A-35 Def's FAB & Keller & Boll Mot. Sanctions Re. Mot. Set Aside Judgment

Case 9:20-cv-81728-DMM Document 17-35 Entered on FLSD Docket
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IN THE CIRCU IT COUR T OF THE

FIFTEE NTH JUDIC lAL CIRCU IT, IN
AND FOR PALM BEACH COUN TY,
FLORI DA
LAURE NCE S. SCHNE IDER and Case No.: 50-2019-CA-OO IO 16-XX XX-MB
STEPH ANIE L. SCHNE IDER,
Plaintif fs, Served, but not Filed on March 11 , 2019

pursuant to Section 57.105(4), Florida
v. Statutes
FIRST AMER ICAN BANK, HENRY H.
BOLZ, and KELLE R & BOLZ, LLP,
___Defend
___ ants.
___ ___ __/
DEFEN DANT S' JOINT MOTI ON FOR SANCTIONS
Pursuan t to Section 57. 105(1) of the Florida Statute s, Defend ants Keller
& Bolz, LLP
(the "Firm" ) and Henry H. Bolz (" Bolz") (collect ively the "Law Firm Defend
ants"), as well as
Defend ant First Americ an Bank ("First Americ an") (together the "Defen
dants") move for
sanctio ns against Plaintif fs Laurence S. Schneid er and Stephan ie L. Schneid
er (collectively the
"Plaintiffs" or "Schne iders") and their counsel , Charles F. Rodma n,
Esq., and Andrew D.
Wyman , Esq. because they knew or shou ld have known from the inceptio
n of this lawsuit that
the claim for fraud on the court asserted in the Verifie d Compla int (the
"Comp laint") is not
support ed by the materia l facts, and is contrar y to the well-es tablishe d law
govern ing the claim.
The Defend ants state the followi ng in suppor t of this Motion :
Introduction
This action for fraud on the court asserted against the Defend ants is based
on allegati ons
that the purport ed fraudul ent conduc t by the Law Firm Defend ants "preven
ted the Schneid ers
from present ing an opposit ion to the motion for summa ry judgme nt and
particip ating in the
hearing on the motion for summa ry judgme nt." (Camp i. il53). These allegati
ons are devoid of
merit- legally and factuall y.
"A-35 "
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This is not a typical case where the Court is merely presented with a Compla
int, and the
parties need to engage in discovery to vet the assertions and claims contain
ed in that pleading.
Here, the Schneid ers and First American (with the Law Firm Defend
ants acting as First
Americ an's counsel) have engage d in foreclo sure Iitigation for over two and
a half years - which
included plenary review of the final judgme nts entered in that action by an
appellate court. The
record in the foreclosure action is voluminous. 1 The parties' actions, and those
of the Law Firm
Defendants on behalf of First American, are well-documented. The record conclusively
establishes that the asserted fraud claim fails as a matter of law, and is
subject to immediate
dismissal by the Court.
First, Florida law precludes the Schneiders (and their counsel) from filing an
independent
action for fraud on the court based on the allegations of intrinsic fraud. See
infra §II.A.
Second , this lawsuit is an improper attempt to re-litigate the Foreclosure Action.
(§11.B).
Third, all the allegedly fraudulent conduc t by the Law Firm Defend ants identifi
ed by the
Schneid ers (and their counsel) in the Complaint as the basis of the fraud
claim, is absolutely
protect ed under Florida 's litigation privilege. (§11.C).
Fourth, the Schneiders (and their counsel) are estoppe d from filing the fraud
claim under
the principles of collateral estoppe l and res judicata. (§11.D).
Fifth, the established record negates each and every allegation of fraud alleged
by the
Schneiders (and their counsel) in the Verified Complaint. (§Ill.A) .
Sixth, the Law Firm Defendants are simply not a proper party to this action,
which seeks
relief from a foreclosure judgme nt between the Schneid ers and First Americ
an. (§ Jll. B).
1
The appellate record in the foreclosure action alone constituted 1248 pages.
2
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This action was filed by the Schneider s as yet another attempt to delay the inevitable , the
foreclosur e of the property o r the payment of the Amended Final Judgment of Foreclosu re
amount. (Comp!. ,is I and p. 11 ). The Schneider s know that their latest fraud on the court c laim
has no merit, and should be subject to sanctions . But, given the record available to their counsel
in this actio n, Andrew D. Wyman and Charles F. Rodman, along with the ir representa tion of the
Schneider s in the Foreclosu re Action s ince Decembe r 2018 and January 2019, respective ly, their
counsel a lso knows or should know based on the established record in the foreclosu re action
that the asserted claim for fraud on the court is utterly meritless. Should the Schneider s and their
counsel fail to dismiss this action against the Defendan ts w ithin the 21 -day safe harbor period,
the Defendan ts are entitled to an award of attorney's fees and costs against the Schneiders and/or
their counsel for filing this baseless claim.
Established Facts
1. On August 17, 201 6, First American filed a foreclosur e action against the
Schneide rs (and others) in the Fifteenth Judic ial Circuit in and for Palm Beach County, Florida,
Case No. 50-2016- CA-0092 92 (the "Foreclos ure A ction") in w hich First American sought to
fore.close a mortgage on residentia l property located at 17685 C ircle Pond Court, Boca Raton,
Florida (the " Property" ). (R. 12-35).2
2. In the Foreclosu re Action, the Schneider s were represented by Kenneth Eric
Trent, Esq. ("Trent") (until his withdraw al, see infra ,i6), and First American was represente d by
the Law Firm Defendants throughou t the entire Foreclosu re Action.
3. On Novembe r 16, 2016, the Schneiders filed their Answer, Affirmati ve Defenses,
and Countercl aim to the Complaint. (R. 16 7-76). First American moved to dismiss the
2
For certain documents not attached to this Motion, the Defendants have cited to the appellate record
(R. _), where appropriate. Given the length, and procedural posture of the underlying foreclosure action,
both the Schneiders and their counsel should be in possession of this record.
3
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Counterclaim, and strike the Schneiders' two affirmative defen

ses. (R. 205-26, 230-42). On
Janua ry 26, 2017, the Court entered Order s strikin g the
affirm atives defenses (one with
prejudice), and dismissing the three claim s asserted in the
Counterclaim (two with prejudice).
(R. 243-4 6).
4. On March 6, 2017, the Schneiders filed their Answ er, Amen

ded Affirmative
Defenses, and Amen ded Counterclaim. (R. 347-56). First American moved to strike the
amend ed affirmative defenses, and dismi ss the Amen ded Count
erclaim. (R. 377-9 1, 392-414).
On April 7, 2017, the Court entered Order s strikin g all three
affirmative defen ses with prejudice,
dismissing Count 4 of the Amen ded Count erclai m with prejud
ice, and noting the Schne iders
voluntarily withd rew the remai ning claim s asserted in the Amen
ded Counterclaim. (R. 478-81).
At this junctu re, the Court also held that the Schne iders were
not permitted to file any furthe r
affirmative defenses or Counterclaims. id.
5. On April 17, 2017, Bolz sent an email to Trent (the

Schne iders' counsel)
requesting dates for the Schne iders' depositions to take place
in "the middle of May 20 17," and
seekin g to confe r with Trent on setting a trial date for the Forec
losure Actio n. (Exhibit "1 ").
6. On May 1, 2017, the Court entered an Order in the Forec losure

Actio n allow ing
Trent to withdraw as counsel for the Schneiders. (R. 507). Upon Trent 's withdrawal, the
Schneiders proceeded pro se in the Forec losure Action up throug
h their filing of post-judgment
motions in the Foreclosure Action. See infra 142.
7. That same day (May 1, 2017), Bolz sent Mr. Schne ider an
email informing him
that Trent was no longe r his legal counsel in the Foreclosure
Action, and providing him a
complete set of the Schne iders' documents that had been provid
ed to the Law Firm Defendants
by Trent at the hearing earlier that day. (Exhibit "2").
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8. On May 4, 2017, Bolz sent an email to Mr. Schneider

to "follow[] up on our
email to Attorney Kenneth Eric Trent, dated April 17, 2017
(attached)." (Exh ibit "3"). In that
email, Bolz again requested dates for the depositions of
the Schneiders, this time to take place in
" the middle of June 2017," and sought to confer with
Mr. Schneider on trial specifics in
accordance with the applicable Palm Beach County Forec
losure Cour t rules. Id.
9. After not receiving a response from the Schneiders, First
American filed a Notice
for Trial on May 9, 2017. On that same day, First Amer
ican noticed the depos itions of Mr.
Schneider for June 13, 2017 and Mrs. Schneider for June
14, 2017.
10. On May 16, 2017, the Cour t entered an Orde r setting
the matte r for trial during
the trial period commencing June 28, 2017 .
11. On May 23, 2017, the Law Firm Defendants filed a

Notice of Unavailability,
informing the Cour t that Bolz would be unavailable from
July 14, 2017 through July 26, 2017.
The Law Firm Defendants also filed a Motion for Specially-S
et Trial Date.
12. On May 24, 2017, the Schneiders filed a Motion to Drop
Mrs. Schneider as a
party, and unilaterally noticed that Motion for hearing
for June 12, 2017. 3 Upon receiving the
unilaterally filed Notice of Hearing from the Schneiders,
the Law Firm Defendants noticed the
previously filed Motio n for Specially-Set Trial Date, and
Notice of Unavailability.
13. Later that day (on May 24, 2017), Bolz sent an
email to Mr. Schneider,
responding to four emails sent earlier that day by Mr. Schn
eider to Bolz. (Exh ibit "4"). As part
of the response, Bolz informed Mr. Schneider that the
previously scheduled events would be
going forward, which included the pre-trial matters set
to be heard by the Court on June 12,
3
The Schne iders subsequent ly verba lly withd rew this Motio
n in early June 2017.
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2017, the depositions of Mr. and Mrs. Schneider set for June
13, 2017 and June 14, 2017,
respectively, and the trial beginning on June 28, 2017. Id. at p.
2.
14. On May 25, 2017, First American filed a Motion for Summ
ary Judgment. (R.
525-738).
15. On May 26, 2017, Bolz sent an email to the Schneiders

