214not 1

Filing # 65271933 E-Filed 12/12/2017 11 :53 :07 AM
IN THE CIRCUIT COURT OF THE 15TH

JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CASE NO. 502016CA009292XXXXMB(AH)
FIRST AMERICAN BANK,
Plaintiff,
vs.
LAURENCE S. SCHNEIDER,
STEPHANIE L. SCHNEIDER, et al.
______________
Defendants.
/
a rue and correct copy of the foregoing has been
furnished on December 1e, 2017, via transmission of a notice of electronic filing
generated by the Flor" , a Courts E-Filing Portal to Henry H. Bolz, Ill, Esq., Counsel for
Bolz, LLP, 121 Majorca Ave., Suite 200, Coral Gables, FL 33134
Sac s~ a , Caplan, 6111 Broken Sound Pkwy., NW, Suite 200, Boca Raton, FL 33487
(foreclosu res@ssclawfirm.com ).
FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 12/12/2017 11 :53:07 AM
1
1 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA
2
3 CASE NO.: 50-2016-CA-009292-XXXX-MB (AH)

4
5 FIRST AMERICAN BANK,

6 Plaintiff/Petitioner,
7 vs.
8 LAURENCE S. SCHNEIDER,
9 STEPHANIE L. SCHNEIDER,
10 JEFFREY MARC HERMAN,
11 et al.,
12 Defendants/Respondents.
13
14
15 T, N r PT OF PROCEEDINGS
16 BEFORE
17 HE HONORABLE LISA SMALL
~~
18
19
20 0 Palm Beach County Courthouse
205 North Dixie Highway, Courtroom llC

22 West Palm Beach, Florida 33401
23
24 November 8th, 2017

25 1:00 p.m. - 2:10 p.m.
JULIO A. MOCEGA & ASSOCIATES 305-374-0181

2
1 APPEARANCES:
3 For the Plaintiff:
4 HENRY BOLZ, ESQUIRE
5 SHEYLA MESA, ESQUIRE
Keller & Bolz, LLP
~4
6
7 121 Majorca Avenue, Suite 200
9
Coral Gables, Florida 33134
305-529-8500 Go
10 hbolz@kellerbolz.com ,.n
11 smesa@kellerbolz.com ~Y
~
12
13 For the Defendants:
14
15 Shapir sserman & Hermann, P.A.
16 7777 , a s oad, Suite 400
17 Boca Ratl n, Florida 33434
18 5~ Y'"J 7-7800
19 ~ rgesten@sbwh.law
20
0
22
23
24
25

3
1 THEREUPON:
2 THE COURT: Good afternoon, everyone. This is
3 the case First American Bank versus Laurence
4 Schneider, Stephanie Schneider and the court
5 reporter. We'll just wait one moment. We'll have
6 appearances and then we'll proceed.
7 MR. BOLZ: Henry Bolz of the firm d
8 Bolz along with my associate, Sheyla ~
9 the plaintiff, First American Bank aloW -ith Dan
10 Pache (phonetic), Senior Vice the
11 bank.
12 THE COURT: Defen /,
13 MR. GESTEN:
14 Gesten of asserman, and Hermann on
15 behalf of th · s Laurence and Stephanie
16 Schneider, n~ ave with me Mr. Laurence
17 Schneider.
18 URT: Good afternoon, and I did read the
19 , , i on, the supplemental memo, the response, so I'm
20 up to speed on what the issues are seeing
2 perspective of both sides. So we'll
22 ~ proceed with the moving party, and then I'll hear
23 the response.
24 MR. GESTEN: Thank you very much, Your Honor.
25 I know we only have an hour set, and we are limited

4
1 to a singular issue. However, this singular issue

2 of the amount of bond that should be placed if a
3 bond is even required at all to -- The Court why
4 discretion, and that's the case law that I cited.
5 Now really, you could issue a stay even
6 without a bond if you wanted to, and as such I

7 believe it's very important that some of tru ts
8 of the case and the history of how we , ~ e is

9 incorporated into my argument, but I' ep it
10 very brief, Your Honor.
11
12 knows, I haven't been · very long, but

13 from the short time t ave been representing
14 Mr. Schneider, _lethora of documents that
15 you see that on Monday and again today,
16
17
which is or . · 11 portion of actually of what
Mr. Schnei <SiB .r/is providing me with. I can

18 affirm~ wely state this is not your typical
19
0
~ closure case.
20 I think that came to light, Your Honor, on
2 Monday when Mr. Bolz said to you that as of the
22
'y date of those records that were provided, not the
23 date of the hearing, but the date of those billing

24 records provided to you he has already billed and
25 been paid by the bank 285,000 dollars for a

5
1 mortgage foreclosure on a residence with -- that
2 didn't even go to trial.
3 THE COURT: Right, it was disposed in the
4 Summary Judgment.
5 MR. GESTEN: That's correct, Your Honor.
6 THE COURT: Without opposition.
7 MR. GESTEN: Correct. Well, it
8 Summary Judgment wasn't imposed. It
9 Schneider didn't appear.
10 THE COURT: Right, I that there
11 wasn't -- that hearing wasn'
12 opposition.
13 MR. GESTEN: Th Your Honor. So I
14 think even just the na Te of that proves to this
15 Court that a standard foreclosure
16 option, give you a brief recital of
17 some of the..;:ox her things that we've had.
18 chneider owned a corporation called First
19 Loan Servicing and a company called SNA
20 apital Partners, Inc. These companies were in a
2 of buying wholesale home mortgages. By the
22 ~ -- like, thousands of them at a time, and in so
23 doing so his corporations and him personally had
24 dealings with First American Bank's predecessor,
25 and there was more than just a mortgagor mortgagee

