IN THE DISTRICT COURT OF APPEAL OF FLORIDA

FOURTH DISTRICT

CASE NUMBER: 4Dl 7-2239

LOWER TRIBUNAL CASE NUMBER: 50-2016-CA-009292

RECEIVED, 2/7/2018 2:52 PM, Clerk, Fourth District Court of Appeal

LAURENCE SCHNEIDER,

Appellant,

vs.

FIRST AMERICAN BANK,

as successor by Merger to Bank of Coral Gables, LLC

Appellee.

ON APPEAL FROM THE CIRCUIT COURT OF THE

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

APPELLEE'S ANSWER BRIEF

HENRY H. BOLZ, III

FLA. BAR NO. 260071
SHEYLAMESA
FLA. BAR NO. 86148
KELLER & BOLZ, LLP
121 MAJORCA AVENUE
SUITE 200
CORAL GABLES, FL 33134
TELEPHONE: (305) 529-8500
TELEFAX: (305) 529-0228
EMAIL: hbolz@kellerbolz.com.
EMAIL: smesa@kellerbolz.com
COUNSEL FOR APPELLEE
 TABLE OF CONTENTS

PAGE

Table of Contents ..................................................................................................... 11

Table of Citations .................................................................................................... iv

State1nent of the Case ............................................................................................... 1

State1nent of the Facts .............................................................................................. 8

Su1n1nary of Argun1ent ........................................................................................... 10

Argument ................................................................................................................ 12

A. Standard of Review ............................................................................ 12

B. Issues Preserved for Appellate Review/Issues Raised Before

Circuit Court but Not Property Preserved .......................................... 13

1. Usury ............................................................................................. 14

2. Term/Maturity Date of Note - 10 versus 20 years ....................... 15

3. Leave to Amend Affirmative Defenses ........................................ 18

4. Failure to Allege Compliance with Fla. Stat.§ 559.715 .............. 19

5. First American's Standing was Never Challenged by

Affinnative Defense ..................................................................... 21

C. Appellant Failed to Preserve the Majority of the Issues

Now Raised on Appeal ...................................................................... 24

1. Failure to Allege Non-Compliance with 12 CFR § 1024.41. ........ 26

2. Failure to Asse1i Fair Credit Reporting Act, 15 U.S.C. §

1681 s-2(b) as a Counterclaim ....................................................... 27

ii
 3. Failure to Provide Sufficient Time to Hire Substitute
Counsel ......................................................................................... 29

4. Hearsay Challenges to Affidavit .................................................. 31

5. Unliquidated Damages/Principal and Interest .............................. 36

6. Attorney's Fees ............................................................................. 39

7. Outstanding Discovery ................................................................. 42

8. Two Final Judgments/Election of Remedies ................................ 47

Conclusion .............................................................................................................. 50

Certificate of Service .............................................................................................. 52

Certificate of Compliance ...................................................................................... 53

iii
 TABLE OF CITATIONS

CASES

770 PPR, LLC v. TJCV Land Trust

30 So. 2d 613 (Fla. 4th DCA 2010) .............................................................. 35

Abrams v. Paul

453 So. 2d 826 (Fla. 1st DCA 1984) ............................................................ 25

A ills v. Boemi

29 So. 3d 1105 (Fla. 2010) ........................................................................... 24

Alamagan Corp. v. The Daniels Group, Inc.

809 So. 2d 22 (Fla. 3d DCA 2002) .............................................................. 25

Asian Imports, Inc. v. Pepe

633 So. 2d 551 (Fla. pt DCA 1994) ............................................................ 37

Bank ofAmerica, NA. v. Ribaudo

199 So. 3d 407 (Fla. 4 th DCA 2016) ............................................................ 24

Bank ofAmerica, N.A. v. Siefker

201 So. 3d 811 (Fla. 4th DCA October 13, 2016) ........................................ 20

Bank ofNew York v. Calloway

157 So. 3d 1064 (Fla. 4th DCA 2015) .......................................................... 34

Bodygear Activewear v. Counter Intelligence Serv.

946 So. 2d 1148 (Fla. 4th DCA 2006) .......................................................... 39

iv
Bonita Real Estate Partners, LLC v. SLF IV Lending, L.P.

222 So. 3d 647 (Fla. 2d DCA 2017) ...................................................... 49, 50

Brandauer v. Publix Super Markets, Inc.

657 So. 2d 932 (Fla. 2d DCA 1995) ............................................................ 44

Brindise v. U.S. Bank Nat 'l. Ass 'n.

183 So. 3d 1215 (Fla. 2d DCA 2016) .......................................................... 19

Bus. Success Group, Inc. v. Argus Trade Realty Inv., Inc.

898 So. 2d 970 (Fla. 3d DCA 2005) ............................................................ 25

Cabot v. First Nat'l Bank

369 So. 2d 89 (Fla. 1st DCA 1979) .............................................................. 17

Carbonell v. BellSouth Telecommunications, Inc.

675 So. 2d 705 (Fla. 3rd DCA 1996) ............................................................ 45

Colson v. State Farm Bank, F.S.B.

183 So. 3d 1038 (Fla. 2d DCA 2015) .......................................................... 33

Congress Park Office Condos II, LLC v. First-Citizens Bank

105 So. 3d 602 (Fla. 4th DCA 2013) ...................................................... 22, 46

Custer Med. Ctr. v. United Auto Ins., Co.

62 So. 3d 1086 (Fla. 2010) ........................................................................... 20

Davie Westview Developers, Inc. v. Bob-Lin, Inc.

533 So. 2d 879 (Fla. 4 th DCA 1988) ............................................................ 20

V
DeMesme v. Stephenson

498 So. 2d 673 (Fla. pt DCA 1986) ...................................................... ...... 45

Dominko v. Wells Fargo Bank, N.A.

102 So. 3d 696 (Fla. 4 th DCA 2012) ............................................................ 21

E.J Assoc., Inc. v. John E. & Aliese Price Found., Inc.

515 So. 2d 763 (Fla. 2d DCA 1987) ............................................................ 32

E&Y Assets, LLC v. Sahadeo

180 So. 3d 1162 (Fla. 4 th DCA 2015) .......................................................... 20

Freedom Jnsurors, Inc. v. MD. Moody & Sons, Inc.

869 So. 2d 1283 (Fla. 4 th DCA 2004) .......................................................... 49

Freemon v. Deusche Bank Trust Co. Americas

46 So. 3d 1202 (Fla. 4 th DCA 2010) .................. .. ................................. . 32, 36

Friedman v. Friedman

825 So. 2d 1010 (Fla. 4 th DCA 2002) .......................................................... 49

t
Glarum v. LaSalle Bank Nat'!. Ass 'n.
I
83 So. 3d 780 (Fla. 4 th DCA 2011) .................................................... ... . 33, 34 f

Glynn v. First Union Nat 'l. Bank

I
i
i
912 So. 2d 357 (Fla. 4 th DCA 2005) ............................................................ 22

Gonzalez v. NAFH Nat 'l. Bank

93 So. 3d 1054 (Fla· 3d DCA 2012) .... ... ............ ... .... ... ...... ................ .......... 18

vi
Green v. RBS Nat)!. Bank

288 F. Appx.641(11 th Cir. 2008) ....... .. .................................. .......... ..... 27, 28

Hammond v. Kingsley Asset Mgmt., LLC

144 So. 3d 673 (Fla. 2d DCA 2014) ....................... .. ................. 47, 48, 49, 50

Holmes Reg'l Med. Ctr., Inc. v. Allstate Ins. Co.

225 So. 3d 780 (Fla. 2017) ................................................................. .......... 48

Jaffer v. Chase Home Finance, LLC

155 So. 3d 1199 (Fla. 4 th DCA 2015) ..... .. .............................................. 21-22

Jelic v. CityMortgage, Inc.

150 So. 3d 1223 (Fla. 4 th DCA 2014) .. .................................................. 31, 36

Johnston v. Hudlett

32 So. 3d 700 (Fla. 4 th DCA 2010) ........................................................ 20, 25 I

j
Kissman v. Panizzi 1
i
891 So. 2d 1147 (Fla. 4111 DCA 2005) .......................................................... 22

Klondike, Inc. v. Blair

I
211 So. 2d 41 (Fla. 4 th DCA 1968) ......................... ..................................... 48 I
LaSala v. Nationstar Mortgage, LLC
I
I
197 So. 3d 1228 (Fla. 4 th DCA 2016) .......................................................... 33 I
Leviton v. Philly Steak-Out, Inc. f

533 So. 2d 905 (Fla. 3rd DCA 1988) ............................................................ 46

vii
Lufthansa German Airlines v. Mellon

444 So. 2d 1066 (Fla. 3 rd DCA 1984) ............................................. ............. 40

Margolis v. Klein

184 So. 2d 205 (Fla. 3d DCA 1966) ............................................................ 25

McLean v. JP Morgan Chase Bank Nat'l Ass 'n.

79 So. 3d 170 (Fla. 4 th DCA 2012) .............................................................. 22

Monte v. Cypress Bend Condo. Village Ass 'n., Inc.

77 So. 3d 920 (Fla. 4 th DCA 2012) .............................................................. 25

Nawab v. Unifund CCR Partners

553 F. Appx. 856 (11 th Cir. 2013) ..... ...... .. ..... .... ... .......... .... ........... .............. 27

0 'Quinn v. Seibels, Bruce & Co.

44 7 So. 2d 369 (Fla. 1st DCA 1984) ............................................................ 32

Oregrund Ltd. P 'Ship. v. Sheive

873 So. 2d 451 (Fla. 5th DCA 2004) ............................................................ 14

Pacheco v. Indymac Fed. Bank F.S.B.

92 So. 3d 276 (Fla. 4 th DCA 2012) .............................................................. 22

Periera v. Fla. Power & Light Co.

680 So. 2d 617 (Fla. 4 th DCA 1996) ............................................................ 45

Peuguero v. Bank ofAmerica, N.A.

169 So. 3d 1198 (Fla. 4 th DCA 2015) .......................................................... 33

viii
Razak v. Marina Club Tampa Homeowners Ass 'n., Inc.

968 So. 2d 616 (Fla. 2d DCA 2007) ............................................................ 17

Reznik v. FRCC Prod., Inc.

15 So. 3d 847 (Fla. 4th DCA 2009) .............................................................. 24

S. Puerto Rico Sugar Co. v. Tem-Cole, Inc.

403 So. 2d 494 (Fla. 4th DCA 1981) ............................................................ 25

Servedio v. US. Bank Nat 'l Ass 'n.

46 So. 3d 1105 (Fla. 4th DCA 2010) ............................................................ 22

Singer v. Star

510 So. 2d 637 (Fla. 4th DCA 1987) ............................................................ 44

Sunset Harbour Condo. Ass 'n. v. Robbins

914 So. 2d 925 (Fla. 2005) ........................................................................... 24

Tand v. C.F.S. Bakeries, Inc.

