78 Notice Supp. Auth Mot 2nd Receiver

Filing# 54241722 E-Filed 03/27/2017 01:13:44 PM
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
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successor by merger to Bank of
Coral Gables, LLC,
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Plaintiff,
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V.
LAURENCE S. SCHNEIDER,
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STEPHANIE L. SCHNEIDER, et al.,
Defendants.
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Counter-Plaintiff,
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V.
FIRST AMERICAN BANK, as

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successor by merger to Bank of

Coral Gables, LLC,
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Counter-Defendant.
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FIRST AMERICAN'S NOTICE OF SUPPLEMENTAL AUTHORITY

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COMES NOW the Plaintiff, FIRST AMERICAN BANK (hereinafter "FIRST

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AMERICAN"), by and through its undersigned counsel, and in accordance with the
applicable Florida Rules of Civil Procedure, hereby submits as supplemental authority the
statements made by the Honorable Thomas Barkdull during the March 23, 2017 hearing
FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 03/27/2017 01:13:44 PM
held in this case, the Silver Pines Partners, Ltd. v. Resolution Trust Corp., 588 So. 2d 63
(Fla. 58th DCA 1991) decision and Pasco v. Gamble, 15 Fla. 562 (Fla. 1876) decision.
On March 23, 2017 a hearing on FIRST AMERICAN's Motion for Inspection of
Property was held before the Honorable Thomas Barkdull. A true and correct copy of the
March 23, 2017 hearing transcript is attached hereto as Exhibit "A." At the hearing,
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undersigned advised the Court that Defendants, LAURENCE S. SCHNEIDER and
STEPHANIE L. SCHNEIDER, have "stopped paying property taxes" and "stopped paying
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insurance." Ex. "A" at 5. The Honorable Thomas Barkdull stated:
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"THE COURT: Hold on. Those are both waste. Under Florida law, failure
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to pay taxes, failure to pay insurance constitute waste and are an
automatic basis for the appointment of a receiver."
Id. (Emphasis added.)

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In Silver, the Fifth District Court of Appeal affirmed the appointment of a receiver
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in a mortgage foreclosure action because the mortgagor defaulted in making mortgage

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payments, failed to pay the ad valorem/real property taxes and failed to remit rental
payments to the mortgagee. 588 So. 2d at 63. A highlighted copy of the Silver decision
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is attached hereto as Exhibit "B."

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In Pasco, the Florida Supreme Court held that whenever a mortgagor refuses
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and/or fails to do any act "which is necessary to the preservation of the state," like paying
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ad valorem/real property taxes, the appointment of a receiver "is proper." 15 Fla. at 566.
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A highlighted copy of the Pasco decision is attached hereto as Exhibit "C."
Like the mortgagors in Silver and Pasco, the Defendants, LAURENCE S.
SCHNEIDER and STEPHANIE L. SCHNEIDER, have failed to pay ad valorem/real
property taxes (for 2014, 2015 and 2016), failed to remit rental payments to FIRST
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AMERICAN (after FIRST AMERICAN exercised its right to receive rental payments and
made a written demand) and failed to pay insurance on the Property being foreclosed.
FIRST AMERICAN respectfully requests that this Court take the statements made
by the Honorable Thomas Barkdull (during the March 23, 2017 hearing) and the Silver
and Pasco decisions into account in its resolution of FIRST AMERICAN's Renewed
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Verified Petition for Appointment of a Receiver (scheduled for hearing on March 28, 2017
at 1:00 p.m.) and incorporate citations to the statements made by the Honorable Thomas
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Barkdull (during the March 23, 2017 hearing), and the Silver and Pasco decisions in its
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Renewed Verified Petition for Appointment of a Receiver.
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Respectfully submitted,
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KELLER & BOLZ, LLP
Attorneys for Plaintiff
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121 Majorca Avenue, #200

Coral Gables, FL 33134
Telephone: (305) 529-8500
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Telefax: (305) 529-0228

Email: hbolz@kellerbolz.com
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By: s/ Henry H. Bolz, Ill

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Henry H. Bolz, Ill

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 Notice of Supplemental Authority, was delivered to: KENNETH ERIC TRENT,
ESQ. (trentlawoffice@yahoo.com), Trent Law Office, Attorneys for Laurence and
Stephanie Schneider, 831 East Oakland Park Blvd., Fort Lauderdale, FL 33334;
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STUART S. MERMELSTEIN, ESQ. (smermelstein@hermanlaw.com,
mconnor@hermanlaw.com), Herman Law, Attorneys for Jeffrey Herman, 3351 NW Boca
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Raton Blvd., Boca Raton, FL 33431; and JAY S. LEVIN, ESQ.
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(foreclosures@ssclawfirm.com), Sachs, Sax, Caplan, Attorneys for Oaks at Boca Raton,
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6111 Broken Sound Parkway, N.W., #200, Boca Raton, FL 33487 via the E-filing Portal
on this 27th day of March, 2017.

