BK 78 (42-80) FAB's and K&B Motion Sanctions 10.06.2020

Case 20-22398-MAM Doc 36-4 Filed 12/18/20 Page 42 of 165
Exhibit Cover Sheet
Party
Submitting: First American Bank – Judgment Creditor Ex. #78 2-ECF No. 17-35
Admitted: Yes or No (circle one)
Debtor: Stephanie Lynn Schneider
Case No.: 20-22398-MAM
Adv. No._________________
Nature of Hearing/ Motion for Relief from Automatic Stay

Docket No.: 27
United State Bankruptcy Court

Southern District of Florida
Dated ___________________ , 2020
By: _____________________, Deputy Clerk

Case 9:20-cv-81728-DMM
Case 20-22398-MAM
Document 17-35
Doc 36-4
Entered
Filedon
12/18/20
FLSD Docket
Page10/21/2020
43 of 165 Page 1 of 37
IN THE CIRCUIT COURT OF THE

FIFTEENTH JUDICIAL CIRCUIT, IN
AND FOR PALM BEACH COUNTY,
FLORIDA
LAURENCE S. SCHNEIDER and Case No.: 50-2019-CA-001016-XXXX-MB
STEPHANIE L. SCHNEIDER,
Plaintiffs, Served, but not Filed on March 11 , 2019
pursuant to Section 57.105(4), Florida
v. Statutes
FIRST AMERICAN BANK, HENRY H.
BOLZ, and KELLER & BOLZ, LLP,
Defendants.
_________________________________/
DEFENDANTS’ JOINT MOTION FOR SANCTIONS
Pursuant to Section 57.105(1) of the Florida Statutes, Defendants Keller & Bolz, LLP
(the “Firm”) and Henry H. Bolz (“Bolz”) (collectively the “Law Firm Defendants”), as well as
Defendant First American Bank (“First American”) (together the “Defendants”) move for
sanctions against Plaintiffs Laurence S. Schneider and Stephanie L. Schneider (collectively the
“Plaintiffs” or “Schneiders”) and their counsel, Charles F. Rodman, Esq., and Andrew D.
Wyman, Esq. because they knew or should have known from the inception of this lawsuit that
the claim for fraud on the court asserted in the Verified Complaint (the “Complaint”) is not
supported by the material facts, and is contrary to the well-established law governing the claim.
The Defendants state the following in support of this Motion:
Introduction
This action for fraud on the court asserted against the Defendants is based on allegations
that the purported fraudulent conduct by the Law Firm Defendants “prevented the Schneiders
from presenting an opposition to the motion for summary judgment and participating in the
hearing on the motion for summary judgment.” (Compl. ¶53). These allegations are devoid of
merit – legally and factually.
"A-35"
2-ECF No. 17-35
Case 20-22398-MAM
Document 17-35
Doc 36-4
Entered
Filedon
12/18/20
FLSD Docket
Page10/21/2020
44 of 165 Page 2 of 37
Case No. 50-2019-CA-001016-XXXX-MB
This is not a typical case where the Court is merely presented with a Complaint, and the
parties need to engage in discovery to vet the assertions and claims contained in that pleading.
Here, the Schneiders and First American (with the Law Firm Defendants acting as First
American’s counsel) have engaged in foreclosure litigation for over two and a half years – which
included plenary review of the final judgments entered in that action by an appellate court. The
record in the foreclosure action is voluminous.1 The parties’ actions, and those of the Law Firm
Defendants on behalf of First American, are well-documented. The record conclusively
establishes that the asserted fraud claim fails as a matter of law, and is subject to immediate
dismissal by the Court.
First, Florida law precludes the Schneiders (and their counsel) from filing an independent
action for fraud on the court based on the allegations of intrinsic fraud. See infra §II.A.
Second, this lawsuit is an improper attempt to re-litigate the Foreclosure Action. (§II.B).
Third, all the allegedly fraudulent conduct by the Law Firm Defendants identified by the
Schneiders (and their counsel) in the Complaint as the basis of the fraud claim, is absolutely
protected under Florida’s litigation privilege. (§II.C).
Fourth, the Schneiders (and their counsel) are estopped from filing the fraud claim under
the principles of collateral estoppel and res judicata. (§II.D).
Fifth, the established record negates each and every allegation of fraud alleged by the
Schneiders (and their counsel) in the Verified Complaint. (§III.A).
Sixth, the Law Firm Defendants are simply not a proper party to this action, which seeks
relief from a foreclosure judgment between the Schneiders and First American. (§III.B).
1
The appellate record in the foreclosure action alone constituted 1248 pages.
2
Case 20-22398-MAM
Document 17-35
Doc 36-4
Entered
Filedon
12/18/20
FLSD Docket
Page10/21/2020
45 of 165 Page 3 of 37
This action was filed by the Schneiders as yet another attempt to delay the inevitable, the
foreclosure of the property or the payment of the Amended Final Judgment of Foreclosure
amount. (Compl. ¶51 and p. 11). The Schneiders know that their latest fraud on the court claim
has no merit, and should be subject to sanctions. But, given the record available to their counsel
in this action, Andrew D. Wyman and Charles F. Rodman, along with their representation of the
Schneiders in the Foreclosure Action since December 2018 and January 2019, respectively, their
counsel also knows or should know based on the established record in the foreclosure action
that the asserted claim for fraud on the court is utterly meritless. Should the Schneiders and their
counsel fail to dismiss this action against the Defendants within the 21-day safe harbor period,
the Defendants are entitled to an award of attorney’s fees and costs against the Schneiders and/or
their counsel for filing this baseless claim.
Established Facts
1. On August 17, 2016, First American filed a foreclosure action against the
Schneiders (and others) in the Fifteenth Judicial Circuit in and for Palm Beach County, Florida,
Case No. 50-2016-CA-009292 (the “Foreclosure Action”) in which First American sought to
foreclose a mortgage on residential property located at 17685 Circle Pond Court, Boca Raton,
Florida (the “Property”). (R. 12-35).2
2. In the Foreclosure Action, the Schneiders were represented by Kenneth Eric
Trent, Esq. (“Trent”) (until his withdrawal, see infra ¶6), and First American was represented by
the Law Firm Defendants throughout the entire Foreclosure Action.
3. On November 16, 2016, the Schneiders filed their Answer, Affirmative Defenses,
and Counterclaim to the Complaint. (R. 167-76). First American moved to dismiss the
2
For certain documents not attached to this Motion, the Defendants have cited to the appellate record
(R. _), where appropriate. Given the length, and procedural posture of the underlying foreclosure action,
both the Schneiders and their counsel should be in possession of this record.
3
Case 20-22398-MAM
Document 17-35
Doc 36-4
Entered
Filedon
12/18/20
FLSD Docket
Page10/21/2020
46 of 165 Page 4 of 37
Counterclaim, and strike the Schneiders’ two affirmative defenses. (R. 205-26, 230-42). On
January 26, 2017, the Court entered Orders striking the affirmatives defenses (one with
prejudice), and dismissing the three claims asserted in the Counterclaim (two with prejudice).
(R. 243-46).
4. On March 6, 2017, the Schneiders filed their Answer, Amended Affirmative
Defenses, and Amended Counterclaim. (R. 347-56). First American moved to strike the
amended affirmative defenses, and dismiss the Amended Counterclaim. (R. 377-91, 392-414).
On April 7, 2017, the Court entered Orders striking all three affirmative defenses with prejudice,
dismissing Count 4 of the Amended Counterclaim with prejudice, and noting the Schneiders
voluntarily withdrew the remaining claims asserted in the Amended Counterclaim. (R. 478-81).
At this juncture, the Court also held that the Schneiders were not permitted to file any further
affirmative defenses or Counterclaims. Id.
5. On April 17, 2017, Bolz sent an email to Trent (the Schneiders’ counsel)
requesting dates for the Schneiders’ depositions to take place in “the middle of May 2017,” and
seeking to confer with Trent on setting a trial date for the Foreclosure Action. (Exhibit “1”).
6. On May 1, 2017, the Court entered an Order in the Foreclosure Action allowing
Trent to withdraw as counsel for the Schneiders. (R. 507). Upon Trent’s withdrawal, the
Schneiders proceeded pro se in the Foreclosure Action up through their filing of post-judgment
motions in the Foreclosure Action. See infra ¶42.
7. That same day (May 1, 2017), Bolz sent Mr. Schneider an email informing him
that Trent was no longer his legal counsel in the Foreclosure Action, and providing him a
complete set of the Schneiders’ documents that had been provided to the Law Firm Defendants
by Trent at the hearing earlier that day. (Exhibit “2”).
4
Case 20-22398-MAM
Document 17-35
Doc 36-4
Entered
Filedon
12/18/20
FLSD Docket
Page10/21/2020
47 of 165 Page 5 of 37
8. On May 4, 2017, Bolz sent an email to Mr. Schneider to “follow[] up on our
email to Attorney Kenneth Eric Trent, dated April 17, 2017 (attached).” (Exhibit “3”). In that
email, Bolz again requested dates for the depositions of the Schneiders, this time to take place in
“the middle of June 2017,” and sought to confer with Mr. Schneider on trial specifics in
accordance with the applicable Palm Beach County Foreclosure Court rules. Id.
9. After not receiving a response from the Schneiders, First American filed a Notice
for Trial on May 9, 2017. On that same day, First American noticed the depositions of Mr.
Schneider for June 13, 2017 and Mrs. Schneider for June 14, 2017.
10. On May 16, 2017, the Court entered an Order setting the matter for trial during
the trial period commencing June 28, 2017.
11. On May 23, 2017, the Law Firm Defendants filed a Notice of Unavailability,
informing the Court that Bolz would be unavailable from July 14, 2017 through July 26, 2017.
The Law Firm Defendants also filed a Motion for Specially-Set Trial Date.
12. On May 24, 2017, the Schneiders filed a Motion to Drop Mrs. Schneider as a
party, and unilaterally noticed that Motion for hearing for June 12, 2017.3 Upon receiving the
unilaterally filed Notice of Hearing from the Schneiders, the Law Firm Defendants noticed the
previously filed Motion for Specially-Set Trial Date, and Notice of Unavailability.
13. Later that day (on May 24, 2017), Bolz sent an email to Mr. Schneider,
responding to four emails sent earlier that day by Mr. Schneider to Bolz. (Exhibit “4”). As part
of the response, Bolz informed Mr. Schneider that the previously scheduled events would be
going forward, which included the pre-trial matters set to be heard by the Court on June 12,
3
The Schneiders subsequently verbally withdrew this Motion in early June 2017.
5
Case 20-22398-MAM
Document 17-35
Doc 36-4
Entered
Filedon
12/18/20
FLSD Docket
Page10/21/2020
48 of 165 Page 6 of 37
2017, the depositions of Mr. and Mrs. Schneider set for June 13, 2017 and June 14, 2017,
respectively, and the trial beginning on June 28, 2017. Id. at p. 2.
14. On May 25, 2017, First American filed a Motion for Summary Judgment. (R.
525-738).
15. On May 26, 2017, Bolz sent an email to the Schneiders in an “attempt[] to
coordinate a hearing” on the already filed Motion for Summary Judgment, identifying the
“earliest possible hearing date” available from the Court as June 26, 2017. (Exhibit “5”).
16. Mr. Schneider responded via email that same day. (Exhibit “6”). In that email,
Mr. Schneider stated he was “unavailable from between June 26, 2017 and July 5, 2017,” and
that he did “not agree to the proposed hearing for the Motion for Summary Judgment.” Id.
17. Bolz replied to Mr. Schneider via email shortly thereafter. (Exhibit “7”). In that
email, Bolz stated that “[y]our advices that you ‘are unavailable from between June 26, 2017 and
July 5, 2017’ precludes our ability to set the Motion for Summary Judgment down for hearing on
June 26, 2017,” and that First American “will pursue alternate dates for the hearing.” Id.
18. In accordance with court procedure, on May 26, 2017, Bolz sent a letter to the
Court to request a 45-minute special set hearing (the “Hearing Letter”). (Exhibit “8”). The
Hearing Letter was indeed sent to the Court. (Exhibit “9”). It was sent by Federal Express on
May 26, 2017, and was received by the Court on May 30, 2017. Id. The Hearing Letter was also
sent via email to the Schneiders on May 26, 2017. (Exhibit “10”). Bolz stated the following in
the Hearing Letter:
In accordance with the Court’s Divisional Instructions, undersigned contacted the

