Case 9:17-cv-80723-DMM Document 6 Entered on FLSD Docket 06/13/2017 Page 1 of 9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 17-CV-80723-MIDDLEBROOKS/BRANNON

FIRST AMERICAN BANK, as

Successor by Merger to Bank of
Coral Gables, LLC,

Plaintiff,

v.

LAURENCE SCHNEIDER, STEPHANIE

L. SCHNEIDER, et al.,

Defendants.
/

MOTION TO REMAND AND

INCORPORATED MEMORANDUM OF LAW

COMES NOW the Plaintiff, FIRST AMERICAN BANK (hereinafter “First

American”), by and through its undersigned counsel and in accordance with the

applicable Federal Rules of Civil Procedure, the Local Rules and 28 U.S.C. §§ 1331,

1332, 1441, 1446 and 1447, and recognizing that this Court has already entered an Order

to Show Cause [D.E. 5] returnable on Wednesday, June 21, 2017, hereby files this its

Motion to Remand requesting the immediate remand of this foreclosure litigation to Circuit

Court Judge James Ferrara (the head of the Foreclosure Division of the Fifteenth Judicial

Circuit in and for Palm Beach County, Florida).

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First American filed its Verified Foreclosure Complaint in the Palm Beach Circuit

Court against the Defendants, Laurence S. Schneider, Stephanie L. Schneider and The

Oaks at Boca Raton Property Owners’ Association, Inc. (hereinafter “State Court

Action”).1 All of Laurence S. Schneider and Stephanie L. Schneider’s affirmative

defenses and all of Laurence S. Schneider’s counterclaims have been dismissed with

prejudice. The Circuit Court has set the State Court Action on its non-jury trial calendar

commencing on Wednesday, June 28, 2017 – in two weeks. Further, the Court specially

set for hearing First American’s Motion for Summary Judgment on June 26, 2017 at 2:30

p.m. See Appendix – History of State Court Litigation filed contemporaneously.

Unhappy with the status of the State Court Action, Defendant, Laurence S.

Schneider, pro se, filed a jurisdictionally-baseless and untimely Notice of Removal [D.E.

1]. The sole over-arching strategy that has been employed by Defendants, Laurence S.

Schneider and Stephanie L. Schneider, with respect to the referenced State Court Action

has been to delay resolution of the case and inevitably cause First American to incur

additional fees, costs and expenses. There has been a non-stop series of Motions for

Extension of Time, foot-dragging and other dilatory tactics which have been designed

simply to delay the inevitable foreclosure judgment that will ultimately be entered. In this

regard, First American’s March 1, 2017 Motion to Compel Defendants to Comply with this

Court’s Order, attached as Exhibit “1,” is illustrative.

The last minute/last gasp filing by the Schneiders of their Notice of Removal on the

eve of the specially-set Motion for Summary Judgment hearing (2:30 p.m. on Monday,

1 The real property being foreclosed is a residence in Boca Raton, Florida. However, the Defendants
do not presently live there; they live in another residence in Boca Raton, Florida. The property being
foreclosed has been vacant since the end of October 2016.

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June 26, 2017) and the Court’s having noticed the case for trial (on Wednesday, June 28,

2017) constitutes nothing more than an ill-advised desperate measure to attempt to stave

off the inevitable. At best, the Schneiders’ Notice of Removal constitutes an abuse of

process (being designed to do nothing more than to further delay and harass First

American) or, at worst, a fraud on this Court.

Simply stated, there are absolutely no legal grounds for removal of this case. In

addition to being jurisdictionally-baseless (as is partially recognized by this Court’s Order

to Show Cause [D.E. 5]) and untimely, the removal suffers from numerous fundamental

flaws/substantive defects and should be immediately remanded to the Palm Beach Circuit

Court. First American should be awarded its reasonable attorneys’ fees, costs and

expenses in being forced to respond to the Notice of Removal.