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KELLER & BOLZ, LLP

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By: s/ Henry H. Bolz, Ill

Henry H. Bolz, Ill
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1 IN THE CIRCUIT COURT OF THE 15th
JUDICIAL CIRCUIT IN AND FOR
2 PALM BEACH COUNTY, FLORIDA
3 CASE NO: 502016-CA-009292
5 FIRST AMERICAN BANK,

as successor by merger to
6 Bank of Coral Gables, LLC,
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7 Plaintiff.
8 vs.
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9 LAURENCE S. SCHNEIDER,
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STEPHANIE L. SCHNEIDER, et al.
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Defendants.
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Counter-Plaintiff.
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FIRST AMERICAN BANK,
14 as successor by merger to
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Bank of Coral Gables, LLC,

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Counter-Defendant.
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17 Proceedings had and taken place before the
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18 Honorable Thomas Barkdull, one of the Judges of
19 said Court, at the Palm Beach County Courthouse,

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20 205 North Dixie Highway, Room llB, West Palm

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21 Beach, Florida, on Thursday, the 23rd day of March

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22 2017, commencing at the hour of 8:45 a.m., and

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23 being a Hearing.
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JULIO A. MOCEGA & ASSOCIATES (305) 374-0181
Exhibit "A"
1 APPEARANCES:
2 Appearing on behalf of the Plaintiff:
3 KELLER & BOLZ, LLP

121 Majorca Avenue, Suite 200
4 Coral Gables, Florida 33134
305-529-8500
5 Hbolz@kellerbolz.com
BY: HENRY BOLZ, III, ESQUIRE
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Appearing on behalf of the Defendant:
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KENNETH ERIC TRENT, P.A.
8 831 East Oakland Pak Boulevard
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Fort Lauderdale, Florida 33334
9 954-567-5877
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Trentlawoffice@yahoo.com
10 BY: KENNETH TRENT, ESQUIRE
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1 (Thereupon, the following proceedings were
2 had:)
3 THE COURT: Welcome, everyone. Let's do
4 appearances for the record beginning with Counsel
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5 for the Plaintiff.
6 MR. BOLZ: Henry Bolz of the Firm of Keller &
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7 Bolz for the Plaintiff, First American Bank.
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8 THE COURT: Okay. And who's here for the
9 defense?
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10 MR. TRENT: Good morning, Your Honor. I'm
11 Kenneth Trent and I represent Defendants, Laurence

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12 and Stephanie Schneider.
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13 THE COURT: Okay. Mr. Bolz, this is a
14 request by your client to inspect the property.

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15 Is this a residential parcel?
16 MR. BOLZ: Yes, it is.

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17 THE COURT: Okay. Why do you think you need

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18 to inspect it?
19 MR. BOLZ: The last time we went out there in

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20 January, the power was off. We found the property

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21 to be, in general, not in good array and order.

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22 We've got a motion to appoint receiver scheduled
23 for an evidentiary hearing on Tuesday and --
24 THE COURT: Is the property being rented?
25 MR. BOLZ: No.

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1 THE COURT: Or is it owner occupied?
2 MR. BOLZ: Neither, empty.
3 THE COURT: It's vacant.
4 MR. BOLZ: Yes, sir?
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5 THE COURT: Response, Counsel?
6 MR. TRENT: Thank you, Your Honor.
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7 First of all, as you intimated in your first
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8 question to Counsel, he really doesn't articulate
9 a reason in this motion that this inspection is
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10 needed.
11 He has already been granted an inspection

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12 which causes my client to take time out of his
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13 busy workday, go over there, let them into the
14 property, et cetera.
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15 They've already had their motion for
16 appointment of a receiver denied albeit without

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17 prejudice.
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18 THE COURT: Okay. Hold on a second. When
19 was the last inspection?

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20 MR. TRENT: January.

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21 MR. BOLZ: I believe it was the 16th or 19th

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22 of January, Your Honor.
23 THE COURT: Of this year?
24 MR. TRENT: Yes.
25 MR. BOLZ: Two months ago.

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1 THE COURT: You took photos and everything?
2 MR. BOLZ: Yes, sir.
3 THE COURT: Okay. Why would you need to go
4 back there? Just two months ago, you were there.
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5 MR. BOLZ: The power wasn't on. We have no
6 idea how long the power had not been on when we
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7 inspected it in mid-January. We don't know if the
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8 power is back on.
9 Mr. Trent advises me that his client advises
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10 him that the power is back on. I don't know. I
11 think we're -- the mortgage documents give us

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12 right to go into it. They've stopped paying
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13 property taxes. They've stopped paying insurance.
14 MR. TRENT: Objection.

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15 THE COURT: Hold on. Those are both waste.
16 Under Florida law, failure to pay taxes, failure

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17 to pay insurance constitute waste and are an

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18 automatic basis for the appointment of a receiver.
19 MR. TRENT: But this is the motion for

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20 inspection, Your Honor.

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21 THE COURT: Okay. So it's granted.

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22 MR. BOLZ: Thank you, Your Honor.
23 THE COURT: And prove waste if that's
24 MR. BOLZ: And, Your Honor, we have put --
25 the question becomes

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1 MR. TRENT: But there's no evidence.
2 THE COURT: Okay. Are you going to represent
3 to me that the taxes are current and being paid by
4 your client?
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5 MR. TRENT: No, sir, absolutely not.
6 THE COURT: And the insurance is
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7 MR. TRENT: I'm not saying that.
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8 THE COURT: Okay. Good. Then they have the
9 right to inspect. If your client is not going to
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10 take care of the house, they have the right to
11 protect their assets. It's in your client's best

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12 interest because the deficiency will be less.
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13 Boy, aren't you glad I'm leaving the
14 division?
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15 MR. TRENT: I would be happy to respond. I
16 would like to respond if I could.

