Filing# 77642487 E-Filed 09/10/2018 11:48:01 AM

IN THE CIRCUIT COURT OF

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

CASE NO.: 502016-CA-009292

DIVISION AH

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.

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LAURENCE S. SCHNEIDER,
STEPHANIE L. SCHNEIDER, et al., FI
Defendants.
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PLAINTIFF'S MOTION TO ENFORCE DECREE

AND TO LIFT STAY PENDING REVIEW
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COMES NOW the Plaintiff, FIRST AMERICAN BANK (hereinafter "First

American"), by and through its undersigned counsel, and in accordance with:

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1. the Fourth District Court of Appeal's Mandate, dated September 7, 2018;

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2. the Fourth District Court of Appeal's Opinion, dated July 25, 2018;
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3. this Court's Order on Defendants', LAURENCE S. SCHNEIDER and STEPHANIE

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L. SCHNEIDER, Emergency Motion for Stay of Execution of Judgment Pending Appeal;

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Request to Extend Injunction, dated November 15, 2017; and,

4. Fed. R. App. P. 9.310(e),

hereby files this Motion to Enforce Decree and to Lift Stay Pending Review, and in support

thereof states:

FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 09/10/2018 11 :48:01 AM
 1. On June 26, 2017, this Court entered a Final Judgment of Foreclosure [DE

126] against Defendants, LAURENCE S. SCHNEIDER and STEPHANIE L. SCHNEIDER

(collectively "the Schneiders"), and a Final Judgment awarding monetary damages

against Defendant, LAURENCE S. SCHNEIDER ("Schneider"). On June 30, 2017, this

Court amended the Final Judgment awarding damages against Schneider [DE 129].

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2. The Schneiders filed a Notice of Appeal and Amended Notice of Appeal [DE

134 & 141] as to both the Final Judgment of Foreclosure and the Amended Final

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Judgment.

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3. On September 6, 2017, the Schneiders filed their Emergency Motion for

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Stay of Execution of Judgment Pending Appeal; Request to Extend Injunction (hereinafter

"Motion for Stay Pending Appeal") seeking to stay execution of the Amended Final
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Judgment and postpone/cancel the September 12, 2017 foreclosure sale of the Property.
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4. On October 11, 2017, the Fourth District Court of Appeal dismissed

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Stephanie Schneider's appeal.

5. By Order, dated November 15, 2017, this Court granted Schneider's Motion
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for Stay Pending Appeal, and

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a. stayed "all judgments and amended judgments entered in this matter ...
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pending further order of this Court" [DE 210, ,i 5];

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b. required Schneider "to post a supersedeas bond in the amount of

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$115,000.00" [DE 210, ,I 7]; and

c. upon the posting of the supersedeas bond by Schneider, stayed the

November 27, 2017 sale of the property "pending further order of this

Court." [DE 210, ,i 6].

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 6. Further, based on the appellate court having dismissed Stephanie

Schneider's appeal, this Court denied her request for a stay [DE 210 at 4].

7. On November 22, 2017, Schneider caused to be deposited into the Registry

of the Court a cash bond in the amount of $115,000.00 [DE 213].

8. On July 25, 2018, Florida's Fourth District Court of Appeal affirmed in part

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and reversed in part the Judgments. The appellate court affirmed the money judgment

in its entirety and, affirmed the foreclosure judgment in all aspects but one -- it reversed

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the Final Judgment of Foreclosure

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"to the extent that the judgment allowed [First American] to

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simultaneously execute on the money judgment and foreclose
on [the] property. On all other issues, we affirm."

The Fourth District Court of Appeal further ordered:

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On remand, the trial court shall modify the foreclosure
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judgment so as to withhold the setting of the foreclosure sale

of the property until [First American] certifies that its money
judgment remains unsatisfied. See Royal Palm, 89 So. 3d at
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928.

A true and correct copy of the Opinion is attached hereto as Exhibit "A."
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9. After denying Schneider's Motion for Rehearing (on August 22, 2018), the
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Fourth District Court of Appeal issued its Mandate on September 7, 2018. A true and
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correct copy of the Mandate is attached hereto as Exhibit "B."