in an "attempt[] to
coord inate a hearing" on the already filed Motion for Summ
ary Judgment, identifying the
"earliest possible hearing date" available from the Court as June
26, 2017. (Exhibit "5").
16. Mr. Schneider responded via email that same day. (Exhi bit
"6"). In that email,
Mr. Schneider stated he was "unavailable from between June
26, 2017 and July 5, 2017," and
that he did "not agree to the proposed hearing for the Motion for
Summary Judgment." Id.
17. Bolz replied to Mr. Schneider via email shortly thereafter. (Exhi
bit "7"). In that
email, Bolz stated that " [y]our advices that you ' are unavailable
from between June 26, 2017 and
July 5, 2017' precludes our ability to set the Motion for Summ
ary Judgment down for hearing on
June 26, 2017," and that First American "will pursue alternate
dates for the hearing." Id.
18. fn accordance with court procedure, on May 26, 2017, Bolz
sent a letter to the
Court to reques t a 45-minute special set hearing (the "Hear
ing Letter''). (Exhibit "8"). The
Hearing Letter was indeed sent to the Court. (Exhibit "9").
It was sent by Federal Express on
May 26, 2017, and was received by the Court on May 30, 2017.
Id. The Hearing Letter was also
sent via email to the Schneiders on May 26, 2017. (Exhi bit "10")
. Bolz stated the fo llowing in
the Hearing Letter:
In accordance with the Court 's Divisional Instructions, under

signed contacted the
Schneiders in effort to coordinate a special set hearing
on the Motion for
Summary Judgm ent on June 26, 2017. Mr. Schneider responded
by stating: "I am
unavailable between June 26, 2017 and July 5, 2017 ...."
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Both for the conv enience of all parti es and judic

ial econ omy, First
Ame rican 's Moti on for Summ ary Judg ment shou ld
be heard befor e the begin ning
of the non-j ury trial calen dar on June 28, 2017 .
As the Schn eider s refuse to agree to a heari ng

date, First American
respectfully requests that the Cour t set a 45 minu
te special set heari ng on First
Ame rican 's Moti on for Summ ary Judg ment on any
of the seven business days
betw een June IS, 2017 (the 21 st day follo wing
the filing of First Ame rican 's
Motion for Summ ary Judg ment ) and June 25, 2017
(prio r to the beginning of the
June 28, 2017 trial calen dar period).
19. On June 2, 2017 , the Cour t enter ed an Orde r Spec

ial Setti ng Hearing, in whic h the
Cour t set the heari ng on First Ame rican 's Moti on
for Summ ary Judg ment for June 26, 2017.
(Exhibit "11 "). The Orde r expre ssly stated: "TH
IS MOTION IS SPECIALLY SET AND
CANNOT BE CANCELLED OR RESET EXCEPT
BY COURT ORDER." Ex. I l , p. 2
(emp hasis and caps in origi nal). The Orde r was emai
led direc tly by the Cour t to the Schneiders.
Ex. 11. A " List of Hear ings" confi rms that the
June 26, 2017 hearing was "Sch edu led By"
mhem ande zl@p bcgo v.org - i.e., by the Cour t.
(Exhibit "12"). In addition, First Ame rican,
also formally serve d a copy of the Orde r on the Schn
eider s (as requi red by the Orde r) by filing a
"Not ice of Serv ice" w ith the Cour t on June 2, 2017
.
20. On June 8, 2017 , Mr. Schn eider sent Bolz an emai

l statin g that he (Mr. Schn eider )
will "be in Wash ingto n D.C. the week of June 12th
, 2017 -Jun e 15th, 2017," and thus unav
ailab le
for the June 12, 2017 hearing (a heari ng whic h the
Schn eider s them selve s unilaterally sched uled
on May 24, 2017 , see supra ,it2), and for the depo
sition s of him and his wife scheduled for June
13, 2017 and June 14, 2017 , respectively. (Exhibit
"13").
21. On June 9, 2017 (in the after noon ), the Schn eider s
filed a Moti on for Cont inuan ce
of the June 12, 2017 heari ng, as well as the June th
13 and June 14th depositions. The Schn eider s
did not attem pt to sched ule a hearing on this Moti
on. Later that even ing (at 8:35 p.m.), the
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Schne iders filed a Not ice of Remo val in the United States
District Cour t for the South ern Distri ct
of Florida (the "District Court").
22. At no time prior to time of filing the Notic e of Remo

val did the Schne iders
indica te a date on which they migh t be available for
trial, a hearing on a motio n for summ ary
judgm ent, or their depos itions. Conversely, the Schne
iders uniformly were unavailable for any
dates suggested by Bo lz or imposed by the Court.
23. On June 13, 2017, the Distr ict Cour t entered an Orde r
to Show Cause (the "Sho w
Caus e Orde r") becau se federal question jurisd iction
was not appar ent on the face of the
complaint. (Exhibit "14"). The District Cour t ordered
the Schneiders to " respo nd to this order
by showing good cause why this case should not be reman
ded to state court or else by indica ting
conse nt to remand" by June 2 1, 2017 .
24. On June 22, 2017, the Law Firm Defen dants receiv
ed a copy in the mail of
"Defe ndant s' Resp onse to Cour t's Orde r to Show Caus
e" (the "Resp onse" ). The Law Firm
Defendants retaine<l the envel ope in which they received
the Response. (Exh ibit "15"). Beca use
the Response did not appea r to have been filed with the
District Cour t, the Law Firm Defendants
filed a Notic e of Filing - with an attached copy of the
Response - in the District Court, and in
the Forec losur e Action. (Comp. Exhibit "16"). The
Law F irm Defen dants also emailed the
Schneiders a copy of the Notic e of Filing on that same
day, June 22, 2017. (Exhibit "17").
Over a mont h later, on July 26, 2017 , the Schn eider s' Respo
nse was filed w ith the District Court.
(Comp. Exhibit "18"). The Response filed by the Schne
iders in July 2017 was the exact
document filed by the Law Firm Defen dants on June 22,
20 17. (Exhibit "19"); Ex. 16.
25. On June 22, 2017 , the District Cour t entered an Orde r
remanding the Foreclosure
Action back to the Circu it Cour t (the "Remand Orde r").
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26. On June 23, 2017, Bolz sent the Schneiders an email , which
attached a copy of
the Remand Order, and informed the Schneiders that the Circu
it Court confirmed that the hearing
on First American' s Motion for Summary Judgment, set for
June 26, 2017, would proceed as
scheduled. (Exhibit "20" without attachments).
27. That same day, June 23, 2017, Mr. Schneider sent a respon
se email to Bolz in
which Mr. Schneider stated: "As I had explained to you, I am
in Phoenix doing depositions and
will not be back in town until Thursday of next week. Please
note that I will be filing a notice
with the court...." Ex. 20.
28. Neith er Mr. Schneider, nor Mrs. Schne ider, filed anything with
the Court between
Mr. Schneider's June 23, 2017 email and the hearing on First
American' s Motion for Summary
Judgment on June 26, 2017.
29. On June 26, 2017, the Court held a hearing on First Amer
ican' s Motion for
Summary Judgment (the ·'Hearing"), during which the follow
ing exchange occurred at the
outset:
THE COURT: Oh, Mr. Bolz, before - you proceed, the one thing
I do want to see
is the notice of today 's hearing. I've looked through the
docket sheets and
couldn 't find it.
I just want to make sure that there is a notice of hearin g that was
provided
to the defendants, who are now pro se.
MR. BOLZ: Let's see. Orders special setting hearing entere
d by, or signed by,
Judge Ferrara on June 2 nd, 2017, Your Honor.
THE COURT: Okay.
MR. BOLZ: Your Honor, just - the case was remanded back
to the - to this court
on Thursday. And we, however, did not get the order until - early
Friday morning.
When the order came in, I wrote to -sent an e-mail to Laurence
Schneider
and Stephanie Schneider and advised them that the hearin
g was going to go
forward. And on 4:09 p.m. Friday, I received an e-mai l - I haven
' t shown it to the
Court, but it's short.
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It says, Mr. Bolz, as I have explained to you, I am

in Phoenix doing
depositions and will not be back in town until Thursday
of next week. Please note
that I will be filing a notice with the Court.
Additionally, you have refused to produce any billing

statem ent or any
request for production. Sincerely, it says Late Schneider.
Not Larry Schneider. I
don' t know.
And so, he has not filed the promised notice with the Cour
t that he said he
was. I just want the Cour t to be aware of that.
THE COURT: Okay. He hasn' t filed any notice of unava
ilability, nor has he filed
a motion to continue the case?
MR. BOLZ: Neither.
THE COURT: Okay. Let's proceed....

(Exhibit "21," Hr'g Tr. 6:5-7:16, June 26, 2017).
30. On June 26, 2017, the Cour t entered a "Final Judgment"

in the Foreclosure Action
in which the Court granted summary judgm ent in favor
of First American and against Mr.
Schneider, awarding First American $1 ,625,072.21 and
a lien on the Property. (Comp!. Comp.
Ex. A, pp. 1-2). On June 30, 2017, the Cour t entered an
Amen ded Final Judgment against Mr.
Schneider. Id. at pp. 7-8, 9-10.
31. Also on June 26, 2017, the Cour t entered a "Final Judgm
ent" in the Foreclosure
Action in which the Cour t granted summary judgment
in favor of First American and against
both Laurence and Stephanie Schneider and the Oaks
at Boca Raton Property Owne rs'
Association, Inc., allowing the sale of the Property on
the Schneiders' failure to satisfy the
money Final Judgment. Id. at pp. 3-6.
32. On July 11 , 2017, the Schneiders filed a Motion for

Rehearing and to Vacate
Judgment pursuant to Rule l.540 (a) and (b) (the "Reh
earing Motion"). (Exhibit "22"). The
Rehearing Motion was based, in part, on Rule 1.540(b)(3)
, under which the Schneiders sough t
relief from the Final Judgments based on "[f]raud (whet
her heretofore denominated intrinsic or
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extrinsic), misrepresentation, or other misconduct of an adverse party."