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17 THE COURT: Yeah. Tell me what you want to

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18 say.
19 MR. TRENT: All my argument was is that they

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20 haven't presented any evidence of these things,

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21 Your Honor. We're on a motion

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22 THE COURT: That's what the receivership
23 hearing is for --
24 MR. TRENT: Exactly.
25 THE COURT: to allow them to present

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1 evidence and they have the right to gather it.
2 It's just like taking a deposition prior to an
3 evidentiary hearing.
4 MR. TRENT: Okay, Your Honor.
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5 THE COURT: And what does the mortgage say
6 about the mortgagee's right to inspect the
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7 property upon reasonable notice?
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8 MR. TRENT: I believe Counsel had stated
9 that.
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10 THE COURT: What time -- on or before what
11 time on Friday, March 24th?

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12 MR. BOLZ: We will have somebody at the
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13 property whenever we are
14 THE COURT: When is the hearing?

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15 MR. BOLZ: Tuesday at 1:00, Your Honor.
16 THE COURT: So we will say on or before 3:00

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17 p.m. on Friday. That will give you a time, but

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18 not make you be late for Friday's dinner. Okay.
19 Good, on or before 3:00 p.m.

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20 MR. TRENT: 3:00 p.m. tomorrow?

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21 THE COURT: Yes, the 24th which will be

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22 tomorrow. You're welcome to be there, but you're
23 not required to be, but you're free to be.
24 Both sides are free to take videos,
25 photographs, whatever you need to do to preserve

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1 evidence to show Judge Ferrara the condition of
2 the property at the receivership hearing.
3 Okay. That concludes the hearing.
4 (Thereupon, the proceedings were concluded at
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5 8:53 a.m.)
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1 C E R T I F I C A T E
3 STATE OF FLORIDA
4 COUNTY OF PALM BEACH
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6 I, Katie Carvajal, Reporter, certify that I
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7 was authorized to and did report the foregoing
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8 proceedings, and that the transcript is a true and
9 correct transcription of my notes to the
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10 proceedings.
11 I further certify that I am not a relative,

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12 employee, attorney, or counsel of any of the
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13 parties, nor am I a relative or employee of any of
14 the parties' attorneys or counsel connected with

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15 the action, nor am I financially interested in the
16 action.
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17 Signed this 24th day of March, 2017.

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Katie Carvajal, Reporter

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No Shepard's Signal™
As of: March 24, 2017 11:51 AM EDT
Silver Pines Partners v. Resolution Trust Corp.

Court of Appeal of Florida, Fifth District
October 31, 1991, Filed
Case No. 91-699
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Reporter
588 So. 2d 63 *; 1991 Fla. App. LEXIS 10848 **; 16 Fla. L. Weekly D 2769
185 So. 441 (1938); Bochterle v. Florida Milk Co., 132 Fla.
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SILVER PINES PARTNERS LTD., and FINANCIAL 827,182 So. 215 (1938); Smith v. State Life Insurance Co., 114
CAPITAL OF AMERICA, INC., Appellants, v. THE Fla. 371, 153 So. 842 (1934); [**2] Smith v. Taylor, 112 Fla.
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RESOLUTION TRUST CORPORATION, etc., Appellee 597, 150 So. 803 (1933): Pasco v. Gamble. 15 Fla. 562 {1876);
Overseas Dev. Inc. v. Krause. 323 So. 2d 679 (Fla. 3d DCA
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Notice: [**l] Released for Publication November 18, 1991. 1975), cert. denied, 336 So. 2d 107 (Fla. 1976). See also,
Chapman v. Chapman, 526 So. 2d 131 (Fla. 3d DCA 1988);
Prior History: Non-Final Appeal from the Circuit Court for Annot., Appointment ofReceivers - "Waste" 55 A.L.R.3d 1041,
Orange County, W. Rogers Turner, Judge. § 14 [a] (1974).
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Disposition: AFFIRMED. AFFIRMED.
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Core Terms
End of Document
mortgage, rentals, Appointment, Receivers, mortgagee,
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default
Counsel: Nancy J. Cliff of Baron & Cliff, Miami, Florida,

and Law Offices of Alan K. Marcus, P.A., Coral Gables,
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Florida, for Appellants.

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Alfred L. Frith and W. Scott Callahan of Frith & Stump, P.A.,

Orlando, Florida, for Appellee.
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Judges: Cowart, Peterson and Diamantis, JJ., concur.

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Opinion by: PER CURIAM

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Opinion
[*63] ~e affirm the appointment, without prior notice, of a

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~ecei~r of the mortgaged property in this mortgage foreclosure
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~ction because the mortgagor defaulted in making mortgage
~ayments and failed to pay the real estate ad valorem taxes fo~
three years, and failed to remit rentals to the mortgagee
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~ursuant to an assignment of rentals after default and after the
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mortgagee had exercised its right to receive rentals and had
bade a written demand therefor pursuant to section 697.07.I
Florida StatuteI See Dixie Music Co. v. Pike. 135 Fla. 671.
Exhibit "B"
1:::..Caution
As of: March 24, 2017 11 :57 AM EDT
Pasco v. Gamble
Supreme Court of Florida
January, 1876, Decided
No Number in Original
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Reporter
15 Fla. 562 *; 1876 Fla. LEXIS 6 **
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wherever a mortgagor in possession refused to do any act
SAMUEL PASCO, APPELLANT, vs. ROBERT H. necessary to the preservation of the estate, the appointment of
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GAMBLE AND WILLIAM G. POOLE, RESPONDENTS. a receiver was proper. However, the court found that the
original bill, which contained no prayer for a receiver, was
Prior History: [**l] Appeal from Circuit Court of Jefferson. improperly permitted to be amended without the payment of
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costs as it was the mortgagees' neglect that rendered
A statement of the case appears in the opinion of the court.
amendment necessary.
Disposition: Order reversed and case remanded.

