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._

LAURENCE S. SCHNEIDER,

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STEPHANIE L. SCHNEIDER, et al.,

Defendants.
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PLAINTIFF'S MOTION TO DISBURSE CASH BOND
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COMES NOW the Plaintiff, FIRST AMERICAN BANK ("First American"), by and
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through its undersigned counsel, and in accordance with:

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

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STEPHANIE L. SCHNEIDER, Emergency Motion for Stay of Execution of Judgment

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Pending Appeal; Request to Extend Injunction, dated November 15, 2017; and,
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4. Fed. R. App. P. 9.310 and authorities cited herein,

hereby files this Motion to Disburse Cash Bond, and in support thereof states:

1. On June 26, 2017, this Court entered a Final Judgment of Foreclosure

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

FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 09/10/2018 11 :48:01 AM
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].

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

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

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

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(hereinafter "Motion for Stay Pending Appeal") seeking to stay execution of the

Amended Final Judgment and postpone/cancel the September 12, 2017 foreclosure
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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

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Motion 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 reversed 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 the
foreclose on [the] property. On all other issues, we affirm."

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On remand, the trial court shall modify the foreclosure
judgment so as to withhold the setting of the foreclosure sale
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of the property until [First American] certifies that its money
judgment remains unstaisfied. 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. The Fourth District Court of Appeal issued its Mandate on September 7,

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2018. A true and correct copy of the Mandate is attached hereto as Exhibit "B."

10. The purpose of conditioning a stay pending appeal on posting a bond "is
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to ensure the payment to the judgment creditor of the full amount of the order on
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appeal, including interest, in the event the appeal is unsuccessful." Fodor v. Geiszler,
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958 So. 2d 446, 449 (Fla. 2d DCA 2007). Thus, "[a] stay entered by a lower tribunal
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shall remain in effect ... until a mandate issues." Fla. R. App. P. 9.310(e). Once the

mandate issues: "It is the duty of the trial court to enforce the mandate and not stray

from it." Superior Garlic Int'/, Inc. v. E&A Produce Corp., 934 So. 2d 484, 486 (Fla. 3d

DCA 2004 ). "The mandate of an appellate court is a final judgment in a cause, and

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compliance [therewith] is a ministerial act to be performed by the trial court." Id. at 485.

Thus, disbursement of a supersedeas bond is required upon the issuance of the

mandate. Id. at 486.

11. In its Opinion, the Fourth District Court of Appeal determined that this

Court appropriately entered both Judgments but that the trial court should not have

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"allowed the Bank [Appellee] to simultaneously execute on the money judgment and

foreclose on appellant's property." Ex. "A" at 2. Accordingly, the Fourth District Court of

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Appeal directed this Court to remedy the error by a simple modification of the

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foreclosure judgment.

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12. Accordingly, once the Mandate issued, the disbursement of the cash bond

to Plaintiff is required. See Superior Garlic Int'/, Inc., 934 So. 2d at 486.
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WHEREFORE, Plaintiff, FIRST AMERICAN BANK, respectfully requests that this
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Court enter an Order:

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(a) granting Plaintiff's Motion Disburse Cash Bond;

(b) directing the Clerk of Court to disburse the $115,000.00 cash bond posted by
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the Defendant, LAURENCE SCHNEIDER, to Keller & Bolz, LLP, 121 Majorca
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Avenue, Suite 200, Coral Gables, FL 33134, attorneys for the Plaintiff; and
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(c) stating that once the cash bond is disbursed to Plaintiff, the amount due
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Plaintiff under each the Amended Final Judgment of Foreclosure and the
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Amended Final Judgment awarding damages is reduced by $115,000.00.

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 Respectfully submitted,

KELLER & BOLZ, LLP

Attorneys for Plaintiff
121 Majorca Avenue, #200
Coral Gables, FL 33134
Telephone: (305) 529-8500

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

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By: __s_/_J_oh_n_W_._K,_el_le_r,~I_II _ _

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John W. Keller, Ill
Florida Bar No. 229989

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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 Disburse Cash Bond, was delivered to: RYAN D. GESTEN, ESQ.

(ryan@gestenlaw.com), The Law Offices of Ryan D. Gesten, P.A., Attorneys for

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

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:_,_.="'--'_ _
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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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"