559 So. 2d 670 (Fla. 3rd DCA 1990) ............................................................ 39

Tillman v. State

471 So. 2d 32 (Fla. 1985) ....................................................................... 24, 32

US. Bank Nat 'l. Ass 'n. v. Paiz

68 So. 2d 940 (Fla. 3rd DCA 2011) .............................................................. 32

Uransky v. First Fed. Sav. & Loan Ass 'n. of Ft. Myers

684 F. 2d 750 (11 th Cir. 1982) ...................................................................... 17

ix
Vilvar v. Deusche Bank Trust Co. A.MS.

83 So. 3d 853, 856 (Fla. 4 th DCA 2011) .......................................... 31, 32, 36

Wambles v. Amrep Southeast, Inc.

568 So. 2d 125 (Fla. 5th DCA 1990) ............................................................ 32

Weisenberg v. Deusche Bank Nat 'l. Trust Co.

89 So. 3d 1111 (Fla. 4 th DCA 2012) ............................................................ 34

Wlodyka v. Matthews

126 So. 3d 1084 (Fla. 4 th DCA 2012) .......................................................... 44

Wolkoffv. American Home Mortgage Servicing, Inc.

153 So. 3d 280 (Fla. 2d DCA 2014) ............................................................ 33

Zumpf v. Countrywide Home Loans, Inc.

43 So. 2d 764 (Fla. 2d DCA 2010) .............................................................. 37

OTHER AUTHORITIES

12 CFR § 1024.41 ................................................................................................... 26

12 U.S.C. § 2601 .................................................................................................... 26

15 U.S.C. § 1681s ................................................................................................... 27

15 U.S.C. § 1681s-2(a) ........................................................................ 2-3, 27, 28, 29

15 U.S.C. § 1681s-2(b) ..................................................................................... 27, 28

15 U.S.C. § 1681s-2(d) ........................................................................................... 27

X
Fla. R. Civ. P. 1.110 ............................................................................................... 28

Fla. R. Civ. P. 1.115 ............................................................................................... 23

Fla.R.Civ.P.1.120 .......................................................................................... 20,21

Fla. R. Civ. P. 1.140 ............................................................................................... 18

Fla. R. Civ. P. 1.150 ............................................................................................... 47

Fla. R. Civ. P. 1.190 ............................................................................................... 19

Fla. R. Civ. P. 1.510(c) ........................................................................................... 33

Fla. R. Civ. P. l.510(e) ..................................................................................... 32, 35

Fla. R. Civ. P. 1.510(f) ..................................................................................... 44, 45

Fla. R. Evid. 90.803 .................................................................................... 32, 34, 35

Fla. Stat. § 501.201 ................................................................................................... 4

Fla. Stat.§ 559.715 ......................................................................... 11, 13, 19, 20, 21

Fla. Stat. § 687.02 ................................................................................................... 15

Fla. Stat. § 697.04 ............................................................................................... 8, 16

Fla. Stat.§ 687.071 ................................................................................................. 15

xi
 STATEMENT OF THE CASE AND FACTS

Statement of the Case

On August 17, 2016, Appellee, First American Bank ("First American"), filed

its Verified Foreclosure Complaint ("Complaint") against Laurence Schneider

("Appellant"), his wife, Stephanie Schneider, Jeffrey Marc Herman and The Oaks

Boca Raton Property Owners' Association, Inc. [R. 12-35]. First American sought

to foreclose a Mmigage on the residential property located at 17685 Circle Pond

Court, Boca Raton, Florida 33496-1002 ("Property")(Count I) and damages against

Appellant for breach of the Note/Credit Agreement ("Note) (Count II). Id. True and

correct copies of the Note and Mortgage were attached to and fully incorporated into

the Complaint. Id.

On October 3, 2016, Appellant filed his Motion to Dismiss 1 arguing, among

other things, that the Complaint should be dismissed because it (a) lacked specificity

and (b) failed to state a cause of action [R. 113-115]. On October 7, 2016, First

American filed its Memorandum in Opposition to Appellant's Motion to Dismiss

[R. 116-126]. On October 14, 2016, the Palm Beach Circuit Court ("Circuit Comi")

denied Appellant's Motion to Dismiss and ordered Appellant to file an Answer

within 20 days [R. 145].

Prior to filing his Motion to Dismiss, on September 12, 2016, Appellant filed
his first of what would be a series of Motions for Extension of Time [R. 107-108].

1
 After filing two Motions for Extension of Time [R. 163-164 & 165-166], on

November 16, 2016, Appellant filed his Answer, Affirmative Defenses and

Counterclaim [R. 167-176). The first Affirmative Defense asse1ted that the action

was not yet ripe because the Mortgage called for a twenty (20) year (not a ten (10)

year) term [R. 170). The second Affirmative Defense alleged that First American

had "engaged in inequitable conduct" [R. 170-171). On December 29, 2016, First

American filed its Motion to Strike Appellant's Affirmative Defenses asserting that

both of Appellant's Affinnative Defenses were lega1ly insufficient and immaterial

to the proceeding [R. 230-242].

By Order, dated January 26, 2017, the Circuit Court granted First American's

Motion to Strike both of Appellant's Affirmative Defenses [R. 243-244]. The first

Affirmative Defense was stricken with prejudice; the second Affirmative Defense

was struck but Appellant was granted 20 days to file amended affirmative defenses.

Id.

Appellant's Counterclaim against First American asse1ied (Count 1) -

Ii
Violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §168ls(a)(l)(A), I
I

f
(Count 2) - Negligent and/or Fraudulent Misrepresentation and (Count 3) -

Conversion [R. 171-175]. On December 12, 2016, First American filed its Motion
I
to Dismiss Appellant's Counterclaim, asse1iing, among other things, that § 1681 s- Ir
I
2
2(a) of the FCRA does not create a private right of action and that the other two

counts of Appellant's Counterclaim were preempted by the FCRA [R. 205-226].

On January 26, 2017, the Circuit Court entered an Order Granting in

Part/Denying in Part First American's Motion to Dismiss Appellant's Counterclaim

[R. 245-246]. The Circuit Comi dismissed Counts 1 and 3 of Appellant's

Counterclaim with prejudice; Count 2 of the Counterclaim was dismissed but

Appellant was granted leave to amend. Id.

After filing two additional Motions for Extension of Time [R. 247-248 & 329-

330], on March 6, 2017, Appellant filed his Answer, Amended Affirmative Defenses

and Amended Counterclaim [R. 347-356]. Appellant asserted three Amended

Affirmative Defenses: (a) Anticipatory Breach/Prior Breach, (b) Usury and (c) Set-

off [R. 350-351]. On March 20, 2017, First American filed its Motion to Strike

Appellant's Amended Affirmative Defenses contending that Appellant's Amended

Affirmative Defenses were legally insufficient and immaterial to the proceeding [R.

392-414].

By Order, dated April 7, 2017, the Circuit Comi struck all three of Appellant's

Amended Affirmative Defenses with prejudice, without leave to amend [R. 480-

481].

The Amended Counterclaim sounded in five Counts: (Count l) - Negligent

Misrepresentation, (Count 2) - Defamation, (Count 3) - Violation of Florida's

3
Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201, et seq. ("FDUTPA"),

(Count 4) - Breach of Covenant of Good Faith and Fair Dealing, and (Count 5) -

Negligence [R. 352-356]. On March 20, 2017, First American filed its Motion to

Dismiss Appellant's Amended Counterclaim, on the grounds that FDUTPA does not

apply to banks regulated by federal agencies such as First American and that the

FCRA preempted Counts 1, 2, 4 and 5 [R. 377-391].

On April 4, 2017, Appellant voluntary dismissed Count 3 of his Amended

Counterclaim [R. 476-477]. On April 7, 2017,just prior to the scheduled hearing on

First American's Motion to Dismiss the Amended Counterclaim, Appellant

voluntary dismissed Counts 1, 2 and 5 [R. 490-491]. On April 7, 2017, the Circuit

Comi heard argument by First American and Appellant and dismissed Count 4 of

Appellant's Amended Counterclaim with prejudice, without leave to amend [R. 478-

479].

On March 22, 2017, Appellant's counsel, Kenneth Eric Trent, Esq., filed a

Motion seeking to withdraw as counsel for Appellant [R. 420-421]. The Ce1iificate

of Service evidences that a copy of the Motion to Withdraw was served on Appellant

via email. Id. On May 1, 2017, five weeks after Attorney Trent filed his Motion to

Withdraw, the Circuit Court heard argument and entered an Order Granting the

Motion to Withdraw [R. 507].

4
 On May 25, 2017, after all of Appellant's original and amended Affirmative

Defenses had been stricken, and after Appellant's original and amended

Counterclaims had been dismissed, First American filed a Motion for Summary

Judgment and Incorporated Memorandum of Law [R. 525-738]. The Motion for

Summary Judgment set fmih the following:

(l)that Appellant stipulated to the authenticity of the Note and Mortgage [R. 527-

528];

(2)that First American is the entity entitled to enforce the Note and Mo1igage

because of its merger with Bank of Coral Gables which was effective on

December 5, 2014 - prior to the institution of the action [R. 528];

(3)that First American is the current owner and holder of the Note and Mo1igage

[R. 528];

(4)that Appellant admitted he had defaulted under the Note and Mmigage by,

among other things:

a. failing to pay the monthly interest payment due on May 1, 2016 and all

subsequent monthly payments [R. 528-530];

b. failing to pay the single balloon payment on July 28, 2016 [R. 528-

530]; and

c. failing to pay the Florida Ad Valorem/real prope1iy taxes on the

Property for 2014, 2015 and 2016 [R. 528-530]; and

5
 (5)that AppelJant owed First American $1,488,554.76 in unpaid principal,

interest, unpaid Florida Ad Valorem/real property taxes on the Prope1iy for

2014, 2015 and 2016 in the amount of$66,870.93, interest thereon, along with

expenses, costs and reasonable attorney's fees [R. 532].

Appellant did not file a response or affidavit in opposition to First American's

Motion for Summary Judgment, nor did he identify any summary judgment evidence

on which he would rely at the hearing.

On June 2, 20 l 7, the Circuit Comi entered an Order scheduling First

American's Motion for Summary Judgment for a 45-minute specially set hearing at

2:30 p.m. on June 26, 2017 [R. 953-955]. The Order stated:

"THIS MOTION IS SPECIALLY SET AND

CANNOT BE CANCELLED OR RESET EXCEPT
BY COURT ORDER."

Id. (emphasis in original). Appellant did not file, serve or set for hearing a motion

to continue the hearing on First American's Motion for Summary Judgment.

On June 9, 2017, Appellant filed a frivolous Notice of Removal of the action

to the United States District Court [R. 971-973] thereby divesting the Circuit Comi

of jurisdiction. On June 21, 2017, in response to the District Court's Order to Show

Cause, Appellant consented to remand the action back to the Circuit Comi [R. 976].

On June 22, 2017, the United States District Judge acknowledged receipt of

6
Appellant's consent to remand and entered an Order Remanding Case to Circuit

Comi [R. 979).