Outcome
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The court reversed and remanded the trial court's judgment.
Core Terms
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mortgagee, mortgagor, rents, profits, receiver, appoint, LexisNexis® Headnotes

mortgage, mortgage debt, equitable, purchaser, equities,
foreclosure, legal right, appointment of receiver, execution
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purchaser, court of equity, encumbrance, insolvency,

possessory right, cases Contracts Law> Types of Contracts> Lease
Agreements > General Overview
Case Summary
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Real Property Law> Deeds> Types of Deeds> Sheriffs Deeds

Real Property Law> Financing> Foreclosures> General
Overview
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Procedural Posture
Appellant purchaser challenged an order of the Circuit Court Real Property Law > ... > Mortgages & Other Security
of Jefferson County (Florida), which appointed a receiver of Instruments > Redemptions > General Overview
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rents for property bought by the purchaser at foreclosure sale, Real Property Law> ... > Mortgages & Other Security
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and which order was made upon respondent mortgagees' Instruments > Redemptions > Mortgagor's Right
petition setting up insolvency and the purchaser's failure to pay
taxes on the land.
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HNJ[A] While a purchaser of the equity of redemption is

permitted by the mortgagee to remain in possession, collecting
Overview the rents, he takes them without liability to account. In the
The mortgagees foreclosed on the mortgage and the purchaser matter of account he occupies the same relation to the
bought the equity ofredemption at the execution sale. The trial mortgagee that the mortgagor in possession would; and the rule
court appointed a receiver of the rents and directed tenants to is, that a mortgagor in possession is not accountable to the
remit to the receiver if the purchaser failed to give bond to mortgagee for profits resulting from his own use, or for rents
account therefor. This order was made because the mortgagees received of tenants before and independent of any action by the
claimed insolvency, that the land was inadequate as security for mortgagee looking to the assertion of such claim, while a
the debt, and that the purchaser had failed to pay taxes on the mortgagee in possession is always, in the absence of some
land. On appeal, the question was whether a receiver of rents special contract, accountable for such rents to the mortgagor.
of the mortgaged property could be had. The court held that The mortgagee, by virtue of the simple existence of the
Exhibit "C"
Pasco v. Gamble
mortgage, is not to have the rents under leases, either before or HNS[A] A mortgagee out of possession, and without a bill of
subsequent to the mortgage. The tenant may consider the foreclosure, may enjoin a mortgagor properly in possession
mortgagor his landlord, so long as the mortgagee allows the from doing any act whereby the land would become less
mortgagor to continue in possession and receive the rents. sufficient security for the debt.
Civil Procedure > ... > Receiverships > Receivers > General Civil Procedure > ... > Receiverships > Receivers > Appointment
Overview of Receivers
Civil Procedure > ... > Receiverships > Receivers > Appointment
of Receivers
Overview
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Real Property Law> Financing > Mortgages & Other Security
Overview
Instruments > Mortgagor's Interests
HN2[A] The mortgagee is deprived of any remedy by which
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HN6[A] Wherever the mortgagor, legally in possession, and
he can acquire possession.
entitled thereto by statute or contract, refuses and fails to do
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any act which is necessary to the preservation of the estate, and
to the doing of this act the appointment of a receiver and
sequestration of the rents is necessary, that a court of equity
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Overview should not hesitate to take the possession from him.
HN3[A] 1853 Fla. Laws ch. 525, p. 104 provides that a

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mortgagee is a specific lien upon property, and that the
mortgagee is incapable of acquiring possession until after Civil Procedure > Remedies > Receiverships > General Overview
decree of foreclosure, and then only by bidding and outbidding Civil Procedure > ... > Receiverships > Receivers > General
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all competitors in market. Overview

