20. The fees for so recording, filing or depositing a municipal lien certificate shall be subject to a surcharge of $10. The surcharges shall be imposed for the purposes of community preservation. No surcharge shall apply to a declaration of homestead under chapter 188. No surcharge shall apply to the fees charged for additional pages, photostatic copies, abstract cards, additional square feet for the filing and recording of plans or for additional or required marginal references." [Note 6], [Note 7]

On July 17, 2002, Patriot presented to the register for recording an instrument of assignment (assignment) assigning to Liberty Bank a collateral security interest in 169 mortgages that had been granted to Patriot by various time share estate purchasers. The assignment instrument was eight pages in length, including two pages setting forth its substantive terms, a page containing a notarial acknowledgment, and a five-page schedule describing the various mortgages it assigned. The register imposed a total fee (including Community Preservation Act surcharge) of $5,074 for recording the assignment. The register assessed the fee based on his treatment of the assignment as

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constituting 169 separate assignments, with a separate recording fee of $10, and a separate surcharge of $20, imposed on each. [Note 8]

By complaint filed in the Superior Court on August 16, 2002, Patriot sought a declaration that the fee imposed by the register exceeded the proper fee by $4,872. [Note 9] The parties filed cross motions for summary judgment; after hearing, a judge of the Superior Court allowed the register's motion, and denied Patriot's. Patriot filed a timely notice of appeal from the resulting judgment.

Discussion. "We interpret a statute according to the intent of the Legislature. Commonwealth v. Galvin, 388 Mass. 326, 328 (1983). '[T]he primary source of insight into the intent of the Legislature is the language of the statute,' International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983), and that is our starting point. Simon v. State Examiners of Electricians, 395 Mass. 238, 242 (1985). Statutory language should be given effect consistent with its plain meaning. Where, as here, that language is clear and unambiguous, it is conclusive as to the intent of the Legislature. Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep't, 439 Mass. 352, 355- 356 (2003)." Commissioner of Correction v. Superior Ct. Dept. of the Trial Ct., 446 Mass. 123, 124 (2006).

Patriot contends, quite correctly in our view, that the assignment was a single "paper," within the meaning of that term in G. L. c. 262, § 38, and a single "instrument," within the meaning of that term in G. L. c. 44B, § 8. Accordingly, the charges for its recording should have included a basic recording fee of $10, a Community Preservation Act surcharge of $20, an additional $4 for the number of pages by which the assignment exceeded four pages, and an additional $168 for the number of additional marginal references the assignment necessitated. [Note 10]

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In opposition, the register first observes that a court should "not adopt a literal construction of a statute if the consequences of such construction are absurd or unreasonable," Bates v. Director of the Office of Campaign & Political Fin., 436 Mass. 144, 165 (2002), quoting from Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 336 (1982), particularly where a literal construction "would defeat the aim and object of the legislation." Lexington v. Bedford, 378 Mass. 562, 570 (1979). The register asserts that the purpose of the recording fees statute is to provide revenues to cover the costs involved in recording documents presented to the register, and that the Legislature accordingly must have intended that the fees imposed for recording particular documents bear a reasonable relationship to the amount of work involved in recording the document. The argument is flawed at two levels. First, accepting for the sake of argument the premise that the fee must correspond in some measure to the amount of work involved in recording a particular document, the statute, as then in effect, by its plain terms attempted to address the concern by increasing the fee for the number of pages in the document and the number of marginal references necessitated by the document. Particularly where, as here, the additional effort associated with recording a document lies principally in the number of marginal references required incident to the recording of an instrument, we see no material disparity between the apparent purpose of the statute and application of the statute in accordance with its terms. [Note 11]

Second, the specified recording fees do not strictly correspond

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to the amount of work associated with recording an instrument in any event. The recording of an assignment of mortgage involves no more work than the recording of a mortgage itself, yet under the statute as then in effect, the specified fee for recording an assignment of mortgage was ten dollars, while the fee for recording a mortgage was twenty dollars. [Note 12] We also observe that recording fees collected by the register are not retained by the register but are paid into the General Fund, pursuant to G. L. c. 29, § 2. Accordingly, additional recording fees collected are not available to the register to cover any additional expenses he may incur in performing his required duties in any one or more particular transactions. [Note 13]

The register also reminds us that a court must give substantial deference to the reasonable interpretation of a statute adopted by the administrative agency charged with its enforcement. See Commerce Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481 (2006). However, the principle is " 'one of deference, not abdication,' " and we will not hesitate to overrule an agency interpretation that is unreasonable or arbitrary. Moot v. Department of Envtl. Protection, 448 Mass. 340, 346 (2007), quoting from Boston Preservation Alliance, Inc. v. Secretary of Envtl. Affairs, 396 Mass. 489, 498 (1986).

