final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. Karen A.
E. Pearson of Pearson Doyle Mohre & Pastis, LLP,
Maitland, for Appellant.
M. Durant, Jr. of Boyd & Durant, P.L., Tallahassee, for
Appellee Tallahassee MH Parks, LLC; Kyle L. Shaw and Daniel
E. Manausa of Manausa Law Firm, P.A., Tallahassee, for
Appellee Tallahassee Real Estate Holdings, LLC.
North America appeals a final judgment foreclosing three
mortgages held by Tallahassee MH Parks (TMHP) as assignee of
the original mortgagee. Atkins is a lienholder with a
recorded money judgment against the mortgagor, Tallahassee
Real Estate Holdings (TREH). Atkins raises four issues on
appeal, one of which we affirm with no further comment. We
reverse because we find merit in the other three issues: the
mortgage reformation improperly prejudiced Atkins's
rights; the amount of the debt was not supported by
competent, substantial evidence; and the amount of the debt
and corresponding bid credit incorrectly included funds on
which the evidence failed to prove the payment of required
intangible and documentary stamp taxes.
2005, TREH obtained three loans from Farmers & Merchants
Bank to buy three "crime-ridden mobile home parks with a
plan to turn them into affordable housing communities,"
in the words of TREH's manager and now sole member,
Daniel Manausa. The loans were memorialized in three separate
notes and secured with three mortgages.
2009, Atkins obtained and recorded a final money judgment
against TREH for services Atkins provided in the first
apartment project, which turned out to be the only one that
was completed. Every year from 2006 through 2012, one or more
of the notes was renewed; and although there were sporadic
capital payments or other decreases in principal, the
principal amount of each note was increased at least once and
up to three times. In 2013, the bank consolidated the three
original notes into two new notes. In 2015, the bank assigned
its interests in the new notes and the original mortgages to
2016, TMHP filed a foreclosure action and asked the court to
reform one of the mortgages to include a parcel, Lot 45, that
allegedly was omitted from the original mortgage description
by mutual mistake of the original parties, TREH and the bank.
The foreclosure complaint identified nine persons or entities
with recorded liens against the mortgaged properties, but
TMHP claimed its interests were superior to the claims of all
other lienholders. Atkins was the only defendant that
answered the complaint. It denied that its lien was inferior.
bench trial, no representative of the bank testified. Mr.
Manausa was the sole witness. He testified in support of the
mortgage reformation claim that the original parties, TREH
and the bank, had intended to add another parcel of land, Lot
45, under one of the mortgages as additional security, but by
mutual mistake had failed to document the intention. Over
Atkins's objection due to its being prejudiced by such a
retroactive modification of the mortgage, the trial court
the total amount due at foreclosure, Mr. Manausa deferred to
the loan documents themselves and a loan summary document
created by TMHP. Those documents reflected the principal
balance as of the loan consolidation, but not the balance due
at foreclosure. The trial court nevertheless set the amount
of damages at the unpaid balance of the three original notes
on the date they were consolidated in the two successor
respect to whether intangible and documentary stamp taxes
were paid on all new money, Mr. Manausa admitted that his
personal knowledge was limited, and deferred to the loan
documents, which he authenticated. He testified that he
believed the bank lent TREH new money only twice, and all
required taxes were paid; and that any other principal
advances were used to pay property taxes or insurance, on
which no taxes were due.
loan documents, however, flatly contradict this testimony.
The documents show that the notes were renewed multiple
times, and additional principal was advanced in connection
with at least six of those renewals. However, none of the
advances was designated for tax-exempt payment of taxes or
insurance on the properties. On the contrary, two advances
were for renovations, one was to rezone twenty-five acres for
apartments, and another was for "seven new units."
Although any tax payments would be evidenced on the documents