6
1 relationship between the parties.
2 They were business associates. They dealt in
3 very large scale transactions and were co-
4 guarantors and co-mortgagors or mortgagees rather
5 of the properties. This has resulted in qui tam
6 litigation in New York federal court,
7 pending in Florida federal court, and
8 SMA case in state court as
9 from the very beginning, even prior
10 foreclosure being instituted was 'n iscussions
11 with Mr. Bolz directly relat - ~ pre foreclosure
12 attempt at a loan some other kind
13 of workout.
14 That pre suit ~ication and attempt to work
15 out resulte an actual workout. It didn't
16 even resul etter accepting that there was a
17 completed A letter denying that there was a
18 A letter denying that loss
19 tion would be done. It only resulted in the
20
2 MR. BOLTZ: Your Honor, this is an evidentiary
22 ~ hearing, and if he wants to put a witness on that's
23 fine, but this is -- I mean, there's been about 15
24 different statements that I've let go by, and it's
25 not anywhere in the record. It has nothing to do

7
1 with nothing, and I object to it just because it
2 just -- it's irrelevant.
3 THE COURT: He's saying the argument at this
4 point I need to stay within the form -- within the
5 parameters of the factors that I need to consi : ,

6 as it relates to this case. ~
7 MR. GESTEN: Understood, Your Honor " ~

8 THE COURT: Okay. "
9 MR. GESTEN: I have two sentences
10 was done.
11 THE COURT:
12 MR. GESTEN: The you all this is
13 this foreclosure from somebody simply
14 not paying Schneider attempted,
15 and we can stand to testify to it
16 that he was at t.~ pting to pay at all times. His
17 corresponder:rr;,:/ to the bank and to Mr. Bolz was
18 much do I owe. How much do you need me
and you'll see from those statements that
provided to you, Your Honor, and I can provide
again when we get into some evidence that Mr.
22 Schneider was actually still making interest
23 payments.
24 They were just being calculated in an odd way
25 and were always making him late even though he

8
1 wasn't, and although Mr. Schneider's affirmative

2 defenses were stricken in the case from his prior
3 attorney that I discussed with you at length on
4 Monday, one of those affirmative defenses was that
5 his payments were being misapplied or miscalcula l d

6 to misconstrue the fact that he actually was R~ ng
7 this loan on time.
8 Why does this all matter?
9 Your Honor, on Monday Mr. Bolz
10 there is no waste to this prope
11 the 1.3 million value.

12 THE COURT: Right, hat was stipulated.
13 MR. GESTEN: ~n of a bond is to keep
14 the parties in ·o. Basically to protect the
15 the loss of the asset that
16 is the su his sale. There is no evidence
17 that will , laced before this Court that will
to this property will occur, or
really anything is required to keep the status
2 In fact, in the current real estate market
22
'y properties are increasing in value. This statement
23 only increased the amount of money that they could

24 recover, okay. So Your Honor what I really wanted
25 to do in filing my motion was ask Your Honor to

9
1 issue a stay without any bond, and I thought that
2 would be a hard pill for everyone to swallow, even
3 if it was correct because you are given huge
4 discretion.
5 So I came up with a calculation that shows
6 that 115,000 dollars is sufficient to protect
7 status quo in this file and protect them
8 potential loss. What Mr. Bolz is
9 Honor, is that the bond needs to
10 million of the value of the horn - Your Honor,
11 that would be double dipping.
12
13 you need a bond to t - e home if they are

14 seeking that at ~tion of the home be
15 included in m going to ask Your Honor to
16 release the lien on the home, which I'm sure
17 nobody's g&r-1Yg to approve today.
18 at we're going down is I understand this
hearing, okay, but there's really
that needs to be put before Your
2 _.,....,'.t--......,;:!11,,. for you to make a determination of what would
22 allow the parties to be in the status quo because
23 the two main issues were already stipulated on
24 Monday.
25 One, the value of the property, which is under

10
1 the case law as an important factor, and two, what
2 is required to keep the status quo. That's it.
3 THE COURT: I have right now Plaintiff's
4 Exhibits A and D. As is the appraisal and Dare the
5 Plaintiff's lawyer's billing and invoices, and ~} n
6 you can draw -- I have this, too, from the n.
7 It wasn't marked an exhibit. This
8 statement from First American Bank th
10 MR. GESTEN: Yes, Your H can move that
11 into evidence as Defendant's at's what
12 you're using.
13
14 MR. BOLZ: J 7 strenuously. It's a
15 statement er of 2017. It's six months
16 later. We / k i t has anything to do with
17 anything ) determining the amount of the bond.
18 We ob'
19 THE COURT: The objection is relevancy. What
20 the relevancy?
2 MR. GESTEN: Your Honor, that's an improper
22 ~ objection for whether something should be admitted
23 to evidence. The relevancy
24 MR. BOLZ: There's no basis for it either,
25 Your Honor. Nobody's testified about what it is or

11
1 where it came from. There's no foundation for it
2 either.
3 MR. GESTEN: I haven't cut off Mr. Bolz yet
4 today, Your Honor. I appreciate the same courtesy.
5 THE COURT: Right. You'll have the -- Mr.
6 Bolz, you'll have the same opportunity to spea~
7 without interruption unless there's legal S.,

8 objection. There was a legal objectioC T '
9 relevancy. So --
10 MR. GESTEN: Your Honor, is not a
11 proper objection
12 proper objection calculated to
13 lead evidence.
14 THE COURT:
15 discovery.
16 understand, Your Honor, but
17 so the relevancy is that he
18 provide~ he Court documents of his bill.

19
20
2
0
~ THE COURT:
MR. GESTEN:
Right.
I have showed that his billing is
placed on the banks own statements, and that that
22
'y statement actually corresponds to the affidavit
23 that you were provided --
24 THE COURT: Right.
25 MR. GESTEN: On Monday.

12
1 THE COURT: It was.

2 MR. GESTEN: And in that affidavit it was an
3 affidavit executed --
4 THE COURT: The affidavit
5 MR. GESTEN: Gary Smith, right.
6 THE COURT: Right?