On June 26, 2017, at the specially-set hearing which Appellant did not attend,

First American filed the original Note and Mo1igage with the Circuit Comi (R. 988-

1000]. After reviewing the summary judgment evidence submitted by First

American, the Circuit Court entered an Order Granting First American's Motion for

Summary Judgment [R. 986], a Final Judgment of Foreclosure against Appellant and

his wife, Stephanie L. Schneider [R. 982-985] and a monetary Final Judgment

against Appellant in the amount of $1,625,072.71 [R. 980-981]. On June 30, 2017,

an Amended Final Judgment on the monetary award was entered [R. 1001-1002].

The Judgments fuiiher determined that First American is entitled to its reasonable

attorneys' fees and expenses incurred in the action and reserved jurisdiction to

determine the quantum of attorney's fees, costs and expenses to which First

American is entitled [R. 982-985 , R. 9 80-981 & R. 1001-1002].

On July 11, 2017, Appellant filed his Motion for Rehearing and to Vacate

Judgment [R. 1005-1007] arguing that the Judgments were void "due to multiple

triable issues in this matter" [R. I 006]. On July I 8, 20 I 7, the Circuit Comt entered

an Order denying Appellant's Motion for Rehearing and to Vacate Judgment [R.

1029-1030].
I
I

l
7
 On July 18, 2017, Appellant and ostensibly his wife, filed a Notice of Appeal

[R. 1011-1028]. Six hours later, an Amended Notice of Appeal was filed [R. l 063-

1074]. 2

Statement of the Facts

On July 28, 2006, Appellant3 executed and delivered to First American's

predecessor, Bank of Coral Gables, a Note for al 0-year Home Equity Line of Credit

("HELOC") with a credit limit of $1,500,000.00 and promised to repay any and all

amounts bon-owed and outstanding from the $1,500,000.00 Note by making a single

balloon payment on July 28, 2016 (the maturity date of the Note) [R. 24-29].

On July 28, 2006, Appellant, joined by Stephanie Schneider, his wife, also

executed and delivered to Bank of Coral Gables, a Mortgage securing the payment

of the Note [R. 30-35]. The Mortgage executed by Appellant unequivocally stated

that "The final maturity date of the [Note] is July 28, 2016" [R. 34]. In accordance

with Fla. Stat. § 697.04(1), the Mortgage contained a clause stating that any future

2 By Order of this Court dated October 11, 2017, Stephanie Schneider's appeal
was dismissed for failure to comply with prior Orders of this Court. Accordingly,
the Judgment of Foreclosure is final as to Stephanie Schneider and not subject to
appellate review.

3 Since 2005, Appellant is in the business of acquiring mortgage loans and pools
ofloans from various lenders, servicers and mortgage insurance companies [R. 353-
354, 1452 & 1533].
8
advances that might be made under the Note would be secured by the Mortgage for

up to 20 years [R. 30].

The terms of the Note and M011gage provided that Appellant would make 119

monthly payments equaling the amount of his accrued interest charges, "plus any

amount due and other charges," and pay the entire balance in a single balloon

payment on or before July 28, 2016 [R. 24].

Appellant began drawing funds under the Note in March 2007 [R. 637]. By

November 2008, Appellant had essentially fully drawn down the credit limit by

borrowing almost $1,500,000.00, and, for 7½ years after November 21, 2008, the

principal balance fluctuated only slightly until May 2016 when Appellant stopped

making monthly interest payments [R. 639-648].

Appellant defaulted under the terms of the Note and Mmigage when:

(1) Appellant, in May 2016, stopped making monthly interest payments on the

Note [R. 596]. Appellant admitted in both his Answer [R. 167-176] and Amended

Answer [R. 347-356] that he failed to make monthly payments due and owing under

the terms of the Note ("Defendants admit that all payments have not been made

and/or one or more payments was not timely made; ... " [R. 168 at ~14 and R. 348 at

~14]). Further, counsel for Appellant, during the course of an evidentiary hearing

held on March 28, 2017, stipulated that" ... [T]here's no question but that there has

9
been a cessation in payments" and that no payments were made by Appellant since

April 2016 [R. 561-562].

(2)Appellant failed to pay the entire balance owing in a single balloon payment

on July 28, 2016 [R. 596]. Counsel for AppeJlant, during the course of an evidentiary

hearing held on March 28, 2017, stipulated that" ... [T]here's no question but that

... the balloon payment has not been made ... " [R. 561].

(3)Appellant failed to pay the Florida Ad Valorem/real prope1iy taxes for

calendar year 2014, 2015 and 2016 [R. 597, 613-615]. Appellant admitted that he

failed to pay the Florida Ad Valorem/real property taxes on the property for 2014

[R. 670, 716], 2015 [R. 670, 716] and 2016 [R. 656-657].

By reason of the above-listed defaults/breaches, Appellant owes First

American $1,488,554.76 in unpaid principal, $69,646.52 in pre-judgment interest

and $66,870.93 in unpaid Florida Ad Valorem/real property taxes on the Prope1iy

for 2014, 2015 and 2016 for a total of $1,625,072.21.

SUMMARY OF THE ARGUMENT

This is a very simple foreclosure case. Appellant not only stipulated to the

authenticity of the Note and Mortgage but also admitted he defaulted under the Note

and Mortgage by failing to pay the monthly interest payments, balloon payment and

Florida Ad Valorem/real prope1iy taxes. The Circuit Court properly struck all of

Appellant's Affirmative Defenses.

10
 Appellant did not file a response or affidavit in opposition to First American's

Motion for Summary Judgment, did not identify any summary judgment evidence

he intended to rely on at the hearing and did not attend the hearing on the Motion for

Summary Judgment.

Despite the fact that Appellant failed to object in any way to entry of the

Judgments, Appellant's Summary of the Argument Section in his Initial Brief

identifies nine separate and distinct issues being raised on appeal. Recourse to the

Argument section of Appel1ant's Initial Brief, however, demonstrates thi1ieen issues

on appeal. Appellant has taken the "shotgun" approach to this appeal.

On appeal Appellant identifies three issues that were raised and preserved for

appellate review: (I) the striking of his usury affirmative defense; (2) the striking of

his term/maturity date of the Note affirmative defense and (3) the Circuit Comt's

decision not to grant Appellant leave to amend his affinnative defenses. As wiIJ be

demonstrated in Section B.1-3 below, AppeJlant's meritless affirmative defenses

were properly stricken "with prejudice."

Two of the issues identified by Appellant, non-compliance with Fla. Stat. §

559.715 and lack of standing, while raised in the Cfrcuit Court, were never asserted

as affirmative defenses and were, therefore, waived.

The remaining eight issues raised by Appellant for the first time on appeal

were never brought to the attention of the Circuit Comi prior to the filing of

11
Appellant's Notice of Appeal or Amended Notice of Appeal. Two of the issues on

appeal, while tangentially addressed/mentioned in documents filed in the Circuit

Court, were never noticed for hearing, and, therefore the Circuit Court never had an

opportunity to rule on those issues. Accordingly, all eight of these issues were not

preserved for appellate review. Moreover, even when these non-preserved issues on

appeal are considered on their merits, none warrant reversal. Appellant's defense

strategy was simply one of delay.

There are no legitimate grounds on which to reverse the Circuit Court's entry

of the Final Judgment in Foreclosure or the Amended Final Judgment (monetary)

against Appellant.

ARGUMENT

A. Standard of Review.

First American agrees with Appellant that de novo review is appropriate for

Circuit Court decisions relating to (a) entry of final summary judgment, (b) standing,

(c) whether damages are liquidated or unliquidated and (d) dismissal of the causes

of action stated in a counterclaim.

With respect to (a) the striking of affirmative defenses (b) discovery and (c)

the right to obtain substitute legal counsel, the standard of review is abuse of

discretion.

12
 Appellant, in his Initial Brief, argues that the trial court committed

"fundamental error" by awarding unliquidated damages without the required notice

or proof. See Initial Br. at 23. As will be demonstrated below, Appellant attempts

to introduce the fundamental error standard into his appeal because he recognizes

that the majority of the issues raised in his Initial Brief were not preserved for

appellate review. It is First American's position that the fundamental error standard

should not be applied in this case since only liquidated damages (principal, interest

and Florida Ad Valorem/real property taxes) were awarded to First American in the

Judgments entered.

B. Issues Preserved for Appellate Review/Issues Raised

Before Circuit Court but Not Properly Preserved.

On appeal, Appellant seeks review of the striking of the following two

affirmative defenses: usury and the term/maturity date of the Note. As will be

demonstrated below, these two affirmative defenses were raised, argued and

properly stricken "with prejudice" by the Circuit Court in that they could not have

been successfully amended. Two additional issues, non-compliance with Fla. Stat.

§ 559.715 and standing, while raised below, were never asse1ied as affirmative

defenses and were, therefore, waived.

13
 1. Usmy.

At pages 48-49 of his Initial Brief, Appellant argues that the Amended

Affirmative Defense of usury should have been preserved for the trier of fact. In

support of his argument Appellant cites to Oregrund Ltd. P 'Ship. v. Sheive, 873 So.

2d 451,455 (Fla. 5 th DCA 2004) for the proposition that "where there is no conflict

in the material facts," the issue of usury "is one of law for the cou1t" [Initial Br. at

48]. However, as was the case before the Circuit Comi, Appellant's argument on

appeal does not (and cannot) identify any facts or documents which would even

remotely support a usury defense.

The variable interest rate4 stated on the face of the Note that Appellant signed

on July 28, 2006 was 8.25% [R. 26]. By the time Appellant began drawing down

the Credit Limit of the Note in 2007, the applicable interest rate had dropped to

7.75% [R. 638]. The variable interest rate which Appellant agreed to pay dropped

substantial1y in December 2008 to 3.25% [R. 639] and remained at 3.25% until

December 2015 when the rate was bumped back up to 3.50% [R. 648]. At the time

that Appellant stopped making the monthly payments due on the Note, the interest
!!
t
rate being charged was 4.00% [R. 650]. i
I
!
t
Appellant in his Initial Brief at pages 26-27 profess to not understand that the
!!
4

Note which he executed in July 2006 called for a variable rate of jnterest [R. 26 &
3 4] and seemingly argues that he should not have had the benefits of falling interest
rates passed along to him by First American. f
14
 The interest rates charged to Appellant by First American never remotely

approached the 18.00% per annum usury threshold set out in Fla. Stat. § 687.02(1)

or, more impmiantly, the 25.00% usury rate set out in Fla. Stat.§ 687.071(2) (which

applies to loans that exceed $500,000.00). On its face, Appellant's usury Amended

Affirmative Defense was legally insufficient and could not have been amended to

be viable. Accordingly, Appellant's Amended Affirmative Defense of usury was

properly stricken with prejudice.