Civil Procedure > ... > Receiverships > Receivers > Appointment
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of Receivers
Real Property Law> Financing> Foreclosures> General Real Property Law > Estates > Present Estates > Life Estates
Overview
HN7[A] A receiver may, in a proper case, be appointed to
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Real Property Law> Landlord & Tenant > Tenancies > Tenancies
raise the arrears of an annuity. So an equitable mortgagee may
at Will
have a receiver appointed, if the payment of interest on his
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Torts > ... > Duty On Premises > Trespassers > General Overview security be in arrears. So if a person takes a conveyance of a
legal estate, subject to equitable interests, he must satisfy these
HN4[A] A mortgagor entitled to possession by statute cannot equitable interests, or submit to the appointment of a receiver.
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be tenant at will to the mortgagee. Ejectment cannot lie against So where tenants for a particular estate, for life or in tail,
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him, because he is entitled to possession. There is no action of neglect to keep down the interest due upon encumbrances upon
trespass for mesne profits, because he is no trespasser. There is the estates, courts of equity will appoint a receiver to receive
no action of assumpsit, for there is no promise, express or
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the rents and profits in order to keep down the interest, for this
implied, to pay. is but a mere act of justice to the encumbrancers.
Headnotes/Syllabus
Overview Headnotes
Instruments > Mortgagee's Interests 1. The statutes of this State provide that the mortgagor shall be
entitled to the possession of the mortgaged property until after
decree of foreclosure and sale; that the mortgage is a "specific
Instruments > Mortgagor's Interests
lien" upon property, and that the mortgagee is incapable of
Page 2 of 6
Pasco v. Gamble
acquiring possession until after decree of foreclosure, and then to the purchaser and his tenants [**2] for the year 1875,
only by bidding and outbidding all competitors in market. An appointed a receiver of the rents, directing the tenants to attom
execution purchaser of the equity of redemption takes the land to him, such order to become effective in the event the
subject to the equitable rights of the mortgagee against the execution purchaser failed to give bond to account therefor.
mortgagor. The possession which the law allows the This order is made upon petition by the mortgagees setting up
mortgagor, as well as such purchaser, is subordinate to the insolvency, that the land was entirely inadequate as security for
equitable rights of the mortgagee. The right to possession exists the debt, and a failure upon the part of the execution purchaser
cum onere. Non-residence and insolvency of the mortgagor, a to pay the taxes for the year 1874. The petition also alleged that
failure on the part of the execution purchaser in possession as the mortgagor, before the purchase under the execution, had
well as of the mortgagor to keep down the interest of the removed beyond the State, and that the whole amount of the
mortgage debt, and clear inadequacy of the mortgaged principal and interest of the debt was due. From this order the
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premises to pay the debt, are equities by which the court can execution purchaser takes an appeal, and the general question
affect the conscience of the party thus in possession. The presented for our determination is, whether, under the
mortgage is in equity a charge upon the lands and its produce, circumstances stated, a receiver of the rents and profits of the
and under these circumstances, a receiver of the rents and mortgaged property can be had in this State.
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profits should be appointed upon bill seeking foreclosure and
sale. The rents and profits, of which a receiver was here appointed
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at the suit of the mortgagee, are rents due the execution
2. Where the bill fails to set forth these equities, and neglects purchaser of the equity of redemption under contracts with
parties made subsequent to his entry under the sheriff's deed,
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to pray for a receiver or for any sequestration of the rents and
profits, it is not conformable to chancery practice to appoint a
receiver upon petition without amendment of the bill. A
petition in such case cannot be attended to in the matter of
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which was after default in the payment of the mortgage debt or
any part of the interest [**3] thereof. HN1[1'-] While such
purchaser is permitted by the mortgagee to remain in
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appointing a receiver as setting up substantial equities not possession, collecting the rents, he takes them without
otherwise alleged or claimed in the pleadings. The plaintiffs liability [*564] to account. In the matter of account he occupies
must amend their bill to make these equities available. the same relation to the mortgagee that the mortgagor in
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possession would; (6 Rich. 310,311; 10 Met. 112;) and the rule

Counsel: S. Pasco for Appellant. is, that a mortgagor in possession is not accountable to the
mortgagee for profits resulting from his own use, or for rents
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G. P. Raney for Respondents. received of tenants before and independent of any action by the
mortgagee looking to the assertion of such claim, while a
Judges: WESTCOTT, J. mortgagee in possession is always, in the absence of some
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special contract, accountable for such rents to the mortgagor.

Opinion by: WESTCOTT (1 Hilliard on Mort. 104, 134, 35, 45.) The mortgagee, by virtue
of the simple existence of the mortgage, is not to have the rents
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Opinion under leases, either before or subsequent to the mortgage. Says

Bayley, Justice, in case of a lease made after the mortgage:
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[*562] WESTCOTT, J., delivered the opinion of the court. "The tenant may consider the mortgagor his landlord, so long
as the mortgagee allows the mortgagor to continue in
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This bill is filed by trustees, Robert H. Gamble and William G. possession and receive the rents." (9 B. & C. 251; 11 Ad. & EL
Poole, mortgagees, against the mortgagor, James E. Anderson, 307.) Here the rents became due after the [**4] institution of
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and Samuel Pasco, an execution purchaser of [*563] the equity the foreclosure suit, and the receiver was appointed with
of redemption in a tract of land in Jefferson county. The sale instructions to collect the rents due and accrued before any
under the execution was had subsequent to default in payment payment to the purchaser was made. In such cases, upon an
of the mortgage debt. The bill prayed a simple foreclosure and allegation of insolvency of the mortagor and inadequacy of the
sale. After appearance and default, there was a decree pro property as security for the payment of the debt, the general
confesso against the mortgagor. The execution purchaser practice in some of the States is to appoint a receiver in order
answered that one of the mortgagees, William G. Poole, was in that the rents due, and to become due, might be applied to the
possession of the land during the years 1870, 1871, 1872 and mortgage debt. In other States, because of the remedies which
1873; that from several interviews with him he derived the the mortgagee of the legal estate has in his own hands, equity
impression that the mortgage debt was paid from the rents and
profits of the land, and prayed that an account thereof might be
taken and applied to the mortgage debt. The court, after notice
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will not appoint a receiver on his application. In this State, as
in New York, HN2[1"-] the mortgagee is deprived of any
remedy by which he can acquire possession; and unless our
Page 3 of 6
Pasco v. Gamble
statute deprives a court of equity of its power to appoint such legal rights as to rents and profits, which, by virtue of his legal
receiver at the suit of the mortgagee, we think the New York title, he acquired by entry or notice. TI1ese, as was said by
rule should prevail, and that a case is here made for a receiver Chancellor Kent, are gone, but at the same time the mortgage
according to that practice, and to the practice of the English is a lien by contract. It is an encwnbrance, and we are still met
courts in analogous cases. with the question, will not a court of equity, for tl1e security and
protection of the mortgagee-the holder of this encumbrance--
lllfJ.[~] Our statute, (Chap. 525, p. 104, acts of 1853,) appoint a receiver of the rents and profits of the property upon
provides [*565] that a mortgagee is a specific lien upon which it exists, in such a case as is here made? Equity will not
property, and that the mortgagee is incapable of acquiring hesitate in behalf of such an encumbrance and lien to control
possession [**5] w1til after decree of foreclosure, and then only
by bidding and outbidding all competitors in market. -
one properly and legally in possession, when he is doing acts
affecting disastrously the security. HN5[ -'t-] A mortgagee out
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of possession, and without a bill of foreclosure, may enjoin a
It is clear from this statute that any right which the mortgagee
mortgagor properly in possession from doing any act whereby
had at law to possession of the mortgaged property, until after
the land would become less sufficient security for the debt. (3
decree of foreclosure and a purchase at the sale, is destroyed;
Atk. 210, 237; 3 Ves. 105; 2 John. Chy. 147.)
O
and the question is, whether the right of the mortgagee to the
rents here clain1ed must not fail, both in law and equity, when
I am clear that HN6[~] wherever the mortgagor, legally in
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his right to possession under the statute ceases to exist. The
bossession, and entitled thereto [**8] by statute or contract,!
relation between mortgagor and mortgagee is essentially 1
refuses and fails to do any act which is necessary to the
changed. HN4[~] A mortgagor entitled to possession by 1
ED
breservation of the estate, and to the doing of this act the
statute cannot be tenant at will to the mortgagee. Ejectment I
appointment •
of a receiver and sequestration of t11e rents is
.I
cannot lie against him, because he is entitled to possession. 1
~1ecessary, that a court of equity should not hesitate to take the
There is no action of trespass for mesne profits, because he is 1
possession from him. Here one of the a11egatmns . . t1iat tl1e1
ts
FI 1
no trespasser. TI1ere is no action of assumpsit, for there is no
purcliaser has failed to pay the taxes. Such tax is an annual
promise, express or implied, to pay. I
charge upon the lands, and when a receiver• •
1s necessary to 1"tsI
discharge the appointment is proper! (1 Malloy [*567] 26,
TI
On the contrary, the implied agreement, as remarked by Chief

