ANAMARIE M. SCHROEDER a/k/a ANAMARIA M. SCHROEDER a/k/a ANAMARIE SCHROEDER a/k/a ANAMARIA SCHROEDER a/k/a ANA SCHROEDER, Appellant,
MTGLQ INVESTORS, L.P., Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barry J. Stone, Senior Judge; L.T. Case No.
K. Herman of The Herman Law Group, P.A., Fort Lauderdale, for
Christophal C.K. Hellewell, Chase A. Berger and Tara L.
Rosenfeld of Ghidotti | Berger LLP, Miami, for appellee.
M. Schroeder ("Appellant") appeals the trial
court's final judgment of foreclosure entered in favor of
MTGLQ Investors, L.P. ("the lender"). Because the
required documentary stamp and intangible taxes were not paid
on a portion of the loan enforced by the judgment, we reverse
the final judgment entered by the trial court and remand with
lender was substituted as the party plaintiff in this
underlying mortgage foreclosure suit against Appellant. In
the operable amended complaint, the lender alleged that the
parties had modified the loan documents. Attached to the
amended complaint was a copy of the loan modification
agreement, in addition to the note and mortgage. The loan
modification agreement stated that it amended and
supplemented the mortgage and note. It provided that the
original principal balance was increased, stating a "New
Principal Balance" that was $20, 535.94 more than the
original balance and describing the new principal balance as
"consisting of the amount(s) loaned to the Borrower by
Lender, which may include, but are not limited to, any past
due principal payments, interest, fees and/or costs
capitalized to date." The loan modification agreement
provided for a "Deferred Principal Balance," which
was a specific amount of the "New Principal
Balance" which did not accrue interest and for which
monthly payments were not required, leaving an "Interest
Bearing Principal Balance." The "Interest Bearing
Principal Balance" accrued interest at a fixed
percentage and was payable in a minimum monthly amount.
Finally, the loan modification agreement provided that if the
full balance due under the note was not fully paid before the
stated "Maturity Date," Appellant would pay the
full balance due on the note on the "Maturity
not appear the documentary stamp taxes or the intangible tax
on the increased principal balance under the loan
modification had been paid prior to or while the case was
pending in the trial court. Appellant filed her answer to the
amended complaint below but did not raise any defense
regarding the payment of those taxes. Following a non-jury
trial, the trial court entered final judgment of foreclosure
in favor of the lender.
gave notice of appeal.
of law, such as the interpretation of statutes, are reviewed
de novo." Toler v. Bank of Am. Nat'l
Ass'n, 78 So.3d 699, 701-02 (Fla. 4th DCA 2012)
(citing Cont'l Cas. Co. v. Ryan Inc. E., 974
So.2d 368, 373 (Fla. 2008)).
appeal, the parties agree that the lender paid the
documentary stamp tax and intangible tax due on the original
amount of the loan, but failed to pay those taxes on the
increased amount of the principal balance under the loan
modification agreement prior to entry of the final judgment.
Appellant contends that the final judgment should be reversed
because the lender's failure to pay the requisite taxes
rendered the note and mortgage unenforceable, making the
instruments unenforceable when the final judgment was
entered. In support of this argument, Appellant relies on
sections 201.08(1)(b) and 199.282(4), Florida Statutes
(respectively imposing a documentary stamp tax and an
intangible tax). § 201.08(1)(b), Fla. Stat. (2018);
§ 199.282(4), Fla. Stat. (2018). Appellant further
contends the Third, Fourth, and Fifth Districts have
"uniformly" recognized that these sections do not
constitute affirmative defenses and that a defendant is not
required to plead such or even raise the issue in the trial
court for the matter to be reviewable on appeal.
the final judgment was for an amount that included the
increased principal balance of the loan, for which the
documentary stamp and intangible taxes were not paid at the
time the judgment was entered, we agree the final judgment
must be reversed, despite the fact that the problem was not
brought to the trial court's attention. §
201.08(1)(b), Fla. Stat. ("The mortgage, trust deed, 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.") (emphasis added); §
199.282(4), Fla. Stat. ("No mortgage, deed of trust, or
other lien upon real property situated in this state shall be
enforceable in any Florida court . . . until the nonrecurring
tax imposed by this chapter, i ...