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10. Rule 9.310(e) provides: "A stay entered by a lower tribunal shall remain in
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effect during the pendency of all review proceedings in Florida courts until a mandate

issues, or unless otherwise modified or vacated." Fla. R. App. P. 9.310(e). See also Fla.

R. App. P. 9.310 Comm. Notes 1977 Amend. ("The stay is vacated by issuance of the

mandate.") and Superior Garlic Int'/, Inc. v. E&A Produce Corp., 934 So. 2d 484,486 (Fla.

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3d DCA 2004 )(holding that once the mandate issues: "It is the duty of the trial court to

enforce the mandate and not stray from it."). "The mandate of an appellate court is a final

judgment in a cause, and compliance [therewith] is a ministerial act to be performed by

the trial court." Id. at 485.

11. Accordingly, First American requests that this Court confirm that the

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appellate mandate operates to lift the stay as to "all judgments and amended judgments"

entered on November 15, 2017 [DE 210, ,i 5], and, that all such stays are lifted.

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12. Further, in order to enforce the decree rendered by Florida's Fourth District

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Court of Appeal, First American requests this Court to modify the Final Judgment of

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Foreclosure "so as to withhold the setting of the foreclosure sale of the property until [First

American] certifies that its money judgment remains unsatisfied." Ex. "A" at 2. A proposed
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Amended Final Judgment of Foreclosure is attached hereto as Exhibit "C."
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WHEREFORE, Plaintiff, FIRST AMERICAN BANK, respectfully requests that this

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Court:

a. enter an Order:
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i. granting Plaintiff's Motion to Enforce Decree and to Lift Stay Pending

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Review, and,
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ii. lifting the stay entered by this Court on "all judgments and amended
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judgments"; and
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b. enter an Amended Final Judgment of Foreclosure withholding the sale of the

Property pending an application by the Plaintiff, First American Bank,

requesting a sale of the Property and certifying that Plaintiff's, First American

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 Bank, monetary judgment against Defendant, Laurence S. Schneider, has not

been satisfied.

Respectfully submitted,

KELLER & BOLZ, LLP

Attorneys for Plaintiff
121 Majorca Avenue, #200
Coral Gables, FL 33134

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Telephone: (305) 529-8500
Telefax: (305) 529-0228
Email: jkeller@kellerbolz.com

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By: __s~/_J~oh_n_W_._K,~el~le_r,~l_/1 _ _
John W. Keller, Ill

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Florida Bar No. 229989

CERTIFICATE OF SERVICE
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WE HEREBY CERTIFY that a true and correct copy of the foregoing, Plaintiff's
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Motion to Enforce Decree and to Lift Stay Pending Review, was delivered to: RYAN D.
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GESTEN, ESQ. (ryan@gestenlaw.com), The Law Offices of Ryan D. Gesten, P.A.,

Attorneys for Laurence and Stephanie Schneider, 200 South Andrews Avenue, 9th Floor,
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Fort Lauderdale, FL 33301; and JAY S. LEVIN, ESQ. (foreclosures@ssclawfirm.com),

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Sachs, Sax, Caplan, Attorneys for Oaks at Boca Raton, 6111 Broken Sound Parkway,
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N.W., #200, Boca Raton, FL 33487 via the E-filing Portal on this 10th day of September,
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2018.
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KELLER & BOLZ, LLP

By: _ _s/_J_o_h_n_W_._K,_e_ll_er:~,_Ill_ _
John W. Keller, Ill

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 DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

LAURENCE SCHNEIDER,
Appellant,

V.

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FIRST AMERICAN BANK, as successor by merger to Bank of Coral
Gables, LLC, UNKNOWN TENANT #1, UNKNOWN TENANT #2 and THE
OAKS AT BOCA RATON PROPERTY OWNER'S ASSOCIATION, INC.,

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Appellees.

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No. 4D17-2239

[ July 25, 2018]

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Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Susan R. Lubitz, Senior Judge; L.T. Case No.
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502016CA009292XXXXMB.
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Ryan D. Gesten of The Law Offices of Ryan D. Gesten, P.A., Fort

Lauderdale, for appellant.
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Henry H. Bolz, III and Sheyla Mesa of Keller & Bolz, LLP, Coral Gables,
for Appellee First American Bank.
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TAYLOR, J.