7 MR. GESTEN: Right.
8 those records being attached
9 the basis of the amount that
10 judgment on. That bill clearly i ~ - es Mr. Bolz's
11 attorney's vancy is that

12 the number of the jud /, inflated by
13 attorney's fees, i 0 st, and other items in

14
15 which is why the judgment to have an
16 incorrect a~ u ) which is one of the reasons the
17 appeal, Your Honor.

18 URT: I have that affidavit of
19 t l ~ btedness executed by Gary Smith.
20 MR. GESTEN: Yes, Your Honor.
2 THE COURT: And the payment, full list of the
22
'y payment history. This in support of the Motion
23 for Summary Judgment.

24 MR. GESTEN: Yes, Your Honor. That's correct.
25 So yes, Your Honor. So that is already within The

13
1 Court. It is evidence they submitted. Certainly I
2 don't need to admit that evidence for the record --
3 THE COURT: It hasn't been formally admitted,
4 but I was given it. I don't recall if the plaintiff
5 gave it to me on Monday, or if you gave it to me.
6 MR. GESTEN: I gave it to Your Honor, and ~ '
7 ask you to take judicial notice that is the S . ,
8 affidavit filed as an attachment to t & iff's

9 Motion for Summary Judgment.
10 MR. BOLZ: It's part of
11 There's no question about
12 THE COURT: Is the ction to this
13 coming into eviden
14 MR. BOLZ: the only thing I'm
15 going to obj characterizations of what
16 we've donee w at we've said, and again, it's not
17
18 URT: Is there a legal objection. I
19 erstand that you dispute what -- how I should
20 this document, and you dispute the argument
2 what the significance of the
22
'y document. Do you object to it?
23 MR. BOLZ: I'm not going to object to my
24 client's own affidavit, Your Honor. So I'm not
25 going to object to it.

14
1 THE COURT: All right. So let's -- so let's --
2 I just want to follow procedure here. This will be
3 -- that will be Defendant's Number 2, and then
4 Defendant's Number 1 will be a list of assessed
5 loan expense fees. That will be marked for ID. : ~t

6 is 1 IDed, Defendant's 2 in evidence without ~
7 objection. You may proceed.
8 MR. GESTEN: So, Your Honor,
9 a few cases. The first case that Serino
10 (phonetic) v Kovitch (phonetic is 406
11 Southern Second 125, and i
12
13
14 15
15
16 not have ires imposed supersedeas bond in
17 the al to outstanding balance on notes
18 mortgage plus 15 percent, which very
19 what they're asking for.
20 And the case law clearly states that that
2 would be improper, that calculation. There, and
22
'y Your Honor, admittedly, there is very little case
23 law on actual appellate issues of the amount of
24 bonds, and we did provide you with copies of the
25 cases. I've asked Mr. Bolz if he needs copies. He

15
1 says no. Would you like me to bring you copies up?

2 THE COURT: I have the copies. They were
3 provided to me as part of the supplemental memo of
4 loan.
5 MR. GESTEN: Okay.
6 THE COURT: All right.

7 MR. GESTEN: So the other case that
8 Silver Beach Towers versus Silver Beat

9 Investments, which was actually decid~ bruary
10 27 th , 2017, and that is 2017 42
11 Florida Law Weekly D442, an a trial

12 court has the authority
13 pursuant to the ru r f)ltt ng state pending refute
14 to enter a or judgment under
15 conditions bond so long as the
16 conditions to ensure payment.
17 So wh · s before you, I guess, is one

18 M , OLZ: Your Honor, just -- I think that,
19
0
~ again, apparently Mr.
20 THE COURT: Gesten.
2 MR. BOLZ: Gesten is unaware of the fact that
22 ~ the Supreme Court weighed in on Silver Springs case
23 -- Silver Beach case in July, and so there's a

24 further opinion, which I think is we should all
25 have. I've got a copy for opposing.

16
1 THE COURT: Okay. Thank you. Appreciate it.

2 You may approach.
3 MR. BOLZ: Yes.
4 THE COURT: Thanks.
5 MR. BOLZ: And it's dated July 13 th , 2017.
6 THE COURT: Okay, thanks.

7 MR. GESTEN: And Your Honor,
8 know about that, but
10 Supreme Court relates to money j~,Zynts. The

11 judgment we're seeking a bo~ ~e is not a
12 money judgment. It's a f~~Yre judgment. So it
13 wouldn't change anyt · relying on.
14 MR. BOLZ: I'I~ or, again, I'm -- I think
15 we've got to o that statement because
16 THE is just argument.
17 MR. all right, all right.

18 T~ OURT: In terms of
19 Yes, ma'am.
20
2
0
~ MR. BOLZ:
THE COURT: Right. So I'll just hear the legal
argument from the plaintiff so I can fully know
22
'y MR. GESTEN: The judgment we're seeking to
23 stay, Your Honor, is the foreclosure judgment

24 setting a sale. We're seeking to stay the sale.
25 That's the judgment that's up on the queue, not the

17
1 money judgment. So Your Honor has why discretion.
2 THE COURT: So you're not appealing the amount
3 of money that was awarded in the judgment?
4 MR. GESTEN: It's under
5 THE COURT: You're not clear on that.
6 MR. GESTEN: We are. We are appealing the
7 foreclosure judgment on one of the basis o s
8 the amount entered, but however, 1 and
9 Rule 9.310 treats money judgments, jutigmeJ ts that
10 liquidate money differently
11 judgments because the
12 although it states an
13 liquidate that amoun . why they were
14 acquired, and g 1 hat most plaintiffs do is
15 wait for th , y, and then they issue a
16 deficiency ~m ,nt because that liquidates the
17 amount.
18 I ~ lS case what occurred is a second
19 Q~ment and called an amended final judgment was

20 days after the initial final judgment
2 liquidated an amount against the Scheinders.
22 ~ And that judgment is not up on appeal as we
23 sit here right now, and it's the issue that we are
24 staying, that we're seeking a stay on. That
25 judgment is actually stayed by operational law.