Schneiders in effort to coordinate a special set hearing on the Motion for
Summary Judgment on June 26, 2017. Mr. Schneider responded by stating: “I am
unavailable between June 26, 2017 and July 5, 2017. . . .”
6
Case 20-22398-MAM
Document 17-35
Doc 36-4
Entered
Filedon
12/18/20
FLSD Docket
Page10/21/2020
49 of 165 Page 7 of 37
Both for the convenience of all parties and judicial economy, First
American’s Motion for Summary Judgment should be heard before the beginning
of the non-jury trial calendar on June 28, 2017.
As the Schneiders refuse to agree to a hearing date, First American
respectfully requests that the Court set a 45 minute special set hearing on First
American’s Motion for Summary Judgment on any of the seven business days
between June 15, 2017 (the 21st day following the filing of First American’s
Motion for Summary Judgment) and June 25, 2017 (prior to the beginning of the
June 28, 2017 trial calendar period).
19. On June 2, 2017, the Court entered an Order Special Setting Hearing, in which the
Court set the hearing on First American’s Motion for Summary Judgment for June 26, 2017.
(Exhibit “11”). The Order expressly stated: “THIS MOTION IS SPECIALLY SET AND
CANNOT BE CANCELLED OR RESET EXCEPT BY COURT ORDER.” Ex. 11, p. 2
(emphasis and caps in original). The Order was emailed directly by the Court to the Schneiders.
Ex. 11. A “List of Hearings” confirms that the June 26, 2017 hearing was “Scheduled By”
mhernandez1@pbcgov.org – i.e., by the Court. (Exhibit “12”). In addition, First American,
also formally served a copy of the Order on the Schneiders (as required by the Order) by filing a
“Notice of Service” with the Court on June 2, 2017.
20. On June 8, 2017, Mr. Schneider sent Bolz an email stating that he (Mr. Schneider)
will “be in Washington D.C. the week of June 12th, 2017 – June 15th, 2017,” and thus unavailable
for the June 12, 2017 hearing (a hearing which the Schneiders themselves unilaterally scheduled
on May 24, 2017, see supra ¶12), and for the depositions of him and his wife scheduled for June
13, 2017 and June 14, 2017, respectively. (Exhibit “13”).
21. On June 9, 2017 (in the afternoon), the Schneiders filed a Motion for Continuance
of the June 12, 2017 hearing, as well as the June 13th and June 14th depositions. The Schneiders
did not attempt to schedule a hearing on this Motion. Later that evening (at 8:35 p.m.), the
7
Case 20-22398-MAM
Document 17-35
Doc 36-4
Entered
Filedon
12/18/20
FLSD Docket
Page10/21/2020
50 of 165 Page 8 of 37
Schneiders filed a Notice of Removal in the United States District Court for the Southern District
of Florida (the “District Court”).
22. At no time prior to time of filing the Notice of Removal did the Schneiders
indicate a date on which they might be available for trial, a hearing on a motion for summary
judgment, or their depositions. Conversely, the Schneiders uniformly were unavailable for any
dates suggested by Bolz or imposed by the Court.
23. On June 13, 2017, the District Court entered an Order to Show Cause (the “Show
Cause Order”) because federal question jurisdiction was not apparent on the face of the
complaint. (Exhibit “14”). The District Court ordered the Schneiders to “respond to this order
by showing good cause why this case should not be remanded to state court or else by indicating
consent to remand” by June 21, 2017.
24. On June 22, 2017, the Law Firm Defendants received a copy in the mail of
“Defendants’ Response to Court’s Order to Show Cause” (the “Response”). The Law Firm
Defendants retained the envelope in which they received the Response. (Exhibit “15”). Because
the Response did not appear to have been filed with the District Court, the Law Firm Defendants
filed a Notice of Filing – with an attached copy of the Response – in the District Court, and in
the Foreclosure Action. (Comp. Exhibit “16”). The Law Firm Defendants also emailed the
Schneiders a copy of the Notice of Filing on that same day, June 22, 2017. (Exhibit “17”).
Over a month later, on July 26, 2017, the Schneiders’ Response was filed with the District Court.
(Comp. Exhibit “18”). The Response filed by the Schneiders in July 2017 was the exact
document filed by the Law Firm Defendants on June 22, 2017. (Exhibit “19”); Ex. 16.
25. On June 22, 2017, the District Court entered an Order remanding the Foreclosure
Action back to the Circuit Court (the “Remand Order”).
8
Case 20-22398-MAM
Document 17-35
Doc 36-4
Entered
Filedon
12/18/20
FLSD Docket
Page10/21/2020
51 of 165 Page 9 of 37
26. On June 23, 2017, Bolz sent the Schneiders an email, which attached a copy of
the Remand Order, and informed the Schneiders that the Circuit Court confirmed that the hearing
on First American’s Motion for Summary Judgment, set for June 26, 2017, would proceed as
scheduled. (Exhibit “20” without attachments).
27. That same day, June 23, 2017, Mr. Schneider sent a response email to Bolz in
which Mr. Schneider stated: “As I had explained to you, I am in Phoenix doing depositions and
will not be back in town until Thursday of next week. Please note that I will be filing a notice
with the court. . . .” Ex. 20.
28. Neither Mr. Schneider, nor Mrs. Schneider, filed anything with the Court between
Mr. Schneider’s June 23, 2017 email and the hearing on First American’s Motion for Summary
Judgment on June 26, 2017.
29. On June 26, 2017, the Court held a hearing on First American’s Motion for
Summary Judgment (the “Hearing”), during which the following exchange occurred at the
outset:
THE COURT: Oh, Mr. Bolz, before - you proceed, the one thing I do want to see
is the notice of today’s hearing. I’ve looked through the docket sheets and
couldn’t find it.
I just want to make sure that there is a notice of hearing that was provided
to the defendants, who are now pro se.
MR. BOLZ: Let’s see. Orders special setting hearing entered by, or signed by,
Judge Ferrara on June 2nd, 2017, Your Honor.
THE COURT: Okay.
MR. BOLZ: Your Honor, just - the case was remanded back to the - to this court
on Thursday. And we, however, did not get the order until - early Friday morning.
When the order came in, I wrote to -sent an e-mail to Laurence Schneider
and Stephanie Schneider and advised them that the hearing was going to go
forward. And on 4:09 p.m. Friday, I received an e-mail - I haven’t shown it to the
Court, but it’s short.
9
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
52 of 165 Page 10 of
37
It says, Mr. Bolz, as I have explained to you, I am in Phoenix doing

depositions and will not be back in town until Thursday of next week. Please note
that I will be filing a notice with the Court.
Additionally, you have refused to produce any billing statement or any
request for production. Sincerely, it says Late Schneider. Not Larry Schneider. I
don’t know.
And so, he has not filed the promised notice with the Court that he said he
was. I just want the Court to be aware of that.
THE COURT: Okay. He hasn’t filed any notice of unavailability, nor has he filed
a motion to continue the case?
MR. BOLZ: Neither.
THE COURT: Okay. Let’s proceed. . . .

