Florida Department of Revenue v. Bank of America, N.A.

FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
_____________________________
No. 1D2024-0153
_____________________________
F LORIDA DEPARTMENT OF
R EVENUE ,
Appellant,
v.
B ANK OF A MERICA , N.A.,
Appellee.
_____________________________
On appeal from the Circuit Court for Leon County.
John C. Cooper, Judge.
November 12, 2025
O STERHAUS, C.J.
The Florida Department of Revenue appeals the denial of its
summary judgment motion filed in response to Bank of America’s
lawsuit seeking refunds of overpaid state stamp and intangibles
taxes 	on 	thousands 	of 	refinanced 	home 	loan 	transactions. 	The
Department asks that we reverse and direct the circuit court to
enter judgment in its favor. We affirm, however, seeing no error in
the 	trial 	court’s 	decision 	to 	deny 	the 	Department’s 	summary
judgment motion.
I.
When a person purchases a home in Florida, the state assesses
both a stamp and an intangible tax on the amount of the mortgage

2
and corresponding loan. See §§ 201.01, 199.135, Fla. Stat. (2018).
The stamp tax is imposed on obligations and renewals of obligations
to 	pay 	money 	in 	Florida, 	including 	on 	promissory 	notes.
§ 201.08(1)(a), Fla. Stat. For mortgage transactions, because home
mortgages travel with a loan, the tax is “paid on the mortgage . . . at
the time of recordation” instead of on the loan. § 201.08(1)(b), Fla.
Stat. “A notation [is then] made on the [loan] that the tax has been
paid on the mortgage.” Id. Banks record mortgages with the “clerk
of circuit court.” § 28.222(1), (3)(a), Fla. Stat. Florida also assesses a
“nonrecurring” intangible tax on home loans. § 199.133(1), Fla. Stat.
The State levies the intangible tax on debts secured by a mortgage,
which banks pay to the clerk of court when the mortgage is recorded.
§ 199.135(1), Fla. Stat.
In the case of refinanced home loans, the newly created
mortgage and loan may be exempt from these two taxes to the
extent that the lender provides no new money to the borrower. For
the 	stamp 	tax 	exemption 	to 	apply, 	the 	new 	loan 	must 	be 	a
“renewal” of the old loan. § 201.09, Fla. Stat. For the intangible-
tax exemption, the new loan must “refinance” the old loan with the
same lender. § 199.145(4)(b), Fla. Stat.
In this case, for a couple of years ending in 2018, Bank of
America refinanced home loans for thousands of Florida customers
with new loans secured by mortgages on the same real property
involved with their original mortgage-backed loans. The money
from the new loans repaid debts from the original loans.
In 	recording 	these 	loans 	and 	mortgages, 	the 	Bank 	paid
documentary stamp taxes and nonrecurring intangible taxes on
each loan. Where the new loans were refinanced at amounts
greater than the original loans, the Bank agreed that it owed
additional documentary stamp and intangible taxes corresponding
to “new money” borrowed that exceeded the original home loan
amount. But the Department additionally insisted that the Bank
must pay stamp and intangible taxes over and above the amount
of “new money” it lent to cover the full maximum face amount of
the 	refinanced 	loan, 	including 	amounts 	rolled 	over 	from 	the
original 	loan. 	Although 	the 	Bank 	paid 	what 	the 	Department
required, it sought refunds for overpayments of the stamp and
intangibles taxes under the tax exemption provisions, § 201.09(1)

3
and 	§ 199.145(1), 	in 	the 	amount 	of 	$3,272,523.50 	and
$1,868,301.83 respectively, plus interest.
In response to 	the 	Bank’s 	refund claim, the 	Department
investigated and audited about ten percent of the roughly 9800
subject home loans. During the audit, it created a spreadsheet
reporting 	the 	facts 	and 	figures 	involved 	with 	some 	900+
refinancings. After reviewing the information, the Department
concluded that the Bank had to pay stamp and intangibles tax on
the full amount of the refinanced loans because the Department
considered them to be wholly new loans and not renewals or
refinancings under § 201.09(1) and § 199.145(1).
In the wake of the Department’s decision to deny its refund
claims, the Bank filed a lawsuit seeking refunds. After the parties
filed competing motions for summary judgment and confirmed
that no contested facts existed, the trial court ruled mostly for the
Bank. The trial court decided that 	most of 	the Bank’s loans
qualified as renewal and refinanced loans under the applicable
statues, thereby qualifying the Bank to avoid the stamp and
intangible taxes fully or in part. The court granted summary
judgment for the Bank and denied the Department’s summary
judgment motion.
The Department filed a timely notice of appeal and challenges
the denial of its motion. It asks that we direct the trial court to
enter summary judgment for the Department.
II.
The trial court’s order denying the Department’s motion for
final summary judgment is reviewed de novo. Johnson v. Johnson,
413 	So. 	3d 	872, 	875 	(Fla. 	1st 	DCA 	2025). 	Issues 	of 	statutory
interpretation are 	also reviewed de novo. Crapo v. Univ. Cove
Partners, Ltd., 298 So. 3d 697, 700 (Fla. 1st DCA 2020) (citing
Coastal Creek Condo. Ass’n v. Fla. Tr. Servs. LLC, 275 So. 3d 836,
838 (Fla. 1st DCA 2019)). Summary judgment is appropriate when
the moving 	party 	shows 	the 	absence 	of any genuine 	issues of
material fact—where “facts are so crystallized that nothing remains
but questions of law” and the moving party is entitled to judgment
as a matter of law. Washington v. Fla. Dep’t of Rev., 337 So. 3d 502,