Ex. 22, pp. 1-2. First
American fi led its Response in Oppos ition to the Rehearing Motion
on July 18, 201 7. The Court
summa rily denied the Motion for Rehear ing on July 18, 2017.
33. On July 18, 2017, the Schneiders filed their Notice and Amend
ed Notice of
Appeal, seeking review of the "final judgment of foreclosure" by
the Fourth District Court of
Appeal (the "Fourth District"). (Comp. Exhibit "23," without attachm
ents). The appeal was
assigned Case No. 401 7-2239 (the "Appeal"). In both the Notice
and Amended Notice of
Appeal, the Schneiders stated:
Defendants are not mere ly requesting appeal on the foreclo sure, but
of the entire
trial record and case. Defen dants' case was disposed of via summa
ry judgment,
without a contested hearin g, due to a scheduling conflict, and a
host of other
improp er action(s) by Plaintiff and its counsel of record, which
have been
brought to the trial court's attention, and shall be included in Def
endants
opening brief
Comp . Ex. 23 (emphasis added).
34. On July 18, 2017, the Schneiders filed a Motion for Reconsiderat ion;
Amended
Motion for Rehea ring and to Vacate Judgment of Foreclosure and Reque
st for Sanctions Agains t
Counsel for Plainti ff (the "Reconsideration Motion"). (Exhibit "24").
The Schneiders filed the
Reconsideration Motion pursuant to Rule l .530(a) and l.540(b)(3) and
(b)(4). (Ex. 24, ,i,i2 t -22).
35. In the Reconsiderat ion Motion , the Schneiders stated that "the judgm
ent is void,
due to the conduc t and deceit described herein, which rises to an undisp
utable level of fraud and
misrep resentation." Id. at p. 6, if3. As part of the grounds for
reconsideration of the Final
Judgments, the Schne iders provided the Court with emails include
d in Exhibit A to the
Reconsiderat ion Motion that d irectly relate to "The Scheduling
Conflict" identified by the
Schneiders. Id. at p. 8, ,i,i t 1- 15. Exhibit A to the Reconsideration
Motion included: (A) the
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June 8, 2017 email from Mr. Schnei der to Bolz, attached hereto as
Exhibit 13; and (B) the June
23, 2017 email from Mr. Schnei der to Bolz, attached hereto as Exhibi
t 20.
36. The Schneiders also stated in the Reconsideration Motio n that they
inform ed Bolz
that they had a schedu ling conflict for the June 26, 2017 hearing
date, and that despite being
aware of the conflict, Bolz "did not afford Defendants the opport unity
to even defend themse lves
at the Special Set Trial, resulti ng in judgm ent being entere d agains
t [the Schneiders] on June 26,
2017 ." Id. at p. 8, ,i 13. The Schnei ders further stated that "Bolz lied
to the Court" in the Notice
of Trial he filed on May 9, 2017 because he did not confer with Mr.
Schnei der as represented in
the Notice of Trial, and filed the Notice of Trial "to expedite the
foreclosure action, despite
knowi ng that Mr. Schne ider's upcoming schedule made it imposs
ible to be present at the trial,
where judgm ent was erroneously grante d." Id. at pp. 19-20, ,i,i90-9
l , 94.
37. On Augus t 4, 20 17, the Schnei ders filed a Request for Stay Pendin
g Appeal in the
Fourth District (the "Appellate Stay Motion"). (Exhibit "25"). ln
that Motion, the Schneiders
again relied on the "sched uling conflicts," and highlighted the same
June 8, 2017 email Mr.
Schneider sent to Bolz. See Ex. 13. The Schnei ders stated in the
Stay Motion that the June 8th
email •·regar d[ed] a deposition of Mr. Schnei der and Mrs. Schneider,
as well as a special set trial
hearing which posed a schedu ling conflic t for Appellants," and
in which Mr. Schnei der
" requested that [First American ' s] Motion for Specially Set Trial
Date be postponed to a
mutually agreeable time, given Mr. Schneider's conflic t of schedu
le, which included a trip to
Washington D.C. at the time of the hearing, at which judgm ent was
entere d." (Ex. 25, ,i,i2-3).
Based on this email, the Schneiders further stated in the Appellate
Stay Motion that "Bolz was
abundantly aware of this material fact, yet did not afford [the Schnei
ders] the opportunity to even
defend themselves at the Special Set Trial, resulting in judgm ent
being entered agains t [the
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Schneiders] on June 26, 2017." Id. at 14. As such, the Schneiders asserted in the Appellate Stay
Motion that " [t]he judgment was based upon a granting of summary judgment, despite the
material fact that [the Schneiders] were bl indsided by the Special Set Trial which ultimately
wound up with the judgment of foreclosure." Id. at 15. The Appellate Stay Motion was denied
as moot by the Fourth District on August 16, 2017.
38. On August 7, 2017, the Schneiders filed an Emergency Request for a Temporary
Restraining Order pursuant to Rule 1.540(6) "based on a mistake," which the Court treated as a
Motion for Stay of the Foreclosure Sale (the "TRO Request"). On August 8, 20 17, the Court
entered an Order on the TRO Request, postponing the sale of the Property pending a
determination by the Court "as to whether the action should be stayed pending appellate review."
39. On August 24, 20 17, the Court summarily denied the Schneiders' Reconsideration
Motion.
40. On August 28, 2017, First American filed a Response in Opposition to the TRO
Request.
41. On October 11 , 2017, the Fourth District dismissed the Appeal as to Stephanie
Schneider based on her failure to abide by appellate court orders.
42. On November I , 20 I 7, the Schneiders retained Ryan D. Gesten, Esq., as counsel
in the Foreclosure Action. Mr. Gesten acted as counsel for the Schneiders from this time up until
his withdrawal approximately one year later, in late November 2018. See infra 148.
43. On November 6, 2017, the Schneiders filed an Emergency Motion for Stay of
Execution of Judgment Pending Appeal; Request to Extend Injunction pursuant to Rule l.540(b)
"based on a mistake." (the "Stay Motion"). On that same day, the Schneiders fi led a
Memorandum of Law in Support of the Stay Motion. (Exhibit "26"). In that Memorandum, the
13
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Case No. 50-2019-CA-OO I 016-XXXX-MB
Schneiders again took issue with the "scheduling conflict"

relating to the Heari ng by stating they
"were not present at the hearing due to a scheduling
conflict, of wh ich they had notified
[Firs t American's] counsel." Ex. 26, p. 2 (emphasis in
original). On Nove mber 7, 2017, the
Schneiders filed a Supplemental Memorandum of Law
in Supp ort of the Stay Motion. The Cour t
held a hearing on the Stay Motio n on November 6, 2017
and Nove mber 8, 2017. On November
15, 2017 , the Cour t entered an Orde r on the Stay Motio
n, staying "all judgments and amended
judgm ents entered in this matter ... pending further order
ofth[ e] Cour t," and stayin g the sale of
the Property upon the posting of a $115,000 supersedea
s bond by the Schneiders.
44. On Dece mber 13, 2017 , Mr. Schn eider filed his Initial Brief
in the Appeal. ln the
Appeal, Mr. Schneider raised the following issues: (A)
entering two separate final judgm ents
was error, including inter alia whether First American
estab lished a right to foreclosure of the
Property and/o r an award of mone y damages; (b) enteri
ng the final judgm ent witho ut providing
Mr. Schneider time to hire new counsel was error; (C)
summ ary judgm ent shoul d not have been
granted while Mr. Schneider' s discovery requests remai
ned outstanding; (D) striking Mr.
Schneider' s affirmative defenses with prejudice was error;
and (E) dismissing Mr. Schn eider 's
counterclaim was error. 4 On Febru ary 7, 2018, First
American filed its Answ er Brief in the
Appeal. And, on May 2, 20 18, Mr. Schneider fil ed his Corre
cted Reply Brief.5
45. On July 25, 20 J8, the Fourth District issued its opinion
in the Appeal, affirming
on all issues, excep t to the "exte nt that the judgm
ents improperly allowed the Bank to
4
In that Brief, Mr. Schneider stated that he "was not
present" at the Hearing "due to a scheduling
conflict." (In. Br. 9).
5
In his Corrected Reply Brief, Mr. Schneider stated that
First American proceeded with the Hearing
"despite that Defendants' discovery was pending, and
no mention in the record that F AB ' s counsel
advised the Court at that Hearing that its discovery respon
ses remained outsta nding, or that, despite the
Defendants' failure to appear at the [H]earing, Defen
dants had previously shown a clear and diligent
effort to defend." (Corr. Reply Br. 4).
14
FLSD Docket 10/21/2020 Page 15 of
37
simultaneously execute on the money judgment and foreclose

on the ... [P]roperty." Schneider
v. First Am. Bank, 252 So. 3d 264, 265 (Fla. 4th DCA 2018).
46. On September 7, 2018, the Fourth District issued its Mandate

in the Appeal, and
remanded the matter back to the trial court.
47. On October 12, 2018, the Court entered an Amended

Final Judgm ent of
Foreclosure (the "20 18 Amended Final Judgment"). (Comp!.
Comp. Ex. A, pp. 11-14, 15-18).
48. On Novem ber 16, 20 l 8, Gesten filed a Motion to Withdraw
as Counsel for the
Schneiders, citing "irreconcilable differences" as the basis
for withdrawal. Gesten filed an
Amended Motion to Withdraw on Novem ber 21, 2018, which
added the last known address of
the Schneiders. On November 29, 2018, the Court granted
Geste n's withdrawal request, and
provided the Schneiders until December 21, 2018 to retain new
counsel.
49. On December 28, 2018, Andre w D. Wyman, Esq. ("Wyman")
- counsel for the
Schneiders in this action - filed a Notic e of Appearance and
Designation of Email Addresses to
represent the Schneiders in the Foreclosure Action. (Exhi bit
"27").
50. On January I 8, 2019, Charles F. Rodman, Esq. ("Rodman")
- counsel for the
Schneiders in this action - filed a Notice of Appearance and
Designation of Email Addresses to
repres ent the Schneiders in the Foreclosure Action. (Exhi bit
"28").
51. On January 24, 2019, the Schneiders - through Wym an and

Rodman - fi led the
Complaint in this action.
52. Shortly thereafter (also on January 24, 2019), the Schneiders

- through Wyman
and Rodman - filed in the Foreclosure Action a Verified Motio
n to Stay (l) the Execution of the
Amended Judgment of Foreclosure Dated October 12, 2018,
and (2) the Several Motions for
Attorneys' Fees, Costs, and Expenses Pendi ng Resolution of
Complaint to Set Aside Judgment
15
37
Pursua nt to Fl[a]. R. Civ. P. 1.540 (the "Verified Motio n to Stay")

. (Exhib it "29"). In short,
through the Verified Motio n to Stay, the Schneiders sought a stay
of execution of the 2018
Amended Final Judgment, as well as any proceedings to enforc
e that Judgm ent pendin g
resolution of this action by the Schneiders for fraud on the court.
53. On January 29, 2019, First American filed a Response in