The record includes the affidavit of Richard P. Howe, Jr., the incumbent register of deeds for the northern Middlesex district and a former president of the Massachusetts Registers and Assistant Registers of Deeds Association. In his affidavit, Howe uses the term "multiple document" to describe a document (which, according to Howe, includes the assignment involved in

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the present case) that combines "two or more separate functions or transactions together into a single document." Howe further explains that, due to the additional work associated with recording and indexing a document that effects multiple transactions, "it is standard practice for the registries throughout the Commonwealth to assess, pursuant to G. L. c. 262, § 38, a separate recording fee that accurately reflects the work associated with the multiple transactions or functions within the document." However, though the registers' desire to assess fees in proportion to the work involved in recording is perhaps understandable, neither the Howe affidavit, nor the register's brief on appeal, makes any attempt to ground the registers' practice in the fee schedule prescribed by the statute. [Note 14] In construing the statute it is of course the directive of the Legislature, rather than the practice of the registers, with which we are principally concerned.

We return to the point of beginning: an examination of the words of the statute. Black's Law Dictionary 1142 (8th ed. 2004) defines "paper" as "[a]ny written or printed document or instrument." As we have observed, G. L. c. 262, § 38, as then in effect, imposed a recording fee of $10 on any "paper," while imposing higher fees on any "deed or conveyance" or any "mortgage." [Note 15] The statute accordingly treats a "paper" as an object comparable to a "deed" or a "mortgage" for purposes of assessment of a recording fee, albeit in a different class for purposes of determining the amount of the fee. Chapter 36 of the General Laws, which generally describes the duties of the registers concerning the recordation of documents, consistently refers to assignments as "instruments." See, e.g., G. L. c. 36, §§ 20, 21, 23. Moreover, the opening sentence of G. L. c. 262, § 38,

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uses the term "instrument" to refer collectively to the materials that may be left for recording, including any "paper," "deed," or "mortgage." General Laws c. 44B, § 8, similarly employs the term "instrument" to refer to documents presented for recording, on which a recording fee is assessed.

Contrary to the register's characterization of the assignment as comprising multiple assignments, it is a single instrument of assignment, from a single assignor to a single assignee. [Note 16] That it conveys a number of separate assets does not alter its character as a single instrument of conveyance any more than would occur in the case of a deed which conveys a number of discrete parcels of land, or a collateral assignment of leases conveyed incident to the financing of a large shopping center.

There are any number of conceivable methods for the assessment of recording fees on instruments presented to a registry of deeds for recording. The Legislature has adjusted both the manner and amount of such fees through various amendments to the statute since its first enactment in 1795. If the register believes that current conveyancing practice warrants a further refinement of the formula for assessing fees on one or more classes of documents, he is free to suggest to the Legislature an amendment to the statute. However, under the statute as in effect at the time of the transaction involved in the present case, the fees imposed by the register exceeded the fees authorized by the statute.

The judgment of the Superior Court is reversed. The case is remanded to the Superior Court for further proceedings consistent with this opinion, to determine the amount of excess fees collected by the register from Patriot. [Note 17]

So ordered.

BERRY, J. (dissenting). The central issue in this case turns on

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whether the word "paper" in G. L. c. 262, § 38, [Note Berry-1], [Note Berry-2] encompasses the assignment of a mortgage as a separate legal instrument

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memorializing the transfer of a land interest, despite the fact that multiple such mortgage assignments are simultaneously presented to a registry of deeds not in the more traditional form of hard copy mortgage assignment instruments (with separate document by document descriptions of particular mortgage assignments), but instead are presented to the registry in a form in which the mortgage assignment instruments are compressed in a computerized spreadsheet (with only cell upon cell listings of the particular mortgage assignments).

The argument advanced by the plaintiff, Patriot Resorts Corp. (Patriot), and accepted by the majority, is that there was but one paper filed -- the covering document affixed to the computer spread sheet. According to Patriot's theory, the 169 mortgage assignments listed in spreadsheet cells were merely an appendage, with no recording fee significance under the statutes. On this point, Patriot contends, and the majority accepts, that somehow the cover document "bundled" everything, so that only $202 was due in recording fees and surcharges under G. L. c. 262, § 38, as then in effect, and G. L. c. 44B, § 8. In contrast, the registry of deeds charged Patriot a total fee of $5,074 for recording and processing the 169 assignments of mortgage.

I reject the construction advanced by Patriot. Simply because Patriot devised a computer model that produced a spreadsheet containing all of the assignments to a single assignee as a "virtual" filing of multiple mortgage assignments and presented this to the registry of deeds, instead of tendering to the registry hard copy pages of paper instruments memorializing each of the mortgage assignments does not, in law, change the nature of the subject land transactions as instruments, that is "papers" of independent legal significance transferring rights in land and to be recorded as "papers" spread upon the public land title system in our registries of deed under G. L. c. 262, § 38.