18
1 MR. BOLZ: Your Honor that is an absolute

2 misstatement. Both judgments are up on appeal. Both
3 have subject to the Notice of Appeal that Mr.
4 Schneider filed. I just -- I can't stand for that.
5 MR. GESTEN: The notice
6 Notice of Appeal. The Notice of Appeal says th

7 the judgment being appealed is the June t
8 judgment. That's what it says on the he
9 Notice of Appeal filed with this
10 THE COURT: Is there notice in the
11 field?
12 MR. GESTEN: No, You or,vr .
13 MR. BOLZ: Yes, was, Your Honor. That's
14 correct.
15 MR. GESTE · . Not that I've seen, Your
16 Honor.
17 THE R/ : All right. I'll just take a look

18 at it now.
19 MR. GESTEN: But even still, Your Honor, even
20 I'm wrong, Your Honor, okay, the amended
2 judgment liquidating the money is stayed by
22 ~ operational law. They cannot execute on a money
23 judgment prior to a sale of the property because

24 you don't get -- know whether anything is going to
25 be owed. Whether there's going to be a deficiency.

19
1 If the sale of the property is sufficient to
2 pay off the judgment there is no execution on the
3 money judgment. That's one of the issues we have
4 with the money judgment.
5 THE COURT: I'll entertain your position.
6 MR. GESTEN: So the calculations are not
7 not take into account in a
8 where you are attempting a
9 does not take into account
10
11 the amount necessary to kee£
12 quo prior to the sale.
13 So the question · much money
14 needs to be posted~ n oder to keep them in the

15 same positi 4~e sale occurred on November
16 ver that Monday is. I forgot. I
17 26 th versus whatever the appeal is
18 resol
19 Now generally we take the position that
20 peals take a year or two, and therefore the
2 are usually based on that.
22 ~ Interestingly enough in this case, the Fourth DCA
23 yesterday entered an order requiring that the
24 initial brief and some other conditions on the
25 defendants be complied with by November 22 nd with

20
1 no further extensions.
2 This appeal is going to go very fast. We don't
3 need to include in the bond interest for two years
4 because it doesn't seem like this is going to be
5 around for that long based on the fact that there's
6 already a no final, no further extension order

7 entered giving a deadline of November 22n"
8 Honor. '7
9 THE COURT: All right. On the am~ Notice
10 of Appeal -- let's have the one the
11 announcement.
12 MR. GESTEN: It says ~ a t's appealing the
13 judgment of the 26 th • I didn't see that,
14 Your Honor.
15 now what, what it says is
16 Defendant' · nt Notice of Appeal. It
17 reference / e 26 th , 2017.
18 Correct. If they want to
19 RUlate the money judgment is also upon appeal.
20 THE COURT: Well, it says here -- well, the
2 judgment and that's the amount here. I'm looking at
22 ~ what the judgment that's attached to the amended
23 Notice of Appeal is the one that's in the amount of

24 one point -- it's 1,065,072.21.
25 MR. BOLZ: And that judgment was entered upon

21
2 THE COURT: This one's entered June 26t\
3 2017.
4 MR. BOLZ: Right, it doesn't say -- it's not
5 actually liquidating the amount that's against h ~ .

6 It's saying that they're entitled to a foreclo~ ~
7 and that's the credit. There's a second 'ud m t,
8 Your Honor. There's actually a third .
10 Judgment, yes. That one's attac this amended
11 Notice of Appeal, and it's e~ 30, 2017
12 signed by -- ~~
13 MR. BOLZ: 111....~
14 THE COURT: E &ludis (phonetic).
15 MR. gt.
16
17 all
18 Okay. So --
19 THE COURT: Appeal all the way up to
20 dgments.
2 MR. GESTEN: I hope it's that clear, Your
22
'y Honor, to be honest.
23 THE COURT: I'm looking at the -- I don't have

24 my computer.
25 MR. GESTEN: No, I understand the attachment,

22
1 but the Notice of Appeal doesn't reference

2 THE COURT: It doesn't, it doesn't.
3 MR. GESTEN: Right, it doesn't say it's
4 actually appealing the June 30 th Amended Final
5 Judgment.
6 THE COURT: I'm just -- right. That's

7 saying. It has all of these --
8 MR. GESTEN: I didn't mean to er~ n , kind

9 of -- I just didn't see on the cover OE t , e notice
10 that it was appealing.
11 THE COURT: No, I

12 didn't -- I understand th dn't miss --
13 MR. BOLZ: We lf of the Schneiders
14 are you saying appealing the money
15 judgment?
16 MR. G~ST . I cannot say that. What I am
17 saying is ~ crl n't believe it's

18 Of course.
19 MR. GESTEN: It's clear to the 4 th DCA unless
20 stipulating that that is also an appeal of
2
22 ~ THE COURT: Okay. That could be an issue with
23 the 4 th DCA, but what I -- I just told you what I

24 see on the computer, and I read the memo. I
25 understood -- how you came to your calculation, and

23
1 I understand the defendant's position in terms of
2 what The Court should base it on, and what should
3 be removed from the calculation, and -- I followed
4 the reasoning that was given in the supplemental
5 memo.
6 MR. BOLZ: Yes.
7 THE COURT: Do you wish to put
8 on at all or any other witness on?
9 MR. GESTEN: No, Your Honor. I
10 there's any actual issue that o be taking
11 evidence look,
12 I didn't notice it as a I
13 walked into this afte/ believe it's
14 completely lega mv tative

15 THE COUR. it as a -- or I did.
16 MR. G~ ST . So I believe it's completely
17 legal argumfill / to be presented to you with some
18 facts they have anything that they feel
19 at they need to prove because it is actually is
20 ere burden to prove the amount that needs to be
2 then they can so do.
22
'y As far as us being the ones that actually
23 followed the motions, so maybe you're taking us
24 prior, I don't -- right, I don't see any need to
25 put on any evidence other than rebuttal evidence,

24
1 Your Honor.
2 THE COURT: Any -- let me hear now the
3 position from the plaintiff, and any other
4 testimony or evidence that you wish to present.
5 MR. BOLZ: A few things, Your Honor. I thin
6 we need to get a couple things clear. Number o
the first thing I am going to say is the
Str
7 t
8 District Court of Appeal dismissed

9 Schneider's appeal on October 11 th • He~ p peal was
10 dismissed. It was not -- no mot i rehearing
11
12
13
14
15 the Motion Foreclosure Sale as being
16 moot as to has no further interest in it.
17 It's gone f, :r/her.