MEMORANDUM OF LAW

I. A Florida Resident Cannot

Remove a Properly-Filed
State Court Action to Federal Court

In addition to the “federal question” jurisdictional defect identified by this Court in

its Order to Show Cause [D.E. 5]2, the Schneiders’ attempted removal runs afoul of the

clear language of the removal statute, 28 U.S.C. § 1441(b)(2), which reads in applicable

part:

“A civil action otherwise removable solely on the basis of [diversity]

jurisdiction may not be removed if any of the parties in interest properly

2 The Order to Show Cause [D.E. 5] provides that “Defendants’ theory of subject matter jurisdiction
is flawed” and cites to the case of Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831
(2002). See also Caterpillar, Inc. v. Williams, 482 U.S. 386, 393, 107 S. Ct. 2425, 96 L.Ed. 2d 318 (1987)
(emphasis in original) (“Thus, it is now settled law that a case may not be removed to federal court on the
basis of a federal defense …”) and Bank of New York Melon Trust Co. v. Johnson, 2010 U.S. Dist. LEXIS
136415; 2010 W.L. 5426783 (N.D. Fla. Nov. 24, 2010) – adopted at 2010 U.S. Dist. LEXIS 136414 (N.D.
Fla. Dec. 27, 2010) (“[T]he grounds for removal must inhere in the plaintiff’s claim, rather than be based on
a defense or counterclaim.”).

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joined and served as defendants is a citizen of the State in which such

action is brought.”

Florida citizens who are named as defendants in lawsuits brought in Florida State

Courts cannot remove that litigation. See, among others, Lincoln Property Co. v. Roche,

546 U.S. 81, 83-84, 126 S. Ct. 606, 610, 163 L.Ed.2d 415, 421 (2005) (“When federal

court jurisdiction is predicated on the parties’ diversity of citizenship, see §1332, removal

is permissible ‘only if none of the parties in interest properly joined and served as

defendants is a citizen of the State in which [the] action [was] brought.’”); and Bank of

New York Melon Trust Co. v. Johnson, 2010 U.S. Dist. LEXIS 136415; 2010 W.L.

5426783, * 6-7 (N.D. Fla. Nov. 24, 2010) – adopted at 2010 U.S. Dist. LEXIS 136414

(N.D. Fla. Dec. 27, 2010) (“The express language in the removal statute prohibits removal

by citizens of the state in which the action is brought.”).

That Laurence S. Schneider and Stephanie L. Schneider are citizens of the State

of Florida is made manifest by their admitting in Paragraph 3 of their Answer that they are

residents of Palm Beach County [D.E. 1-1, p. 29] and is further borne out by the fact that

for the year 2016, they declared another residential property in Boca Raton, Florida as

their homestead (see Exhibit “2”). Further, Defendant, The Oaks at Boca Raton Property

Owners’ Association, Inc., is a Florida not-for-profit corporation existing and organized

under the laws of the State of Florida, with its principal place of business in Boca Raton,

Florida.

Accordingly, because all of the Defendants in the State Court Action are Florida

citizens who have been sued in a Florida state court, Defendants, Laurence S. Schneider

and Stephanie L. Schneider, cannot remove this action based on diversity jurisdiction.

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II. All Defendants Must

Join in Removal

Part of the removal statute/procedure requires that “… all defendants who have

been properly joined and served must join in or consent to the removal of the action.” 28

U.S.C. § 1446(b)(2)(A). The homeowners association of the property being foreclosed,

The Oaks at Boca Raton Property Owners’ Association, Inc., was named as a Defendant

in the State Court Action, was properly served with the Verified Foreclosure Complaint

and has filed an Answer and Affirmative Defenses. Because Defendant, The Oaks at

Boca Raton Property Owners’ Association, Inc., did not join in, or consent to, the Notice

of Removal, the removal is defective on its face. See, among others, Russell Corp. v.