(Exhibit “21,” Hr’g Tr. 6:5-7:16, June 26, 2017).
30. On June 26, 2017, the Court entered a “Final Judgment” in the Foreclosure Action
in which the Court granted summary judgment in favor of First American and against Mr.
Schneider, awarding First American $1,625,072.21 and a lien on the Property. (Compl. Comp.
Ex. A, pp. 1-2). On June 30, 2017, the Court entered an Amended Final Judgment against Mr.
Schneider. Id. at pp. 7-8, 9-10.
31. Also on June 26, 2017, the Court entered a “Final Judgment” in the Foreclosure
Action in which the Court granted summary judgment in favor of First American and against
both Laurence and Stephanie Schneider and the Oaks at Boca Raton Property Owners’
Association, Inc., allowing the sale of the Property on the Schneiders’ failure to satisfy the
money Final Judgment. Id. at pp. 3-6.
32. On July 11, 2017, the Schneiders filed a Motion for Rehearing and to Vacate
Judgment pursuant to Rule 1.540(a) and (b) (the “Rehearing Motion”). (Exhibit “22”). The
Rehearing Motion was based, in part, on Rule 1.540(b)(3), under which the Schneiders sought
relief from the Final Judgments based on “[f]raud (whether heretofore denominated intrinsic or
10
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
extrinsic), misrepresentation, or other misconduct of an adverse party.” Ex. 22, pp. 1-2. First
American filed its Response in Opposition to the Rehearing Motion on July 18, 2017. The Court
summarily denied the Motion for Rehearing on July 18, 2017.
33. On July 18, 2017, the Schneiders filed their Notice and Amended Notice of
Appeal, seeking review of the “final judgment of foreclosure” by the Fourth District Court of
Appeal (the “Fourth District”). (Comp. Exhibit “23,” without attachments). The appeal was
assigned Case No. 4D17-2239 (the “Appeal”). In both the Notice and Amended Notice of
Appeal, the Schneiders stated:
Defendants are not merely requesting appeal on the foreclosure, but of the entire
trial record and case. Defendants’ case was disposed of via summary judgment,
without a contested hearing, due to a scheduling conflict, and a host of other
improper action(s) by Plaintiff and its counsel of record, which have been
brought to the trial court’s attention, and shall be included in Defendants
opening brief.
Comp. Ex. 23 (emphasis added).
34. On July 18, 2017, the Schneiders filed a Motion for Reconsideration; Amended
Motion for Rehearing and to Vacate Judgment of Foreclosure and Request for Sanctions Against
Counsel for Plaintiff (the “Reconsideration Motion”). (Exhibit “24”). The Schneiders filed the
Reconsideration Motion pursuant to Rule 1.530(a) and 1.540(b)(3) and (b)(4). (Ex. 24, ¶¶21-22).
35. In the Reconsideration Motion, the Schneiders stated that “the judgment is void,
due to the conduct and deceit described herein, which rises to an undisputable level of fraud and
misrepresentation.” Id. at p. 6, ¶3. As part of the grounds for reconsideration of the Final
Judgments, the Schneiders provided the Court with emails included in Exhibit A to the
Reconsideration Motion that directly relate to “The Scheduling Conflict” identified by the
Schneiders. Id. at p. 8, ¶¶11-15. Exhibit A to the Reconsideration Motion included: (A) the
11
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
June 8, 2017 email from Mr. Schneider to Bolz, attached hereto as Exhibit 13; and (B) the June
23, 2017 email from Mr. Schneider to Bolz, attached hereto as Exhibit 20.
36. The Schneiders also stated in the Reconsideration Motion that they informed Bolz
that they had a scheduling conflict for the June 26, 2017 hearing date, and that despite being
aware of the conflict, Bolz “did not afford Defendants the opportunity to even defend themselves
at the Special Set Trial, resulting in judgment being entered against [the Schneiders] on June 26,
2017.” Id. at p. 8, ¶13. The Schneiders further stated that “Bolz lied to the Court” in the Notice
of Trial he filed on May 9, 2017 because he did not confer with Mr. Schneider as represented in
the Notice of Trial, and filed the Notice of Trial “to expedite the foreclosure action, despite
knowing that Mr. Schneider’s upcoming schedule made it impossible to be present at the trial,
where judgment was erroneously granted.” Id. at pp. 19-20, ¶¶90-91, 94.
37. On August 4, 2017, the Schneiders filed a Request for Stay Pending Appeal in the
Fourth District (the “Appellate Stay Motion”). (Exhibit “25”). In that Motion, the Schneiders
again relied on the “scheduling conflicts,” and highlighted the same June 8, 2017 email Mr.
Schneider sent to Bolz. See Ex. 13. The Schneiders stated in the Stay Motion that the June 8th
email “regard[ed] a deposition of Mr. Schneider and Mrs. Schneider, as well as a special set trial
hearing which posed a scheduling conflict for Appellants,” and in which Mr. Schneider
“requested that [First American’s] Motion for Specially Set Trial Date be postponed to a
mutually agreeable time, given Mr. Schneider’s conflict of schedule, which included a trip to
Washington D.C. at the time of the hearing, at which judgment was entered.” (Ex. 25, ¶¶2-3).
Based on this email, the Schneiders further stated in the Appellate Stay Motion that “Bolz was
abundantly aware of this material fact, yet did not afford [the Schneiders] the opportunity to even
defend themselves at the Special Set Trial, resulting in judgment being entered against [the
12
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
Schneiders] on June 26, 2017.” Id. at ¶4. As such, the Schneiders asserted in the Appellate Stay
Motion that “[t]he judgment was based upon a granting of summary judgment, despite the
material fact that [the Schneiders] were blindsided by the Special Set Trial which ultimately
wound up with the judgment of foreclosure.” Id. at ¶5. The Appellate Stay Motion was denied
as moot by the Fourth District on August 16, 2017.
38. On August 7, 2017, the Schneiders filed an Emergency Request for a Temporary
Restraining Order pursuant to Rule 1.540(b) “based on a mistake,” which the Court treated as a
Motion for Stay of the Foreclosure Sale (the “TRO Request”). On August 8, 2017, the Court
entered an Order on the TRO Request, postponing the sale of the Property pending a
determination by the Court “as to whether the action should be stayed pending appellate review.”
39. On August 24, 2017, the Court summarily denied the Schneiders’ Reconsideration
Motion.
40. On August 28, 2017, First American filed a Response in Opposition to the TRO
Request.
41. On October 11, 2017, the Fourth District dismissed the Appeal as to Stephanie
Schneider based on her failure to abide by appellate court orders.
42. On November 1, 2017, the Schneiders retained Ryan D. Gesten, Esq., as counsel
in the Foreclosure Action. Mr. Gesten acted as counsel for the Schneiders from this time up until
his withdrawal approximately one year later, in late November 2018. See infra ¶48.
43. On November 6, 2017, the Schneiders filed an Emergency Motion for Stay of
Execution of Judgment Pending Appeal; Request to Extend Injunction pursuant to Rule 1.540(b)
“based on a mistake.” (the “Stay Motion”). On that same day, the Schneiders filed a
Memorandum of Law in Support of the Stay Motion. (Exhibit “26”). In that Memorandum, the
13
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
Schneiders again took issue with the “scheduling conflict” relating to the Hearing by stating they
“were not present at the hearing due to a scheduling conflict, of which they had notified
[First American’s] counsel.” Ex. 26, p. 2 (emphasis in original). On November 7, 2017, the
Schneiders filed a Supplemental Memorandum of Law in Support of the Stay Motion. The Court
held a hearing on the Stay Motion on November 6, 2017 and November 8, 2017. On November
15, 2017, the Court entered an Order on the Stay Motion, staying “all judgments and amended
judgments entered in this matter . . . pending further order of th[e] Court,” and staying the sale of
the Property upon the posting of a $115,000 supersedeas bond by the Schneiders.
44. On December 13, 2017, Mr. Schneider filed his Initial Brief in the Appeal. In the
Appeal, Mr. Schneider raised the following issues: (A) entering two separate final judgments
was error, including inter alia whether First American established a right to foreclosure of the
Property and/or an award of money damages; (b) entering the final judgment without providing
Mr. Schneider time to hire new counsel was error; (C) summary judgment should not have been
granted while Mr. Schneider’s discovery requests remained outstanding; (D) striking Mr.
Schneider’s affirmative defenses with prejudice was error; and (E) dismissing Mr. Schneider’s
counterclaim was error.4 On February 7, 2018, First American filed its Answer Brief in the
Appeal. And, on May 2, 2018, Mr. Schneider filed his Corrected Reply Brief.5
45. On July 25, 2018, the Fourth District issued its opinion in the Appeal, affirming
on all issues, except to the “extent that the judgments improperly allowed the Bank to
4
In that Brief, Mr. Schneider stated that he “was not present” at the Hearing “due to a scheduling
conflict.” (In. Br. 9).
5
In his Corrected Reply Brief, Mr. Schneider stated that First American proceeded with the Hearing
“despite that Defendants’ discovery was pending, and no mention in the record that FAB’s counsel
advised the Court at that Hearing that its discovery responses remained outstanding, or that, despite the
Defendants’ failure to appear at the [H]earing, Defendants had previously shown a clear and diligent
effort to defend.” (Corr. Reply Br. 4).
14
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
simultaneously execute on the money judgment and foreclose on the . . . [P]roperty.” Schneider
v. First Am. Bank, 252 So. 3d 264, 265 (Fla. 4th DCA 2018).
46. On September 7, 2018, the Fourth District issued its Mandate in the Appeal, and
remanded the matter back to the trial court.
47. On October 12, 2018, the Court entered an Amended Final Judgment of
Foreclosure (the “2018 Amended Final Judgment”). (Compl. Comp. Ex. A, pp. 11-14, 15-18).
48. On November 16, 2018, Gesten filed a Motion to Withdraw as Counsel for the
Schneiders, citing “irreconcilable differences” as the basis for withdrawal. Gesten filed an
Amended Motion to Withdraw on November 21, 2018, which added the last known address of
the Schneiders. On November 29, 2018, the Court granted Gesten’s withdrawal request, and
provided the Schneiders until December 21, 2018 to retain new counsel.
49. On December 28, 2018, Andrew D. Wyman, Esq. (“Wyman”) – counsel for the
Schneiders in this action – filed a Notice of Appearance and Designation of Email Addresses to
represent the Schneiders in the Foreclosure Action. (Exhibit “27”).
50. On January 18, 2019, Charles F. Rodman, Esq. (“Rodman”) – counsel for the
Schneiders in this action – filed a Notice of Appearance and Designation of Email Addresses to
represent the Schneiders in the Foreclosure Action. (Exhibit “28”).
51. On January 24, 2019, the Schneiders – through Wyman and Rodman – filed the
Complaint in this action.
52. Shortly thereafter (also on January 24, 2019), the Schneiders – through Wyman
and Rodman – filed in the Foreclosure Action a Verified Motion to Stay (1) the Execution of the
Amended Judgment of Foreclosure Dated October 12, 2018, and (2) the Several Motions for
Attorneys’ Fees, Costs, and Expenses Pending Resolution of Complaint to Set Aside Judgment
15
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
Pursuant to Fl[a]. R. Civ. P. 1.540 (the “Verified Motion to Stay”). (Exhibit “29”). In short,
through the Verified Motion to Stay, the Schneiders sought a stay of execution of the 2018
Amended Final Judgment, as well as any proceedings to enforce that Judgment pending
resolution of this action by the Schneiders for fraud on the court.
53. On January 29, 2019, First American filed a Response in Opposition to
Defendants’ Verified Motion to Stay and Motion to Strike the Supporting Affidavit (“Response
to the Verified Motion to Stay”). (Exhibit “30”). First American’s Response (26 pages)
contained 37 Exhibits (totaling 329 pages). In its Response, First American addressed the
allegedly fraudulent conduct identified by the Schneiders in their Verified Motion to Stay, which
was specifically based on the same allegations of fraud set forth in the Complaint filed in this
action. While any reasonable pre-filing investigation would reveal the well-documented actions
of First American and the Law Firm Defendants taken in the Foreclosure Action, First
American’s Response to the Verified Motion to Stay expressly placed the Schneiders – as well as
Wyman and Rodman (their counsel) – on notice that the Complaint filed in this action was
baseless in law and in fact.
54. On January 31, 2019, the Court held a Hearing on the Verified Motion to Stay.
(Exhibit “31”). Wyman and Rodman represented the Schneiders at the hearing. Ex. 31, Hr’g
Tr. 4:3-7. At the end of the hearing, the Court denied the Verified Motion to Stay. That same
day, the Court entered an Order on the Verified Motion to Stay, which stated that the Motion was
denied “[b]ased upon failure to show good cause and based upon the court’s application of Rule
1.540 and Rule 1.550, Florida Rules of Civil Procedure.” (Exhibit “32”).
55. Proceedings remain ongoing in the Foreclosure Action.
16
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
Memorandum of Law
I. The Standard for Enforcing Section 57.105.
“A court ‘shall’ award attorney’s fees under section 57.105(1), Florida Statutes, where it
is clear that the offending party has asserted a claim that is unsupported by material facts or by
the law applicable to the material facts.” Yang Enters., Inc. v. Georgalis, 988 So. 2d 1180, 1184
(Fla. 1st DCA 2008). Section 57.105 (the “Statute”) provides that:
(1) Upon the court’s initiative or motion of any party, the court shall award a
reasonable attorney’s fee, including prejudgment interest, to be paid to the
prevailing party in equal amounts by the losing party and the losing party’s
attorney on any claim or defense at any time during a civil proceeding or action in
which the court finds that the losing party or the losing party’s attorney knew or
should have known that a claim or defense when initially presented to the court or
at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or
defense; or
(b) Would not be supported by the application of then-existing law to those