note; 1 Bland 290,297; 3 Edw. Ch'y, 312; 1 Barb. Ch'y Prac.
Justice Parker, when speaking of a mortgagor rightfully in
665; 19 Wis. 159. 163; Walk. Ch'y Repts. 43; 19 Iowa, 183; 35
possession, is, "that the mortgagor shall take the rents and
ER
Ga. 180; 5 Gill. andJolm. 314.)

profits to his own use w1til he shall be lawfully dispossessed."
In the State of New York, the action of ejectment by the
At the outset of this investigation, controlled principally by the
mortgagee has been abolished. [**6] He has at law been
California decisions, our view was, that the statute, destroying
denied all remedy to get possession, and Chancellor Kent
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all rights of possession to the mortgagee, destroyed also all his

remarks that the consequence is, that a "court of law would
equitable rights and remedies by which a sequestration of the
seem to have no jurisdiction over the mortgagee's interest. He
rents and profits of the land might be liad. This view in
A
is not entitled to the possession, nor to the rents and profits, and
California has been condeDUled in Nevada, where,
he is turned over entirely to the courts of equity." (4 Kent 159;
notwithstanding the statute gives the right of possession to the
15 Mass. 268. 270; 1 Pick. 90; 9 Serg. & Rawle 311.) Lord
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mortgagor until foreclosure and sale, the court in such [**9] a

Hardwicke, in Mead vs. Lord Orrery, 3 Atk. 244, says, "as to
case as this sanctions the appointment of a receiver. (J Ne1•.
the mortgagor, I do not know any instance, where he keeps in
O
179, 184.)
possession, that he is liable to account for the rents and profits
to the mortgagee, for the mortgagee ought to take the legal
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We are now satisfied that his right to possession was not the
remedies to get into the possession." In this State there is no basis of this equity. He had no right in equity to possession as
legal [*566] remedy for the mortgagee to get into possession; against the mortgagor, unless there were equities affecting the
the mortgagor is entitled to possession, and, as a consequence, conscience of the mortgagor, by which his possession could be
to the rents and profits, without account at law. We are entirely controlled for the benefit of the charge and encumbrance, and
satisfied with this conclusion, so far as the legal rights of the equity gave her aid when these circwnstances existed, and
parties are concerned; but is it true tliat, because the legal title when at law the mortgagee could not get possession, or his right
is in the mortgagor, and he has all the rights of ownership, there was obstructed or not available. The equity results from
subject to the equitable lien, that in no case can equity appoint the fact that a mortgage is a charge upon the land; that the land
a [**7] receiver of the rents and profits? The existence of the is inadequate security for the debt; tliat the mortgagor is
legal right of entry and possession upon the part of the insolvent or resides out of the State; that both the mortgagor
mortgagee at common law, we have seen, gave him extensive and the purchaser at the execution sale have paid no attention
Page 4 of 6
Pasco v. Gamble
to arrears of interest due upon the mortgage debt, or to pay appointment.