18 T~ rtgage, the foreclosure judgment was
19 ~ red against her, and an appeal was taken. The
was dismissed. It's over vis a vis her. So
Schneider's left alone in the case,
22 and we think that as a house cleaning matter almost
23 that I've got an order that says that she should be

24 -- an order in a judge that Stephanie L.
25 Schneider's request for temporary restraining or

25
1 motion for stay pending appeal is rendered moot and
2 therefore denied, And I just think that that's --
3 I'd like to --
4 THE COURT: You can hand that to me right now.
5 That's fine. I'll hold that, and then
6 over -- after we've heard
7 I'll hear any rebuttal to
8 you.
9 MR. BOLZ: Your Honor, okay, we
10 about, and Mr. Schneider's indicated
11 about the -- basically has the
12 likelihood of , s, and the
13 likelihood of stay not be granted.
14 I think to get into those,
15 but before Gesten advised that that
16 the burde is on us to show what the
17 amount of ~ e ond has to be in. I'd love to see
18 his au~ ty because the only authority I'm aware
19 , ~ i s the Platt versus Russick (phonetic) case,
20 is cited in memo to your or my response in
2 quote, and it's Platt versus
22 ~ Russick. Quote, both the burden of proof and
23 persuasion imposed to impose conditions that do not
24 guarantee the full payment of judgment at the
25 conclusion of the appeal shall be on the judgment

26
1 deter close quote.

2 Respectfully, the burden of proof is on Mr.
3 Schneider to show why he should not post a full and
4 complete bond. The other thing I think Your Honor,
5 that I think was again cited in my pleading, and
6 that is the Paybian (phonetic) case, Fourth

7
9
District Case 1985, which says quote
principle in setting a superstitious rd

protect the party in whose favor judgment was
is
10 entered by assuring its event the
11 judgment is affirmed on
12 To this end, the p of conditions
13 of the superstitious e determined from the
14 facts of the part ~c la case. So we need the facts
15 of the part' , and I again, if they're
16 not going any evidence I'm not certain
17 that a st here's any basis for a stay to be

18 entere all, and I have a draft order that says
19 ~ there should not be a stay full stop.
20
2
0 There is no like there is no likelihood of
success on appeal, and there's no harm if this --
22 ~ if the sale goes forward. The other thing, Your
23 Honor that I would like to state is that there are

24 two judgments that we're here talking about, and
25 they are -- one is the June 26 th foreclosure

27
1 judgment. The second one is the June 30 money

2 judgment, and one of the cases that Mr. Gesten
3 cited to this Court was the Hammond case, and the
4 Hammond case is --
5 And you have it, but essentially what it sa ¥{'
6 is that what is very regular in these cases is4:n-a~

7 the legal, the money judgment, can be
8 through execution. The foreclosure
9 pursued through foreclosure, and double
10 tracked if you will, and the case says that
11 they are double tracked, an Gesten has

12 indicated is that, is ,. s matter of law we
13 are stayed.
14 Again, he would love to
15 see ecause I am unaware of that,
16 and I don' hat's so, and in point of fact I
17 would say ~ ~ the Hammond case, along with the

18 Estate partners case, which -- may I
19 Your Honor?
20 THE COURT: Yes.
2 MR. BOLZ: Which talks about Hammond makes it
22
'y clear to that, the --
23 THE COURT: What is the motion for me to lend

24 a final judgment?
25 MR. BOLZ: It was -- Your Honor, it was done

28
1 in accordance with the request from The Court.

2 THE COURT: Where is that? I don't see it.
3 MR. BOLZ: There was no motion to --
4 THE COURT: Oh.
5 MR. BOLZ: It was -- there was no Motion
6 Amend, Your Honor.

7 MR. GESTEN: Correct,
8 of our main issues here is
9 THE COURT: It's just I've -- I
10 anything like that before. was my asking
11 question.
12 MR. BOLZ: of the matter
13 is that they were bot d, and then it was
14 amended just &~ e of form.
15 THE the now, though, it's
16 not just form. Now there's, like, some
17 other sig ance to it that I'm hearing is being

18 argue ugh.
19 MR. BOLZ: Well, again, I -- Your Honor, the
20 judgment is the exact -- the money figure is
2 in both judgments. It's just
22
'y THE COURT: I know, but what you're seeking to
23 do, though, is that -- if I'm hearing you correctly

24 is you're saying this is a money judgment. We can,
25 we can go and execute on that --

29
1 MR. BOLZ: Yes, ma'am.
2 THE COURT: Outside of the house, and go do
3 our discovery and aid of execution back to what
4 areas -- the usual path, but I don't -- the
6
procedural history is void of how that
MR. BOLZ: Again, Your Honor

amen; ~
7 THE COURT: Judgment came to be.
9
MR. BOLZ:
THE COURT:
And again
And then you know wh

0
10
11
12
13 (phonetic). It hast n there, the amount
14 of money. That -
15 Honor, this is the subject
16 of a Motioc o of that Amended
17 Judgment, wJi±;/ h has yet to be.
18 And then there's another file in
19 That's docket number 126. Then
20 entry number 129. Final -- amended
2 final judgment, and then there's a docket entry
22
'y number 130, amended, and they all have different
23 different -- so there's -- I'm just looking at your
24 file. I am just a successor on this case.

30
1 THE COURT: Assigned to get the case tried.