4
508 (Fla. 1st DCA 2022). However, “[o]nce a court determines the
summary 	judgment 	record 	contains 	conflicting 	evidence 	on 	a
material issue of fact from which a factfinder could reach different
conclusions by crediting some evidence over other evidence, the
court . . . simply denies summary judgment and allows the case to
proceed to trial.” CG Tides LLC v. SHEDDF3 VNB, LLC, 388 So. 3d
1081, 1084 (Fla. 3d DCA 2024).
Here we must assess whether the Bank supplied admissible
summary judgment evidence sufficient to prevent the trial court
from granting the Department’s motion. The Department’s first
argument in support of its summary judgment motion involves the
Bank’s stamp-tax refund claim*. The Department asserts that the
* 	The 	applicable 	stamp 	tax 	provision 	in 	§ 	201.09, 	Florida
Statutes, provides that when a loan renews for more than the
unpaid 	balance of 	the original loan, a tax is due 	only 	on the
“increase” or new money associated with the renewal note:
(1) When any promissory note is given in renewal of
any existing promissory note, which renewal note only
extends or continues the identical contractual obligations
of the original promissory note and evidences part or all
of 	the 	original 	indebtedness 	evidenced 	thereby, 	not
including any accumulated interest thereon and without
enlargement in any way of the original contract and
obligation, such renewal note shall not be subject to
taxation under this chapter if such renewal note has
attached 	to 	it 	the 	original 	promissory 	note 	with 	the
proper notation thereon as required by s. 201.133. In
order to be exempt from taxation under this section, a
renewal note evidencing a term obligation shall not be
executed by any person other than the original obligor
and must renew and extend only the unpaid balance of
the original contract and obligation. In order to be exempt
from 	taxation 	under 	this 	section, 	a 	renewal 	note
evidencing a revolving obligation shall not be executed by
any person other than the original obligor and must
renew and extend no more than the original face amount
of the original contract and obligation. A renewal note
evidencing a term obligation which increases the unpaid

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new home loans given to borrowers by the Bank were not “given in
renewal of” the borrowers’ earlier loans and mortgages as required
by § 201.09(1). Instead, the Department views the Bank’s new loans
to be “novations” in which the Bank discharged the borrowers’
original debts and entered new, unconnected loan agreements with
them.
The 	problem 	with 	this 	argument 	is 	that, 	whereas 	the
Department asserts no link between the borrowers’ original and new
home 	loans, 	the 	Bank 	supplied 	admissible 	summary 	judgment
evidence to establish that the borrowers’ prior home loans were
renewed with new home loans from the Bank. Specifically, the Bank
filed 	summary 	judgment 	exhibits—including 	the 	Department-
prepared spreadsheet with the 980-loan sample together with an
affidavit from its Senior Vice President, Home Equity Manager
explaining and documenting how the loans were refinanced. The
Department conceded in its summary judgment motion that the
spreadsheet of loan information provided evidence from which the
Court could evaluate all 9800 loans in the case:
balance of the original contract and obligation but which
otherwise meets the exemption criteria of this section is
taxable only on the face amount of the increase. A renewal
note evidencing a revolving obligation which increases the
original 	face 	amount 	of 	the 	original 	contract 	and
obligation 	but 	which 	otherwise 	meets 	the 	exemption
criteria of this section is taxable only on the amount of the
increase.
(2) 	When 	any 	mortgage, 	trust 	deed, 	security
agreement, or other evidence of indebtedness evidences a
promissory note which would not be subject to taxation
pursuant to subsection (1), then such mortgage, trust
deed, 	security 	agreement, 	or 	other 	evidence 	of
indebtedness shall not be subject to taxation under this
chapter.
§ 201.09, Fla. Stat. (emphasis added).