2. Term/Maturity Date of Note - 10 versus 20 years.

Appellant's Initial Brief at pages 19, 30-31 and 47, argues that the term of the

Note was 20 years, not 10 years and hence, that "the instant foreclosure suit is fatally

premature." This argument, which was first raised as an Affirmative Defense in

Appellant's original Answer [R. 170] was and is inherently flawed in that it takes

out of context and misrepresents the clear purpose of the Mortgage's future advances

clause.

The Note that Appellant signed on July 28, 2006 unequivocally specified a

10-year maturity date:

"Term. The term of your Credit Line will begin as of the

date of this Agreement ('Opening Date') and will continue
until July 28, 2016 ('Maturity Date'). All indebtedness
under this Agreement, if not already paid pursuant to the
payment provisions below, will be due and payable upon
maturity."

15
[R. 24]. The Mortgage securing the Note that Appe]lant executed on July 28, 2006

also clearly states:

"The final maturity date of the [Note] is July 28, 2016."

[R. 34]. It is difficult to imagine more straightforward and unambiguous language

establishing a 10-year maturity date on Appellant's Note. Indeed, the Note, which

is at its essence the promise to repay, has no language relating to "20 years."

On the other hand, Appellant's Mortgage contains a standard future advances

clause which provides:

"Revolving Line of Credit. This Mo1tgage secures the

Indebtedness including, wjthout limitation, a revolving
line of credit under which, upon request by Borrower,
Lender, within twenty (20) years from the date of this
Mo1tgage, may make future advances to the Borrower."

[R. 30]. Pursuant to Section 697.04(l)(a) of the Florida Statutes, a mortgage may

secure not only an existing indebtedness, but also subsequent future advances made

within twenty (20) years from the date the mortgage was executed:
i

"Any mortgage ... given for the purpose of creating a lien

l
on real propeity ... may, and when so expressed therein
shall, secure not only existing indebtedness, but also future
!
advances, whether such advances are obligatory or to be
made at the option of the lender, or otherwise, as are made I
I
within 20 years from the date thereof ... "

Fla. Stat.§ 697.04(1)(a). Simply put, a future advances clause does nothing more

than create the potential for future liens that would relate back to the date the

16
mortgage was executed. Id. See Razak v. Marina Club Tampa Homeowners Ass 'n.,

Inc., 968 So. 2d 616, 619-620 (Fla. 2d DCA 2007); Uransky v. First Fed. Sav. &

Loan Ass'n. of Ft. Myers, 684 F. 2d 750(11 th Cir. 1982) and Cabot v. First Nat'!

Bank, 369 So. 2d 89, 90-91 (Fla. 1st DCA 1979). The 20 year future advances clause

in the Mortgage does not in any fashion relate to or impact the maturity date of the

Note, which reflected the existing indebtedness. Accordingly, as a matter of law,

Appellant's 10-year versus 20-year term affirmative defense was properly stricken

with prejudice by the Circuit Comi [R. 243-244].

Furthermore, as a matter of fact, Appellant admitted, both in his Answer [R.

168] and Amended Answer [R. 348] Paragraph 14 of First American's Complaint

which alleged:

"14. On July 28, 2006, the Defendant, LAURENCE S.

SCHNEIDER, executed and delivered a Credit Agreement
for a 10-year Home Equity Line of Credit (HELOC) with
a credit limit of $1,500,000.00 and promised to pay any
and all amounts borrowed from the $1,500,000.00 Credit
Agreement by making a single balloon payment on July
28, 2016."

[R. 14]. Perhaps even more telling, Appellant, on December 10, 2015, more than 8

months prior to the filing of First American's Complaint, entered into a written lease

of the Prope1iy [R. 687-704]. Page 7 of that lease has a clause that was hand-written

by the Appellant [R. 671, 716] that read:

17
 "Tenant acknowledges that [Appellant's] M01igage on
subject property comes due on July 28, 2016. [Appellant]
will work with Lender to extend term of Mortgage to
coincide with term of lease."

[R. 693]. First American renews here its argument to the Circuit Court that

Appellant's 10-year versus 20-year term affirmative defense is "disingenuous at best

and perhaps purposefully deceitful" [R. 233].

3. Leave to Amend Affirmative Defenses.

Appellant asse1ied two affirmative defenses m his November 16, 2016

Answer [R. 170-171] and three separate and distinct amended affirmative defenses

in his March 6, 2017 Answer [R. 350-351]. By appropriate Motions brought

pursuant to Fla. R. Civ. P. 1.140(f) (which provides the mechanism for testing the

legal sufficiency of affirmative defenses raised in a complaint), First American

moved to strike all of the Affirmative Defenses [R. 230-242 & 392-414]. See

Gonzalez v. NAFH Nat 'l. Bank, 93 So. 3d 1054, 1057 (Fla· 3d DCA 2012) By Orders

dated January 26, 201 7 and April 7, 2017, all of the affirmative defenses raised by

Appellant were properly stricken [R. 243-244 & 480-481].

At page 48 of his Initial Brief, Appellant argues that he should have been

given another opportunity to try to amend his affirmative defenses and that the

Court's April 7, 2017 Order denying him that right was an abuse of discretion. It

18
should be noted, however, that at the April 7, 2017 hearing, the sole argument made

by counsel for the Appellant for another chance to amend was:

"Whatever new counsel comes into the case should be

given the opportunity to assert affirmative defenses.
* **
Perhaps new counsel is more creative than I am, and can
come up with some better defenses."

[R. 502]. No viable affinnative defense was ever brought to the attention of the

Circuit Court. Appellant's chimerical assertion that perhaps some other attorney

might be "more creative" and "come up with better defenses" is simply not a basis

for granting ]eave to amend. See Fla. R. Civ. P. 1.190(a).

4. Failure to Allege Compliance with Fla. Stat. § 559. 715.

At page 41, Appellant argues that compliance with Fla. Stat. § 559.715 is a

condition precedent to filing suit. AJthough Appellant raised Fla. Stat. § 559.715 in

his October 3, 2016 Motion to Dismiss [R. 114-115], he did not assert it in his

Answer, Affirmative Defenses and Counterclaim [R. 167-176] or in his Answer, I

Amended Affirmative Defenses and Amended Counterclaim [R. 347-356]. \Vhile f

[
Appellant's Motion to Dismiss [R. 1] 3-115] vaguely referred to a Second DCA case i
i
holding that Fla. Stat. § 559.715 did not constitute a condition precedent for filing a

mortgage foreclosure, it did not identify that case for the Circuit Court. The case to I
which Appellant referred is Brindise v. US Bank Nat 'l. Ass'n., 183 So. 3d 1215 f

(Fla. 2d DCA 2016), pet. for rev. denied 2016 Fla. LEXIS 597. Brindise was brought I
19 !
I
to the Circuit Court's attention in First American's October 7, 2016 Response to the

Appellant's Motion to Dismiss [R. 120-121]. On October 13, 2017, a day prior to

the scheduled October 14, 2016 hearing on Appellant's Motion to Dismiss, this

Court handed down its opinion in Bank of America, N.A. v. Siefker, 201 So. 3d 811

(Fla. 4 th DCA 2016). The Siefker opinion unequivocally holds that: "/T/he notice

requirement of the statute l§ 559. 715] does not operate as a condition precedent

to bringing a mortgage foreclosure suit." Id. at 818 (emphasis added). By Notice

of Reliance on Additional Authority, First American notified the Circuit Court of

the Siefker opinion [R. 150-161]. In accordance with Siefker, Appellant's Fla. Stat.

§ 559.715 condition precedent argument was properly dismissed by the Circuit Comi

(which probably explains why Appellant did not raise failure to comply with Fla.

Stat.§ 559.715 as an affirmative defense). It is hard to believe Appellant is raising

this argument on appeal.

Moreover, Fla. R. Civ. P. l.120(c) mandates that denials of performance or

occurrence of a condition precedent must "be made specifically and with

paiiicularity." A defendant's failure to identify a specific condition precedent as an

affirmative defense within its pleading results in the waiver of the defense. See

Custer Med. Ctr. v. United Auto Ins., Co., 62 So. 3d 1086, 1098 (Fla. 2010); E&Y

Assets, LLC v. Sahadeo, 180 So. 3d 1162, 1163 (Fla. 4th DCA 2015); Johnston v.

Hudlett, 32 So. 3d 700, 704 (Fla. 4th DCA 2010); and Davie Westview Developers,

20
Inc. v. Bob-Lin, Inc., 533 So. 2d 879, 880 (Fla. 4 th DCA 1988). Here, Appellant

answered Paragraph 27 of First American's Complaint, which alleged that "[a]ll

conditions precedent to the acceleration of this M01igage and the foreclosure of the

M01igage have been fulfilled and have occurred," as follows: "Denied" [R. 169 &

349]. Appellant's failure to plead the alleged non-performance of Fla. Stat. §

559.715 specifically and with paiiicularity as required by Fla. R. Civ. P. l.120(c),

constitutes a waiver of said defense. 5

5. First American's Standing was Never Challenged by

Affirmative Defense.

On pages 40-42 of his Initial Brief, Appellant raises First American's lack of

standing to sue. Any attack made on a foreclosing bank's standing must be raised

by way of an affirmative defense - a motion to dismiss will not alone suffice. For

example, in Jaffer v. Chase H01ne Finance, LLC, this Comi stated:

Even if there were merit in [appellants'] argument, the

substance of the argument is in the nature of an attack on

5 Appellant cites to Dominko v. Wells Fargo Bank N.A. l 02 So. 3d 696, 697
(Fla. 4 th DCA 2012) for the proposition that '"there is a genuine issue of material
fact regarding whether [m01igagee] complied with the conditions [sic] precedent' of
filing suit" (Initial Br. at 25-26, n. 7). Appellant conveniently fails to mention that
in Dominko the plaintiff moved for summary judgment before the defendant had
answered the complaint, which required that the plaintiff "must not only establish
that no genuine issue of material fact is present in the record as it stands, but also
that the defendant could not raise any genuine issues of material fact if the defendant
were permitted to answer the complaint." Id. at 698. Unlike Dominko, in the case
at hand, Appellant filed two Answers to First American's Complaint and failed to
plead the alleged nonperformance of any condition precedent, with specificity or
particularity, or otherwise [R. 169 & 349].
21
 [appellee's] standing. We have repeatedly held that
standing is an affirmative defense and failure to raise it
in ct responsive pleading generally results i.n a waiver.
[Citations omitted.]

155 So. 3d 1199, 1202 (Fla. 4 th DCA 2015) (emphasis added). See Congress Park

Office Condos 11, LLC v. First-Citizens Bank, l 05 So. 3d 602, 607 (Fla. 4 th DCA

2013) (failing to properly plead lack of standing as an affirmative defense results in

waiver); Pacheco v. Indymac Fed. Bank F.S.B., 92 So. 3d 276, 277 (Fla. 4th DCA

2012) (same); and Glynn v. First Union lyat 'l. Bank, 912 So. 2d 357, 358 (Fla. 4th

DCA 2005) (same). See also Kissman v. Panizzi, 891 So. 2d 1147, 1150 (Fla. 4th

DCA 2005).