2 MR. BOLZ: Right.
3 THE COURT: So I know that that stood out to
4 me.
5 MR. BOLZ: Your Honor, the one thing I woul s!(

6 say in that regard is that both judgments are ti~
7 the Fourth DCA on appeal. I think that
8 get to -- you need to consider the --
9 THE COURT: I'm just trying to- ~
~
10 to
11 MR. BOLZ: I underst
12 THE COURT: The N ppeal and the
13 amended, so I have to t's my base document.
14 That's why I no .
15 MR.
16 THE I'm not here to change
17 the don't have any authority to touch

18 it. Th" ~ime has passed. No jurisdiction to
19
0
~ ort at this point. I understand that --
20 MR. BOLZ: There have, in fact, been two
2 motions.
22 ~ THE COURT: Well, we don't have any motions
23 yet where I'm at, but we've had motions previously

24 that were breached.
25 MR. BOLZ: That's right, yes.

31
1 THE COURT: And there's no motion in front of

2 me right now to -- is there?
3 MR. GESTEN: It's not set for today, but there
4 is a motion filed. That's what I wanted to argue on
5 Monday.
6 MR. BOLZ: What?

7 THE COURT: What is
8 MR. GESTEN: My understanding is
9 Schneider and his wife filed a Motion
10 Reconsideration of the order de the motion for
11 reconsideration of the amen - ~ .-

12 THE COURT: No.
13 MR. BOLZ:
14 THE COURT: it, but I'll
15 just
16 number six allow parties or counsel to set
17 for otion for Rehearing. You send it to

18 The C copy of it. Then The Court in chambers
19 eview it, and then give per the direction on
20 real clear. My issue today
2 is to stay, and if I'm going to stay it, what are
22 ~ the files and conditions.
23 MR. BOLZ: Correct. Your Honor, there have

24 been -- there were in fact two Motions for
25 Reconsideration filed from the judgments, and both

32
1 of them were denied by this Court on different -- I

2 believe it was Judge Lubitz (phonetic) in both
3 cases, but yes, the initial one was denied on July
4 18 th , and the second Motion for Reconsideration,
5 which was a nullity under operation law was den~;f

6 on August 24 th , 2017. ~
7 So if there is yet a third Motion for
8 Reconsideration, I have never seen it or
9 it, and not terribly concerned because th re's no
10 legal basis for such an animal
11
12 to the Fourth District , can be

13 briefed out there ·ssues would be sorted
14 out there
15 out.
16 Sob bond, and Your Honor, our
17 position · at because they've -- the Notice of

18 Appeal attached to it both judgments that both
are being appealed, and from that we took
that we put on there in motion,
to have a bond that that applied
22 to both, and so we have not initiated execution
23 efforts.
24 We have not done anything to start execution
25 on the money judgment. We have been trying to get a

33
1 foreclosure sale date with no luck. We have two
2 judgments. What my what I'm thinking -- well,
3 what I'm saying
4 THE COURT: We have a foreclosure, don't we,
5 on
6 MR. BOLZ: Yes, we have a foreclosure sal
0~
7 date.
8 THE COURT: Right.
9 MR. BOLZ: There has not been a
10
11 THE COURT: But when
12 gotten a foreclosure any luck. Well,
13 we have a sale date t right?
14 MR. BOLZ: ' ~r y, yes.
15 THE , okay. I didn't follow that.
16 When you (l~a we have not gotten a foreclosure

17 sale with ~ luck we haven't been
18 We have not gotten to the point of
19 sale.
20 THE COURT: All right.
2 MR. BOLZ: There have been a couple of dates
22
'y set, and they get cancelled. One was cancelled by
23 Hurricane Irma. One was cancelled by Judge
24 Ferrara's order. I believe it's Judge Ferrara's
25 order, yes, and so -- but there are two orders, and

34
1 what we think that you need to apply
2 Realistically, I think you need to enter two
3 orders on the bond, and I think one bond has to be
4 entered on the money judgment, and one has to be
5 entered on the foreclosure judgment, and the
6 the money judgment is very simple because it
7 it's a money judgment,
8 rule of civil --
9 Florida Rule
10 9.310 (B) (1) Money which says
11 that if they want gets bonded
12 out for the full amount two
13 if you
14 do the math amount is -- it's -
15 - I'll have th- . , for you right quickly. Just
16
17 So :/d -- and then we need -- there is
18 you discretion, and with bonding out the
times two times the judgment. It's
it -- you have no discretion on that. The
2 _.,....,'.t--......,;:!11,,. that that's what you have to do, and the
22 law is this circuit and in other circuits is that
23 you have no jurisdiction -- you have no discretion,
24 pardon me, Your Honor, you have no discretion on
25 that, but rather that you have to enter that. If

35
1 they -- if they want to stay the money judgment,

2 they have to post a bond for the full amount of the
3 judgment plus the statutory rate of interest 5.05
4 percent for two years, and the -- although Mr.
5 Gesten indicated in his memo that the Fourth ......__'\

6 District does not appear to have ruled on this~
7
8
issue, that's not exactly so.
The Fourth District in Caruso

~
9 ruled on that, and -- if I may?
10 THE COURT: Yes, thanks.
11 MR. BOLZ: appellate

12 rule applies, and you can no
13 discretion. It's jus oney Judgment Rule the
14 one point or 9. 1 - Bl ~ ans what it says. If you
15 want to bond · ond it out for the full
16 amount, an d we nk that that -- we're entitled to
17 an order t ~ t l at affect, and -- now, you do have

18 We ~ ink that, and if the money judgment is
19 ~ ed out that moots the need for a superstitious
20 bond because we're not saying there needs to be two
2 bonds, but we do -- there have to be -- it has to
22 ~ be bonded out, and if they want to bond out online
23 the foreclosure sale, and we'll talk about that in

24 a minute, then we still have the right to continue
25 on, and we can then go down the execution road.