Laurence Schneider appeals a final judgment of foreclosure and a

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separate amended final judgment awarding damages to First American

Bank (the "Bank") for breach of a credit agreement. We reverse to the
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extent that the judgments improperly allowed the Bank to simultaneously

execute on the money judgment and foreclose on appellant's property. 1
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On all other issues, we affirm.

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

pursue its legal and equitable remedies simultaneously, until the debt is
satisfied." Royal Palm Corp. Ctr. Ass'n 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

1A foreclosure sale on the property has not yet been held, however, as the trial
court granted a stay pending appeal.

Exhibit "A"
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 foreclosure

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plaintiff to execute on the money judgment and foreclose on the subject
property. Id. at 933; see also Farah v. Iberia Bank, 4 7 So. 3d 850, 851
(Fla. 3d DCA 2010) (striking "for which let execution issue" language from
final judgment of foreclosure).

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Here, we find that the trial court erred in entering two judgments-a
money judgment and a foreclosure judgment-that together allowed the
Bank to simultaneously execute on the money judgment and foreclose on

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appellant's property. To remedy this error, we reverse only the foreclosure
judgment. On remand, the trial court shall modify the foreclosure
judgment so as to withhold the setting of the foreclosure sale of the
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property until the Bank certifies that its money judgment remains
unsatisfied. See Royal Palm, 89 So. 3d at 928. This procedure assures
that, while the Bank was free to pursue both remedies, it will not obtain a
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recovery that exceeds the amount of the debt. Id. at 933. Moreover, once
the Bank "has obtained a foreclosure sale of the property, it cannot collect
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on the note other than to pursue the appropriate deficiency amount."

Bonita Real Estate Partners, LLC v. SLF IV Lending, L.P., 222 So. 3d 647,
652 (Fla. 2d DCA 201 7).
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Affirmed in part, Reversed in part, and Remanded.

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w ARNER and LEVINE, JJ.' concur.

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* * *
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Not final until disposition of timely filed motion for rehearing.

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 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;

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YOU ARE HEREBY COMMANDED that such further proceedings be had in said
cause as may be in accordance with the opinion of this Court, and with the rules of
procedure and laws of the State of Florida.

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WITNESS the Honorable Jonathan D. Gerber, Chief Judge of the District Court

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

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DATE: September 07, 2018
CASE NO.: 17-2239
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COUNTY OF ORIGIN: Palm Beach
T.C. CASE NO.: 2016CA009292
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STYLE: LAURENCE SCHNEIDER v. FIRST AMERICAN BANK, et al

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Served:

cc: Sheyla Mesa Jay S. Levin Henry H Bolz Ill

John W. Keller Iii Ryan D. Gesten
Clerk Palm Beach

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Exhibit "B"
 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.

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LAURENCE S. SCHNEIDER,
STEPHANIE L. SCHNEIDER, et al.,

Defendants.
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______________./
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AMENDED FINAL JUDGMENT OF FORECLOSURE

THIS CAUSE came on before this Court upon the Mandate issued by the Fourth
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District Court of Appeal dated September 7, 2018, and, its Opinion dated July 25, 2018,
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and accordingly, this Court enters this Amended Final Judgment of Foreclosure as

follows:
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The Cause having come before this Court upon the Motion for Summary Judgment
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filed by First American Bank which was heard by the Court at a 45-minute specially set
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hearing on Monday, June 26, 2017, and the Court, having heard and considered
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argument from First American Bank, it is

ORDERED AND ADJUDGED THAT:

Exhibit "C"
 1. Judgment is GRANTED in favor of Plaintiff, FIRST AMERICAN BANK, and against

Defendants, LAURENCE S. SCHNEIDER, STEPHANIE L. SCHNEIDER and THE OAKS

AT BOCA RATON PROPERTY OWNERS' ASSOCIATION, INC.

2. Amounts Due. Plaintiff, FIRST AMERICAN BANK, 2295 Galiano Street, Coral

Gables, Florida 33134, is due:

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Principal ............................................................................................. $1,488,554.76

Interest from March 16, 2016 to date of this Judgment ..................... . $69,646.52

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Florida Ad Valorem/real property taxes for 2014, 2015 and 2016 ..... . $66,870.93

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Total .................................................................................................. $1,625,072.21

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That shall bear interest at the rate of 5.05% per year.