material facts.
§57.105(1)(a)-(b), Fla. Stat. (2010).
The Statute makes clear that the attorney’s fees awarded to the prevailing party shall be
paid “in equal amounts by the losing party and the losing party’s attorney,” except under two
circumstances. First, the award of attorney’s shall be borne entirely – 100% – by the attorney
where the Court concludes that “the losing party’s attorney knew or should have known that a
claim . . . when initially presented to the court or at any time before trial . . . [w]ould not be
supported by the application of then-existing law to those material facts.” §57.105(3)(c); id. at
§57.105(1)(b). Second, the award of attorney’s fees shall be borne entirely – 100% – by the
clients where the Court concludes that “the party’s attorney . . . acted in good faith based on the
representations of his or her client as to the existence of those material facts.” §57.105(3)(b).
17
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
In 1999, the standard for granting fees pursuant to the Statute was lowered. The Statute
was amended as part of the 1999 Tort Reform Act “to reduce frivolous litigation and thereby to
decrease the cost imposed on the civil justice system by broadening the remedies that were
previously available.” Bionetics Corp. v. Kenniasty, 69 So. 3d 943, 947 (Fla.) (quotations
removed), cert. denied Kenniasty v. Bionetics Corp., 565 U.S. 1100 (2011) (quotations and
citations omitted). Unlike the burden of proof required before 1999, the movant need not show a
“complete absence of a justiciable issue of either law or fact raised by the losing party”6 but
“need only show that the party and counsel ‘knew or should have known’ that any claim or
defense asserted was (a) not supported by the facts or (b) not supported by an application of
‘then existing’ law.” See Boca Burger, Inc. v. Forum, 912 So. 2d 561, 571 (Fla. 2005) (quoting
§57.105, Fla. Stat. (2000)). In addition, under the 1999 amendment, Courts may award fees
under the Statute at any time during an action, and need not wait until its conclusion.7
Since 1999, courts have repeatedly held that the award of fees pursuant to the Statute is
mandatory where a claim or defense is unsupported. See In re Forfeiture of 100,000 Euros, 170
So. 3d 810, 817, n. 12 (Fla. 3d DCA 2015).
Under this framework, the Schneiders and their counsel (Wyman and Rodman) knew –
or at a minimum should have known – at the time they filed the Complaint that the claim for
fraud on the court asserted against the Defendants was wholly unsupported by the: (1)
“application of then-existing law to those material facts,” and (2) “material facts necessary to
establish the claim” for fraud on the court.
6
§57.105, Fla. Stat. (1978).
7
See, e.g., Country Place Cmty. Ass’n, Inc. v. J.P. Morgan Mortg. Acquisition Corp., 51 So. 3d 1176,
1180 (Fla. 2d DCA 2010) (relying on Bridgestone/Firestone Inc. v. Herron, 828 So. 2d 414, 417 (Fla. 1st
DCA 2002) (stating “the court may award an attorney’s fee for a particular claim or defense, even before
the case has been concluded,” and “[i]t is possible then that a court may assess attorney’s fees against a
party who has asserted an unsupportable claim or defense, even though that party might ultimately prevail
in the case on some other ground”), dismissing review, 920 So. 2d 626 (Fla. 2005)).
18
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
II. The Alleged Claim for Fraud on the Court Asserted in the Complaint Is Not
Supported by the Existing Law.
Each of the following grounds independently establishes that the Schneiders’ claim for
fraud on the court is barred by well-established Florida law, and provides a basis for the
immediate dismissal of the Complaint.
A. The Complaint Alleges Intrinsic Fraud, Which May Not Be Attacked in an

Independent Action.
An independent action for fraud on the court seeking relief from a judgment entered in a
separate action cannot be based on allegations of intrinsic fraud. See Parker v. Parker, 950 So.
2d 388, 391 (Fla. 2007) (stating that “where fraud is intrinsic, it is deemed to have occurred in
the current action and must be attacked by a rule 1.540(b) motion directed at the current action”);
Nafh Nat’l Bank v. Aristizabal, 117 So. 3d 900, 902 (Fla. 4th DCA 2013). The Florida Supreme
Court has stated that intrinsic fraud “applies to fraudulent conduct that arises within a proceeding
and pertains to the issues in the case that have been tried or could have been tried.” Parker, 950
So. 2d at 391 (quoting DeClaire v. Yohanan, 453 So. 2d 375, 377 (Fla. 1984), superseded by rule
on other grounds); Cerniglia v. Cerniglia, 679 So. 2d 1160, 1163 (Fla. 1996); Arrieta-Gimenez
v. Arrieta-Negron, 551 So. 2d 1184, 1186 (Fla. 1989) (stating intrinsic fraud includes fraudulent
conduct that the complaining party “had sufficient opportunity from the outset to discover the
fraudulent behavior, and thus bring an action in court either before the settlement offer was made
or within the one year time limit expressed in rule 1.540(b)”);8 see Winston v. Winston, 684 So.
2d 315, 319 (Fla. 4th DCA 1996) (stating that fraud constitutes intrinsic fraud where “the
conduct complained of arose in connection with a matter presented to the . . . court in a
proceeding where the complaining party participated”). In such situations, Florida courts have
8
Johnson v. Wells, 73 So. 188, 191 (Fla. 1916) (stating intrinsic fraud includes matters on which “the
parties were heard, and the evidence submitted to and received consideration by the court”).
19
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
determined that the parties were estopped from asserting an independent action for fraud on the
court as a basis to seek relief from a judgment. See, e.g., Dadic v. Farach, 673 So. 2d 505, 505
(Fla. 4th DCA) (affirming dismissal with prejudice of the complaint for fraud on the court for
“failure to state a cause of action” because it was “clear they alleged only intrinsic fraud, not
extrinsic” fraud, a defect that could not be rectified), rev. denied, 682 So. 2d 1099 (Fla. 1996).
Here, the Schneiders could have presented – and did present – the Law Firm Defendants’
purported fraudulent conduct set forth in the Complaint (the “Alleged Fraudulent Conduct”) to
the Court in the Foreclosure Action. The Schneiders were aware of the Alleged Fraudulent
Conduct during the pendency of the Foreclosure Action. See supra ¶¶13, 18-20, 26-27. The
Schneiders had every opportunity to bring the Alleged Fraudulent Conduct before the Court in
the Foreclosure Action. Id. at ¶¶30-32, 34-36, 38, 43. And, they did. Id. at ¶¶32, 34-36, 43. In
addition, the Schneiders, having full knowledge of the Alleged Fraudulent Conduct, included
statements about that conduct in their Notice and Amended Notice of Appeal, and in the
Appellate Motion to Stay. Id. at ¶¶33, 37. The record conclusively establishes that the Alleged
Fraudulent Conduct occurred within the Foreclosure Action, the Schneiders had knowledge of
that conduct during the pendency of the Foreclosure Action, and they had the opportunity to, and
did, present that conduct to the Court in the Foreclosure Action. Under these circumstances,
Florida law dictates that the Alleged Fraudulent Conduct constitutes intrinsic fraud.9 Because
the Complaint seeks relief from the final judgments (Comp. Ex. A) based on intrinsic fraud, the
9
See, e.g., Cerniglia, 679 So. 2d at 1163 (finding the alleged fraudulent conduct constituted intrinsic
fraud where the conduct “was a matter before the court for resolution,” and “‘the complaining party could
have addressed the issue in the proceeding’”) (quoting DeClaire, 453 So. 2d at 380); Dep’t of Revenue v.
Boswell, 915 So. 2d 717, 721 (Fla. 5th DCA 2005) (stating the alleged fraud constituted intrinsic fraud
because “it involved allegations of perjury or misrepresentation”); see also Winston v. Winston, 684 So.
2d 315, 319 (Fla. 4th DCA 1996) (“Where a claim of fraud rests on the contention that a party has been
misled as to the meaning or effect of documents actually presented to the court, the claim rests on
intrinsic fraud. This is so even though some of the allegedly fraudulent or deceitful acts or omissions may
have occurred extrajudicially.”)
20
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
Complaint fails to state a cause of action for fraud on the court, and is subject to immediate
dismissal. Dadic, 673 So. 2d at 505.
B. This Lawsuit Is a Blatant Attempt to Re-Litigate the Foreclosure Action.