36
1 We don't have to wait for the appeal to go on

2 for two years. We can then go on and do the -- go
3 down the execution road, and which would, you know,
4 again, that could be done, but the fact of the
5 matter is we're entitled to a bond for the full
6 amount, and it -- that amount, Your Honor,

7 The Final Judgment on it
8 and 71 cents. The interest the extr
9 for two years is 164,132 dollars and nts,
10 which totals 1,789,205 dollars ve cents,
11 1,789,000.
12 THE COURT: Wait d how could this
13 work. If you got t dgment against Mr.
14 Schneider fort d then you've got the sale
15 running at me, and then there's
16 executing against Mr.
17 Schneider then the sale -- how

18 do yo lve it together?
19 MR. BOLZ: It fits together, Your Honor, with
20 THE COURT: If you collect 500,000 on this,
2 a round number, and
22 ~ MR. BOLZ: Right.
23 THE COURT: And collect it against a bank

24 account that Mr. Schneider has on his own.
25 MR. BOLZ: Right.

37
1 THE COURT: Okay. And, okay, and then you've

2 got the foreclosure sale running. So how does this
3 work?
4 MR. BOLZ: The Hammond case that Mr. Gesten
5 cited, and the Bonita Real Estate Partners case
6 that I provided Your Honor, if you read those ~~

7 makes it very clear that the bank is ent'
8 double track. It can pursue it's · gm ,
9 and it's foreclosure judgment up unti
10 the foreclosure sale occurs. ~

11 If there is a foreclos e ~Yan November
12 27 th I think it's sche f there is a
13 foreclosure sale on , 27 th , you stop work on
14 the execution. Th~t tra k then -- you have to make
15 an election . i s because there's no double
16 recovery. ot seeking a double recovery here,
17 but you st&~ ork on that and therefore -- you come

18 back ply to this Court for a deficiency
19 · gment, and then we would pursue the deficiency
20 through execution.
2 THE COURT: Now did you want me to consider
22 ~ your -- in terms if the bond should be set on the
23 money judgment that your applications or attorney's

24 fees for the 200 something thousand?
25 MR. BOLZ: No, the attorney's fees is not

38
1 involved in that. That makes it -- that makes it a
2 lot simpler. I will admit that. There is nothing
3 then un-liquidated. All you then have all you
4 have in the money judgment is the unpaid principle,
5 the interest from when he stopped making -- Mr.
6 Schneider stopped making payments
7 and the three years of unpaid, ad
8 the property. Just those three items.
9 THE COURT: As it relates to the
10 foreclosure sale, that what, do
11 you want me to consider the , fee
12 application on that one,
13 MR. BOLZ: a - . On the money judgment

14 I do not, Your
15 THE CO bout the bulk of that other
16 judgment t B " a money, too?
17 MR. B&_J3 . It has money judgment, too, but
18 it's o the value of the property, and we know
19
~ we think the value of the property's about 1.3
llion.
THE COURT: I'm going to ask you -- I read
22 these exhibits. Is the attorney's fees already in
23 the award?
24 MR. BOLZ: No, Your Honor.
25 THE COURT: Why are they matching up --

39
1 MR. BOLZ: Your Honor, I am waiting for them
2 to put on witnesses and prove to that. I have heard
3 Mr. Gesten say that over and over. I have heard him
4 accuse the bank of fraud and misrepresentation, and
5 I'm here
6 THE COURT: The billing statements, and t ·
7 have the -- that's Plaintiff's Number A·
10 them up, assessed low and expense
11 to understand your position responding to
12 the defendant saying you , ou ' wen you accept
13 this bond take that o t' , e equation. So what do
14 I do with that?
15
16 evidence, I , got exhibits here, and it's
17 why is it -/ hing up?
18 Because, Your Honor, the principle
if you flip through that loan history, and
about March or April of 2016.
COURT: Yes.
22 MR. BOLZ: And you look at the balance in the
23 right hand column, that's the correct principle
24 balance. What happened after is it -- come June we
25 -- all of Mr. Schneider stopped paying. The bank

40
1 hired an attorney to say hey, we're going -- it
2 looks like we're going to have to foreclosure, and
3 attorney's fees started running, and they were put
4 on -- they were invoiced to the bank, and they were
5 paid.
6 The bank put those as assessed loan expen
7 on the statement. They're on the statement.
8 admit that, but if you look at Mr. Smit~
9 affidavit he says that the -- he's ve · s , ecific
10 about the unpaid principle balan c t's 1,488,554
11 dollars and 76
12 balance. There is not, Y , , one penny of
13 , ciple amount.
14 penny of them was
15 ever o this loan, which is subject
16 to this -- · , 5 gments that were entered by The
17 Court back ) June, not one penny, and as I
18 expla' o you on Monday the foreclosure rules of
19 · a require the loan history to be put into

'
20 Midence and so we complied with that, and yes, it
2 a lot of entries for attorney's fees,
22 ~ no question about it, but they are not charged or
23 part in parcel of the judgment that we obtained
24 against Mr. and Ms. Schneider back in June.
25 THE COURT: Thank you. You will have an

41
1 opportunity for rebuttal. You may continue. Thank

2 you for answering the question. Do I your response,
3 no, all right. Now let's move to rebuttals.
4 MR. GESTEN: All right, Your Honor. There are
5 a bunch of issues that I have to deal with. First
6 of all, let's talk about this double digit. Yo· ~

7 the nail right on the head, right. S.,
8 If you have a bond on money judg? ~ the
9 property as security of the foreclosu ~~ - j dgment,
10 you're double dipping. If we appeal those -
11 - both amounts to them, and
12 they would get 2.8 milli , or something
13 even greater than th ~ e it should have only
14 been 1.4 t r else they approve.
15 Now o you this case, and it's
16 unbelieva that they completely misread the
17 case, You or.

18 URT: Which one is this?
19 MR. GESTEN: I'm sorry. I was just making a
20 ss of the evidence. The one that talks about the
2 Honor, this case. This is
22 ~ so on point. Bonita Real Estate versus SLF For
23 Lending, which is 222 Southern Third 647.