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Nor does submission of a computer-generated spreadsheet, in fact, change the nature, or amount, of necessary work by the registry staff incident to the indexing, cross-referencing, and recording of the assignment of multiple mortgages. Indeed, as shall be further described herein, the summary judgment record establishes that, irrespective of which way the assignments of mortgage were presented to the registry of deeds -- either by hard copy paper instruments, or in a compressed multitransaction computer-generated paper spreadsheet -- the same amount of administrative work by registry personnel is required. To use the words appearing in G. L. c. 262, § 38, the same registry work and same "duties pertain[]" to indexing and cross-referencing of mortgage title references, to achieve the final recording of the multiple mortgage assignments in the indexes and land books of the registry. The recovery of revenues arising out of the work of the registries of deeds is precisely the reason that G. L. c. 262, § 38, was enacted. As was stated in the 1971 emergency preamble to an amendment to this recording fee statute, the purpose is to "provide forthwith for increased revenue for the commonwealth and the various counties by increasing certain fees and charges of the . . . registers of deeds." St. 1971, c. 880.

For these reasons, I believe each singular assignment of a mortgage -- albeit purportedly "bundled" in a covering document or documents, or, as in this case, "bundled" and compressed in the computer-generated cells of a spreadsheet document -- constitutes a "paper" subject to the recordation and surcharge fees imposed by G. L. c. 262, § 38, and G. L. c. 44B, § 8. Therefore, I respectfully dissent.

1. Procedural and summary judgment record background. According to the summary judgment record, this case involves three sets of papers transferring rights in land, (a) 169 "Time-Share Estate Warranty Deeds," (b) 169 mortgages, and (c) 169 assignments of the aforesaid mortgages. On July 17, 2002, Patriot presented the registry with 169 separate instruments or "papers" for each of the warranty and mortgage deeds in classes (a) and (b), thereby filing 238 "papers" subject to the G. L. c. 262, § 38, recording fees. For the mortgage assignments, however, Patriot devised a different filing format. Patriot presented

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only a covering document of two pages, bearing the caption "Patriot Resorts Corporation Collateral Assignment of Mortgages to Liberty Bank," to which was attached a five-page spreadsheet. The attached spreadsheet listed the 169 assignments of mortgage in descending cells, and, then, across the pages in nine horizontal cells listed information about the mortgage assignments, including, but not limited to, the mortgagor's name, the unit purchased by each warranty deed and the amount of the mortgage financed and to be assigned. The covering two-page document, after setting forth generic legal language for a mortgage assignment, then goes on to state that the mortgage assignments set forth in the affixed cells of the spreadsheet are "incorporated herein by reference."

Capturing the work entailed and the duties undertaken by the registry of deeds to record the 169 mortgage assignments submitted in Patriot's computer cell chart, the Superior Court judge issued a thoughtful and comprehensive memorandum of analysis and distillation of the summary judgment record. With respect to the mortgage assignments, the judge wrote in pertinent part as follows:

"Upon receipt, Registry personnel entered the assignment into the recording cash register, thereby assigning the document a recording time and date, book, page, and document number. Registry personnel then manually imprinted each page of the document by use of a book and page stamping machine. The corresponding book and page number of each of the 169 mortgage deeds was typed onto the Schedule "A" of the assignment [filed by Patriot]. . . .

"Registry personnel next extracted the data from the assignment and manually entered into the Registry's computer database the following information for each assignment: assignor (Patriot), assignee (Liberty Bank), mortgagor (each of the 169 individuals), property address or unit number for each of the 169 mortgaged properties, and the book and page number of each of the 169 mortgages. This process required 169 separate entries for each of the 169 mortgages. The defendants assert that the process requires great accuracy and caution and, as a result, is time-consuming. . . .

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"Next, Registry personnel proofread all the information entered into the computer database. Following proofreading, each of the 169 mortgages was marginally referenced by stamping the language "See Assignment Page ____ Page ____" and then hand writing the specific assignment book number and page for each of the 169 mortgages. Registry personnel then sent the assignment to the scanning/filming department where a photographic image of the assignment was taken and stored in the database for public viewing. The pages were printed from the scanned images and then manually compared with their original counterparts to insure accuracy. Finally, Registry personnel microfilmed the assignment for document preservation purposes." [Note Berry-3]