Defendants do not dispute that the Schneiders have legal standing to file an action for
fraud on the court. See Parker, 950 So. 2d at 391. But, they cannot do so here. The allegations
of fraud are completely baseless, and they are merely attempting to rehash the very Alleged
Fraudulent Conduct that occurred in, was brought to the attention of, and was ruled upon by the
Court in the Foreclosure Action. The Court in the Foreclosure Action entered final judgments,
the Schneiders appealed those judgments, and the Fourth District substantively affirmed those
judgments. See supra ¶¶30-31, 33, 45-46. This lawsuit amounts to an attempt to recede from the
finality of the 2018 Amended Final Judgment, and essentially violate the Mandate issued by the
Fourth District in the Appeal.
An action for fraud on the court is not, and cannot be used as a substitute for a timely
appeal. See, e.g., Baez v. Perez, 201 So. 3d 692, 694 (Fla. 4th DCA 2016) (reversing order
granting a motion under Rule 1.540 to vacate the final judgment of foreclosure and reinstating
the final judgments and certificates of sale and title where the motion raised “issues which could
have been raised in an appeal from the final judgment . . . on these very grounds,” and
concluding that such grounds were not “remediable through 1.540 relief”); Beal Bank, S.S.B.,
Inc. v. Sherwin, 829 So. 2d 961, 962 (Fla. 4th DCA 2002) (“Rule 1.540 is designed for . . . relief
from judgments . . . under certain articulated and limited circumstances. It is not a substitute for
a timely appeal.”), rev. denied, 844 So. 2d 645 (Fla. 2003). Similarly, an action for fraud cannot
merely seek to “rehash a matter fully explored at trial.” See, e.g., Flemenbaum v. Flemenbaum,
636 So. 2d 579, 580 (Fla. 4th DCA 1994); see also Joyner v. Ettlinger, 382 So. 2d 31, 31 (Fla.
1st DCA 1980) (disallowing a party’s “attempt to convince the trial court to grant the relief
21
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
which had been denied by the appellate court”). Finally, to seek relief from a judgment, the
litigant must show that the alleged conduct supporting the request for relief from a judgment has
a direct effect on the final judgment – i.e., the alleged conduct cannot be “de minimis.”
Flemenbaum, 636 So. 2d at 580; Coleman (Parent) Hldgs., Inc. v. Morgan Stanley & Co., Inc.,
20 So. 3d 952, 958 (Fla. 4th DCA 2009) [“Coleman”], rev. denied, 37 So. 3d 846 (Fla. 2010).
The Schneiders have already exercised the proper remedies for the Alleged Fraudulent
Conduct. The Schneiders raised the conduct in the Foreclosure Action (see supra ¶¶32, 34-36,
43), and could have, and should have raised, and did raise, the conduct in the Appeal to the
Fourth District. Id. at ¶¶33, 44. Indeed, the Schneiders expressly stated in their Notice and
Amended Notice of Appeal that they fully intended to include, address, and seek reversal of the
final judgments entered in the Foreclosure Action based on the Alleged Fraudulent Conduct. Id.
at ¶33. The Schneiders are simply not entitled to rulings in this action on the very same issues
that were presented, addressed, and ruled upon by the Court in the Foreclosure Action, as well as
by the Fourth District in the Appeal. See, e.g., Baez, 201 So. 3d at 693, 694 (finding that the
motion to vacate the judgment under Rule 1.540 “did not allege any facts upon which
relief . . . could be granted” because the grounds set forth in that motion “should have been
raised in an appeal from the final judgment and were already addressed in a prior motion,” and
thus the party was “not entitled to additional rulings on the same issues”); Gimbel v. Int’l
Mailing & Printing Co., 505 So. 2d 631, 632-33 (Fla. 4th DCA 1987) (affirming denial of the
motion to vacate the judgment where Rule 1.540 was “inapplicable” because “the proper remedy
appears to have been a plenary appeal from the judgment” for an alleged error that “was
presented to the trial court and rejected”); U.S. Bank Nat’l Assoc. v. Paiz, 68 So. 3d 940, 943
(Fla. 3d DCA 2011) (finding the motion for relief from judgment under Rule 1.540 insufficient
22
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
where “all of [the movant’s] complaints could have and should have been raised in the pleadings
or at the hearing on the motion for summary judgment”); Rutshaw v. Arakas, 549 So. 2d 769,
770 (Fla. 3d DCA 1989) (reversing order vacating a default judgment under Rule 1.540 based on
allegations of “fraud, misconduct of [p]laintiff’s counsel, artifice, trickery, overreaching and
circumvention” where “the error could, should, and may have been cured only by timely action
through objection, post-trial motion, or appeal-all of which could readily have been
undertaken”).
In addition, the record establishes that the Alleged Fraudulent Conduct had no effect on
the validity of the final judgments, or the Court’s entry of the 2018 Amended Final Judgment in
the Foreclosure Action pursuant to the Mandate issued in the Appeal. See supra ¶¶3-4, 29, 33-
39, 43-47; Ex. 21. For example, at the time of the Hearing, the Schneiders did not have any
remaining affirmative defenses to the foreclosure claim, or any counterclaim against First
American – facts that have nothing to do with any alleged improper conduct by the Defendants,
and the dismissal of which were affirmed in the Appeal. Id. at¶¶3-4, 44-46. Further, any
allegations of improper conduct by the Law Firm Defendants relating to the outstanding
discovery allegations at the time of the Hearing are irrelevant to the Schneiders’ fraud on the
court claim because the discovery issue was raised, and affirmed on Appeal. Id. at ¶44. Under
such circumstances, and on this established record, the Schneiders cannot allege, or establish,
that the Alleged Fraudulent Conduct by the Law Firm Defendants could somehow “undermine
the very foundation upon which the [final] judgment[s] . . . were built.” Coleman, 20 So. 3d at
955-56 (affirming the finding that the bank’s attorneys did not perpetrate a fraud on the court
where the alleged misconduct cannot be said to have effected or prejudiced the final judgment)
(quotations and citations omitted).
23
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
The Schneiders claim for fraud on the court is baseless, and an improper attempt to do an
end-run-around the 2018 Amended Final Judgment. This Judgment is final and should be
afforded complete preclusive effect by this Court. See, e.g., Nafh Nat’l Ban, 117 So. 3d at 903
(“The policy of law that favors the termination of litigation supports a narrow application of the
‘fraud upon the court’ exception to the one-year limit on rule 1.540(b) motions.”); Johnson v.
Johnson, 738 So. 2d 508, 509 (Fla. 1st DCA 1999) (affirming dismissal of the portion of the rule
1.540 motion seeking relief from a judgment based on the repeated claim of “duress,” stating that
“to allow, on these facts, a repeat claim of duress, we would exceed the limits of Rule 1.540(b)
relief, violate the doctrine of res judicata and upset the finality of the judgment”). Any attempted
deviation from the 2018 Final Amended Judgment is tantamount to a direct violation of the
Fourth District’s Mandate entered in the Appeal of the Foreclosure Action. See, e.g., Brennan v.
Brennan, 184 So. 3d 583, 588 (Fla. 4th DCA 2016) (“A trial court lacks discretionary power to
go beyond the scope of relief granted by the appellate court, and it is not authorized to deviate
from the terms of an appellate court’s instructions.”).
The Schneiders’ serial attempts to attack the finality of the final judgments in the
Foreclosure Action, including filing this separate action for fraud on the court that “is completely
devoid of merit,” are improper and constitute sanctionable conduct. See Manzaro v.
D’Alessandro, 229 So. 3d 843, 846 (Fla. 4th DCA 2017) (granting sanctions pursuant to §57.105
against a litigant and his counsel, stating: “Appellant has had multiple opportunities to raise the
issues presented in his complaint to the Broward Circuit Court and, in fact, has done so. His
attempt at filing a new lawsuit in a different circuit, after those prior attempts were rejected and
while other new attempts still remain pending in Broward Circuit Court, is completely devoid of
merit.”) (emphasis added).
24
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
C. The Claim for Fraud on the Court Is Barred by the Litigation Privilege.
Florida’s litigation privilege affords “absolute immunity . . . to any act occurring during
the course of a judicial proceeding, . . . so long as the act has some relation to the proceeding.”
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d
606, 608 (Fla. 1994) [“Levin”]; see Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole,
950 So. 2d 380, 384 (Fla. 2007). The Florida courts have expressly applied the litigation
privilege to claims of fraud.10
In total, the fraud on the court claim is based on the following alleged conduct by Bolz:
x filing notices of depositions of the Schneiders (Compl. ¶14);
x filing a notice of trial (Id.);
x sending an email to the Schneiders requesting hearing dates in the Foreclosure Action
(Id. at ¶¶17, 19);
x unilaterally scheduling a hearing on the motion for summary judgment in the
Foreclosure Action (Id. at ¶20);
x submitting a letter to the Judge assigned to the Foreclosure Action (Id. at ¶¶22-26);
x filing a Notice of Filing in the District Court (Id. at ¶35);
x sending an email to the Schneiders informing them of the District Court’s Remand
Order (Id. at ¶39); and
x attending/making statements at the Hearing in the Foreclosure Action (Id. at ¶¶43-47).
Each of these actions fit squarely within the absolute immunity afforded lawyers and litigants
under the litigation privilege. Each and every action – by Plaintiffs’ own detailed allegations
– was “connected with, and relevant to,” the Foreclosure Action, and thus absolutely
privileged. See, e.g., Levin, 639 So. 2d at 607 (extending the litigation privilege to a tortious
interference claim “based on misconduct in a judicial proceeding”) (emphasis added);
10
See, e.g. Pace v. Bank of N.Y. Mellon Trust Co. Nat’l Assoc., 224 So. 3d 342, 343 and n. 1 (Fla. 5th
DCA 2017) (affirming dismissal of the fraud claim as being barred by the litigation privilege); Perl v.
Omni Int’l of Miami, Ltd., 439 So. 2d 316, 317 (Fla. 3d DCA 1983) (affirming dismissal of “‘fraud,
perjury, and forgery’ count of the complaint” as being barred by the litigation privilege).
25
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
Ponzoli & Wassenberg, P.A. v. Zuckerman, 545 So. 2d 309, 309-10 (Fla. 3d DCA)
(awarding §57.105 sanctions because the defamation and extortion claims based on
“statements . . . made, as counsel, in a motion to dismiss filed in this court” were clearly
barred by the litigation privilege because “[s]tatements made in the course of judicial
proceedings enjoy an absolute privilege” and cannot form the basis of civil liability “so long
as the statements uttered are connected with, or are relevant or material to the cause at hand
or the subject of inquiry no matter how false or malicious said statements may in fact be”),
rev. denied, 554 So. 2d 1170 (Fla. 1989) (emphasis added).11
D. The Schneiders Are Estopped From Bringing This Action.