Appellant cites to McLean v. JP Morgan Chase Bank Nat 'l Ass 'n., 79 So. 3d

170, 172 (Fla. 4 th DCA 2012) and Servedio v. US Bank Nat '! Ass 'n., 46 So. 3d

1105, 1106 (Fla. 4th DCA 2010) in suppo1t of his lack of standing argument. What

Appellant fails to mention is that in both these cases the appellants timely raised lack
I
of standing as an affirmative defense. In the case at hand, the lack of standing

argument was not asse1ted as an affirmative defense in either his Answer,

I
1
I!
Affirmative Defenses and Counterclaim [R. 167-176] or in his Answer, Amended

Affirmative Defenses and An1ended Counterclaim [R. 347-356].

I
Moreover, First American conclusively and repeatedly proved its standing. I
First American's Complaint was sworn to (verified) and unequivocally: (1) alleged I
22
Ii
f
I
 that First American was the holder of the original Note and Mortgage, (2) alleged

that First American was entitled to enforce the Note and Mortgage because of Bank

of Coral Gables' merger into First American Bank on December 5, 2014 [R. 12-35]

and (3) certified that First American had possession of the original Note [R. 21].

Attached to First American's Memorandum of Law filed in opposition to

Appellant's Motion to Dismiss was correspondence from First American to

Appellant notifying Appellant of the merger and "that all Bank of Coral Gables'

accounts will switch over to First American's computer systems") [R. 124-126].

As admitted by Appellant, the Affidavit supporting the Motion for Summary

Judgment set out a second sworn explanation that First American, by virtue of the

Bank of Coral Gables merger on December 5;2014, was entitled to enforce the Note,

the originals ofwhichFirstAn1ericanhad in its possess.ion [R. 595-596]. A ce1tified

copy of the Certificate of Merger by and between First American and Bank of Coral

Gables dated December 5, 2014 was attached as Exhibit "C" to the Affidavit.

Finally, at the special-set hearing held on June 26, 2017, First American

delivered the original Note and Mortgage to the Clerk of the Circuit Court in

accord with Fla. R. Civ. P. l.115(c) [R. 988-1000].

Because (a) Appellant never raised lack of standing as an affirmative defense,

(b) Appellant never challenged First American's Affidavit in suppmi of the Motion

for Summary Judgment and (c) First American conclusively demonstrated its

23
standing by competent substantial evidence, Appellant's lack of standing argument

is unsupported by fact and law.

C. Appellant Failed to Preserve the Majority of the Issues

Now Raised on Appeal.

Florida law requires appellants to show the errors about which they complain

on appeal were preserved for review.

"'In order to be preserved for fm1her review by a higher

court, an issue must be presented to the lower court and
the specific legal argument or ground to be argued on
appeal or review must be paii of that presentation if it is to
be considered preserved.'"

Sunset Harbour Condo. Ass 'n. v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) citing

Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985). Moreover, in Aills v. Boemi, 29 So.

3d 1105, 1109 (Fla. 2010), the Florida Supreme Court stated:

'[T]o be preserved for appeal, 'the specific legal ground

upon which a claim is based must be raised at trial and a
claim different than that will not be heard on appeal.'
[Citations omitted.] Appellate review is therefore limited
to the specific grounds for objection raised at trial.
[Citations omitted.] Except in cases of fundamental eITor,
an appellate comi cannot consider any ground for
objection not presented to the trial court. [Citations
omitted.]

See also Bank ofAm. v. Ribaudo, 199 So. 3d 407 (Fla. 4th DCA 2016) and Reznik v.

FRCC Prod., Inc., 15 So. 3d 847 (Fla. 4th DCA 2009). The reason for this

fundamental rule oflaw is that "[i]t is axiomatic that it is the function of the appellate

24
court to review errors allegedly committed by trial courts, not to entertain for the

first time on appeal issues which the complaining party could have, and should have,

but did not, present to the trial comi." Johnston v. Hudlett, 32 So. 3d 700, 703 (Fla.

4th DCA 2010) citing Abrams v. Paul, 453 So. 2d 826,827 (Fla. l51 DCA 1984).

Fmihennore, appellate courts may not decide issues that were not ruled on by

a trial court in the first instance. "It is elementary that before a trial judge will be

held in error, he must be presented with an opportunity to rule on the matter before

him." Bus. Success Group, Inc. v. Argus Trade Realty Inv., Inc., 898 So. 2d 970,

972 (Fla. 3d DCA 2005) quoting Margolis v. Klein, 184 So. 2d 205, 206 (Fla. 3d

DCA 1966) (emphasis added). See also Monte v. Cypress Bend Condo. VII Ass 'n.,

Inc., 77 So. 3d 920 (Fla. 4 th DCA 2012) (affirming final judgment of foreclosure and

holding that "absent a ruling from the trial court and accompanying record evidence

to support [appellant's] contention, this Comi has no ability to review [appellant's]

claim."); Alamagan Corp. v. The Daniels Group, Inc., 809 So. 2d 22, 27 (Fla. 3d

DCA 2002) (the court refused to review on appeal an issue not set for hearing, and,

therefore never considered, by the trial court) and S. Puerto Rico Sugar Co. v. Tem-

Cole, Inc., 403 So. 2d 494,495 (Fla. 4 th DCA 1981)(same).

Eight of the thirteen issues raised by Appellant in his Initial Brief were not

preserved for appellate review. Appellant did not raise any of the following eight

numbered issues before the Circuit Court, nor did the Circuit Court ever have an

25
opportunity to consider, much less rule on, these eight issues prior to Appellant filing

his Notice of Appeal [R. 1011-1012] and Amended Notice of Appeal [R. 1063-

1074]. Accordingly, pursuant to above-cited case law, this Court should not

consider these eight issues on appeal. Neve1iheless, in an abundance of caution,

First American will address the merits of each issue below.

1. Failure to Allege Non-Compliance with 12 CFR § 1024.41.

At footnote 7, pages 25-26, Appellant argues for the first time m the

foreclosure litigation that compliance with 12 C.F .R. § 1024.41 1s a condition

precedent to filing a foreclosure action.

12 CFR § 1024.41 is a regulatory section promulgated under the federal Real

Estate Settlement Procedures Act ("RESPA"). 12 U.S.C. § 2601, et seq. Appellant

fails to cite to any authority for the proposition that compliance with 12 CFR §

1024.41 "is a condition precedent to filing suit." Undersigned counsel can find no

Florida case applying this regulation as a condition precedent to a foreclosure action.

In all events, Appellant never alleged non-compliance with 12 CFR § 1024.41 as an

affirmative defense and it therefore was waived. See legal authorities cited in

Section B.4. above.

26
 2. Failure to Assert Fair Credit Repmiing Act, 15 U.S.C. §
1681 s-2(b) as a Counterclaim:

At pages 49-50, Appellant argues that the Circuit Court should have granted

him leave to assert a counterclaim under 15 U.S.C. § 168ls-2(b) ofFCRA and

challenges the Circuit Court's dismissal with prejudice of Appellant's 15 U.S.C. §

1681 s-2(a) FCRA cause of action (Count 1) [R. 167-176].

Section 168ls-2(a) requires "furnishers6 of information to provide accurate

information" to consumer repmiing agencies. 15 U.S.C. § 168ls-2(a). See also

Green v. RBS Nat'l Bank, 288 Fed. Appx. 641,642 (11 th Cir. 2008). The ground for

dismissal of Count 1 of the Counterclaim is simple; the FCRA specifically and

unequivocally states that no private right of action exists in favor of individuals like

Appellant, stating that any violations of§ 1681s-2(a) "shall be enforced exclusively

as provided under 15 U.S.C. § 1681s ... by the Federal agencies and officials and

the State officials identified in 15 U.S.C. § 1681s." 15 U.S.C. § 1681s-2(d). See

Nawab v. Unifimd CCR Partners, 553 F. Appx. 856, 868 (11 th Cir. 2013) and Green,

288 F. Appx. at 642.

As pointed out by Appellant in his Initial Brief, a private cause of action

against banks such as First American may exist under 15 U.S.C. § 1681s-2(b).

6 Under the FCRA, First American's status is that of a furnisher - "an entity
that furnishes information relating to consumers to one or more consumer reporting
agencies for inclusion in a consumer report." 12 CFR § 222.41(c).
27
Section 168 ls-2(b) requires furnishers to investigate and respond to a notice of

dispute with regard to the completeness or accuracy of any information provided to

a consumer reporting agency. 15 U.S.C. § 1681s-2(b). See also Green, 288 Fed.

Appx. at 642. However, Appellant never mentioned, much less attempted to pursue

a cause of action, pursuant to § 1681 s-2(b ).

The thrust of Appellant's FCRA Counterclaim argument on appeal is that the

Circuit Court should have "divined" that he arguably had a cause of action under §

168ls-2(b) since he had asserted a prohibited claim under§ 168ls-2(a). The

ludicrous extension of Appellant's argument in this regard would justify plaintiffs

filing complaints setting out nothing more than a series of factual allegations and

then requiring trial courts to identify for the plaintiffs attorney any and all possible

causes of action that might remotely flow from any particular subset of the facts

alleged. In addition to flying in the face of Fla. R. Civ. P. 1.11 O(b ), Appellant's

argument that he is entitled to reversal because he might have a cause of action under

some other unidentified theory makes a mockery of the entire judicial system.

Nothing stopped Appellant from attempting to allege a cause of action against

First American pursuant to § 1681 s-2(b) of the FCRA when he filed his Answer,

Amended Affirmative Defenses and Amended Counterclaim on March 6, 201 7 [R.

347-356]. He simply chose not to do so. Just because Appellant's appellate counsel

"discovered" a possible § 1681 s-2(b) cause of action, that epiphany cannot serve as

28
basis for reversing the Circuit Court's decision to dismiss Appellant's prohibited §

1681s-2(a) claim.

Equally imp01iant, Appellant makes no effort to demonstrate how an alleged

violation of a furnisher's duty under the FCRA to report complete and accurate

information to consumer reporting agencies warrants reversal of a money judgment

on a note or a foreclosure judgment. Dismissal of a potential counterclaim alleging

FCRA violations does not in any way vitiate the Judgments entered below.

3. Failure to Provide Sufficient Time to Hire Substitute

Counsel.

At pages 42-44, Appellant argues that the Circuit Comi should have granted

him "leave to obtain new counsel." 7

Upon being served with a copy of the Complaint, Appellant hired Attorney

Kenneth Trent to represent him. Attorney Trent filed his Notice of Appearance on

September 12, 2016 [R. 105-106]. Some 6½ months thereafter, on March 22, 2017,

Attorney Trent filed his Motion to Withdraw as Counsel [R. 420-421]; the

Certificate of Service thereon reflects that a copy of the Motion to Withdraw was

served on Appellant. Between Attorney Trent's filing of the Motion to Withdraw

7 Appellant's Motion for Continuance [R. 956-959] tangentially mentioned he

was having difficulty retaining new counsel but makes no mention of what efforts
were being made, if any, to do so.
29
and the May 1, 2017 hearing at which time the Circuit Court granted his Motion [R.

