United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court on Defendant's
Motion to Dismiss Complaint [ECF No. 10]. The Court has
reviewed the Motion and the record and is otherwise fully
advised. For the reasons discussed below, the Motion is
to the allegations in the Complaint, on September 25, 2015,
Defendant Jackie Tan (“Defendant”) borrowed $100,
000 from Plaintiff Ben Fu Li (“Plaintiff”) and
promised to pay the money back by October 25, 2015. The
agreement is evidenced by an “IOU” attached to
the Complaint as Exhibit A. On February 17, 2017, Plaintiff
filed this action alleging claims for “promissory
note” (count one) and “money lent” (count
two) based on Defendant's alleged default on the
March 20, 2017, Defendant moved to dismiss arguing that
Plaintiff failed to satisfy all conditions precedent for the
enforcement of a promissory note. In particular, Defendant
argues that Plaintiff failed to allege that he complied with
Florida Statute § 201.08, which requires that every
lender seeking to enforce a promissory note pay the
applicable documentary taxes before the instrument is
enforceable in court.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937
(2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955 (2007)). Although this pleading
standard “does not require ‘detailed factual
allegations, ' . . . it demands more than unadorned, the
defendant -unlawfully-harmed-me accusations.”
Id. (alteration added)(quoting Twombly, 550
U.S. at 555).
must contain “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555
(citation omitted). Indeed, “only a complaint that
states a plausible claim for relief survives a motion to
dismiss.” Iq-bal, 556 U.S. at 679 (citing
Twombly, 550 U.S. at 556). To meet this
“plausibility standard, ” a plaintiff must
“plead[ ] factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678 (alteration
added)(citing Twombly, 550 U.S. at 556). When
reviewing a motion to dismiss, a court must construe the
complaint in the light most favorable to the plaintiff and
take the factual allegations therein as true. See Brooks
v. Blue Cross & Blue Shield of Fla. Inc., 116 F.3d
1364, 1369 (11th Cir. 1997).
Statute § 201.08 provides that a mortgage, deed or other
instrument is not enforceable unless the lender has paid the
required documentary stamp taxes. Fla. Stat. §
201.08(1)(b). Many courts have interpreted this statute to
require a lender to pay documentary taxes as a condition
precedent to enforcing a promissory note. See Suntrust
Bank v. Hamway, No. 09-61323, 2010 WL 146858, *4 (S.D.
Fla. Jan. 11, 2010) (“[S]ection 201.08(1) constitutes
an injunction prohibiting courts from enforcing rights
created by instruments upon which required taxes have not
been paid.”); Atlantic Tech Systems, LLC v.
Advanced Lifts & Elevators, Inc., No. 08-81376, 2009
WL 1211003, * 2 (S.D. Fla. May 4, 2009) (“To be sure,
to prevail on a claim for breach of promissory note,
Plaintiff will be required to demonstrate, prior to final
judgment, that the documentary taxes have been paid.”);
Nikoole v. JPMorgan Chase Bank, N.A., 183 So.3d 424,
430-31 (Fla. 3d DCA 2014) (failure to pay documentary tax
rendered mortgage lien unenforceable); Somma v. Metra
Electronics Corp., 727 So.2d 302, 303 (Fla. 5th DCA
1999) (“[P]romissory notes for which documentary taxes
have not been paid are, as a matter of law, unenforceable by
any Florida court.”).
asks the Court to rely on Glenn Wright Homes v.
Lowy, 18 So.3d 693, 696 (Fla. 4th DCA 2009) which held
that § 201.08(1) does not prohibit the enforcement of a
promissory note for nonpayment of the documentary tax.
However, in Glenn Wright, Florida's Fourth
District Court of Appeal disagreed with the Florida's
Third and Fifth District Courts of Appeal and with several
decisions in this district. See cases cited supra.
This Court adopts the majority rule that a promissory note is
not enforceable unless documentary taxes have been paid.
Complaint, Plaintiff failed to allege that he paid the
requisite documentary taxes on the promissory note. Although
the promissory note is unenforceable absent proof that
Plaintiff complied with § 201.08(1)(b), courts generally
do not dismiss an action for failure to pay documentary taxes
at the motion to dismiss stage if the Plaintiff alleges, even
if only generally, that all conditions precedent have been
met. See Suntrust, 2010 WL 146858, at *4;
Atlantic Tech, 2009 WL 1211003 at * 2. This
is because “payment of the documentary taxes is a
factual question best not decided on a motion to
dismiss.” Atlantic Tech, 2009 WL 1211003 at
*2. However, in this case, Plaintiff failed to allege that he
satisfied any conditions precedent.
As a result, the Motion must be granted for failure to state