Opposition to
Defen dants' Verified Motio n to Stay and Motion to Strike the Suppo
rting Affidavit ("Resp onse
to the Verifie d Motio n to Stay"). (Exhib it "30"). First American's Respo nse (26 pages)
contained 37 Exhibits (totaling 329 pages). In its Response, First American addressed the
allegedly fraudulent condu ct identified by the Schneiders in their Verifie

d Motion to Stay, which
was specifically based on the same allegations of fraud set forth in
the Compl aint filed in this
action. While any reason able pre-filing investigation would reveal
the well-documented actions
of First American and the Law Firm Defendants taken in the
Foreclosure Action, First
Ameri can's Response to the Verified Motion to Stay expressly placed
the Schne iders - as well as
Wyma n and Rodman (their counse l) - on notice that the Complaint
filed in this action was
baseless in law and in fact.
54. On January 31, 201 9, the Court held a Hearing on the Verified Motio
n to Stay.
(Exhibit "31"). Wyman and Rodman represe nted the Schneiders at
the hearing. Ex. 3 1, Hr' g
Tr. 4:3-7. At the end of the hearing, the Court denied the Verified
Motio n to Stay. That same
day, the Court entered an Order on the Verified Motio n to Stay, which
stated that the Motion was
denied " [b)ased upon failure to show good cause and based upon the
court's application of Rule
1.540 and Rule 1.550, Florid a Rules of Civil Procedure." (Exhibit "32").
55. Proceedings remain ongoing in the Foreclosure Action.
16
Case 9:20-cv-81728-DMM Document 17-35 Entered on FLSD Docke
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Case No. 50-20 19-CA-001016-XXXX -MB
Memorandum of Law
I. The Standard for Enforcing Section 57.105.
"A court 'shall ' award attorne y's fees under section 57. 105(1), Florida Statute
s, where it
is clear that the offending party has asserted a claim that is unsupported by
material facts or by
the law applicable to the material facts." Yang Enters., Inc. v. Georgalis, 988
So. 2d 1180, 1184
(Fla. l st DCA 2008). Section 57. I 05 (the "Statute") provides that:
( 1) Upon the court's initiative or motion of any party, the court shall award
a
reason able attorney's Jee, including prejudgment interest, to be paid to
the
prevailing party in equal amounts by the losing party and the losing party's
attorney on any claim or defense at any time during a civil proceeding or action
in
which the court finds that the losing party or the losing party's attorney knew
or
should have known that a cla im or defense when initially presented to the court
or
at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim
or
defense; or
(b) Would not be supported by the application of then-existing law to

those
material facts.
§57.105(1 )(a)-(b), Fla. Stat.(2 0 10).
The Statute makes clear that the attorney's fees awarded to the prevailing party
shall be
paid "in equal amounts by the losing party and the losing party's attorney,"
except under two
circumstances. First, the award of attorne y's shall be borne entirely - 100%
- by the attorney
where the Court concludes that "the losing party's attorney knew or should
have known that a
claim . .. when initially presented to the court or at any time before trial
... [w]ould not be
supported by the application of then-existing law to those material facts."
§57.105(3)(c); id. at
§57.105(1)(b). Second, the award of attorne y's fees shall be borne entirely
- 100% - by the
clients where the Court concludes that "the party's attorney ... acted in good
faith based on the
representations of his or her client as to the existence of those material facts."
§57 .105(3)(b).
17
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37
In 1999, the standard for granting fees pursuant to the Statute was lowered.
The Statute
was amended as part of the 1999 Tort Reform Act "to reduce frivolous litigatio
n and thereby to
decrease the cost imposed on the civil justice system by broadening the
remedies that were
previously available." Bionetics Corp. v. Kenniasty, 69 So. 3d 943, 947
(Fla.) (quotations
removed), cert. denied Kenniasty v. Bionetics Corp., 565 U.S. 1100 (2011)
(quotations and
citations omitted). Unlike the burden of proof required before 1999, the movan
t need not show a
"complete absence of a justicia ble issue of either law or fact raised by the
losing party"6 but
"need only show that the party and counsel 'knew or should have known'
that any claim or
defense asserted was (a) not supported by the facts or (b) not supported by
an application of
'then existing ' law." See Boca Burger, Inc. v. Forum, 912 So. 2d 561,57 1
(Fla. 2005) (quotin g
§57 .105, Fla. Stat. (2000)). In addition, under the 1999 amendment, Courts
may award fees
under the Statute at any time during an action, and need not wait until its conclus
ion.7
Since 1999, courts have repeatedly held that the award of fees pursuant to the
Statute is
mandatory where a claim or defense is unsupported. See In re Forfeiture of
100,000 Euros, 170
So. 3d 810, 817, n. 12 (Fla. 3d DCA 2015).
Under this framework, the Schneiders and their counsel (Wyman and Rodma
n) knew -
or at a minimum should have known - at the time they filed the Complaint
that the claim for
fraud on the court asserted against the Defendants was wholly unsupp
orted by the: (1)
"application of then-existing law to those material facts," and (2) "material
facts necessary to
establish the claim" for fraud on the court.
6
§57. l 05, Fla. Stat. (1978).
1
See, e.g., Country Place Cmty. Ass 'n, Inc. v. J.P. Morgan Mortg. Acquisition
Corp., 51 So. 3d 1176,
1180 (Fla. 2d DCA 2010) (relying on Bridgestone/Firestone Inc. v. Herron, 828
So. 2d 414, 417 (Fla 1st
DCA 2002) (stating "the court may award an attorney's fee for a particular claim
or defense, even before
the case has been concluded," and "[i]t is possible then that a court may assess
attorney 's fees against a
party who has asserted an unsupportable claim or defense, even though that party
might ultimately prevail
in the case on some other ground"), dismissing review, 920 So. 2d 626 (Fla. 2005)).
18
37
Case No. 50-2019-CA-001016-XXX X-MB
II. The Alleged Claim for Fraud on the Court Asserted in the
Complaint ls Not
Supported by the Existing Law.
Each of the following ground s independently establishes that the
Schneiders' claim for
fraud on the court is barred by well-established Florida law, and
provides a basis for the
immediate dismissal of the Complaint.
A. The Complaint Alleges Intrinsic Fraud, Which May Not Be

Attacked in an
Independent Action.
An independent action for fraud on the court seeking relief from a
judgment entered in a
separate action cannot be based on allegations of intrinsic fraud. See
Parker v. Parker, 950 So.
2d 388, 391 (Fla. 2007) (stating that "wher e fraud is intrins ic, it is
deemed to have occurred in
the current action and must be attacked by a rule I .540(b) motion directe
d at the current action" );
Najh Nat'l Bank v. A ristizabal, 117 So. 3d 900, 902 (Fla. 4th DCA
2013). The Florid a Suprem e
Court has stated that intrins ic fraud "applies to fraudulent conduct that
arises within a proceeding
and pertains to the issues in the case that have been tried or could have
been tried." Parker, 950
So. 2d at 39 1 (quotin g DeCla ire v. Yohanan, 453 So. 2d 375,37 7 (Fla.
1984), supers eded by rule
on other grounds); Cerniglia v. Cerniglia, 679 So. 2d 1160, 1163
(Fla. 1996); Arrieta -Gime nez
v. Arrieta -Negro n, 55 1 So. 2d 1184, 1186 (Fla. 1989) (stating intrins
ic fraud includes fraudulent
conduct that the complaining party "had sufficient opportunity from
the outset to discover the
fraudulent behavior, and thus bring an action in court either before the
settlem ent offer was made
or w ithin the one year time limit expressed in rule l.540( b)");8 see
Winston v. Winston, 684 So.
2d 315, 319 (Fla. 4th DCA 1996) (stating that fraud constitutes
intrinsic fraud where "the
condu ct complained of arose in connection with a matter presen
ted to the ... court in a
proceeding where the complaining party participated" ). In such situatio
ns, Florida courts have
8
Johnson v. Wells, 73 So. 188, 191 (Fla. 1916) (stating intrinsic fraud include
s matters on which "the
parties were heard, and the eviden ce submitted to and received conside
ration by the court").
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Case No. 50-2019-CA-001016-X XXX-M B
determined that the parties were estopped from asserting an independent action
for fraud on the
court as a basis to seek relief from a judgment. See, e.g., Dadic v. Farach, 673
So. 2d 505, 505
(Fla. 4th DCA) (affirming dismissal with prejudice of the complaint for fraud
on the court for
"failure to state a cause of action" because it was "clear they alleged only
intrinsic fraud, not
extrins ic" fraud, a defect that could not be rectified), rev. denied, 682 So. 2d 1099
(Fla . 1996).
Here, the Schneiders could have presented - and did presen t- the Law Firm
Defend ants'
purpo1ted fraudulent conduct set forth in the Compl aint (the "A lleged Fraudu
lent Conduct") to
the Court in the Foreclosure Action. The Schneid ers were aware of the
Alleged Fraudulent
Conduc t during the pendency of the Foreclo sure Action. See supra 1113,
18-20, 26-27. The
Schneiders had every opportunity to bring the Alleged Fraudulent Conduc t
before the Court in
the Foreclosure Action. Id. at 1iJ30-32, 34-36, 38, 43. And, they did. Id. at
iJ32, 34-36, 43. In
addition , the Schneiders, having full knowledge of the Alleged Fraudulent
Conduct, included
statements about that conduc t in their Notice and Amended Notice of
Appeal, and in the
Appellate Motion to Stay. Id. at iJiJ33, 37. The record conclusively establis
hes that the Alleged
Fraudul ent Conduct occurred within the Foreclo sure Action, the Schneiders
had knowledge of
that conduc t during the pendency of the Foreclosure Action, and they had the
opportunity to, and
did, present that conduc t to the Court in the Foreclosure Action. Under these
circumstances,
Florida law dictates that the Alleged Fraudulent Conduc t constitutes intrinsic
fraud.9 Because
the Complaint seeks relief from the final judgme nts (Comp. Ex. A) based on
intrinsic fraud, the
9
See, e.g., Cerniglia, 679 So. 2d at 1163 (finding the alleged fraudule nt conduct
constituted intrinsic
fraud where the conduct "was a matter before the court for resolutio n," and
'" the complaining party could
have address ed the issue in the proceeding'") (quoting DeC/aire, 453 So. 2d
at 380); Dep 'I ofRevenue v.
Boswell, 9 I 5 So. 2d 717, 721 (Fla. 5th DCA 2005) (stating the alleged fraud
constituted intrinsic fraud
because "it involved allegatio ns of perjury or misrepresentation"); see also
Winston v. Winston , 684 So.
2d 315, 3 19 (Fla. 4th DCA 1996) ("Where a claim of fraud rests on the contenti
on that a party has been
misled as to the meaning or effect of docume nts actually presente d to
the court, the claim rests on
intrinsic fraud. This is so even though some of the allegedly fraudule nt or deceitfu
l acts or omissio ns may
have occurre d extrajud icially." )
20
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Complaint fails to state a cause of action for fraud on the court, and is subject
to immedi ate
dismissal. Dadic, 673 So. 2d at 505.
B. This Lawsuit Is a Blatant Attempt to Re-Litigate the Foreclosure Action