1. Collateral Estoppel Bars the Claim for Fraud on the Court.
Collateral estoppel or estoppel by judgment bars relitigation of an issue that has already
been determined by a judgment. The application of collateral estoppel requires that:
(1) an identical issue must be presented in a prior proceeding; (2) the issue must
have been a critical and necessary part of the prior determination; (3) there must
have been a full and fair opportunity to litigate the issue; (4) the parties in the two
proceedings must be identical; and (5) the issues must have been actually
litigated.
Lucky Nation, LLC v. Al-Maghazchi, 186 So. 3d 12, 14 (Fla. 4th DCA 2016) (quotations and
citations omitted). Each of above elements has been met.
The Alleged Fraudulent Conduct identified in the Complaint was raised in, directly
presented by the Schneiders, and adjudicated by the Court in the Foreclosure Action. Compare
supra ¶¶32, 34-36, 43 With (Compl. ¶¶14, 17, 19, 20, 22-24, 26-29, 39-40, 43-45). The
Schneiders sought relief from the Final Judgments for fraud under Rule 1.540(b)(3) twice in the
11
LatAm Invs., LLC v. Holland & Knight, LLP, 88 So. 3d 240, 245 (Fla. 3d DCA 2011) (affirming
dismissal of plaintiff’s abuse of process claim at the motion to dismiss stage of the lawsuit because the
applicability of the absolute litigation privilege was apparent from the face of the complaint), rev. denied,
81 So. 3d 414 (Fla. 2012).
26
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
Foreclosure Action – in their Motion for Rehearing, and in their Reconsideration Motion. See
supra ¶¶32, 34. The Court denied the Schneiders’ requested relief under Rule 1.540(b)(3). Id. at
¶¶32, 39. The Court filings themselves establish that the Schneiders had the opportunity to
litigate, and did litigate, the issue relating to the Alleged Fraudulent Conduct, and that the
Court’s review and adjudication of those fraud allegations was a necessary part of the resolution
of the Foreclosure Action. In fact, the Schneiders concede this point in their Notice and
Amended Notice of Appeal. Id. at ¶33. In both Notices, the Schneiders stated:
Defendants’ case was disposed of via summary judgment, without a contested

hearing, due to a scheduling conflict, and a host of other improper action(s) by
Plaintiff and its counsel of record, which have been brought to the trial court’s
attention, and shall be included in Defendants opening brief.
Id. at ¶33, Ex. 23 (emphasis added). In addition, the Schneiders raised issues relating to the
Alleged Fraudulent Conduct in the Appeal. Id. at ¶44.
Further, First American was a named party in the Foreclosure Action. And, although the
Law Firm Defendants were not named parties in the Foreclosure Action, the mutuality of parties
requirement for the application of defensive collateral estoppel purposes has been met. The Law
Firm Defendants were (and are) counsel of record for First American in the Foreclosure Action,
and acted as its counsel during the time the Alleged Fraudulent Conduct occurred. Under these
circumstances, the Law Firm Defendants were in privity with First American for estoppel
purposes. Verhagen v. Arroyo, 552 So. 2d 1162, 1164 (Fla. 3d DCA 1989), rev. denied, 574 So.
2d 144 (Fla. 1990) (finding that because the attorneys were counsel for certain parties in the
underlying action, and were “alleged by plaintiff to have been acting as counsel for those parties
when the alleged wrong acts were committed,” the attorneys “were, for collateral estoppel
purposes, in privity with the defendants in the Collier County action and the judgment in favor of
those defendants may be used defensively by [the attorneys”]).
27
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
2. Res Judicata Bars the Claim for Fraud on the Court.

Res judicata bars the relitigation of claims previously determined by a court, as well
“claims that could have been raised.” Topps v. State, 865 So. 2d 1253, 1255 (Fla. 2004). “The
idea underlying res judicata is that if a matter has already been decided, the petitioner has already
had his or her day in court, and for purposes of judicial economy, that matter generally will not
be reexamined again in any court (except, of course, for appeals by right).” Id. (emphasis in
original). The application of res judicata requires “[a] judgment on the merits rendered in a
former suit,”12 and the following four identities:
(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of
persons and parties to the action; and (4) identity of the quality of the persons for
or against whom the claim is made.
Topps, 865 So. 2d at 1255. Each of the requirements has been satisfied.
Final judgments on the merits were entered in the Foreclosure Action. See supra ¶¶30-
31. Those Final Judgments were appealed by Mr. Schneider, and upon remand, the Court
entered an Amended Final Judgment in the Foreclosure Action. Id. at ¶¶33, 41, 45-47. In this
action, the Schneiders are seeking to “set[] aside the judgment entered in the Foreclosure Action
based on the Alleged Fraudulent Conduct by the Law Firm Defendants. (Compl. 14, 17, 19, 20,
22-24, 26-29, 39-40, 43-45, p. 11). The Schneiders sought the same relief based on the same
Alleged Fraudulent Conduct in the Foreclosure Action. See supra ¶¶32, 34-36; see supra II.D.1.
In addition, irrespective of whether the Schneiders raised the issue of the Alleged
Fraudulent Conduct to the Court in the Foreclosure Action, the record establishes that they had
the opportunity to do so. The Schneiders were aware of the Alleged Fraudulent Conduct during
the pendency of the Foreclosure Action (Id. at ¶¶13, 18-20, 26-27), and had every opportunity to
bring the Alleged Fraudulent Conduct before the Court in the Foreclosure Action. Id. at ¶¶32,
12
Jasser v. Saadeh, 103 So. 3d 982, 984 (Fla. 4th DCA 2012).
28
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
34-36, 38, 43. The Schneiders also had the opportunity to litigate the issue of the Alleged
Fraudulent Conduct in the Appeal. Id. at ¶¶33, 44-46. In fact, based on their Notice and
Amended Notice of Appeal, the Schneiders fully intended to appeal the Final Judgments on the
issue of the Alleged Fraudulent Conduct. In those Notices, the Schneiders stated:
Defendants’ case was disposed of via summary judgment, without a contested