507], Appellant made no apparent effmi to seek substitute counsel.

Appellant makes much of the fact that the Circuit Court on May 1, 2017 struck

through proposed language on the Order Granting Motion to Withdraw which read

"This matter is stayed for 20 days in order to permit defendants to retain replacement

counsel" [R. 507], asserting at page 43 of his Initial Brief that: "In fact, defendant

was not given one day, one hour or even one minute to secure new counsel to protect

his interests." This argument is only so much hyperbole. At the time Attorney

Trent's Motion to Withdraw was granted, Appellant had already had 40 days to

obtain substitute counsel and had done nothing.

Appellant (then Defendant) had, from the very inception of the litigation,

"embarked on a ... long running pattern of unreasonable delay" [R. 333-346 at p.

336]. At the end of the May 1, 2017 hearing, Judge Ferrara asked counsel for First

American if, as a matter of comiesy, First American Bank would refrain from

scheduling any hearings for 20 days (through Sunday, May 21, 2017). [See email

exchange memorialized at R. 1170-1172]. First American's counsel honored the

Circuit Court's request and no hearings were scheduled at any time during the month

of May, 2017. Appellant had more than three months to locate and retain substitute

counsel between the time that Attorney Trent moved to withdraw and the time that

First American's Motion for Summary Judgment was heard by the Circuit Comi on

30
June 26, 2017. He did nothing. By the time of the hearing on First American's

Motion for Summary Judgment, Appellant had failed for a period of97 days to locate

substitute counsel. Importantly, at no time did the Circuit Court deny Appellant the

opportunity to locate and be represented by substitute counsel. Appellant's delay

tactics and inaction in seeking to retain substitute counsel simply do not rise to a due

process denial as argued by the Appellant.

4. Hearsay Challenges to Affidavit.

At pages 26-27, 29-30, 31-34, and 40-42, Appellant argues that the Affidavit

filed in support of First American's Motion for Summary Judgment contained

inadmissible hearsay and that its contents are unreliable.

First American's Summary Judgment Affidavit was never challenged by

Appellant in the trial court. In Jelic v. CityMortgage, Inc., 150 So. 3d 1223, 1226

(Fla. 4th DCA 2014), like in this case, appellant argued for the first time on appeal

that the trial court erred in admitting an "allegedly deficient affidavit" submitted by

appellee in supp01i of its motion for summary judgment. This Comi held:

[W]hile [appellee] included the allegedly deficient

affidavit in its motion for summary judgment, nothing in
the record provided shows that Appellant objected to the
affidavit during the summary judgment proceedings.
'[F]ailure to timely object to the sufficiency of [appellee's]
affidavit when it was presented on motion for summary
judgment is fatal to this claim.' Vilvar v. Deusche Bank
Trust Co. A.MS., 83 So. 3d 853, 856 (Fla. 4 th DCA 2011).

31
Id. Recourse to the Vilvar opinion reveals:

We likewise find no merit to [appellant's] claim that

[appellee's] affidavit did not constitute admissible
evidence and that failure to attach any sworn or certified
copies of the records upon which she relied should have
made the affidavit insufficient under rule 1.510(e).
[Appellant's] failure to timely object to the sufficiency of
/appellee's] affidavit when it was presented on motion
for summary judgment isfatal to this claim.

83 So. 3d at 855-56 (emphasis added). Likewise, in Freemon v. Deusche Bank Trust

Co. Americas, 46 So. 3d 1202, 1205 (Fla. 4th DCA 2010), appellant, for the first time

on appeal claimed that the affidavit of indebtedness attesting to the amounts due on

the note and mortgage "was insufficient to satisfy the requirement for admissibility

under the business records exception to the hearsay rule, section 90.803(6), Florida

Statutes." A panel of this Court in Freemon held that appellant's "specific argument

was not preserved for appellate review." Id. citing Tillman, 471 So. 2d at 35. 8

8 See also Wambles v. Amrep Se., Inc., 568 So. 2d 125, 126 (Fla. 5th DCA 1990)
(holding that "the sufficiency of the affidavit ... was not raised before the trial court
and is now barred on appeal."); U.S. Bank Nat'l. Ass 'n. v. Paiz, 68 So. 2d 940, 943
(Fla. 3rd DCA 201 l)(same); E.J Assoc., Inc. v. John E. & Aliese Price Found., Inc.,
515 So. 2d 763, 764 (Fla. 2d DCA 1987)(same); and O'Quinn v. Seibels, Bruce &
Co., 447 So. 2d 369, 370, n. 2 (Fla. pt DCA 1984)(same).

32
 At pages 28-29 of his Initial Brief, Appellant cites to four cases 9 dealing with

the sufficiency of evidence presented at trial. These cases simply do not apply.

Rather, this Cou1i must apply case law relating to uncontested motions for summary

judgment. 10

Appellant also relies to a great extent on Glarum v. LaSalle Bank Nat'!. Ass 'n.,

83 So. 3d 780 (Fla. 4th DCA 2011) to suppmi his conclusions that there was "no

competent evidence," "no foundation" and no "accurateness" to First American's

Affidavit, and that it did not provide a basis on which summary judgment could be

entered [Initial Br. at 31-34]. Glarum is easily distinguishable from the case at hand.

In Glarum, the affiant was not employed by the bank; he was a "specialist" at a loan

servicing company. At his deposition, the "specialist" in Glarum testified that he

had virtually no knowledge, personal or otherwise, about how the bank's records

were maintained on the bank's computer system and was otherwise completely

incapable of demonstrating the basis for the calculations of unpaid principal or

9 LaSala v. Nationstar Mortgage, LLC, 197 So. 3d 1228 (Fla. 4th DCA 2016),
Colson v. State Farm Bank, F.S.B., 183 So. 3d 1038 (Fla. 2d DCA 2015), Peuguero
v. Bank of America, N.A., 169 So. 3d 1198 (Fla. 4th DCA 2015) and Wolkojf v.
American Home Mortgage Servicing, Inc., 153 So. 3d 280 (Fla. 2d DCA 2014).

10 Similarly, Appellant ignores the fact that when presented with a motion for
summary judgment, Fla. R. Civ. P. 1.510(c) required Appellant to identify and
submit the summary judgment evidence he intended to rely on 5 days before the
scheduled hearing. Appellant did nothing.
33
interest. This Court in Weisenberg v. Deusche Bank Nat 'l. Trust Co., 89 So. 3d

11 l l, 1112 (Fla. 4 th DCA 2012) revisited the Glarum fact pattern and pointed out

that the loan servicing specialist's affidavit constituted inadmissible hearsay

because:

[T]he specialist could not state in his deposition whether

the records he relied upon were made in the regular course
of business. He 'did not know who, how, or when the data
entries were made into [the servicer's] computer system.'
... He had '[n]o idea who made the entries when payments
were made or when the account needed to be updated ...
nor did he know whether there was a department that input
account activity in to the data bases. The specialist had a
total lack of knowledge as to how his company's own data
was produced.'

More recently, this Court in Bank ofNew York v. Calloway, 157 So. 3d 1064, 1070-

74 (Fla. 4th DCA 2015) performed a second dissection of how and why it was that

the bank's witness in Glarum was so substandard and incompetent. In striking

contradistinction to Glarum, this Court in Weisenberg and Calloway had no

difficulty finding the affidavits of the bank representatives to be admissible; both

opinions make it clear that in the vast majority of cases, the knowledge of the bank

officer and the manner in which the bank's records are kept (in complete compliance

with Fla. Stat. § 90.803(6)(a)), are such that the affidavits (and documents attached

to the banks' affidavits) are trustworthy, admissible and constitute competent

substantial evidence to suppmi the motions for summary judgment.

34
 First American's Affidavit [R. 595-598] was prepared and filed in full

compliance with both Fla. R. Civ. P. l.510(e) and Fla. Stat.§ 90.803(6), that is, it

was made on personal knowledge, it set forth facts that would be admissible in

evidence, it demonstrated affiant's competence to testify and had attached to it

sworn/ce1tified copies of all documents relied upon. The Affidavit reflected affiant's

familiarity with First American's business records, the manner in which those

records were made and explained First American's merger with Bank of Coral

Gables. The Affidavit provided competent and complete substantial evidence to

suppmt First American's Motion for Summary Judgment.

Another line of Fourth DCA cases supp011s the correctness of the Circuit

Court in accepting First American's unchallenged Motion for Summary Judgment,

the supporting Affidavit and the attached business records giving rise to the unpaid

principal and interest figures. In 770 PPR, LLC v. TJCV Land Trust, 30 So. 2d 613,

618-19 (Fla. 4th DCA 2010) this Court stated:

Indeed, the affidavits filed in supp01i of a bank's motion

for summary judgment provided a breakdown of the
monies owed, including principal, interest and late fees.

The bank's affidavits also asserted that the borrowers were

in default on the loans and demands for payment had been
repeatedly ignored. Upon the presentation of the bank's
motion for summary judgment with supporting affidavits,
the b01rowers had an opportunity to refute those amounts.
(Citation omitted). At no time had the borrowers offered
a contrary calculation of the monies owed; they merely

35
 contend, by way of an affidavit in opposition to the bank's
motion for summary judgment, that they do not owe the
amounts alleged by the bank. Such conclusory assertions
are insufficient counterevidence to avoid summary
judgment.

See also Jelic, 150 So. 3d at 1226 (holding that unchal1enged affidavits constituted

non-hearsay admissible evidence to support summary judgment); Vilvar, 83 So. 3d

at 855-56 (same); and Freemon, 46 So. 3d at 1205 (same).

In the case at hand, Appellant did not bother to file any document or affidavit

opposing First American's Motion for Summary Judgment Affidavit. First

American's Affidavit presented the Circuit Court with competent substantial

evidence to support its Motion for Summary Judgment, and Summary Judgment was

correctly entered. As a matter of law, Appellant's challenges to the Affidavit [R.

595-598] are made for the first time on appeal without any legal basis and should

not be considered.

5. Unliquidated Damages/Principal and Interest.

At page 40, Appellant argues that the unpaid principal and interest constitute

unliquidated damages. This is simply not true. The sole reason for Appellant to

make this unfounded and unsupported argument is to invoke the spectre of

"fundamental error." Ironically, Appellant's assertion of fundamental e1Tor only

underscores the recognition by Appellant that disputing the amount of unpaid

principal and interest was not an issue preserved for appellate review.

36
 The cases cited by Appellant, Zumpfv. Countrywide Home Loans, Inc., 43 So.

2d 764, (Fla. 2d DCA 2010) and Asian Imports, Inc. v. Pepe, 633 So. 2d 551, (Fla.