.
Defendants do not dispute that the Schneiders have legal standing to file an
action for
fraud on the court. See Parker, 950 So. 2d at 391. But, they cannot do so here.
The allegations
of fraud are completely baseless, and they are merely attempting to rehash
the very Alleged
Fraudulent Conduct that occurred in, was brought to the attention of, and was
ruled upon by the
Court in the Foreclosure Action. The Court in the Foreclosure Action entered
final judgme nts,
the Schneiders appealed those judgments, and the Fourth District substantively
affirmed those
judgme nts . See supra 1i130-31 , 33, 45-46. This lawsuit amounts to an attemp
t to recede from the
finality of the 20 18 Amended Final Judgment, and essentially violate the Mandat
e issued by the
Fourth District in the Appeal.
An action for fraud on the court is not, and cannot be used as a substitute
for a timely
appeal. See, e.g., Baez v. Perez, 201 So. 3d 692, 694 (Fla. 4th DCA 2016)
(reversing order
granting a motion under Rule 1.540 to vacate the final judgme nt of foreclo
sure and reinstating
the final judgme nts and certificates of sale and title where the motion raised
" issues which could
have been raised in an appeal from the final judgme nt ... on these very
grounds," and
concluding that such grounds were not " remediable through 1.540 relief')
; Beal Bank, S.S.B.,
Inc. v. Sherwin, 829 So. 2d 961 , 962 (Fla. 4th DCA 2002) ("Rule l.540 is designed
for ... relief
from judgme nts ... under certain articulated and limited circumstances . It is
not a substitu te for
a timely appeal."), rev. denied, 844 So. 2d 645 (Fla. 2003). Similar ly, an action
for fraud cannot
merely seek to "rehash a matter fully explored at trial." See, e.g., Flemenbaum
v. Flemenbaum,
636 So. 2d 579, 580 (Fla. 4th DCA 1994); see also Joyner v. Ettlinger, 382
So. 2d 31, 31 (Fla.
1st DCA 1980) (disallowing a party' s "attempt to convince the trial court
to grant the relief
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Case No. 50-201 9-CA-0 01016- XXXX -MB
which had been denied by the appella te court") . Finally, to seek relief
from a judgme nt, the
litigant must show that the alleged conduc t support ing the request for relief
from a judgme nt has
a direct effect on the final judgme nt - i.e., the alleged conduc t cannot
be "de minimis."
Flemenbaum, 636 So. 2d at 580; Coleman (Parent) Hldgs. , Inc. v. Morgan Stanley
& Co., Inc. ,
20 So. 3d 952, 958 (Fla. 4th DCA 2009) ["Coleman"], rev. denied, 37 So.
3d 846 (F la. 2010).
The Schneid ers have already exercis ed the proper remedies for the Alleged
Fraudu lent
Conduc t. The Schneid ers raised the conduc t in the Foreclo sure Action (see
supra i!i132, 34-36,
43), and could have, and should have raised, and did raise, the conduc
t in the Appeal to the
Fourth District. Id. at ,r,i33, 44. Indeed, the Schneid ers express ly stated
in their Notice and
Amend ed Notice of Appeal that they fully intended to include, address, and
seek reversal of the
final judgme nts entered in the Foreclo sure Action based on the Alleged Fraudu
lent Conduc t. Id.
at i!33. The Schneid ers are s imply not entitled to rulings in this action on
the very same issues
that were present ed, address ed, and ruled upon by the Court in the Foreclo
sure Action, as well as
by the Foutth District in the Appeal . See, e.g., Baez, 20 l So. 3d at 693,
694 (findin g that the
motion to vacate the judgme nt under Rule 1.540 "did not allege any
facts upon which
relief ... could be granted" because the ground s set forth in that motion
"should have been
raised in an appeal from the final judgme nt and were already address ed in
a prior motion ," and
thus the party was "not entitled to additio nal rulings on the same issues"
); Gimbel v. Int 'I
Mailing & Printing Co., 505 So. 2d 631 , 632-33 (Fla. 4th DCA 1987) (affirm
ing denial of the
motion to vacate the judgme nt where Rule I .540 was "inappl icable" because
"the proper remedy
appears to have been a plenary appeal from the judgme nt" for an alleged
error that "was
present ed to the trial court and rejected"); US. Bank Nat 'I Assoc. v. Paiz,
68 So. 3d 940, 943
(Fla. 3d DCA 2011) (finding the motion for relief from judgme nt under
Rule 1.540 insuffic ient
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Case No. 50-201 9-CA-00101 6-XXXX-MB
where "all of (the movant' s] complaints could have and should have been raised
in the pleadings
or at the hearing on the motion for summary judgme nt"); Rutshaw v. Arakas
, 549 So. 2d 769,
770 (Fla. 3d DCA 1989) (reversing order vacating a default judgme nt under
Rule 1.540 based on
allegations of "fraud, misconduct of [p]laintiffs counse l, artifice, trickery
, overreaching and
circumvention" where "the error could, should, and may have been cured only
by timely action
through objection, post-trial motion , or appeal-all of which could
readily have been
undertaken").
In additio n, the record establishes that the Alleged Fraudulent Conduc t had
no effect on
the validity of the final judgments, or the Court's entry of the 20 18 Amend ed
Final Judgme nt in
the Foreclosure Action pursuant to the Mandate issued in the Appeal. See supra
~~3-4, 29, 33-
39, 43-47; Ex. 2 1. For exampl e, at the time of the Hearing, the Schneiders
did not have any
remaining affirma tive defenses to the foreclosure claim, or any counter
claim against First
American - facts that have nothing to do with any alleged improper conduc
t by the Defendants,
and the dismissal of which were affirmed in the Appeal. Id. at,i,i3-4 , 44-46.
Further, any
allegations of improper conduc t by the Law Firm Defendants relating
to the outstanding
discovery allegations at the time of the Hearing are irrelevant to the Schneid
ers' fraud on the
court claim because the discovery issue was raised, and affirmed on Appeal
. Id. at i!44. Under
such circumstances, and on this established record, the Schneiders cannot
allege, or establish,
that the Alleged Fraudulent Conduc t by the Law Firm Defendants could someho
w "undermine
the very fou ndation upon which the [final] judgment[s] . .. were built." Colema
n, 20 So. 3d at
955-56 (affirming the fi nding that the bank's attorneys did not perpetrate a
fraud on the court
where the alleged misconduct cannot be said to have effected or prejudiced
the final judgment)
(quotations and citations omitted).
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Case No. 50-2019-CA-001016-XXXX -MB
The Schneiders claim for fraud on the court is baseless, and an improper attemp
t to do an
end-run-around the 2018 Amended Final Judgment. This Judgment is final and shou ld be
afforded comple te preclus ive effect by this Court. See, e.g., Najh Nat 'l Ban,
117 So. 3d at 903
("The policy of law that favors the termination of litigation supports a narrow
application of the
' fraud upon the court' exception to the one-year limit on rule 1.540(b) motion
s."); Johnso n v.
Johnso n, 738 So. 2d 508, 509 (Fla. l st DCA 1999) (affirming dismiss al of the
portion of the rule
1.540 motion seeking relief from a judgme nt based on the repeated claim of "duress
," stating that
"to allow, on these facts, a repeat claim of duress, we would exceed the limits
of Rule l.540(b )
relief, violate the doctrine ofresju dicata and upset the finality of the judgme nt").
Any attempted
deviation from the 2018 Final Amended Judgment is tantamount to a direct
vio lation of the
Fourth Distric t's Mandate entered in the Appeal of the Foreclosure Action.
See, e.g., Brennan v.
Brennan, 184 So. 3d 583, 588 (Fla. 4th DCA 2016) (" A trial court lacks discreti
onary power to
go beyond the scope of relief granted by the appellate court, and it is not authori
zed to deviate
from the terms of an appellate court's instructions.").
The Schneiders' serial attempts to attack the finality of the final judgme
nts in the
Foreclosure Action, including fi ling this separate action for fraud on the court
that " is completely
devoid of merit," are improper and constitute sanctionable conduct.
See Manzaro v.
D 'Alessandro, 229 So. 3d 843, 846 (Fla. 4th DCA 2017) (granting sanctio
ns pursuant to §57.105
against a litigant and his counse l, stating: "Appellant has had multiple opportu
nities to raise the
issues presented in his complaint to the Broward Circuit Court and, in fact,
has done so. His
attempt at filing a new lawsuit in a different circuit, after those prior attempt
s were rejected and
while other new attempts still remain pending in Broward Circuit Court, is comple
tely devoid of
merit.") (emphasis added).
24
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C. The Claim for Fraud on the Court Is Barred by the Litigation Privilege.
Florida 's litigation privilege affords "absolute immunity ... to any act occurri
ng during
the course of a judicial proceeding, ... so long as the act has some relation
to the proceeding."
Levin, Middlebrooks, Mabie, Thomas , Mayes & Mitchell, P.A. v. U.S. Fire
Ins. Co., 639 So. 2d
606, 608 (Fla. 1994) ["Levin"] ; see Echevarria, McCall a, Raymer, Barrett
& Frappi er v. Cole,
950 So. 2d 380, 384 (Fla. 2007). The Florida courts have express ly
applied the litigatio n
privilege to claims of fraud. 10
In total, the fraud on the court claim is based on the followi ng alleged conduc
t by Bolz:
• filing notices of depositions of the Schneiders (Compl. ill 4);
• filing a notice of trial (Id.);
• sending an email to the Schne iders requesting hearing dates in the Foreclo
sure Action
(Id. at ill 7, 19);
• unilaterally scheduling a hearing on the motion for summa ry judgme