3. Lien of Property. Plaintiff, FIRST AMERICAN BANK, holds a lien for the total
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sum superior to all claims or estates of Defendants, on the following described property
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in Palm Beach County, Florida:

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"Lot 37 of the Fox Hill Estates of Boca Raton, according to the Plat thereof,
as recorded in Plat Book 87, Page 4, of the Public Records of Palm Beach
County, Florida."
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Commonly known as 17685 Circle Pond Court, Boca Raton, Florida 33496-1002
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("Property").
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4. Sale of Property. The Court is withholding having a sale of the Property, pending
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application by Plaintiff, FIRST AMERICAN BANK, requesting a sale of the Property and
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certifying that the Amended Final Judgment, dated June 30, 2017 ("Monetary Judgment"),

awarding damages has not been satisfied. Upon application by Plaintiff, FIRST

AMERICAN BANK, requesting a sale of the Property and certifying that the Monetary

Judgment has not been satisfied, this Court shall enter an Order instructing the Clerk of

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Court to sell the Property at the next available sale date in accordance with section

45.031, Florida Statutes.

5. Costs. Plaintiff, FIRST AMERICAN BANK, shall advance all subsequent costs of

this action and shall be reimbursed for them by the Clerk if Plaintiff, FIRST AMERICAN

BANK, is not the purchaser of the Property for sale, provided that the purchaser of the

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Property for sale shall be responsible for the documentary stamps payable on the

certificate of title. If Plaintiff, FIRST AMERICAN BANK, is the purchaser, the Clerk shall

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credit Plaintiff's bid with the total sum with interest and costs accruing subsequent to this

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Judgment, or such part of it as is necessary to pay the bid in full.

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6. Distribution of Proceeds. On filing the certificate of title the Clerk shall distribute

the proceeds of the sale, so far as they are sufficient, by paying: first, all of Plaintiff's
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costs; second, documentary stamps affixed to the certificate; third, Plaintiff's attorneys'
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fees; fourth, the total sum due to plaintiff, less the items paid, plus interest at the rate
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prescribed in Paragraph 2 from this date to the date of the sale; and by retaining any

remaining amount pending further order of this Court.

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7. Right of Redemption/Right of Possession. On filing the certificate of sale,

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Defendants and all persons claiming under or against Defendants since the filing of the
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Notice of Lis Pendens shall be foreclosed of all estate or claim in the Property and
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Defendants' right of redemption as prescribed by section 45.0315, Florida Statutes (2013)

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shall be terminated, except as to claims or rights under chapter 718 or chapter 720,

Florida Statutes, if any. Upon the filing of the certificate of title, the person named on the

certificate of title shall be let into possession of the Property.

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 8. Attorneys' Fees. The Court finds that Plaintiff, FIRST AMERICAN BANK, is

entitled to reasonable attorneys' fees, costs and expenses incurred in connection with

this action. The Court will retain jurisdiction to determine the total amounts of attorneys'

fees, costs and expenses to which Plaintiff is entitled.

9. Jurisdiction Retained. Jurisdiction of this action is retained to enter further

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orders that are proper including, without limitation, a deficiency judgment.

IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE

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ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO ARE

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ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THE FINAL

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JUDGMENT.

IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO FUNDS

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REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO
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LATER THAN 60 DAYS AFTER THE SALE. IF YOU FAIL TO FILE A CLAIM, YOU WILL
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NOT BE ENTITLED TO ANY REMAINING FUNDS.

DONE AND ORDERED in Chambers in Palm Beach County, Florida on this __

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day of_ _ _ _ _ , 2018.

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Circuit Court Judge

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Copies furnished to:

Henry H. Bolz, Ill, Esq.

Keller & Bolz, LLP
Attorneys for First American Bank
121 Majorca Avenue, #200
Coral Gables, FL 33134

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Ryan D. Gesten, Esq.
The Law Offices of Ryan D. Gesten, P.A.
Attorneys for Laurence and Stephanie Schneider
200 South Andrews Avenue, 9th Floor
Fort Lauderdale, FL 33301

Jay S. Levin, Esq.

Sachs, Sax, Caplan
Attorneys for The Oaks at Boca Raton Property Owners' Association, Inc.
6111 Broken Sound Parkway, N.W., #200,

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Boca Raton, FL 33487

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