taxes then due and unpaid. This rule we deduce from the
uniform action of courts of equity in analogous cases, where, The familiar case of a receiver, at the suit of a second
as against the legal right of possession, equity will sequestrate mortgagee against the mortgagor in possession, where there are
and apply the rents and profits to a charge or encumbrance. The arrears of interest, (3 San. 109; 2 Russ. 151; 2 Kerr 249; 1 Hog.
right to appropriate the rents and profits which 201; Kerr on Rec. 48; 6 Rich. 306, 308; 4 Grat. 210,) shows
equity [**10] gives the mortgagee, where a receiver is that the legal right to possession is not a necessary ingredient
appointed at his instance, does not result from any specific for his appointment, for in such case the legal right is in the
pledge of such rents contained in the mortgage. Equity makes first mortgagee, and yet the second mortgagee can, as against
the mortgage, as between mortgagor and mortgagee, a charge the mortgagor, where there are such equities, as in this case,
upon [*568] the rents and profits whenever the mortgagor is have a receiver of the rents and profits.
PY
insolvent and the security is inadequate, and especially is it the
The English courts do not hesitate to appoint receivers against
duty of the purchaser in possession to keep down the interest.
a mortgagor in possession, having the legal estate, at the suit of
As is remarked by Coote, (on Mortgages, 342, cited with
equitable mortgagees, where [**13] proper equities exist. 6
approbation by Chancellor Dargan, in Matthews vs. Preston, 6
O
Hare 620; 2 Russ. 150; 3 G. & C. 379; 2 Ridg. P. C. 58; Kerr
Rich. Eq. 307, note,) "although in equity the mortgagor remains
on Rec'vrs. Chap. 2, Sec. 4.
the actual owner of the land until foreclosure, entitling him
C
while in possession to the receipt of the rents and profits The state of the security, the condition of the mortgagor, failure
without account, yet equity, regarding the land with all its to keep down interest upon encumbrances, are strong equities
ED
produce as a security for the mortgage debt, will restrict the leading to such action, and it has been said that "it is enough
right of ownership within those bounds which may not operate that a good equitable title be made to appear, and that the
to the detriment or injury of the mortgagee." This equitable remedy at law should not fulfill the requisitions of justice." (13
charge exists upon the produce, notwithstanding the fact, (as Pri. 734; 22 Beav. 73; 26 Beav. 191; 2 J. & H. 76.) HN7[?] A
FI
Chancellor Dargan says), that in a court of equity the receiver may, accordingly, in a proper case, be appointed to
mortgagor is regarded as the owner of the land, even after raise the arrears ofan annuity. (13 Price 734; L.B. Eq. 22.) So
forfeiture, and the mortgagee is considered [**11] only in the
TI
an equitable mortgagee may have a receiver appointed, if the

light of a creditor having a lien upon the land created by the payment of interest on his security be in arrear. So if a person
mortgage. It is to be remarked that at the time of this decision takes a conveyance of a legal estate, subject to equitable
ER
by Chancellor Dargan, the provisions of the act of the interests, he must satisfy these equitable interests, or submit to
Assembly of South Carolina, of 1791, were in force, and that the appointment ofa [*570] receiver. (1 Meriv. 54.) So where
under that act the mortgage was declared a mere security for tenants for a particular estate, for life or in tail, neglect to keep
the debt, the fee remaining in the mortgagor. (Rice's Eq. 373.) down the interest due upon encumbrances upon the estates,
C
courts of equity will appoint a receiver to receive the rents and

After the appointment of a receiver, the rents and profits
profits in order to [**14] keep down the interest, for this is but
coming to his hands (as is said by Baldwin. J.. 4 Gratt. 187.
A
a mere act of justice to the encumbrancers. (Story, 11 Ed. §

208) are to be distributed according to the rights and priorities
838; Jeremy on Eq. Jur. B. 1 Ch. 7, § 1, pp. 251-2; 1 Sehl. &
of the parties "in or to the principal subject, out of which these
Lefr. 407, note; 3 Meriv. 560.) These cases are mentioned, not
T
rents and profits issue." The effect of the statute in Wisconsin

as precedents in all respects strictly applicable to the case of a
was thus announced in Wood and Moon vs. Trask. et al.• 7 Wis.
mortgagor in possession under our statute, but to show that in
O
566: "Our statute has essentially changed the rule of the

most cases the legal right to possession exists cum onere, and
common law in relation to the position of the fee of the
that equity attaches to that possession certain duties which if
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mortgaged premises after condition broken. The fee does not

not discharged, it will, when necessary to their dischar~e,
vest upon default of the mortgagor in the mortgagee. The fee
through its receiver, sequester the rents and profits of an estate.
only vests upon sale or foreclosure." That court, in Finch vs.
Our conclusion is, that the mortgagor or purchaser of the equity
Houghton. 19 Wis. 149, sustained an appointment ofa receiver
ofredemption under our statute has the right to possession, yet,
upon grounds such as are set [*569] [**12] up in this case. In
that such possession is subordinate to the equitable rights of the
Michigan, (Walker's Chy. 44,) the early rule corresponded with
mortgagee. That, in case of non-residence and insolvency of
the rule announced in New York, South Carolina, Wisconsin
the mortgagor, a failure on the part of an execution purchaser
and Nevada. Under a subsequent statute taking away all right
in possession, as well as of the mortgagor, to keep down the
to a possessory action in the mortgagee, the rule in New York
interest of the mortgage debt, and clear inadequacy of the
was condemned by the Michigan courts. (13 Mich. 23.) After
mortgaged premises to pay the debt, are equities by which the
the most thorough examination I am capable of giving the
court "can affect the conscience of the party m
subject, I think the weight of authority is in favor of the
Page 5 of 6
Pasco v. Gamble
possession [**15] under legal title." And, as the mortgage in

equity, where the mortgagor is looked upon as the real owner, End of Document
is a charge upon the land and its produce, the court, under these
circumstances, should appoint a receiver in order to the
sequestration and application of the rents and profits. The
purchaser here in possession has his title subject to the
equitable interests of the mortgagee, and he must satisfy them.
1 Meriv. 54.
We see nothing improper in the frame of the order here made,