nt in the
Foreclosure Action (Id. at i!20);
• submitt ing a letter to the Judge assigne d to the Foreclosure Action (Id. at ili122-2
6);
• filing a Notice of F iling in the District Court (Id. at i!35);
• sending an email to the Schneid ers informing them of the District Court's
Reman d
Order (Id. at 39); and
• attendin g/maki ng stateme nts at the Hearin g in the Foreclosure Action (Id.
at i!i143-47).
Each of these actions fit squarely within the absolute immunity afforded lawyers
and litigants
under the litigatio n privilege. Each and every action - by P laintiffs ' own detailed
allegations
- was "connected with, and relevan t to," the Foreclosure Action, and
thus absolutely
privileged. See, e.g., Levin, 639 So. 2d at 607 (extend ing the litigation privileg
e to a tortious
interference claim "based on misconduct in a judicial proceeding") (emphas
is added);
10
See, e.g. Pace v. Bank of NY. Mellon Trust Co. Nat'/ Assoc., 224 So. 3d 342,34
3 and n. I (Fla. 5th
DCA 2017) (affirming dismissal of the fraud claim as being barred by the
litigatio n privilege); Perl v.
Omni lnt 'l of Miami, Ltd., 439 So. 2d 316, 317 (Fla. 3d DCA 1983) (affirmi
ng dismissal of '"fraud,
perjury, and forgery' count of the complai nt" as being barred by the litigation
privilege).
25
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Ponzol i & Wassenberg, P.A. v. Zuckerman, 545 So. 2d 309, 309-10 (Fla.
3d DCA)
(awarding §57.105 sanctions because the defama tion and extortio n cla ims
based on
"statem ents ... made, as counsel, in a motion to dismiss filed in tliis courf'
were clearly
barred by the litigatio n privileg e because "[s]tatements made in tlie
course of j udicial
proceedings enjoy an absolute privilege" and cannot form the basis of civil liability
"so long
as the stateme nts uttered are connec ted with, or are relevan t or materia l to
the cause at hand
or the subject of inquiry no matter how false or malicious said statements

may in fact be"),
rev. denied, 554 So. 2d 11 70 (Fla. 1989) (emphas is added). 11
D. The Schneiders Are Estopped From Bringing This Action.

1. Collateral Estopp el Bars the Claim for Fraud on the Court.
Collate ral estoppe l or estoppe l by judgme nt bars relitiga tion of a n issue

that has already
been determ ined by a j udgmen t. The applicat ion of collater al estoppe l require
s that:
( 1) an identica l issue must be present ed in a prior proceed ing; (2) the issue
must
have been a critical and necessa ry part of the prior determi nation; (3) there
must
have been a full a nd fair opportu nity to litigate the issue; (4) the parties in
the two
proceedings must be identica l; and (5) the issues must have been
actually
litigated.
Lucky Nation, LLC v. Al-Maghazchi, I 86 So. 3d I 2, 14 (Fla. 4th DCA 2016)

(quotat ions and
citation s omitted ). Each of above elemen ts has been met.
The Alleged Fraudu lent Conduc t identifi ed in the Complaint was raised
in, directly
present ed by the Schne ide rs, and adjudic ated by the Court in the Foreclo
sure Action. Compare
supra ifif32, 34-36, 43 With (Compl . ~~14, 17, 19, 20, 22-24, 26-29, 39-40,
43-45). The
Schneiders sought relief from the Final Judgme nts for fraud under Rule
I .540(b) (3) twice in the
11
LatAm /nvs., LLC v. Holland & Knight, LLP, 88 So. 3d 240, 245 (Fla. 3d
DCA 20 I I) (affirming
dismissal of plaintif rs abuse of process claim at the motion to dismiss stage of
the lawsuit because the
applicability of the absolute litigation privilege was apparent from the face of the
complaint), rev. denied,
81 So. 3d 414 (Fla. 2012).
26
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37
Foreclosure Action - in their Motion for Rehearing, and in their Reconsideratio

n Motion. See
supra ,i,i32, 34. The Court denied the Schneid ers' requested relief under Rule
I .540(b)(3). Id. at
,i,i32, 39. The Court filings themselves establish that the Schneiders had the
opportunity to
litigate, and did litigate, the issue relating to the Alleged Fraudulent Conduc
t, and that the
Court's review and adjudication of those fraud allegations was a necessary part
of the resolution
of the Foreclosure Action. In fact, the Schneiders concede this point in their Notice and
Amend ed Notice of Appeal. Id. at ,133. In both Notices, the Schneiders stated:
Defendants' case was disposed of via summa ry judgme nt, withou t a contest
ed
hearing, due to a scheduling conflict, and a host of other improper action(
s) by
Plaintif f and its counsel of record, which have been brought to the trial court's
attention, and shall be included in Defendants openin g brief.
Id. at i]33, Ex. 23 (emphasis added). In addition, the Schneiders raised issues
relating to the
Alleged Fraudulent Conduct in the Appeal. Id. at iJ44.
Further, First American was a named party in the Foreclosure Action. And,
although the
Law Firm Defendants were not named parties in the Foreclosure Action, the
mutuality of parties
require ment for the application of defensive collateral estoppel purposes has
been met. The Law
Firm Defendants were (and are) counsel of record for First American in the
Foreclosure Action,
and acted as its counsel during the time the Alleged Fraudu lent Conduc t occurre
d. Under these
circumstances, the Law Firm Defendants were in privity with First Americ
an for estoppel
purposes. Verhagen v. Arroyo, 552 So. 2d 1162, 1164 (Fla. 3d DCA 1989),
rev. denied, 574 So.
2d 144 (Fla. 1990) (finding that because the attorneys were counsel for certain
parties in the
underlying action, and were "alleged by plaintif f to have been acting as counse
l for those parties
when the alleged wrong acts were commi tted," the attorneys "were, for
collateral estoppel
purposes, in privity with the defendants in the Collier County action and the
judgme nt in favor of
those defendants may be used defensively by [the attorneys"]).
27
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2. Res Judicata Bars the Claim for Fraud on the Court.
Res judicat a bars the relitigation of claims previously determined by a court,

as well
"claims that could have been raised." Topps v. State, 865 So. 2d 1253, 1255
(Fla. 2004). "The
idea underly ing res judicata is that if a matter has already been decided, the petition
er has already
had his or her day in court, and for purposes of j udicial econom y, that matter
generally will not
be reexamined again in any court (except, of course, fo r appeals by right)."
Id. (empha sis in
original). The application of res judicat a requires "[a) j udgment on the merits
rendered in a
former suit," 12 and the fo llowing four identities:
(I) identity of the thing sued for; (2) identity of the cause of action; (3) identity
of
persons and parties to the action; and (4) identity of the quality of the persons
for
or against whom the claim is made.
Topps, 865 So. 2d at 1255. Each of the requirements has been satisfied.
Final judgme nts on the merits were entered in the Foreclosure Action. See
supra 1130-
31. Those Final Judgments were appealed by Mr. Schneider, and upon
remand, the Court
entered an Amended Final Judgme nt in the Foreclo sure Action. Id. at 1133,
41, 45-47. In this
action, the Schneiders are seeking to "set[] aside the judgment entered in the
Foreclo sure Action
based on the Alleged Fraudul ent Conduc t by the Law Firm Defendants. (Comp!
. 14, 17, 19, 20,
22-24, 26-29, 39-40, 43-45, p. 11 ). The Schneiders sought the same relief
based on the same
Alleged Fraudulent Conduc t in the Foreclosure Action. See supra 1132, 34-36;
see supra 11.D. l.
In addition, irrespective of whethe r the Schneiders raised the issue of
the Alleged
Fraudulent Conduc t to the Court in the Foreclosure Action, the record establis
hes that they had
the opportunity to do so. The Schneiders were aware of the Alleged Fraudul
ent Conduct during
the pendency of the Foreclosure Action (Id. at ,i,i 13, 18-20, 26-27), and had
every opportunity to
bring the Alleged Fraudu lent Conduc t before the Court in the Foreclosure Action.
Id. at 1132,
12
Jasser v. Saadeh, 103 So. 3d 982, 984 (Fla. 4th DCA 2012).
28
37
Case No. 50-2019-CA- 00 1016-X XXX- MB
34-36, 38, 43. The Schneiders also had the opport unity to litigate
the issue of the Allege d
Fraudu lent Conduct in the Appeal. Id. at 33, 44-46. In fact, based on their Notice and
Amend ed Notice of Appeal, the Schneiders fully intended to appeal

the Final Judgm ents on the
issue of the A lleged Fraudu lent Conduct. In those Notice s, the Schne
iders stated:
Defend ants' case was d isposed of via summ ary judgment, withou
t a contested
hearing, due to a schedu ling conflic t, and a host of other improp
er action( s) by
Plaint iff and its counse l of record, which have been brough t to the
trial court's
attention, and shall be includ ed in Def endan ts opening brief
Id. at 133, Ex. 23 (emphasis added); see also 144 and nn. 4-5.
The record conclu sively
establishes that the Schnei ders had the opportunity to, and did,
seek relief from the Final
Judgm ents through Rule 1.540(b) in the Foreclosure Action. They
cannot do so again through
this separate action for fraud on the court.
Finally , the Foreclosure Action and this action are "betwe en the
same parties or their
privies." Jasser , 103 So. 3d at 984 (quotations and citations omitte
d); see supra Verhagen, 552
So. 2d at I I 64; supra §11.D. l. And, the real parties in interes t in the
Foreclosure Action and this
action are the same - the Schneiders and First American. Id. ; see infra
§III.B.
Ill . The Alleged Claim for Fraud on the Court Asserted in
the Complaint ls Not
Suppo rted by the Material Facts.
The Schneiders and their counsel have already been placed on notice
that the Schneiders'
claim for fraud on the court is not suppor ted by the material facts.
On the same day the
Schnei ders filed the Compl aint in this action, the Schnei ders (throug
h their counse l, Wyma n and
Rodma n) filed their Verified Motion to Stay in the Forecl osure Action
. See supra 1151-52; Ex.
29. In relying on the pendency of this action to seek a stay of execut
ion of the 2018 Amended
Final Judgm ent in the Foreclosure Action , the Schneiders set forth
the Allege d Fraudu lent
Condu ct by the Law Firm Defend ants in that Verified Motion to Stay.
Ex. 29. First American
(through their counse l, the Law Firm Defend ants) filed a detaile
d Respo nse to the Verified
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Motion to Stay, and provided the Schneiders and their counsel - Wyman and
Rodma n - with the
docume nts that negate the Schneid ers' allegations of, and claim for, fraud asserted
in this action.
Ex. 27-28, 30. Despite being in possession of the Defendants' Response,
and the exonerating
documents, neither the Schneiders nor their counsel have taken the necessa
ry steps to dismiss
this lawsuit. Although addressed in First Americ an's Respon se to the Verifie
d Motion to Stay
filed in the Foreclo sure Action (Ex. 30), the followi ng demonstrates again
that the Schneid ers'
allegations of fraud against the Defendants are baseles s.
A. The Established Record Defeats the Schneiders' Claim for Fraud