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6. The Department and [Bank] agreed to review a sample
of 980 loans to make a determination for the full refund
request of 9800 loans. The parties have agreed to use this
sampling as the evidence in this case.
The 980-loan spreadsheet supported the Bank’s case that the new
home loans were linked to the prior home loans made from the Bank
to identical borrowers. This data together with the Bank’s affidavit
identified loans that extended the contractual obligations from the
borrowers’ original mortgages and notes through to the new home
loans. And even though the Bank recorded “satisfactions” of the
original home loans once the new loans were finalized, the evidence
indicated that the borrowers’ obligations to pay the balance on their
original loans to the Bank did not vanish. Rather, the obligations of
the old loans listed on the spreadsheet were rolled into the new loans
listed on the spreadsheet consistent with the loans being renewed.
Thus, 	the 	Bank’s 	summary 	judgment 	evidence 	showed 	that 	it
refinanced loans that could qualify for the stamp tax exemption
under § 201.09. We see no error in the trial court’s decision to deny
the Department’s summary judgment motion.
Nor do the Department’s definitional arguments about the
terms “renewal” and “renewal notes,” as used in § 201.09, alter this
result. The Department distinguishes the statute’s reference to
renewal notes with its view that the Bank’s home loans were
novation-type agreements involving “the making of a new loan . . .
and the satisfaction of the prior loan.” But again here, the agreed
summary judgment record lends substantial evidentiary support to
the trial court’s conclusion that the borrowers’ obligations under the
prior home loans were not satisfied but were extended and rolled
into new mortgage-backed loans. § 201.09(1), Fla. Stat. (exempting
from tax the renewal note that “extends or continues the identical
contractual obligations); see also Fla. Adm. Code R. 12B-4.052(12)(a)
(referring to a “renewal” obligation as a written agreement “that
alters or modifies the contract or obligation of a previous promissory
note, mortgage, . . . or other evidence of indebtedness by [changing
various terms]”; Renewal Note, Black’s Law Dictionary 1273 (12th
ed. 2024) (defining “renewal note” as “[a] note that continues an
obligation that was due under a prior note”). According to the Bank’s
evidence, the loans involved here were refinanced by exchanging the
existing balances on debts for new debts; repaying existing loans

7
with money acquired from new loans; replacing old contracts with
new contracts; and producing notes that continued the obligations
due under prior notes.
The 	Department 	next 	argues 	that 	its 	summary 	judgment
motion should be granted because the Bank didn’t show that it could
meet the statutory attachment and proper notation requirement of
the stamp-tax exemption. See § 201.09(1), Fla. Stat. (exempting
renewal notes from taxation “if such renewal note has attached to it
the original promissory note with the proper notation thereon as
required by s. 201.133”). According to the Department, the original
notes with proper notation must have been attached to the renewal
notes for the Bank to prevail. But we see no error in the trial court’s
application 	of 	this 	statute 	given 	how 	notations 	operate 	in 	the
mortgage context. The trial court explained that attaching notes
bearing the § 201.133 notation does not fit in the mortgage-loan
context 	because 	tax-payment 	notations 	are 	made 	only 	on 	the
mortgage (the document that requires the payment of tax) instead
of on the note. See § 201.08(1)(b), Fla. Stat. (“When there is both a
mortgage . . . and a note . . . , the tax shall be paid on the mortgage
. . . at the time of recordation.”); see also § 201.133 (requiring a
notation “shall be made on each individual document requiring
tax”). 	Because 	mortgage-backed 	notes 	lack 	a 	“proper 	notation
thereon,” the Bank couldn’t have violated § 201.09(1)’s attachment-
with-proper-notation requirement by not attaching the un-notated
notes involved in this case. As discussed above, the Bank did supply
other evidence linking the loans. When the Bank requested refunds,
the summary spreadsheet shows that it supplied evidence to the
Department 	linking 	the 	borrowers’ 	original 	home 	loans 	to 	the
renewal 	loans 	and 	showing 	that 	stamp 	taxes 	were 	paid. 	The
spreadsheet includes a column indicating if taxes were paid on each
borrowers’ loan transactions. All to say, because mortgage-backed
notes aren’t notated in accordance with § 201.133, and because the
summary judgment evidence indicated that the “new promissory
notes [were] given in renewal of existing promissory notes” under
§ 201.09(1), we do not see error in the trial court’s decision related
to the notated-note attachment provision or in the transaction-
related proof supplied by the Bank.
The remainder of the Department’s arguments for reversal
revolve around its view that the Bank failed to support its refund

8
claims with admissible evidence and loan-specific documentation.
But the Department did not make these same challenges below. In
fact, both parties assured the trial court multiple times that no
factual disputes existed in the case, only legal questions. Nor did the
Department seek rehearing to dispute the trial court’s conclusions
that 	“[b]oth 	parties 	agree 	that 	there 	are 	no 	material 	facts 	in
dispute,” or that the “Court’s own review confirms that there are no
material facts in dispute by the parties.” Consequently, we conclude
that the Department waived arguments involving the veracity and
sufficiency of the Bank’s evidence by not making them below, as well
as 	by 	agreeing 	in 	its 	summary 	judgment 	motion 	“to 	use 	[the
spreadsheet] sampling [of the loans] as the evidence in this case.”
III.
For 	these 	reasons, 	the 	judgment 	of 	the 	circuit 	court 	is
AFFIRMED.
M.K. THOMAS and N ORDBY, JJ., concur.
_____________________________
Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
James Uthmeier, Attorney General, and Jeffrey Paul DeSousa,
Acting 	Solicitor 	General, 	Daniel 	Bell, 	Chief 	Deputy 	Solicitor
General, Robert Scott Schenck, Assistant Solicitor General, and
Timothy E. Dennis, Chief Assistant Attorney General, Revenue
Litigation Bureau, Office of the Attorney General, Tallahassee, for
Appellant.
Kristen M. Fiore, Peter O. Larsen, and Raye C. Elliott, of Akerman
LLP, Tallahassee, for Appellee.