hearing, due to a scheduling conflict, and a host of other improper action(s) by
Plaintiff and its counsel of record, which have been brought to the trial court’s
attention, and shall be included in Defendants opening brief.
Id. at ¶33, Ex. 23 (emphasis added); see also ¶44 and nn. 4-5. The record conclusively
establishes that the Schneiders had the opportunity to, and did, seek relief from the Final
Judgments through Rule 1.540(b) in the Foreclosure Action. They cannot do so again through
this separate action for fraud on the court.
Finally, the Foreclosure Action and this action are “between the same parties or their
privies.” Jasser, 103 So. 3d at 984 (quotations and citations omitted); see supra Verhagen, 552
So. 2d at 1164; supra §II.D.1. And, the real parties in interest in the Foreclosure Action and this
action are the same – the Schneiders and First American. Id.; see infra §III.B.
III. The Alleged Claim for Fraud on the Court Asserted in the Complaint Is Not
Supported by the Material Facts.
The Schneiders and their counsel have already been placed on notice that the Schneiders’
claim for fraud on the court is not supported by the material facts. On the same day the
Schneiders filed the Complaint in this action, the Schneiders (through their counsel, Wyman and
Rodman) filed their Verified Motion to Stay in the Foreclosure Action. See supra ¶¶51-52; Ex.
29. In relying on the pendency of this action to seek a stay of execution of the 2018 Amended
Final Judgment in the Foreclosure Action, the Schneiders set forth the Alleged Fraudulent
Conduct by the Law Firm Defendants in that Verified Motion to Stay. Ex. 29. First American
(through their counsel, the Law Firm Defendants) filed a detailed Response to the Verified
29
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
Motion to Stay, and provided the Schneiders and their counsel – Wyman and Rodman – with the
documents that negate the Schneiders’ allegations of, and claim for, fraud asserted in this action.
Ex. 27-28, 30. Despite being in possession of the Defendants’ Response, and the exonerating
documents, neither the Schneiders nor their counsel have taken the necessary steps to dismiss
this lawsuit. Although addressed in First American’s Response to the Verified Motion to Stay
filed in the Foreclosure Action (Ex. 30), the following demonstrates again that the Schneiders’
allegations of fraud against the Defendants are baseless.
A. The Established Record Defeats the Schneiders’ Claim for Fraud on the
Court.
In the Complaint, the Schneiders assert that the Defendants’ “misrepresentations and
deception prevented the Schneiders from presenting an opposition to the motion for summary
judgment and participating in the hearing on the motion for summary judgment.” (Compl. ¶53).
This allegation is patently false, and obliterated by the record in the Foreclosure Action – a
record that was available to the Schneiders’ and their counsel before this lawsuit was filed by
counsel on behalf of the Schneiders.
The simple immutable fact is that the Law Firm Defendants (and First American) owed
no duty to protect the Schneiders’ interests. Chapman v. State Dept. of Health & Rehab. Servs.,
517 So. 2d 104, 106 (Fla. 3d DCA 1987) (“[A]n attorney owes no enforceable duty to anyone but
his or her client, and certainly not to preclude damage to his client’s opponent.”). The
Schneiders’ dissatisfaction with the outcome of the Foreclosure Action was a direct result of
their own inaction and failure to take the necessary affirmative steps required by litigants to
protect their rights, and cannot – as a matter of law – be blamed on the Defendants.
1. The Law Firm Defendants Did Not “Quickly” Notice the Schneiders’
Depositions or File a Notice for Trial Without Attempting to Confer.
30
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
The Complaint alleges that Bolz took improper actions in noticing the depositions of the
Schneiders and the Foreclosure Action for trial. (Compl. ¶14). These allegations are baseless.
First, this alleged conduct does not, in any way, shape, or form, support an allegation of
fraud. Second, Bolz attempted to confer with the Schneiders twice before finally unilaterally
setting the Schneiders’ depositions and noticing the matter for trial. On April 17, 2017, Bolz
sent an email to Trent (then counsel for the Schneiders) to confer on the issues of the Schneiders’
depositions and trial. See supra ¶5, Ex. 1. Then, after receiving no response for over two weeks,
Bolz sent a follow-up email to Mr. Schneider in a second attempt to confer on those issues. Id. at
¶8, Ex. 3. After receiving no response from that second communication, and after 5 days, Bolz
unilaterally noticed the depositions and the trial. Id. at ¶9. Bolz’s actions were completely
justified given the Schneiders’ complete failure to respond to Bolz’s conferral attempts.
Further, even after Bolz noticed the depositions and filed a Notice of Trial with the Court,
the Schneiders had every opportunity to seek relief from the Court on those actions. The
Schneiders had over 1 month between the time Bolz issued the Notice of Depositions until the
scheduled date of those depositions to seek alternative dates for the depositions with the Court.13
Id. Similarly, the Schneiders had almost 2 months (50 days) in which to seek a postponement of
the trial. Id. at ¶¶9-10. Despite these opportunities, the Schneiders failed to take the necessary
and proper actions to protect their interests.
2. Bolz Did Not Unilaterally Set the Hearing for June 26, 2017.
The Complaint alleges that “Bolz unilaterally scheduled the hearing on [First
American’s] soon-to-be served motion for summary judgment for June 26, 2017,” and did so
13
It should be noted that the Schneiders sought to continue the dates for their depositions. See supra ¶21.
But, instead of noticing that Motion for hearing, the Schneiders elected to improperly remove the matter
to federal court to unilaterally preclude the depositions from going forward as previously scheduled. Id.
at ¶21-23.
31
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
based on a May 26, 2017 letter that the Schneiders baldly assert “Bolz never submitted . . . to the
Court.” (Compl. ¶¶20, 28). These allegations are also blatantly false.
First, Bolz attempted to set the Hearing only after the Motion for Summary Judgment had
been filed with the Court.
Second, Bolz submitted the May 26, 2017 letter to the Court. The federal express
document expressly confirms that Bolz sent the May 26, 2017 letter to the Court, and that the
letter was received by the Court. Id. at ¶18; Ex. 9.
Third, Bolz did not set the June 26, 2017 Hearing, unilaterally or otherwise. The Court
set the Hearing. This is confirmed by the online scheduling printout. See supra ¶19; Ex. 12.
Fourth, Bolz conferred with Mr. Schneider regarding a potential hearing date, and sought
alternative dates from the Court. See supra ¶¶15-18; Ex. 8. The documented events occurred as
follows: Bolz conferred with Mr. Schneider as to his availability for a hearing on the already
filed Motion for Summary Judgment for June 26, 2017. See supra ¶¶14-15; Ex. 5. Mr.
Schneider responded that he was unavailable from June 26th through July 5th, and that he did
“not agree to the proposed hearing for the Motion for Summary Judgment.” See supra ¶16; Ex.
6. Bolz responded to Mr. Schneider that he would seek alternative dates from the Court. See
supra ¶17; Ex. 7. Bolz did precisely that. Bolz sent a letter to the Court dated May 26, 2017,
which the Court received on May 30, 2017. See supra ¶18. In that letter, Bolz informed the
Court of Mr. Schneiders’ unavailability (June 26th – July 5th), and requested a hearing date on
alternative dates (June 15th – June 25th). Ex. 8. The Court in its discretion set the Hearing for
June 26, 2017. See supra ¶19.
Fifth, irrespective of any actions taken by Bolz relating to setting the date for the
Hearing, the Schneiders failed to take any affirmative action with the Court to change the date of
32
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
the Hearing, or even inform the Court themselves that they were unavailable on June 26, 2017.
In fact, on June 23, 2017, Mr. Schneider expressly informed Bolz that he would “be filing a
notice with the court” as to his unavailability for the Hearing. Id. at ¶27, Ex. 20. But, Mr.
Schneider never did. Mr. Schneider failed to do so despite the affirmative requirement in the
Order that only the Court had the ability to cancel the Hearing. See supra ¶19; Ex. 11. The
Schneiders’ inaction related to the date of the Hearing and their own decision to ignore the
Court’s Order scheduling the Hearing – not any Alleged Fraudulent Conduct by the Law Firm
Defendants – prevented the Schneiders from attending the Hearing.
3. Bolz Properly Informed the Court of the Recent Events at the Hearing.
The Complaint alleges that, at the Hearing, Bolz did not inform the Court of the
Schneiders’ unavailability for the Hearing, or that First American’s “responses to the Schneiders’
discovery requests . . . were still outstanding.” (Compl. ¶¶44-47). These allegations lack merit.
First, contrary to the Schneiders’ self-serving extraction from the Hearing transcript (see
Compl. ¶45), Bolz informed the Court of the last communication he received from the
Schneiders relating to their unavailability for the Hearing, and the outstanding documents. See
supra ¶29; Ex. 21. In his on-the-record statements to the Court, Bolz read Mr. Schneider’s June
23, 2017 email (see Ex. 20) to the Court in its entirety, thereby expressly informing the Court
that the Schneiders were unavailable to attend the Hearing, and of the Schneiders’ position that
First American has “refused to produce” documents. See supra ¶29.
Second, regardless of any failure by First American to produce documents, it was
incumbent on the Schneiders to provide the Court with an affidavit in accordance with Rule
1.510(f) if they sought to postpone the Hearing based on outstanding discovery. See Carbonell
v. BellSouth Telecomm., Inc., 675 So. 2d 705, 706 (Fla. 4th DCA 1996) (“A party seeking a
continuance bears the burden of showing, by affidavit, the existence and availability of other
33
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
evidence, its relevance, the efforts taken to produce it, and that any failure to do so is not the
result of the movant’s inexcusable delay.”).14 The Schneiders failed to adhere to this
requirement. While the Schneiders, proceeding pro se in the Foreclosure Action at that time,
may have been unaware of this requirement, their current counsel should know that the
Schneiders bore the burden to seek a continuance of the Hearing under Rule 1.510(f), and that
their failure to do so cannot form a basis to accuse the Law Firm Defendants (or First American)
of fraud.
4. The Law Firm Defendants Did Not Commit Fraud in Filing the
Schneider’s Response to the Show Cause Order in the District Court.
The Complaint alleges that “neither Mr. Schneider nor Mrs. Schneider ever drafted,
reviewed, signed, or mailed” the Response to the Show Cause Order, and that Bolz submitted the
allegedly false document “in an attempt to push the action back to state court before June 26,
2017.” (Compl. ¶¶32, 37). These allegations are also false.
First, the Law Firm Defendants retained the envelope in which they received the
Response to the Show Cause Order. See supra ¶24; Comp. Ex. 16.
Second, the Schneiders received three copies of the Response to the Show Cause Order
on June 22, 2017 filed by the Law Firm Defendants – on the precise day the Response was filed
with the District Court. See supra ¶24; Comp. Ex. 16; Ex. 17. The Schneiders did not contact
the Law Firm Defendants, or file anything in the District Court or the Foreclosure Action,
claiming fraud at that time.
Third, the Schneiders – 1 month after the Law Firm Defendants filed the Response with
the District Court (see supra ¶24) – filed the exact same Response with the District Court.
14
Subsection (f) of Rule 1.510 provides “[i]f it appears from the affidavits of a party opposing the motion
that the party cannot for reasons stated present by affidavit facts essential to justify opposition, the court
may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such other order as is just.”
34
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
Id.; Exs. 18-19. If the document was “fraudulent,” as the Schneiders now conveniently contend,
they would have never filed that same exact document – in their own name and on their own
behalf – with the District Court on July 26, 2017, without disclosing this critical material fact.
Fourth, ignoring the fact that Mr. Bolz’s actions did not, and cannot, amount to a fraud on
the Court, the Schneiders cannot seek relief in this Court for an alleged fraud on the Court that
occurred in the District Court. See Manzaro, 229 So. 3d at 846 (stating that “a claim for fraud on
the court, whether an independent action or pursuant to Rule 1.540(b), must be brought in the
court where the fraud was purportedly committed”); see also Fla. Evergreen Foliage v. E.I.
Dupont De Nemours & Co., 336 F. Supp. 2d 1239, 1272 (S.D. Fla. 2004) (“[I]n no case has a
Florida court allowed a cause of action for fraud on the court under Rule 1.540in a court that is
different from the one in which the fraud was committed”).
B. The Law Firm Defendants Are Not Proper Parties to This Action.
The Complaint contains a single count for fraud on the court. (Compl. ¶¶52-54). In that
count, the Schneiders request that the Court “set[] aside the judgment entered in the Foreclosure
Action.” Id. at p. 11. The Law Firm Defendants were not parties to the Foreclosure Action. See
supra ¶1. As such, the lone claim for fraud on the court does not, and cannot, as a matter of law
seek relief against the Law Firm Defendants. See Brown v. SEC, 2015 WL 458167, at *5 (S.D.
Fla. Feb. 3, 2015) (dismissing attorney from the action based on a claim for fraud on the court –
the attorney who had represented the SEC in the underlying action that resulted in the entry of a
judgment against the now-plaintiff – where “the only relief sought in the Amended Complaint
[wa]s equitable relief from judgment”).
Conclusion
For the reasons stated above, the Complaint is wholly without merit, both legally and
factually. The Schneiders and their counsel knew and/or should have known that the
35
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
independent action for fraud on the court is not supported by the material facts necessary to
establish that claim, or supported by the applicable existing law to the material facts. The
Defendants are entitled to recover all of their attorney’s fees incurred in this case from its
inception from the Schneiders and their counsel. See Manzaro, 229 So. 3d at 846 (finding appeal
frivolous, and awarding §57.105 sanctions against the “Appellant and his counsel” where the
appellant filed the claim for fraud on the court in the wrong court, and where the claim “would
have been precluded by both the principles of comity . . . and res judicata”); Bierlin v. Lucibella,
955 So. 2d 1206, 1208 (Fla. 4th DCA 2007) (reversing denial of fees under §57.105 where “no
cause of action could ever be stated”); Smith v. Gore, 933 So. 2d 567, 568 (Fla. 1st DCA 2006)
(“We again remind the bar that Section 57.105 expressly states courts ‘shall’ assess attorney’s
fees for bringing, or failing to timely dismiss, baseless claims or defenses.”).15
WHEREFORE, the Defendants Keller & Bolz, LLP, Henry H. Bolz and First American
Bank request that the Court enter an order: (i) awarding each of the Defendants their attorneys’
fees against the Schneiders, and their counsel, Charles F. Rodman, Esq. and Andrew D. Wyman,
Esq., in accordance with §57.105, and (ii) granting such other and further relief as this Court
deems just and proper.
Respectfully Submitted,
KELLER LANDSBERG PA
Counsel for Keller & Bolz, LLP
and Henry H. Bolz
Broward Financial Centre, Suite 1400
500 East Broward Boulevard
Fort Lauderdale, Florida 33394
Telephone: (954) 761-3550
15
See Wood v. Haack, 54 So. 3d 1082, 1084 (Fla. 4th DCA 2011) (“[I]t is not the bringing of the motion
for 57.105 fees that starts the clock running for recoverable fees. Rather, once the twenty-one day safe
harbor expires, ‘[t]he trial court is free to measure the attorney’s fees from the time it was known or
should have been known that the claim had no basis in fact or law.’”) (quoting Yakavonis v. Dolphin
Petroleum, Inc., 934 So. 2d 615, 620 (Fla. 4th DCA 2006)).
36
Case 20-22398-MAM
DocumentDoc
17-35
36-4Entered
Filed on
12/18/20
FLSD Docket
Page 10/21/2020
37
Facsimile: (954) 525-2134

