Third District Court of Appeal
State of Florida
Opinion filed December 10, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D10 – 3090
Lower Tribunal Nos. 07- 1168, 08-12927
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Akbar Nikooie,
Appellant/Cross-Appellee.
vs.
JPMorgan Chase Bank, N.A., General Mortgage Associates, Inc.,
and Attorneys’ Title Insurance Fund, Inc.,
Appellees/Cross-Appellants.
EXCERPT:
12
Additionally, there is no evidence in the existing record to demonstrate that
Nikooie paid documentary stamp and intangible taxes on the last $189,300 of the
claimed indebtedness. Section 201.08(1)(b), Florida Statutes (2007), specifies that
a mortgage or other instrument “shall not be enforceable in any court of this state
as to any such advance unless and until the tax due thereon upon each advance that
may have been made thereunder has been paid.” This is a statutory limitation on
enforceability applicable to a mortgage lender in a Florida court whether or not the
parties raise it (here, they did not). No payment of tax, no enforcement; thus, on
the present record, Nikooie is only entitled to enforce mortgage liens totaling
$1,160,000 plus interest.10
. . .
11 Solis v. Lacayo,86 So. 3d 1147 , 1148 n.1 (Fla. 3d DCA 2012) (“In an action to
enforce a promissory note, when the trial court discovers that the documentary
taxes have not been paid, the trial court must either dismiss the action without
prejudice, or, upon motion, may abate the action to enable the party to purchase
and affix the documentary stamps.”).
. . .
13
1991). The First District reached the same conclusion in Silber v. Cn’R Industries
of Jacksonville, Inc.,
526 So. 2d 974
(Fla. 1st DCA 1988).
The Fifth District has addressed the particular question presented in the
instant case, holding that “any court,” including an appellate court, should refuse
enforcement of a promissory note under section 201.08(1) if there is no evidence
that the required documentary stamp taxes have been paid:
To this end, section 201.08(1) constitutes an injunction prohibiting
courts from enforcing rights created by instruments upon which
required taxes have not been paid. . . .
….
Unlike an affirmative defense, section 201.08 was not enacted
for the protection of any particular class of defendants, nor was it
enacted to preserve the integrity of the judicial proceedings.
Therefore, a defendant’s failure to plead a plaintiff’s noncompliance
with section 201.08 does not waive the state’s right to receive
payment of the requisite taxes nor does such noncompliance excuse
the court from complying with the prohibition contained in the statute.
[…]