1st DCA 19994), stand for the opposite proposition: unpaid principal and interest

are liquidated damages. For example, Zumpf states:

Generally, in a foreclosure action, unpaid principal and

interest are 'liquidated damages,' and a defaulting party is
not entitled to notice of hearing determining those
amounts where the exact sums are set forth. Asian
Imports, Inc. v. Pepe, 633 So. 2d 551, 553 (Fla. 1st DCA
1994).

43 So. 2d at 766.

Appellant's first attack on the principal amount 11 is made at page 26 of his

Initial Brief when Appellant attempts to make much of the fact that First American's

Branch President testified on March 28, 2017 that the total amount due was

$1,740,783.61, whereas the unpaid principal amount stated in First American's

Affidavit was $1,488,554.76. Reference to the transcript of the evidentiary hearing

held on March 28, 2017 (which related to First American's attempt to have a

Receiver appointed) [R. 549-588] reveals that the Branch President was testifying

that the ''payoff amount owed by [Appellant]," not that the unpaid principal balance,

11 Appellant also challenges the liquidated nature of the principal amount by

claiming (without any legal or factual basis) that the principal amount was inflated
by First American with some unknown amount of unliquidated attorney's fees.
(Analysis of this argument can be found in Section B.6. below.)

37
was $1,740,783.61. The Branch President's testimony was designed to demonstrate

that the property being forec]osed was then "underwater," i.e., the value of the

Property was lower than the total amount that First American was owed. The

"payoff amount" did include a substantial sum of att01neys' fees, but the unpaid

principal balance does not include any attorneys' fees whatsoever.

Appellant makes a similar attack on First American's calculation of the unpaid

interest by noting, at pages 26-27, that differing interest rates applied to the Note at

different points in time. As both Appellant and First American were aware from the

outset of this loan relationship, the interest rate being charged to Appellant was a

variable rate [R. 26 & 34].

The Affidavit (R. 595-598] makes it clear that when Appellant stopped

making the monthly finance payments, the unpaid principal balance was

$1,488,554.76. Computing the unpaid interest on that balance between March 16,

2016 and June 26, 2017 (the date the Final Judgment of Foreclosure was entered)

was a very simple mathematical calculation [R. 597]. The last interest rate reflected

on the Loan History [R. 650] is 4.00%. The Federal Reserve Board changed the

prime interest rate on June 15, 2017 to 4.25%. In accordance with the terms of the

Note, First American, in turn, raised the interest rate on this loan to 4.25% for the 12

days between June 15 and 26, 2017. The unpaid interest figure remained, however,

a liquidated sum since it was still determined by arithmetical calculation. Indeed,

38
the Bodygear Activewear v. Counter Intelligence Serv., 946 So. 2d 1148, 1150 (Fla.

4 th DCA 2006) and Tand v. CFS. Bakeries, Inc., 559 So. 2d 670,671 (Fla. 3rd DCA

1990) cases cited by Appellant unequivocally state that liquidated damages are those

based upon "an arithmetical calculation or by application of definite rules oflaw."

6. Attorneys' Fees.

Appellant also argues that the Judgments are void because they include

unliquidated damages, specifically attorney's fees [Initial Br. at 37-40.] Importantly,

Appellant throughout his Brief couches his argument by using phrases such as

"apparently" and "it appears":

"... less the amount of attorney's fees and costs

apparent(v included in the Amended Damages Judgment,
"

Initial Br.at 17 (emphasis added); and

"As such it appears that FAB's attorney's fees are

included in both the Amended Damages Judgment and
Foreclosure Judgment and same creates a material issue of
fact."

Id. at 37 (emphasis added). Nothing could be further from the truth than are these

unsubstantiated asse1iions.

First American's Motion for Summary Judgment [R. 525-738] sought

recovery only for three separate and distinct liquidated elements of damages -

principal, interest and Florida Ad Valorem/real property taxes [R. 538]. Although

39
First American also requested the Circuit Court to determine its entitlement to

attorney's fees, costs and expenses, First American requested that the Circuit Court

defer the question of quantum of attorney's fees and retain jurisdiction to determine

the amount of attorney's fees at a future date [R. 539 & 542]. At no time in the

underlying litigation has First American begun to prove-up the amount of reasonable

attorneys' fees, costs and expenses it might ultimately be awarded-that stage of the

litigation is in the future and may include fees on this appeal. Accordingly, the

Circuit Court did not include an award of attorneys' fees in the Judgments on appeal,

in the principal amount or otherwise.

Although First American understands Appellant's need to create "paper

issues" (Lufthansa German Airlines v. Mellon, 444 So. 2d 1066, 1077 (Fla. 3 rd DCA

1984) because of his failure to have in any fashion opposed First American's Motion

for Summary Judgment, his claim that First American included a substantial amount

of attorneys' fees into the unpaid principal balance is "dead on arrival." The

Affidavit provided competent and complete substantial evidence to suppmi First

American's Motion for Summary Judgment. In addition to setting out the

calculations demonstrating how the unliquidated damages were proved in the Circuit

Court, First American's Loan History [R. 63 7-651] was attached to the Affidavit and

reflects a series of entries labeled "Assess Loan Expense Fee" beginning on

40
September 7, 2016. For ease of reference, First American provides an illustrative

small portion of the Loan History Report (which can be found at R. 650).

1/17/17 AJ3Se$S Late Charge 2l~.S5 1, ::•J-.1 ,.;;s3, si

1/16/'J.'7 Asses~ ~oan raxpense ~ee :as.oo 1 1 534 1 363 .SJ
2/10/l? Asae$t; Lo~ Elxpense Fee 2310~~.12 1,5341363 ,53
2/lS/l? Billed.., :tate Cha~ger; 2ll,S5 l, S34, '5'T7, 08
2/'J..5/1'7 .a:illed .. lil:Lna.n<:l,e Cha:rga 'Ar see. Gl. l, 639, l6zi, 69
2/16/l,7 current Interest Rate 3,7.SOOOOt 1,539,:1,55,63
2/1'5/17 E~:f~cti\ra Da.te
2/16/'J.7 Aaaesa tia.te C'ba:rge 2;44, 90 l,539,165,SSt
3/06/17 l\sS$~S Moa.~ Expense ~ee .as tl.74. ,40 l,;,~9 1 1$5,69
3/15/l.'7 ailied - L~te c:b.a~geg 244.90 1,539141.0,59
3/15/l 7
- , ....... 11- -
~illed - B\lua.noe ~tJ.~u:.-9e •:!:,282.70
- -- ____ .... ; 1 ~·~~, ~.~~ • 2~

The above-excerpt contains three entries described as "Assess Loan Expense Fee,"

two entries for "Assess Late Charge," two entries for "Billed - Late Charge" and

two entries for "Billed - Finance Charge." The third column from left shows the

dollar amounts for each entry. The fourth column from the left shows the running

balance of Appellant's account. With respect to the fomih column, the running

balance, note the difference between entries labeled "Assess" and entries labeled

"Billed." If an entry is labeled "Assess," the running balance does not change. 12 It

12 For fmiher evidence of this, note the two Assess Loan Expense Fee entries of
$46,148.17 and $20,772.76 on the Loan History [R. 648-649], both of which reflect
First American's payment of Laurence Schneider's Florida Ad Valorem real
property taxes for 2014, 2015 and 2016 [R. 613 & 615]. While First American did
"prove-up" its entitlement to recover of the Florida Ad Valorem taxes in its
Judgments [R. 983,980], the Florida Ad Valorem taxes paid by First American were
never "capitalized" and, accordingly, did not increase the running balance in the
fourth column of the Loan History Report.

41
is only when an entry is labeled "Billed" that the running balance increases. 13 In

other words, "Assess" fees are not capitalized, i.e., they are not added to principal.

First American does not dispute that some of the entries labeled "Assess Loan

Expense Fee" relate to the attorney's fees it has incurred in this action. Nonetheless,

a cursory review of the Loan History Report demonstrates that not a single "Assess

Loan Expense Fee" has been billed, and therefore, no attorneys' fees have been

included in First American's calculation of the unpaid principal amount. Appellant's

argument is simply based on his inability to understand the Loan History Report [R.

637-651].

7. Outstanding Discovery.

At pages 44-47, Appellant argues that the Judgments should not have been

entered while his discovery request remained outstanding, disingenuously arguing

that "the trial court had been apprised of Appellant's outstanding discovery" [Initial

Br. at 47]. While it is true that the Appellant filed a Motion for Continuance on June

9, 2017 [R. 956-970], that Motion sought only to continue the June 12, 2017 hearing

(to specially set a trial date) and the scheduled June 13-14, 2017 depositions of

Appellant and his wife, Stephanie Schneider.

13 Although Appellant incurred $732.84 in late fees from March 2015 to April
2016, and $2,679.29 in late fees from May 2016 to May 2017, First American did
not seek to recover any late fees incurred by Appellant in its Motion for Summary
Judgment (R. 532, n. 3).
42
 Fu1iher, Appellant's M.otion for Continuance did reflect that Appellant had

''filed document requests ... on Wednesday, June 7, 2017" [R. 957], he did not

specifically seek to continue the June 26, 2017 summary judgment hearing. More

importantly, Appellant never noticed his Motion for hearing. Instead, Appellant,

continuing his defense strategy of delay, delay, delay and then delay some more, 14

which delay tactics culminated in his fiivolous Notice of Removal of the action to

the United States District Court (immediately divesting the Circuit Comt of

jurisdiction). Appellant's business background (buying bulk distressed mortgages

at significant discounts) enabled him to repeatedly "game the system" 15 and thereby

postpone, if not avoid, resolution of the action. Appellant, without the assistance of

legal counsel, was savvy enough to remove the action to the United States District

14 Appellant has delayed resolution of this action by, among other things: (1)
requesting seven extensions of time to file a responsive pleading to First American's
Complaint [R. 107-108, 163-164, 165-166, 247-248, 329-330, 333-346]; (2)
requesting three extensions of time to respond to discovery request [R. 249-250, 331-
332, 357-358, 359-363, 415-416]; (3) improperly removing the action to federal
comi [R. 974-979]; (4) failing to comply with this Court's July 19, 2017, August 16,
2017 Order and August 28, 2017 Order; (5) failing to timely pay for Preparation of i'
the Record on Appeal (after entry of this Court's November 7, 2017 Order,
Appellant, on November 11, 2017, paid the Clerk of the Circuit Comi for Preparation f
of the Record on Appeal); and (6) requesting two extensions of time to file his initial I
brief.

15 Indicative o f Appellant's extensive knowledge of mortgages and ,c1oreclosures

I
is his attorney's (Kenneth Trent, Esq.) email to Appellant, dated March 23, 2017
which reads: "Larry please come to the hearing on the 28 th that way I can make sure I
that l 'm your mouthpiece and make every argument that u [sic] want made" [R.
1198].
!
43
Comi on June 9, 2017 in order to try to avoid having to attend either the scheduled

June 26, 2017 hearing on First American's Motion for Summary Judgment [R. 953-

955] or the scheduled June 28, 2017 non-jury trial [R. 511-516]. Unexpectedly, the

United States District Court immediately recognized the frivolous nature of

Appellant's Notice ofRemoval, entered an Order to Show Cause Order [R. 979] and,

upon Appellant filing his Response to the Court's Order to Show Cause [R. 976],

consenting to remand, promptly remanded the action back to the Circuit Court.