Am. Home Assur. Co., 264 F. 3d 1040, 1044 (11th Cir. 2001) (“The unanimity requirement

mandates that in cases involving multiple defendants, all defendants must consent to

removal.”); and Guthrie v. Finnegan’s Wake Irish Pubs, LLC, 2009 U.S. Dist. LEXIS

31428; 2009 W.L. 997066 (N.D. Fla. April 14, 2009) – adopted at 2009 U.S. Dist. LEXIS

47190 (June 4, 2009) (“[I]t is well established that in cases where there are multiple

defendants, the unanimity requirement mandates that all defendants join in removing the

state court action to federal court.”).

III. The Schneiders’ Notice

of Removal is Untimely

28 U.S.C. § 1446(d)(1) makes it clear that:

“The notice of removal of a civil action or proceeding shall be filed within

30 days after the receipt by the defendant through service or otherwise
of a copy of the initial pleading setting forth the claim for relief upon which
such action or proceeding is based….”

(Emphasis added.) Defendants, Laurence S. Schneider and Stephanie L. Schneider,

were properly served with Summons and copies of First American’s Verified Foreclosure

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Complaint on August 23, 2016. The Schneiders’ Notice of Removal was not filed until

some 9½ months after the Defendants were served with a copy of First American’s initial

pleading. This delay in filing the Notice of Removal is, in and of itself, a sufficient legal

basis for the immediate remand of this case to the Palm Beach Circuit Court. See Bank

of New York Melon Trust Co. v. Johnson, 2010 U.S. Dist. LEXIS 136415; 2010 W.L.

5426783 (N.D. Fla. Nov. 24, 2010) – adopted at 2010 U.S. Dist. LEXIS 136414 (N.D. Fla.

Dec. 27, 2010).

The Schneiders make a half-hearted attempt to avoid the clearly untimely filing of

their Notice of Removal by inappropriately referring to 46 U.S.C. § 1446(c)(1), that

provides, in very limited circumstances where “the district court finds that plaintiff has

acted in bad faith in order to prevent a defendant from removing the action” and then

going on to “kinda/sorta” allege that First American “deliberately failed to disclose the

actual amount in controversy to prevent removal.” Id. [D.E. 1, p. 4].

This argument made by the Schneiders is fatuous and disingenuous. No bad faith

of any type or nature has been alleged or otherwise set forth by the Schneiders.

Moreover, First American clearly and unequivocally alleged in its Verified Foreclosure

Complaint that the unpaid principal amount owed by the Schneiders on the Mortgage and

the Credit Agreement was $1,488,748.05 [D.E. 1-1, pp. 7, 11].

IV. Failure to Provide

Circuit Court Pleadings

28 U.S.C. § 1446(a) requires that a condition of removal is that the party removing

the action must file “all process, pleadings and orders served upon such defendant or

defendants” to the District Court. In the case at hand, the Schneiders elected to file only

83 pages of materials from the Circuit Court action [D.E. 1-1, pp. 1-83]. First American

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would submit that the Schneiders’ production of Circuit Court pleadings to the District

Court is woefully inadequate and that the production constitutes only a small percentage

of the many pleadings, process and orders that were served upon the removing

defendants. Indeed, a copy of the Circuit Court docket sheet (attached as Exhibit “3”),

reflects that there have been a total of 115 docket entries. This procedural defect is an

independent ground which mandates remand of this case to the Palm Beach Circuit

Court.

V. First American Should be

Reimbursed for its Attorneys’ Fees/Costs/Expenses
Incurred as a Result of the Schneiders’
Improper Removal

This Court has discretion to award to First American those attorneys’ fees, costs

and expenses incurred by First American as a result of the Schneiders’ improper removal.

See, 28 U.S.C. § 1447(c) and Bank of New York Melon Trust Co. v. Johnson, 2010 U.S.

Dist. LEXIS 136415; 2010 W.L. 5426783 (N.D. Fla. Nov. 24, 2010) – adopted at 2010

U.S. Dist. LEXIS 136414 (N.D. Fla. Dec. 27, 2010).

