MARCIAL SOLIS; MSA CRESTVIEW II, LLC; MARSOL CORPORATION; CRESTVIEW II, LTD.; AND MARSOL ONE, LLC, APPELLANTS,
v.
NYDIA LACAYO, APPELLEE
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Crestview appealed a final judgment entered in favor of Lacayo on promissory notes, arguing the judgment was entered before documentary stamp taxes were paid. The court reversed, finding the judgment was prematurely entered in violation of Florida law, but remanded with instructions to reinstate the judgment nunc pro tunc since the taxes were paid shortly thereafter and no actual damages resulted.
The court held that the trial court erred in entering the final judgment before the documentary stamp taxes were paid, as required by section 201.08(l)(a), Florida Statutes. However, because the taxes were paid within the time allowed and Crestview suffered no actual damages, the judgment was reinstated nunc pro tunc to the date the taxes were paid.
[1] Promissory notes are unenforceable if the required documentary stamp taxes have not been paid at the time of enforcement.
[2] A trial court may abate an action to enforce a promissory note to allow the party to purchase and affix documentary stamps.
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Join FLexlaw to unlock all legal intelligence“the trial judge erred by entering a final judgment at a time when the documentary stamp taxes had not yet been paid on the notes”
Establishes the core error—judgment entered in violation of section 201.08(l)(a), Florida Statutes
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Join FLexlaw to unlock all legal intelligenceCrestview executed two promissory notes to Lacayo in 2006 and 2007, secured by personal and real property. After Crestview failed to make payments, La…
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Marcial Solis, MSA Crestview II, LLC, Marsol Corporation, Crestview II, Ltd., and Marsol One, LLC, (“Crestview”) appeal a final judgment in favor of Nydia Lacayo pursuant to a settlement agreement between the parties providing for the repayment of two promissory notes. We reverse on grounds that, at the time the final judgment was entered, the documentary stamp taxes had not been paid by Lacayo, and the notes were not enforceable pursuant to section 201.08(l)(a), Florida Statutes (2011).
*1148On April 19, 2006, Crestview executed a promissory note in favor of Lacayo that was secured by personal and real property. On October 12, 2007, Crestview executed a second promissory note secured by personal and residential property. Crest-view failed to make the required payments, and on September 1, 2009, Lacayo filed a complaint for foreclosure and breach of guarantee. On May 6, 2010, the parties entered into a stipulation for settlement requiring Crestview to make monthly interest payments and by May 1, 2011, pay back the principal and interest on the. two notes. The parties also agreed to toll any statute of limitations on the foreclosure claims. On May 1, 2011, Crestview failed to pay the principal, and on May 18, 2011, Lacayo filed a motion for entry of final judgment and attorney’s fees pursuant to the stipulation. On July 20, 2011 the trial court entered an order approving the stipulation and entered final judgment. On July 27, 2011, Crestview filed its motion for rehearing and to vacate the final judgment, arguing that the documentary stamps had not been paid and that the notes could not be enforced. On August 4, 2011, Lacayo moved for and received a writ of garnishment, not objected to by Crestview, which was executed and served. On August 11, 2011, the trial court abated the action for twenty days to provide La-cayo time to pay and affix the documentary stamps.1 Lacayo paid the documentary stamps on August 24, 2011, after Crest-view had filed its notice of appeal on August 18, 2011.
On appeal, Crestview contends that the trial judge erred by entering a final judgment at a time when the documentary stamp taxes had not yet been paid on the notes. See § 201.08(l)(a). We agree and reverse.
Even though we find error in the trial court’s entering a final judgment when the documentary stamp taxes had not been paid, the taxes were paid shortly thereafter and within the twenty days in which the trial court had abated the action so that the taxes could be paid. Crestview does not deny that the notes have not been paid and can prove no damages as a result of the entry of judgment. The writ of garnishment, although entered prior to the time the action was abated, caused no damage, as the bank upon which it was served held no Crestview money subject to the writ. In sum, we are presented with the following: a final judgment against Crestview, the promisor of two promissory notes, which does not dispute that the notes have not been paid; the final judgment entered prior to purchase of documentary stamps, purchased and affixed within the time allocated by the trial court; a writ of garnishment, not objected to by Crestview, executed and served upon a bank which held no funds to garnish; and an appellant, Crestview, which cannot establish damages caused by the entry of the final judgment prior to the purchase of the documentary stamps. Therefore, although we reverse the trial court, on remand, we order that the final judgment shall be reinstated nunc pro tunc to the date that the documentary stamp taxes were paid, August 24, 2011.
Reversed and remanded.
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Akbar Nikooie v. Jpmorgan Chase Bank, N.A., 183 So. 3d 424 (Fla. 3d DCA 2014)…ney and did not record the first $860,000 mortgage, and the negligence or malfeasance of his now-suspended transactional lawyer also does not cure the problem. Nikooie is pursuing the obvious remedies against the former attorney. . 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…1 / 2
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Wilmington Tr., N.A. v. Serpa (Fla. 3d DCA 2022)…ary stamp taxes and instead 3 granting final judgment. As explained below, we affirm in part and reverse in part. We find no abuse of discretion in the trial court’s granting of the Serpas’ motion for involuntary dismissal. 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…
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