on the
Court.
In the Complaint, the Schneiders assert that the Defend ants' "misrepresentations
and
deception prevented the Schneiders from presenting an opposition to the
motion for summa ry
judgme nt and particip ating in the hearing on the motion for summa ry judgme
nt." (Comp!. i\53).
This allegation is patently false, and obliterated by the record in the Foreclo
sure Action - a
record that was available to the Schneiders' and their counsel before this
lawsuit was filed by
counsel on behalf of the Schneiders.
The simple immutable fact is that the Law Firm Defendants (and First Americ
an) owed
no duty to protect the Schneid ers' interests. Chapman v. State Dept. of Health
& Rehab. Servs. ,
517 So. 2d I 04, I 06 (Fla. 3d DCA 1987) ("[A]n attorney owes no enforceable
duty to anyone but
his or her client, and certainly not to preclude damage to his client's
oppone nt."). The
Schneiders' dissatisfaction with the outcome of the Foreclosure Action was
a direct result of
their own inaction and fail ure to take the necessary affirmative steps require
d by litigant s to
protect their rights, and cannot - as a matter of law - be blamed on the Defend
ants.
1. The Law Firm Defendants Did Not "Quickly" Notice the Schnei
ders'
Depositions or File a Notice for Trial Without Attempting to Confer.
30
37
The Compl aint alleges that Bolz took improper actions in noticing
the depositions of the
Schneiders and the Foreclosure Action for trial. (Compl. i!14). These
allegations are baseless.
First, this alleged conduct does not, in any way, shape, or form, suppor
t an allegation of
fraud. Second, Bolz attempted to confer with the Schneiders twice
before finally unilaterally
setting the Schne iders' depositions and noticing the matter for trial.
On April 17, 2017, Bolz
sent an email to Trent (then counsel for the Schneiders) to confer on
the issues of the Schneiders'
depositions and trial. See supra ,is, Ex. 1. Then, after receivi ng no
response for over two weeks ,
Bolz sent a follow-up email to Mr. Schne ider in a second attemp t to
confer on those issues. Id. at
18, Ex. 3. After receiving no response from that second communicat
ion, and after 5 days, Bolz
unilaterally noticed the depositions and the trial. Id. at ,J9. Bolz's
actions were completely
justifi ed given the Schne iders' compl ete failure to respond to Bolz's
conferral attempts.
Further, even after Bolz noticed the deposi tions and filed a Notice of
Trial with the Court,
the Schneiders had every opportunity to seek relief from the Court
on those actions. The
Schneiders had over l month between the time Bolz issued the Notice
of Depositions until the
schedu led date of those depositions to seek alternative dates for the
depositions with the Court. 13
Id. Similarly, the Schneiders had almost 2 _months (50 days) in which to
seek a postponemen t of
the trial. Id. at 119-1 0. Despite these opportunities , the Schneiders
failed to take the necessary
and proper actions to protect their interests.
2. Bolz Did Not Unilaterally Set the Hearing for June 26, 2017.
The Compl aint alleges that "Bolz unilaterally scheduled the
hearing on [First
American' s] soon-to-be served motion for summa ry judgm ent for
June 26, 2017," and did so
13 It should be noted that the Schneiders sought to continu e the dates for
their depositions. See supra ,i21 .
But, instead of noticing that Motion for hearing, the Schneiders elected
to improperly remove the matter
to federal court to unilaterally preclude the depositions from going
forward as previously scheduled. Id.
at ,J21-23.
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based on a May 26, 2017 letter that the Schneid ers baldly assert "Bolz never
submitted ... to the
Court." (Comp l.1120, 28). These allegations are also blatantly false.
First, Bolz attempted to set the Hearing only after the Motion for Summa ry
Judgme nt had
been filed w ith the Court.
Second , Bolz submitted the May 26, 2017 letter to the Court. The federal express
docume nt express ly confirm s that Bolz sent the May 26, 2017 letter to the
Court, and that the
letter was received by the Court. Id. at 118; Ex. 9.
Third, Bo lz did not set the June 26, 2017 Hearing, unilater ally or otherwise.
The Court
set the Hearing. This is confirmed by the online schedul ing printout. See supra
119; Ex. 12 .
Fourth, Bolz conferred with Mr. Schneid er regarding a potential hearing date,
and sought
alternative dates from the Court. See supra 1115-I 8; Ex. 8. The docume nted
events occurred as
follows: Bolz conferred with Mr. Schneid er as to his availability for a hearing
on the already
filed Motion for Summa ry Judgme nt for June 26, 2017. See supra 1114-15; Ex. 5. Mr.
Schneid er responded that he was unavailable from June 26th through July
5th, and that he did
·'not agree to the propose d hearing for the Motion for Summa ry Judgme nt."
See supra ,it 6; Ex.
6. Bolz respond ed to Mr. Schneid er that he would seek alternative dates
from the Court. See
supra ~17; Ex. 7. Bolz did precise ly that. Bolz sent a letter to the Court dated
May 26, 2017,
which the Court received on May 30, 2017. See supra ,i18. In that letter,
Bolz informe d the
Court of Mr. Schneid ers' unavailability (June 26 th - July 5th) , and requested a hearing date on
alternative dates (June 15th - June 25 th). Ex. 8. The Court in its discretion
set the Hearing for
June 26, 2017. See supra ,it 9.
Fifth, irrespective of any actions taken by Bo lz relating to setting the

date for the
Hearing, the Schneiders failed to take any affirmative action with the Court
to change the date of
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the Hearing, or even inform the Court themselves that they were unavailable
on June 26, 2017.
In fact, on June 23, 2017, Mr. Schneider expressly informed Bolz that he
would "be tiling a
notice with the court" as to his unavailability for the Hearing. Id. at ,I27,
Ex. 20. But, Mr.
Schneider never did. Mr. Schneider failed to do so despite the affirmative
requirement in the
Order that only the Court had the ability to cancel the Hearing. See supra
19; Ex. 11. The
Schneiders' inaction related to the date of the Hearing and their own decisio
n to ignore the
Court's Order schedu ling the Hearing - not any Alleged Fraudulent Conduc
t by the Law Firm
Defendants - prevented the Schneiders from attending the Hearing.
3. Bolz Properly Informed the Court of the Recent Events at the Hearing.
The Complaint alleges that, at the Hearing, Bolz did not inform the
Court of the
Schneiders' unavai lability for the Hearing, or that First American' s " respons
es to the Schneiders'
discovery requests ... were still outstanding." (Compl. ili144-47 ). These allegati
ons lack merit.
First, contrary to the Schneiders' self-serving extraction from the Hearing transcri
pt (see
Comp!. ,r45), Bolz informed the Court of the last communication he
received from the
Schneiders relating to their unavailabi lity for the Hearing, and the outstan ding
documents. See
supra i129; Ex. 21. In his on-the-record statements to the Court, Bolz read Mr.
Schneid er's June
23, 20 17 email (see Ex. 20) to the Court in its entirety, thereby expressly
informing the Court
that the Schneiders were unavai lable to attend the Hearing, and of the Schneid
ers' position that
First American has "refuse d to produc e" docume nts. See supra i129.
Second , regardless of any failure by First American to produce docume

nts, it was
incumbent on the Schneiders to prov ide the Court with an affidavit in accorda
nce w ith Rule
1.51 O(f) if they sought to postpone the Hearin g based on outstanding discove
ry. See Carbonell
v. BellSouth Telecomm., Inc., 675 So. 2d 705, 706 (Fla. 4th DCA 1996)
("A party seeking a
continuance bears the burden of showing, by affidavit, the existence and
availability of other
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evidenc e, its relevan ce, the efforts taken to produce it, and that any failure
to do so is not the
result of the movan t's inexcus able delay." ). 14 The Schneid ers failed to adhere to this
requirement. While the Schneiders, proceed ing pro se in the Foreclosure

Action at that t ime,
may have been unawar e of this require ment, their current counsel should
know that the
Schneid ers bore the burden to seek a continu ance of the Hearing under Rule
1.51 0(f), and that
their failure to do so cannot form a basis to accuse the Law Firm Defend ants
(or First Americ an)
of fraud.
4. The Law Firm Defendants Did Not Commit Fraud in Filing the
Schneider's Response to the Show Cause Order in the District Court.
The Compla int alleges that "neithe r Mr. Schneid er nor M rs. Schneid er
ever drafted,
reviewe d, s igned, or mai led" the Response to the Show Cause Order, and that
Bolz submitted the
alleged ly false docume nt " in an attemp t to push the action back to state
court before June 26,
2017." (Comp l.1132, 37). These allegati ons are also false.
First, the Law Firm Defend ants retained the envelop e m which they
receive d the
Respon se to the Show Cause Order. See supra 124; Comp. Ex. 16.
Second , the Schneid ers received three copies of the Respon se to the Show
Cause Order
on June 22, 2017 filed by the Law F irm Defend ants - on the precise day the
Respon se was filed
with the District Court. See supra 124; Comp. Ex. 16; Ex. 17. The Schneid
ers did not contact
the Law Firm Defend ants, or file anythin g in the D istrict Court or the
Foreclosure Action,
claimin g fraud at that time.
Third, the Schneid ers - 1 month after the Law Firm Defendants filed the
Respon se with
the District Court (see supra 124) - filed the exact same Response with
the District Court.
14
Subsection (f) of Rule 1.510 provides "[i]f it appears from the affidavits of a party
opposing the motion
that the party cannot for reasons stated present by affidavit facts essential to justify
opposition, the court
may refuse the application for judgment or may order a continuance to permit affidavi
ts to be obtained or
depositions to be taken or discovery to be had or may make such other order as is
just."
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Id.; Exs. 18-19. If the document was "fraudulent," as the Schneiders now conven
iently contend,
they would have never filed that same exact docume nt - in their own name
and on their own
behalf -with the District Court on July 26, 2017, w ithout disclosing this critical
material fact.
Fourth, ignoring the fact that Mr. Bolz' s actions did not, and cannot, amoun t
to a fraud on
the Court, the Schneiders cannot seek relief in this Court for an alleged fraud
on the Court that
occurre d in the District Court. See Manzaro, 229 So. 3d at 846 (stating that
"a claim for fraud on
the court, whethe r an independent action or pursuant to Rule I .540(b), must
be brought in the
court where the fraud was purportedly committed"); see also Fla. Evergr
een Foliage v. E.I.
Dupont De Nemours & Co. , 336 F. Supp. 2d 1239, 1272 (S.D. Fla. 2004) ("[l]n
no case has a
Florida court allowed a cause of action for fraud on the court under Rule l
.540in a court that is
different from the one in which the fraud was committed").
B. The Law Firm Defendants Are Not Proper Parties to This Action.
The Complaint contains a single count for fraud on the court. (Compt. ,i 52-54).
In that
count, the Schneiders request that the Court "set[] aside the judgme nt entered
in the Foreclosure
Action." Id. at p. 11. The Law Firm Defendants were not parties to the Foreclo
sure Action. See
supra ,i1. As such, the lone claim for fraud on the court does not, and cannot, as
a matter of law
seek relief against the Law Firm Defendants. See Brown v. SEC, 2015 WL
458167, at *5 (S.D.
Fla. Feb. 3, 2015) (dismissing attorney from the action based on a claim for
fraud on the court -
the attorney who had represented the SEC in the underlying action that resulted
in the entry of a
judgme nt against the now-plaintiff - where "the only relief sought in the
Amended Compla int
[wa]s equitab le relief from judgme nt").
Conclusion
For the reasons stated above, the Complaint is wholly w ithout merit, both
legally and
factually. The Schneiders and their counsel knew and/or should have known
that the
35
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Case No. 50-20 19-CA-001016-X XXX -MB
independent action for fraud on the court is not suppo