The United States Supreme Court has held that ‘absent unusual
circumstances, courts may award attorney’s fees under §1447(c) only
where the removing party lacked an objectively reasonable basis for
seeking removal.

Id. See also Guthrie v. Finnegan’s Wake Irish Pubs, LLC, 2009 U.S. Dist. LEXIS 31428;

2009 W.L. 997066 (N.D. Fla. April 14, 2009) – adopted at 2009 U.S. Dist. LEXIS 47190

(June 4, 2009) (“the appropriate test for awarding fees under §1447(c) should recognize

the desire to deter removals sought for the purpose of prolonging litigation and imposing

costs on the opposing party ….”).

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The Schneiders’ purported removal is untimely, jurisdictionally baseless and

otherwise improper. The Notice of Removal was not filed in good faith; rather, its filing

was simply a further step in the Schneiders’ attempt to delay resolution of this case. In

other words, this case is a textbook example of a removal where the removing party had

no basis, whatsoever, for removal, let alone an objectively reasonable basis. There is a

complete absence of any argument to support either federal question or diversity

jurisdiction. It is apparent that the only reason Defendants, Laurence S. Schneider and

Stephanie L. Schneider, removed this action was to delay the scheduled trial and hearing

on First American’s Motion for Summary Judgment. Accordingly, because there is

absolutely no objectively reasonable basis for removal, First American is entitled to those

attorneys’ fees, costs and expenses it incurred as a result of Defendants improper

removal of this action.3

L.R.Fla.S.D. 7.1(a)(3) Certification

Pursuant to Local Rule 7.1(a)(3), prior to filing the instant Motion to Remand, the

undersigned counsel has made reasonable efforts to confer with Defendants, Laurence

S. Schneider and Stephanie L. Schneider, via telephone on June 13, 2017 but was unable

to do so.

WHEREFORE, the Plaintiff, FIRST AMERICAN BANK, requests that this Court

immediately enter an Order remanding this case to the Fifteenth Judicial Circuit in and for

Palm Beach County, Florida, and award to FIRST AMERICAN BANK those attorneys’

fees, costs and expenses incurred by FIRST AMERICAN BANK in opposing the removal

3 First American requests that this Court immediately remand the State Court Action while retaining
jurisdiction to determine the quantum of attorneys’ fees, costs and expenses at a later date.

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and in preparing and filing this Motion to Remand, together with such further and other

relief as the Court deems just and appropriate under the circumstances.

Respectfully submitted,

KELLER & BOLZ, LLP

Attorneys for
121 Majorca Avenue, #200
Coral Gables, FL 33134
Telephone: (305) 529-8500
Telefax: (305) 529-0228
Email: hbolz@kellerbolz.com

By: s/ Henry H. Bolz, III

Henry H. Bolz, III
Florida Bar No. 260071

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing Motion to

Remand was delivered to the addressee(s) below via transmission of Notices of

Electronic Filing generated by CM/ECF on this 13th day of June, 2017:

LAURENCE S. SCHNEIDER, Pro Se STEPHANIE L. SCHNEIDER

360 Coconut Palm Road 360 Coconut Palm Road
Boca Raton, FL 33432 Boca Raton, FL 33432
Email: Larry@sacapitalpartners.com Email: steffschneider13@gmail.com

KELLER & BOLZ, LLP

By: s/ Henry H. Bolz, III

Henry H. Bolz, III

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IN THE CIRCUIT COURT OF

THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA

CASE NO.: 502016-CA-009292

DIVISION AW

FIRST AMERICAN BANK, as

successor by merger to Bank of
Coral Gables, LLC,

Plaintiff,

v.

LAURENCE S. SCHNEIDER,
STEPHANIE L. SCHNEIDER,
JEFFREY MARC HERMAN,
UNKNOWN TENANT #1, UNKNOWN
TENANT #2 and THE
OAKS AT BOCA RATON PROPERTY
OWNERS’ ASSOCIATION, INC.,

Defendants.
/

FIRST AMERICAN’S MOTION TO COMPEL

DEFENDANTS TO COMPLY WITH THIS COURT ORDERS

COMES NOW the Plaintiff, FIRST AMERICAN BANK, by and through its

undersigned counsel, and in accordance with the applicable Florida Rules of Civil

Procedure, hereby files this its Motion to Compel Defendants, LAURENCE S.