According to the affidavit of Richard P. Howe, Jr., [Note Berry-4] when a

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document is submitted to a registry which combines two or more land transactions, the registry refers to the filing as a "multiple document." The Patriot spreadsheet is a quintessential virtual model of this kind of a multiple document, with embedded multiple transactions. Such a multiple transaction document requires the registry staff to unwind -- to use the majority's term, to un-bundle -- the transactions, so that each separate land transaction listed in the multiple transaction document must be separately processed, indexed, cross-referenced and recorded. These registry duties, in effect, multiply (here exponentially by 169 times) the work that must be performed by the registry staff for a single paper instrument. Given the extra work entailed, Howe states that "[i]t is standard practice for the registries throughout the Commonwealth to assess, pursuant to G. L. c. 262, § 38, a separate recording fee that accurately reflects the work associated with the multiple transactions or functions within a document." To this end, both Howe and the defendant register aver in their affidavits that the fees charged Patriot by the Northern Berkshire registry under G. L. c. 262, § 38, and G. L. c. 44B, § 8, were standard fees for multiple transaction imposed generally by the registries in the Commonwealth. [Note Berry-5] (The two registers' interpretation and application of G. L. c. 262, § 38, on the fees to be imposed were endorsed in an affidavit by the director of the division of the registry of deeds within the Secretary of State's office consistent with that office's interpretation of the statute.)

Here G. L. 262, § 38, appears to embody the purpose of cost recovery by the phrase "for all other duties pertaining thereto." The catalog of "other duties" or additional work imposed by the Patriot filing, as found by the trial judge, appears to be voluminous and to approximate 168 times the amount of work required for a single filing far more closely than it resembles a single filing with merely 168 incremental "marginal references" which the majority suggests would yield registry fees of only $1 per marginal reference. See ante at 117. [Note Berry-6] Instead, I believe the word "fee" in § 38 should be deemed to carry its

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usual meaning and purpose, i.e., that the government is entitled to a reasonably proportionate recovery of the genuine cost of the work or duties required by the service requested by the payor. See Robinson v. Secretary of Admin., 12 Mass. App. Ct. 441, 445-448 (1981) (the character of a governmental fee is in the recovery of reasonable costs of the governmental service rendered to the fee payor and the entitlement of the government to such revenues). Thus, I read § 38 as authorizing the registry to recover the cost of the filing of 169 "papers" of assignments which reflect the genuinely proportionate increase of work and duties imposed on the registry by the Patriot filing. Here, the Patriot consolidated filing increased the duties or work of the registry, and generated a proportionately greater benefit for the payor in that Patriot achieves (without paying therefor) the benefit of 169 mortgage assignments, and not merely one, not withstanding that the Patriot filing imposes a disproportionately greater burden, and reaps a disproportionately greater benefit, than a single submission of just one "paper."

2. Principles of statutory construction. Given the Legislature's clear message and expression of intent the purpose underlying G. L. c. 262, § 38, is to "recover revenue for the Commonwealth and the various counties by increasing certain fees and charges of the . . . Registers of Deeds," St. 1971, c. 880, I would look to the following principle of statutory construction. "The general and familiar rule is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Phillips v. Pembroke Real Estate, Inc., 443 Mass, 110, 114 (2004), quoting from Industrial Fin. Corp. v. State Tax Commn., 367 Mass. 360, 364 (1975).

The majority, however, cites differing principles of statutory construction to support its interpretation of G. L. c. 262, § 8, including, the majority writes, that " '[s]tatutory language should

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be given effect consistent with its plain meaning.'. . . Where, as here, that language is clear and unambiguous, it is conclusive as to the intent of the Legislature." Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Ct. Dept., 439 Mass. 352, 355-356 (2003), quoting from Sullivan v. Brookline, 435 Mass. 353, 360 (2001). Therefore, contrary to the majority, I do not see this canon of statutory construction as pertinent because I do not think that a "plain meaning" on the face of § 8, nor the term "paper" in § 8, is "clear and unambiguous."

In any event, I rely on the principle that, "[w]hen rules of statutory construction produce conflicting results, we must discern, as closely as possible, what the Legislature intended. See Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 89 (1934) (canons of statutory construction apply to ascertain meaning of statute, but if one canon does not effectuate purpose of statute as whole, it yields to "the wider view in order that the will of the legislature shall not fail"); Commonwealth v. Dale D., 431 Mass. 757, 760-761 (2000), and cases cited." Commonwealth v. Russ R., 433 Mass. 515, 521 (2001). Here the legislative intent for fee collection under G. L. c 262, § 38, to recover revenues for the duties undertaken by the registries of deeds is beyond question.

3. Conclusion. To interpret G. L. c. 262, § 38, as Patriot submits (and the majority accepts), would be in direct conflict with the legislative intent of recovering costs and revenue associated with recording transactions transferring interests in land and affecting the chain of title as set forth in the books and records of the Commonwealth's registries of deeds. [Note Berry-7] Furthermore, such a reading would allow parties, like Patriot, to record multiple mortgage assignments for the cost of recording one, and would thereby reduce the revenue collection which was the legislative intent of the law.

For these reasons, I would affirm the entry of summary judgment for the defendants.