Email: david.keller@kellerlandsberg.com
Email: laura.kelly@kellerlandsberg.com
By: /s/ D. David Keller
D. David Keller
Florida Bar No. 288799
Maria N. Vernace
COZEN O’CONNOR
Counsel for First American Bank
One North Clematis Street, Suite 510
West Palm Beach, Florida 33401
Telephone: (561) 515-5250
Facsimile: (561) 515-5230
Email: sbrier@cozen.com
Email: mcriscuolo@cozen.com
By: /s/ Simeon D. Brier

Simeon D. Brier
Matthew B. Criscuolo
Certificate of Service
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been e-served
via e-Service (but not filed) this 11th day of March, 2019 to:
Charles F. Rodman, Esq. Andrew D. Wyman, Esq.

RODMAN EMPLOYMENT LAW WYMAN LEGAL SOLUTIONS
Counsel for Plaintiffs Counsel for Plaintiffs
Laurence S. Schneider and Laurence S. Schneider and
Stephanie L. Schneider Stephanie L. Schneider
181 Wells Avenue, Suite 201 955 NW 17th Avenue, Suite C
Newton, MA 02459 Delray Beach, Florida 33445
Telephone: (617) 820-5250 Telephone: (561) 361-8700
chuck.rodman@rodmanemploymentlaw.com Facsimile: (561) 361-8899
Email: andy@wymanLegalSolutions.com
/s/ D. David Keller

COUNSEL
37

BK 78 (42-80) FAB&#39;s and K&amp;B Motion Sanctions 10.06.2020

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

BK 78 (42-80) FAB&#39;s and K&amp;B Motion Sanctions 10.06.2020

Uploaded by

Copyright:

Available Formats

Case 20-22398-MAM Doc 36-4 Filed 12/18/20 Page 42 of 165

Exhibit Cover Sheet

Admitted: Yes or No (circle one)

Debtor: Stephanie Lynn Schneider

Case No.: 20-22398-MAM

Nature of Hearing/ Motion for Relief from Automatic Stay

United State Bankruptcy Court

Dated ___________________ , 2020

By: _____________________, Deputy Clerk

IN THE CIRCUIT COURT OF THE

The Defendants state the following in support of this Motion:

merit – legally and factually.

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

Defendants on behalf of First American, are well-documented. The record conclusively

dismissal by the Court.

protected under Florida’s litigation privilege. (§II.C).

the principles of collateral estoppel and res judicata. (§II.D).

Schneiders (and their counsel) in the Verified Complaint. (§III.A).

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

their counsel for filing this baseless claim.

Florida (the “Property”). (R. 12-35).2

2. In the Foreclosure Action, the Schneiders were represented by Kenneth Eric

the Law Firm Defendants throughout the entire Foreclosure Action.

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

4. On March 6, 2017, the Schneiders filed their Answer, Amended Affirmative

affirmative defenses or Counterclaims. Id.

motions in the Foreclosure Action. See infra ¶42.

by Trent at the hearing earlier that day. (Exhibit “2”).

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

8. On May 4, 2017, Bolz sent an email to Mr. Schneider to “follow[] up on our

the trial period commencing June 28, 2017.

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

respectively, and the trial beginning on June 28, 2017. Id. at p. 2.

the Hearing Letter:

In accordance with the Court’s Divisional Instructions, undersigned contacted the

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

CANNOT BE CANCELLED OR RESET EXCEPT BY COURT ORDER.” Ex. 11, p. 2

mhernandez1@pbcgov.org – i.e., by the Court. (Exhibit “12”). In addition, First American,

“Notice of Service” with the Court on June 2, 2017.

13, 2017 and June 14, 2017, respectively. (Exhibit “13”).

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

of Florida (the “District Court”).

dates suggested by Bolz or imposed by the Court.

consent to remand” by June 21, 2017.

Action back to the Circuit Court (the “Remand Order”).

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

scheduled. (Exhibit “20” without attachments).

with the court. . . .” Ex. 20.

Judgment on June 26, 2017.

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

THE COURT: Okay. Let’s proceed. . . .

Schneider. Id. at pp. 7-8, 9-10.

money Final Judgment. Id. at pp. 3-6.

summarily denied the Motion for Rehearing on July 18, 2017.

Appeal, the Schneiders stated:

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

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

remanded the matter back to the trial court.

represent the Schneiders in the Foreclosure Action. (Exhibit “27”).

represent the Schneiders in the Foreclosure Action. (Exhibit “28”).

Complaint in this action.

resolution of this action by the Schneiders for fraud on the court.

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

baseless in law and in fact.

BK 78 (42-80) FAB's and K&B Motion Sanctions 10.06.2020

BK 78 (42-80) FAB's and K&B Motion Sanctions 10.06.2020