SCHNEIDER and STEPHANIE L. SCHNEIDER (collectively “the SCHNEIDERS”) to

comply with this Court Order Striking the Schneiders’ Affirmative Defenses, dated

January 26, 2017, and Order Granting in Part/Denying in Part Motion to Dismiss

Schneider’s Counterclaim, dated January 26, 2017, and in support thereof states:

Exhibit #1
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Background

Since the inception of this foreclosure proceeding, the SCHNEIDERS have sought

seven (7) extensions of time to file their responsive pleading to FIRST AMERICAN’s

Verified Foreclosure Complaint. Specifically:

(1) On September 12, 2016, the date that the SCHNEIDERS’ responsive pleading

was due,1 the SCHNEIDERS filed their Motion for Extension of Time to Respond

to Complaint, seeking a 20-day extension of time. On October 3, 2016, the

SCHNEIDERS filed their Motion to Dismiss the Verified Foreclosure Complaint.

On October 14, 2016, this Court entered an Order Denying the SCHNEIDERS’

Motion to Dismiss and ordering the SCHNEIDERS to file and serve their Answer

to the Verified Foreclosure Complaint “within twenty (20) days of entry of this

Order” – on or before November 3, 2016.

(2) On November 4, 2016, a day after the SCHNEIDERS’ responsive pleading was

due pursuant to this Court’s October 14th Order, counsel for the SCHNEIDERS,

via email, requested a five (5) day extension of time to file their Answer to the

Verified Foreclosure Complaint. The undersigned granted the request. A copy of

the November 4, 2016 email exchange between Mr. Trent and undersigned is

attached hereto as Exhibit “A.”

(3) On November 7, 2016, counsel for the SCHNEIDERS, via email, requested a

further one (1) day extension of time to file their Answer to the Verified Foreclosure

Complaint. Again, the undersigned granted the request. A copy of the November

1
The SCHNEIDERS were served with copies of the Verified Foreclosure Complaint on August 23,
2016.

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7, 2016 email exchange between Mr. Trent and undersigned is attached hereto as

Exhibit “B.”

(4) Despite having been granted a six (6) day extension of time to file a responsive

pleading, on November 8, 2016, the SCHNEIDERS filed yet another Motion for

Extension of Time in Which to File Answer, Affirmative Defenses and Counterclaim

seeking an additional five (5) day extension of time.

(5) On November 14, 2016, instead of filing their Court-Ordered responsive pleading,

the SCHNEIDERS filed their Second Motion for Extension of Time in which to File

Answer, Affirmative Defenses and Counterclaim seeking an additional two (2) day

extension of time. On November 16, 2016, the SCHNEIDERS filed their Answer,

Affirmative Defenses and Counterclaim.

(6) On January 26, 2017, this Court struck the SCHNEIDERS’ Affirmative Defenses

and Counterclaim and ordered the SCHNEIDERS to file and serve amended

affirmative defenses and LAURENCE S. SCHNEIDER to file and serve an

amended counterclaim within twenty (20) days – on or before February 15, 2017.

(7) On February 14, 2017, counsel for the SCHNEIDERS, via email, requested a ten

(10) day extension of time to file amended affirmative defenses and an amended

counterclaim. A copy of the February 14, 2017 email from Mr. Trent to undersigned

is attached hereto as Exhibit “C.” Forty-five minutes later, the SCHNEIDERS filed

their Motion for Extension of Time to File and Serve Amended Defenses and

Counterclaim.