and the only remaining question is, whether the appointment
was properly made upon petition and notice after answer. The
PY
objection made is that the bill [*571] does not make a case for
a receiver, does not even pray for a receiver, and that the
equities sought to be made operative to that end are set up by
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petition only. It is true, that the inadequacy of the security, the
insolvency of the mortgagor, and the failure to pay the taxes,
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are not mentioned in the original bill. It is also true that the bill
has no prayer for a receiver, or for the application of the rents
and profits to the mortgage debt. That the mortgage debt is due,
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that no interest has been paid, and that the mortgagor is [**16] a
non-resident, does, however, appear otherwise than by the
petition. The rule applicable to this petition is, that, like a
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motion, it cannot be attended to as laying a foundation for
equities not otherwise alleged or claimed in the pleadings. The
bill, in this case, contained no prayer for a receiver, set up no
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equities as to the rents and profits, except the existence of the

mortgage debt and the non-payment of the interest thereon; nor
did it ask any relief as to the rents and profits.
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When the petition was filed in this case, the cause stood upon
bill and answer, the application not being in. Upon a petition
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setting up these equities and asking leave to amend the bill,

such amendments as were necessary to make them available
should have been allowed in this case in conformity to Rule 42
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of Practice in Suits in Equity. The amendment should not have

been allowed, however, except upon a payment of costs, as it
was the neglect of the plaintiffs which rendered it necessary, in
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order to the proper presentation of their case.

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The order appointing the receiver in this cause is reversed

without prejudice to an application to the chancellor to amend
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the bill as the plaintiffs may be advised, [**17] (such

application to be considered as made after answer and before
replication,) and to the appointment of a receiver upon the
amended pleadings. In the meantime, all parties are enjoined
from making any disposition of the rents and profits of the
mortgaged land until the further order of the
Circuit [*572] Court. The order is reversed, and the case
remanded for further proceedings not inconsistent with this
opinion and conformable to law.
Page 6 of 6

78 Notice Supp. Auth Mot 2nd Receiver

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78 Notice Supp. Auth Mot 2nd Receiver

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Filing# 54241722 E-Filed 03/27/2017 01:13:44 PM

IN THE CIRCUIT COURT OF

CASE NO.: 502016-CA-009292

FIRST AMERICAN BANK, as

FIRST AMERICAN BANK, as

successor by merger to Bank of

FIRST AMERICAN'S NOTICE OF SUPPLEMENTAL AUTHORITY

COMES NOW the Plaintiff, FIRST AMERICAN BANK (hereinafter "FIRST

On March 23, 2017 a hearing on FIRST AMERICAN's Motion for Inspection of

Id. (Emphasis added.)

in a mortgage foreclosure action because the mortgagor defaulted in making mortgage

is attached hereto as Exhibit "B."

A highlighted copy of the Pasco decision is attached hereto as Exhibit "C."

Like the mortgagors in Silver and Pasco, the Defendants, LAURENCE S.

SCHNEIDER and STEPHANIE L. SCHNEIDER, have failed to pay ad valorem/real

121 Majorca Avenue, #200

Telefax: (305) 529-0228

By: s/ Henry H. Bolz, Ill

Henry H. Bolz, Ill

ESQ. (trentlawoffice@yahoo.com), Trent Law Office, Attorneys for Laurence and

mconnor@hermanlaw.com), Herman Law, Attorneys for Jeffrey Herman, 3351 NW Boca

on this 27th day of March, 2017.

KELLER & BOLZ, LLP

By: s/ Henry H. Bolz, Ill

3 CASE NO: 502016-CA-009292

5 FIRST AMERICAN BANK,

Bank of Coral Gables, LLC,

18 Honorable Thomas Barkdull, one of the Judges of

19 said Court, at the Palm Beach County Courthouse,

20 205 North Dixie Highway, Room llB, West Palm

21 Beach, Florida, on Thursday, the 23rd day of March

22 2017, commencing at the hour of 8:45 a.m., and

JULIO A. MOCEGA & ASSOCIATES (305) 374-0181

2 Appearing on behalf of the Plaintiff:

3 KELLER & BOLZ, LLP

JULIO A. MOCEGA & ASSOCIATES (305) 374-0181

1 (Thereupon, the following proceedings were

3 THE COURT: Welcome, everyone. Let's do

4 appearances for the record beginning with Counsel

6 MR. BOLZ: Henry Bolz of the Firm of Keller &

11 Kenneth Trent and I represent Defendants, Laurence

13 THE COURT: Okay. Mr. Bolz, this is a

14 request by your client to inspect the property.

15 Is this a residential parcel?

16 MR. BOLZ: Yes, it is.

17 THE COURT: Okay. Why do you think you need

19 MR. BOLZ: The last time we went out there in

20 January, the power was off. We found the property

21 to be, in general, not in good array and order.

22 We've got a motion to appoint receiver scheduled

23 for an evidentiary hearing on Tuesday and --

24 THE COURT: Is the property being rented?

25 MR. BOLZ: No.

JULIO A. MOCEGA & ASSOCIATES (305) 374-0181

1 THE COURT: Or is it owner occupied?

2 MR. BOLZ: Neither, empty.

3 THE COURT: It's vacant.

4 MR. BOLZ: Yes, sir?

6 MR. TRENT: Thank you, Your Honor.

9 a reason in this motion that this inspection is

11 He has already been granted an inspection

13 busy workday, go over there, let them into the

15 They've already had their motion for

16 appointment of a receiver denied albeit without