In support of his argument, Appellant cites to three cases. In each of the cited

cases, the non-movant in a summary judgment context either advised the trial comi

of the outstanding discovery and/or sought a continuance of the summary judgment

hearing. See Almond Entm 't, Inc. v. Bayview Loan Servicing, LLC, 98 So. 3d 723

(Fla. 2d DCA 2012); Brandauer v. Publix Super Markets, Inc., 657 So. 2d 932, 933

(Fla. 2d DCA 1995) and Singer v. Star, 510 So. 2d 637, 639 (Fla. 4 th DCA 1987).

Appellant did neither.

Florida Rule of Civil Procedure 1.510(f) makes it clear that circuit courts have

discretion to grant or deny motions for continuances of summary judgment hearings

to allow discovery to be taken (or affidavits filed). This Court, in Wlodyka v.

Matthews, 126 So. 3d 1084, 1085 (Fla. 4th DCA 2012), citing to Fla. R. Civ. P.

1.51 O(f), pointed out that appellant had not conducted any discovery in the four

months between filing of the lawsuit and the motion for summary judgment and,

44
finally, relied on the fact that the appellant did not make any motion for continuance

of the summary judgment hearing when it affirmed the trial court and refused to

reverse entry of summary judgment. This Court in Periera v. Fla. Power & Light

Co., 680 So. 2d 617,618 (Fla. 4 th DCA 1996) pointed out that the Fourth DCA hears

the I didn't have enough time.for discovery argument "all too often" and given the

last-minute timing of discovery, ruled that the trial court did not err in refusing to

continue the summary judgment hearing. Moreover, Periera, which relied on

DeMesme v. Stephenson, 498 So. 2d 673, 676 (Fla. pt DCA 1986), stands for the

proposition that Fla. R. Civ. P. 1.5 l0(f) required not only the filing of a motion for
I
continuance, but also the submission of an affidavit explaining to the court what f
I
!
f
additional evidence needed to be obtained. See also, Carbonell v. BellSouth I

r
Telecommunications, Inc., 675 So. 2d 705, 706 (Fla. Yd DCA 1996). In this case,

Appellant did not file a motion to continue the hearing on First American's Motion
I
f
for Summary Judgment, did not submit an affidavit explaining what additional

evidence needed to be obtained and how that evidence would create a material issue

of fact, and did not attend the hearing on the Motion for Summary Judgment.

First American's Complaint was filed on August 17, 2016. Appellant's

counsel entered an Appearance on September 12, 2016 [R. 105-106]. For more than

8 ½ months after legal counsel first entered an appearance on behalf of Appellant, no

steps or actions of any type were taken with respect to discovery by Appellant. No

45
paper discovery was served (requests for production, requests for admissions and/or

interrogatories), nor were any steps taken to attempt to arrange the scheduling of

First American's deposition. Appellant served a Request for Production on First

American on May 24, 2017 [R. 971-973]. First American's response to the Request

for Production was not due until after the June 26, 2017 hearing on the motion for

summary judgment. Appellant never sought to have the time for document

production shmiened, perhaps because his strategy contemplated that the last-

minute, frivolously-filed Notice of Removal would deprive the Circuit Comi of

jurisdiction and would delay the proceedings past the summary judgment hearing/

trial dates.

A panel of this Court in Congress Park held that there is a duty on defendants

in foreclosure cases "to act diligently in seeking the discovery" and that:

"[a] trial comi does not abuse its discretion in granting a

motion for summary judgment, despite the pendency of
discovery, when the non-moving paiiy has failed to act
diligently in taking advantage of discovery opportunities."

105 So. 3d at 608, citing Leviton v. Philly Steak-Out, Inc., 533 So. 2d 905, 906 (Fla.

3rd DCA 1988).

Discovery-wise, Appellant did too little, too late and, moreover, did not in any

fashion advise the Circuit Court of the existence of any pending/outstanding

discovery, did not request to shorten the discovery response time, nor did he seek a

46
continuance of the summary judgment hearing from the Circuit Court in accordance

with Fla. R. Civ. P. 1.150(e). Importantly, at no point, not in the Circuit Comi and

not here on appeal, has Appellant demonstrated that any of the documents requested

might create a material issue of fact.

8. Two Final Judgments/Election of Remedies.

At pages 34-37, Appellant contends that entry of the Amended Final

Judgment awarding money damages (which included the words "for which let

execution issue") constitutes an election of remedies which bars the foreclosure sale

of the Property.

It has long been a basic premise of Florida foreclosure law that mortgagees

like First American can "double-track" both the equitable remedy of foreclosure and

a monetary judgment. Under Florida law, "to collect money owed on a note, a

m01igagee may pursue its legal and equitable remedies simultaneously, until the debt

is satisfied." Hammond v. Kingsley Asset Mgmt., LLC, 144 So. 3d 673, 675 (Fla. 2d

DCA 2014). This premise oflaw is appropriately stated by Appellant at page 35 of

his Initial Brief. However, after acknowledging this basic premise of law, Appellant

improperly invokes the election of remedies doctrine to argue that First American

"had the obligation to elect to proceed with a foreclosure sale and pursue a

deficiency, or collect funds under the breach of contract" because the two remedies

are "mutually exclusive."

47
 Appellant is simply wrong -- the election of remedies doctrine applies in two

circumstances, neither of which are present in this case:

First, it can apply when the plaintiff has obtained a

judgment on one of two inconsistent theories. The facts
underlying the claims must be 'opposite and
irreconcilable.' [Citations omitted.] Remedies are only
inconsistent if they cannot logically exist on the same
facts. [Citations omitted.]

Second, if the remedies are consistent, only 'full

satisfaction' of the claim will constitute an election of
remedies. Thus, a party may get more than one judgment
so long as there is only one recovery.

Holmes Reg '! Med. Ctr., Inc. v. Allstate Ins. Co., 225 So. 3d 780, 787 (Fla. 2017).

In Hammond, a case which Appellant heavily relies on, the Second DCA

clearly stated: "The reason that an action at law on a note may be pursued
!
simultaneously with the equitable remedy of foreclosure is that the two remedies are t
I
not inconsistent." 144 So. 3d at 675. See also Klondike, Inc. v. Blair, 211 So. 2d 41,
i
t
43 (Fla. 4 th DCA 1968). Here, the relief sought by First American, money judgment

on the Note and foreclosure of a mortgage are not inconsistent. Fmther, neither the
'
I
I

r
Judgment on the Note nor the Judgment of foreclosure on the Mortgage have been

satisfied. Accordingly, the election of remedies doctrine does not apply to this case. I
I
Additionally, Appellant argues that because the money Judgment contains the

words "for which let execution issue," it constitutes an election of remedies [Initial I
Br. at 34]. That argument is flawed. In the Fomth DCA, "[t]here is no need, either

48
for purposes of finality, or for obtaining a writ of execution, for a money judgment

to provide for execution to issue." Friedman v. Friedman, 825 So. 2d 1010, 1011

(Fla. 4 th DCA 2002). See also Freedom Insurors, Inc. v. MD. Moody & Sons, Inc.,

869 So. 2d 1283, 1285 (Fla. 4t1i DCA 2004). In other words, the ability of a patty to

execute on a money judgment does not depend on whether the judgment provides

that execution may issue. Thus, even if the Judgment on the Note did not contain

the words "for which let execution issue," First American would still have the right

to execute on the Judgment.

Lastly, Appellant, relying on Bonita Real Estate Partners, LLC v. SLF JV

Lending, L.P., 222 So. 3d 647,652 (Fla. 2d DCA 2017) and Hammond, 144 So. 3d

at 675, argues that the Circuit Court erred in allowing First American "to execute on

the full amounts liquidated in the Damages Judgment" because "a foreclosure sale

had been set, but not yet held" [Initial Br. at 35]. Appellant skillfully fails to mention

that the facts of this case are different in one very significant way from the facts in

Bonita Real Estate Partners and Hammond. In both Bonita Real Estate Partners

and 1-fammond the foreclosure sales had not only been scheduled, those sales had
I
I
been conducted. Thus, in both cases the Second DCA held that: "Once the party has If
obtained a foreclosure sale of the property, it cannot collect on the note other than to I
I
pursue a deficiency judgment." In other words, once the foreclosure sale is
I
I
!
conducted and the property sold, the foreclosing party may not execute on money
I
49
judgment, except to pursue a deficiency judgment. That is not the posture that exists

in this case. Appellant's reliance on Bonita Real Estate Partners and Hammond is

misplaced.

Accordingly, the Judgment on the Note does not constitute an election of

remedies barring the foreclosure sale.

CONCLUSION

For all of the legal and factual reasons above, no reversible error on the part

of the Circuit Court has been show, and First American would submit that this Court

should summarily issue a per curiam affirmance on all issues.

50
 Respectfully submitted,

KELLER & BOLZ, LLP

Attorneys for Appellee,
First American Bank
121 Majorca A venue, #200
Coral Gables, FL 33134
Telephone: (305) 529-8500
Telefax: (305) 529-0228
Email: hbo1z@kellerbolz.com
Email: smesa@kellerbolz.com

By: _ _ ............,~--+"--....___,_ _ _ __

She aMesa
Fla. Bar No. 86148

I
i

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I

51
 CERTIFICATE OF SERVICE

1 hereby certify that the foregoing Appellee's Answer Brief has been furnished

to RY AN D. GESTEN, ESQ. (rgesten@sbwh.law), Shapiro, Blasi, Wasserman &

Hermann, P.A., 7777 Glades Road, Suite 400, Boca Raton, FL 33434; ROBIN I.

FRANK, ESQ. (rfrank@sbwh.law/nlewis@sbwh.law), Shapiro, Blasi, Wasserman

& Hermann, P.A., 7777 Glades Road, Suite 400, Boca Raton, FL 33434; and JAY

S. LEVlN, ESQ.(foreclosures@ssclawfirm.com), Sachs, Sax, Caplan, Attorneys for

Oaks at Boca Raton, 6111 Broken Sound Parkway, N.W., #200, Boca Raton, FL

33487 via Email on this Th day of February, 2018.

BOLZ, LLP

l
I
J

I
J

I
l

I
II
52
 CERTIFICATE OF COMPLIANCE

WE HEREBY CERTIFY that the font in this Answer Brief (Times New

Roman 14-Point) complies with the font requirements of the Florida Rules of

Appellate Procedure 9.21 0(a)(2).

Dated: February 7, 2018.

KELLER & BOLZ, LLP

Attorneys for Appellee
121 Majorca A venue, #200
Coral Gables, FL 33134
Telephone: (305) 529-8500
Telefax: (305) 529-0228

::ail hb1z@ki]~zco
Henr . Bolz, III
Fla.1\_8: o.260071

53