(8) On February 28, 2017, undersigned emailed counsel for the SCHNEIDERS stating

that the SCHNEIDERS’ responsive pleadings were overdue. A copy of

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undersigned’s February 28, 2017 email to Mr. Trent is attached hereto as Exhibit

“D.” In response, the SCHNEIDERS filed their Second Motion for Extension of

Time to File and Serve Amended Defenses and Counterclaim seeking an

additional six (6) day extension of time to file their responsive pleadings.

Argument

It is clear that the above-listed extension requests filed by the SCHNEIDERS and

their counsel have been interposed primarily, if not solely, for the purpose of delay.

Despite the fact that this case has not proceeded past the pleading stage and is not yet

“at issue,” it is apparent: (1) that the SCHNEIDERS will not abide by any deadline set by

this Court or the Florida Rules of Civil Procedure and (2) before taking any action required

by this Court or the Florida Rules of Civil Procedure the SCHNEIDERS will file at least

two motions for extension of time.

It is evident that the SCHNEIDERS February 28, 2017 Second Motion for

Extension of Time is simply the latest installment in an already long-running pattern of

unreasonable delay. For the most part all motions seeking an extension of time invoke

the same boilerplate grounds in support:

“The undersigned attorney needs additional time to prepare the response

due to the press of business in other matters.”

“This request is interposed in good faith and not for ulterior purpose, such
as delay.”

See September 12th Motion ¶¶ 1 & 2; November 8th Motion ¶¶ 3 & 5; February 14th Motion

¶¶ 1 & 2; and February 28th Motion ¶¶ 1 & 2. The fact that counsel for the SCHNEIDERS

is a “solo practitioner” does not justify his seeking repeated extensions of time of each

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and every deadline set by this Court or the Florida Rules of Civil Procedure. See

November 8th Motion ¶ 3, February 14th Motion ¶ 1 and February 28th Motion ¶ 1.

The SCHNEIDERS are already responsible for very significant delays in the

resolution of this case. As a result of their numerous requests for extensions of time, it

has now been more than six (6) months since FIRST AMERICAN filed its Verified

Foreclosure Complaint and the SCHNEIDERS have yet to file a responsive pleading that

satisfies this Court’s pleading requirements or Florida law.

WHEREFORE, Plaintiff, FIRST AMERICAN BANK, respectfully requests that this

Court enter an Order requiring: (a) Defendants’, LAURENCE S. SCHNEIDER and

STEPHANIE L. SCHNEIDER, to file their amended affirmative defenses immediately and

(b) Defendant, LAURENCE S. SCHNEIDER, to file his amended counterclaim

immediately, together with such further and other relief as the Court deems just and

appropriate under the circumstances.

Respectfully submitted,

KELLER & BOLZ, LLP

Attorneys for Plaintiff
121 Majorca Avenue, #200
Coral Gables, FL 33134
Telephone: (305) 529-8500
Telefax: (305) 529-0228
Email: hbolz@kellerbolz.com

By: s/ Henry H. Bolz, III

Henry H. Bolz, III
Florida Bar No. 260071

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CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing, First

American’s Motion to Compel Defendants to Comply with this Court Orders, was

delivered to: KENNETH ERIC TRENT, ESQ. (trentlawoffice@yahoo.com), Trent Law

Office, Attorneys for Laurence and Stephanie Schneider, 831 East Oakland Park

Boulevard, Fort Lauderdale, FL 33334; STUART S. MERMELSTEIN, ESQ.

(smermelstein@hermanlaw.com, mconnor@hermanlaw.com), Herman Law, Attorneys

for Jeffrey Herman, 3351 NW Boca Raton Blvd., Boca Raton, FL 33431; and JAY S.

LEVIN, ESQ. (foreclosures@ssclawfirm.com), Sachs, Sax, Caplan, Attorneys for Oaks

at Boca Raton, 6111 Broken Sound Parkway, N.W., #200, Boca Raton, FL 33487 via the

E-filing Portal on this 1st day of March, 2017.

KELLER & BOLZ, LLP

By: s/ Henry H. Bolz, III

Henry H. Bolz, III

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Exhibit #3
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