rted by the material facts neces sary to
establish that claim, or supported by the applic able
existing law to the material facts. The
Defen dants are entitled to recover all of their attorn
ey's fees incurred in this case from its
inception from the Schne iders and their counsel. See Manz
aro, 229 So. 3d at 846 (finding appeal
frivolous, and awarding §57.105 sanctions against the
"App ellant and his couns el" w here the
appel lant filed the claim fo r fraud on the court in the
wron g court, and where the claim "would
have been precluded by both the principles of comity ...
and res judic ata"); Bier/in v. Lucibella,
955 So. 2d 1206, 1208 (Fla. 4th DCA 2007 ) (reversing
denial of fees under §57 .105 wher e "no
cause of action could ever be stated"); Smith v. Gore,
933 So. 2d 567, 568 (Fla. 1st DCA 2006)
("We again remin d the bar that Sectio n 57.105 expre
ssly states courts 'shall ' assess attorn ey's
fees for bring ing, or fa iling to timely dismi ss, baseless
claims or defenses."). 15
WHE REFO RE, the Defen dants Kelle r & Bolz, LLP, Henr
y H. Bolz and First American
Bank request that the Cour t enter an order: (i) awarding
each of the Defen dants their attorn eys'
fees against the Schneiders, and their counsel, Charl es
F. Rodm an, Esq. and Andr ew D. Wyman,
Esq., in accor dance w ith §57.105, and (ii) grant ing such
other and further relief as this Cour t
deems just and proper.
Respectfully Subm itted,
KELL ER LAN DSBE RG PA

Coun sel for Kelle r & Bolz, LLP
and Henr y H. Bolz
Broward Financial Centre, Suite 1400
500 East Broward Boulevard
Fort Lauderdale, F lorida 33394
Telephone: (954) 761-3550
15
See Wood v. Haac k, 54 So. 3d 1082, 1084 (Fla. 4th DCA
2011) ("[I]t is not the bringing of the motion
for 57. I05 fees that starts the clock running for recoverable
fees. Rather, once the twenty-one day safe
harbor expires, ' [t]he trial court is free to measure the
attorn ey's fees from the time it was known or
should have been known that the claim had no basis
in fact or law.'" ) (quoting Yakavonis v. Dolphin
Petroleum, Inc. , 934 So. 2d 615, 620 (Fla. 4th DCA 2006)
).
36
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Case No . 50-201 9-CA- 00I 016-X XXX- MB
Facs imile: (954) 525-21 34

Emai I: david.kel ler@kel lerlandsberg.com
Emai I: laura.kelly@kellerlandsberg.com
By: Isl D. David Keller

D. David Keller
Florid a Bar No. 28879 9
Maria N. Vemac e
Florida Bar No. 817171
COZE N O' CONNOR

Couns el for First American Bank
One North Clematis Street, Suite 510
West Palm Beach , Florida 33401
Teleph one: (561) 5 J 5-5250
Facsimile: (56 1) 515-5230
Email: sbrier@ cozen.com
Email: mcrisc uolo@ cozen. com
By: /s/ Simeon D. Brier

Simeo n D. Brier
Florida Bar No. 52578 2
Matthe w B. Criscuolo
Florida Bar No. 58441
Certificate of Servic e
WE HERE BY CERT IFY that a true and correc t copy of the forego
ing has been e-serv ed
via e-Serv ice (but not filed ) this 11th day of March , 2019 to:
Charles F. Rodm an, Esq. Andre w D. Wyma n, Esq.

R ODMA N EMPLO YMENT LAW
WYMA N LEGAL SOLUTIONS
Counsel/or Plaintiffs Couns el/o r Plaintiffs
Laurence S. Schnei der and Laurence S. Schneider and
Stepha nie L. Schneider Stephanie L. Schneider
181 Wells Avenu e, Suite 201 955 NW 17th A venue, Suite C
Newto n, MA 02459 Delray Beach, Florid a 33445
Telephone: (617) 820-5250 Teleph one: (561) 361 -8700
chuck. rodma n@rod manem ploym entlaw .com Facsimile: (561) 361 -8899
Emai I: andy@ wyman Legal Solutio ns.com
Isl D. David Keller

COUNS EL
37

A-35 Def&#39;s FAB &amp; Keller &amp; Boll Mot. Sanctions Re. Mot. Set Aside Judgment

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Case 9:20-cv-81728-DMM Document 17-35 Entered on FLSD Docket

IN THE CIRCU IT COUR T OF THE

Plaintif fs, Served, but not Filed on March 11 , 2019

their counsel for filing this baseless claim.

Florida (the " Property" ). (R. 12-35).2

2. In the Foreclosu re Action, the Schneider s were represented by Kenneth Eric

the Law Firm Defendants throughou t the entire Foreclosu re Action.

Case No. 50-2019-CA-00 1016- XXXX -MB

Counterclaim, and strike the Schneiders' two affirmative defen

4. On March 6, 2017, the Schneiders filed their Answ er, Amen

5. On April 17, 2017, Bolz sent an email to Trent (the

6. On May 1, 2017, the Court entered an Order in the Forec losure

Case No. 50-2019-CA-001016-XXXX-MB

8. On May 4, 2017, Bolz sent an email to Mr. Schneider

11. On May 23, 2017, the Law Firm Defendants filed a

Case No. 50-20 19-CA-001016-XXXX-M B

15. On May 26, 2017, Bolz sent an email to the Schneiders

In accordance with the Court 's Divisional Instructions, under

Case No. 50-2 019- CA-0 0101 6-XX XX-M B

Both for the conv enience of all parti es and judic

As the Schn eider s refuse to agree to a heari ng

19. On June 2, 2017 , the Cour t enter ed an Orde r Spec

20. On June 8, 2017 , Mr. Schn eider sent Bolz an emai

Case No. 50-2019-CA-00I 016-XXXX-MB

22. At no time prior to time of filing the Notic e of Remo

Case No. 50-2019-CA-00 1016-XXXX-MB

It says, Mr. Bolz, as I have explained to you, I am

Additionally, you have refused to produce any billing

THE COURT: Okay. Let's proceed....

30. On June 26, 2017, the Cour t entered a "Final Judgment"

32. On July 11 , 2017, the Schneiders filed a Motion for

extrinsic), misrepresentation, or other misconduct of an adverse party."

as moot by the Fourth District on August 16, 2017.

Schneider based on her failure to abide by appellate court orders.

42. On November I , 20 I 7, the Schneiders retained Ryan D. Gesten, Esq., as counsel

Schneiders again took issue with the "scheduling conflict"

simultaneously execute on the money judgment and foreclose

46. On September 7, 2018, the Fourth District issued its Mandate

47. On October 12, 2018, the Court entered an Amended

51. On January 24, 2019, the Schneiders - through Wym an and

52. Shortly thereafter (also on January 24, 2019), the Schneiders

Pursua nt to Fl[a]. R. Civ. P. 1.540 (the "Verified Motio n to Stay")

53. On January 29, 2019, First American filed a Response in

allegedly fraudulent condu ct identified by the Schneiders in their Verifie

55. Proceedings remain ongoing in the Foreclosure Action.

(b) Would not be supported by the application of then-existing law to

A. The Complaint Alleges Intrinsic Fraud, Which May Not Be

B. This Lawsuit Is a Blatant Attempt to Re-Litigate the Foreclosure Action

privilege to claims of fraud. 10

• filing a notice of trial (Id.);

• unilaterally scheduling a hearing on the motion for summa ry judgme

or the subject of inquiry no matter how false or malicious said statements

D. The Schneiders Are Estopped From Bringing This Action.

Collate ral estoppe l or estoppe l by judgme nt bars relitiga tion of a n issue

Lucky Nation, LLC v. Al-Maghazchi, I 86 So. 3d I 2, 14 (Fla. 4th DCA 2016)

Foreclosure Action - in their Motion for Rehearing, and in their Reconsideratio

2. Res Judicata Bars the Claim for Fraud on the Court.

Res judicat a bars the relitigation of claims previously determined by a court,

Amend ed Notice of Appeal, the Schneiders fully intended to appeal

A. The Established Record Defeats the Schneiders' Claim for Fraud

Fifth, irrespective of any actions taken by Bo lz relating to setting the

Second , regardless of any failure by First American to produce docume

requirement. While the Schneiders, proceed ing pro se in the Foreclosure

independent action for fraud on the court is not suppo

A-35 Def's FAB & Keller & Boll Mot. Sanctions Re. Mot. Set Aside Judgment

A-35 Def's FAB & Keller & Boll Mot. Sanctions Re. Mot. Set Aside Judgment