M A N D A T E

from

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

This cause having been brought to the Court by appeal, and after due
consideration the Court having issued its opinion;
.1

Y
YOU ARE HEREBY COMMANDED that such further proceedings b . aid
cause as may be in accordance with the opinion of this Court, and with 1e...rf.!1e§l"Of
procedure and laws of the State of Florida.

WITNESS the Honorable Jonathan D. Gerber, Chie

of Appeal of the State of Florida, Fourth District, and seal
Palm Beach, Florida on this day.

DATE: September 07, 2018 ~

CASE NO.: 17-2239 ~
COUNTY OF ORIGIN: Palm Beach
T.C. CASE NO.: 2016CA

STYLE: LAURENCE SCHNEID FIRST AMERICAN BANK, et al

LONN WEISSBLUM, Clerk

Fourth District Court of Appeal

FILED
SEP O7 2018
CLE~~AfON A. BOCK
CIRCUIT girLPDTIRVOLLER
ISION
cc: Sheyla Mesa Jay S. Levin Henry H Bolz 111
John W. Keller Iii Ryan O. Gesten
Clerk Palm Beach
D.E. 216-The 4th DCA was never advised Gesten
Change of Firm to Gesten P.A. Gonzalez never
II filed a Notice of Change of firm with 4th DCA.
Neither file Notice in 16-009292
 DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

LAURENCE SCHNEIDER,
Appellant,

V.

FIRST AMERICAN BANK, as successor by merger to Bank of

Gables, LLC, UNKNOWN TENANT #1, UNKNOWN TENANT 4i2:and~ E
OAKS AT BOCA RATON PROPERTY OWNER'S ASSOCIA'l'ION, INC.,
Appellees. r \'.
No. 4D17-2239 \...I
[ July 25, 2018]

Appeal from the Circuit Court for the

~ Uudicial Circuit, Palm
Beach County; Susan R. Lubitz, udge; L.T. Case No.
502016CA009292XXXX MB.

Ryan D. Gesten of The L f Ryan D. Gesten, P.A., Fort

Lauderdale, for appellant.

Laurence Schneider appeals a final judgment of foreclosure and a

separate amended final judgment awarding damages to First American
Bank (the "Bank f for breach of a credit agreement. We reverse to the
extent t a judgments improperly allowed the Bank to simultaneously
exec te n ffie money judgment and foreclose on appellant's property. 1
0 1 ot ,er issues, we affirm.

l is well-settled that "to collect money owed on a note, a mortgagee may

pur's ue its legal and equitable remedies simultaneously, until the debt is
satisfied." Royal Palm Corp. Ctr. Ass 1n v. PNC Bank, NA, 89 So. 3d 923,
929 (Fla. 4th DCA 2012). "[T]he reason that an action at law on a note
may be pursued simultaneously with the equitable remedy of foreclosure

1 A foreclosure sale on the property has not yet been held, however, as the trial
court granted a stay pending appeal.
is that the two remedies are not inconsistent." Id. at 932. Accordingly, a
trial court may enter a final judgment of foreclosure that allows for
immediate execution of the damages award, so long as the trial court
withholds the setting of the foreclosure sale of the property until the
plaintiff certifies that its money judgment has not been satisfied. Id. at
926, 928, 933 .

A trial court may not, however, simultaneously allow a foreclos re

plaintiff to execute on the money judgment and foreclose on the s bjec,t
property. Id. at 933; see also Farah v. Iberia Bank, 47 So. 3d 850 851
(Fla. 3d DCA 2010) (striking "for which let execution issue" languag from
final judgment of foreclosure).

Here, we find that the trial court erred in entering t o JJ dgments-a

money judgment and a foreclosure judgment-th together allowed the
·A

Bank to simultaneously execute on the money j a ent and foreclose on

appellant's property. To remedy this error, w eiVe s only the foreclosure
judgment. On remand, the trial court h~.,..&,..aodify the foreclosure
judgment so as to withhold the settin · th . foreclosure sale of the
property until the Bank certifies LUCllL- 1ts ,money judgment remains
unsatisfied. See Royal Palm, 89 So. d at 928. This procedure assures
that, while the Bank was free to u sue 0th remedies, it will not obtain a
recovery that exceeds the amount of tlie debt. Id. at 933. Moreover, once
the Bank "has obtained a foreclasur sale of the property, it cannot collect
on the note other than to pursue the appropriate deficiency amount."
Bonita Real Estate Part r-. , b. v. SLF IV Lending, L.P., 222 So. 3d 647,
652 (Fla. 2d DCA 20 l'f).

Affirmed in part, Reue sed in part, and Remanded.

WARNER and LE J., concur.

* * *
al until disposition of timely filed motion for rehearing.