24 Reading their own highlights, Your Honor, on
25 page four, okay. It says fiscally a judgment or

42
1 foreclosure and the resulting sale of the property
2 encompassed both the remedy of -- and equitable
3 remedy of mortgage foreclosure.
4 So the note and the mortgage merge into the
5 foreclosure judgment, which foreclosure suit is
6 both an accident law for the balance
7 note and an accident
8 mortgage.
9 What that means, Your Honor, is
10 double track their lawsuit foreclosure
11 and for a deficiency. It do they get to
12 execute on both at the
13 If what we · s true, what the case
14 law ~ur note and mortgage merge
15 into the cer title, not into the
16 judgment o osure. He's saying that they get
17 to keep go: til the sale. That's not true. The
18 merger will all learn that they're
19 here is your note and mortgage was lost
20 judgment is entered.
2 You can't get a money judgment for the same
22 ~ amount and get execution. What The Court and the
23 law says is you can get a money judgment at the
24 same time, but you can't get execution on it, and
25 that's where they messed up in the June 30 th

43
1 amended judgment with -- it says for which let
2 execution issue.
3 There actually is no deficiency owed yet. That
4 amended judgment is my contention, Your Honor,
5 actually invalidates the underlying foreclosure
6 judgment because it's an
7 that will be our argument up on appeal, not
8 today, but the argument for today is v
9 right in the next paragraph, a party · , he right
10 to pursue both the claim for fo ure of the
11 mortgage and a claim for da - ~es
12 Not that ti to pursue execution
13 on a judgment say that. What
14 he's case isn't even in the
15 to you, Your Honor.
16
17 p,roperty it cannot collect on the note
18 other ~ to pursue the appropriate deficiency
19 m u nt, not the full judgment amount, and that's
20 that comes on the sale.
2 I didn't interrupt, so I'm really going to
22 ~ object now if he interrupts.
23 THE COURT: Sustained.
24 MR. GESTEN: Okay. So let's go back to this.
25 Forget about the law. Common sense, how could you

44
1 have to post a bond on a money judgment when
2 they're still holding the home that secures that
3 money judgment. That would be whole recovery, and
4 the case law, it's very clear that we signed it.
5 What you're looking for is to
6 quo. Asking us to post a bond for
7 in the judgment is not the status quo.
8 increased the pot of their collection.
9 Their collection as of today is
10 We know that because o that amount.
11 What The Court needs to
12 that needs to be posted that keeps them
13 at the 1.3 'sit.
14 we talked about a lot
15 is and they're now back it out
16 and sayin in un-liquidated and they admit
17 it, and t ore that's not what they're seeking
18 to bo , right.
19 Well, it's very nice that he gave that part.
20 e problem with it is they're not giving the whole
2 and what do I mean by that? In order to
22 ~ obtain summary judgment there has to be on material
23 issue of fact or law.
24 The way you get there is by filing an
25 affidavit. That affidavit by law as he said must

45
1 include all of what, whatever the affiant relied
2 upon in issuing that affidavit, and Your Honor
3 reviewing that affidavit and the attachments to it,
4 there is absolutely no way without any other
5 evidence or input that you could figure out the
6 principle amount other than what
7 is the principle amount,
8 principle amount is.
9 The documents attached in
10 fact are repugnant the
11 affidavit. That is on this
12 Court. Whether it's in
13 know. I never alle a fraud. I alleged
14 Okay. At best it's a
15
16 look at thct avit and the documents attached
17 to it and ~ 1.488 is the principle.
18 the attachment show that there is no
you an come with up 1.488 as principle
billed prior to the sale and even
access fee charges, late fee
22 charges, interest charges, an annual account fee
23 charge. These are not principle balance.
24 Principle balance is defined as the money that
25 was lent out and not repaid, the principle. It's a

46
1 very specific number. You should be able to look at
2 the affidavits and the attachment to it and say
3 absolutely this was the amount owed, and those
4 documents don't show that, and that is in evidence,
5 I and I don't believe that any evidence needs t ~ ' \e

6 taken upon a supercilious bond from us. ~
7 We are alleging that the status quo was
10 at the time. They stipulated th Schneider
11 took care of the home up and that the
12 appraisal was proper
13 good condition.
14 for years that he
15 hasn't reside . , nd there's been zero
16 evidence ce ~ ~to affect that Mr. Schneider
17 would now ) the home go or in anyway waste the
18 asset, part of my motion even suggests that we
19 them continued, reasonable access to the
20 p operty to ensure that the property stays in the
2 good condition, and of course under the law
22 ~ they are entitled to come back and ask for a
23 resetting or an amendment to the supercilious bond
24 to protect them because the issue is all we're
25 trying to do is keep them in the status quo.

47
1 That's very interesting. Mr. Schneider, and
2 his very extensive knowledge of mortgages and
3 banking, the plaintiff took over this spec. They
4 were not the initial lender. This isn't an
5 assignment of mortgage or note, but they took it
6 over. They knew -- the stand the shoes of the A,

7 original lender when they took over the bank.
8 This loan was in a it
9 was being dealt with at that
10 changed, though, that by the
11 caused a lot of these
12 deficiency. Had they and
13 changed the way payments, and
14 changed the billin statements and
15 everything e ~ never would have even been a
16 foreclosur e b e a , se Mr. Schneider was always making
17 payments a ~ t l at time.
18 same issue, right, status
19 all we're trying to do. What will put
20 in the same place they would be in, be in on
2 November 26 th if we go through the appeal and lose
22 ~ the appeal. What put them in the same place.
23 They've put on no evidence that property
24 values are going down. They put on evidence that
25 the house would be worth less than 1.3 million.

48
1 They put on no evidence that they would be able to

2 collect any deficiency balance from Mr. Schneider
3 at all, or that they'll collect anything over the
4 1.3 million if the sale occurred.
5 Therefore, I still believe that no bond is
6 actually required. Probably what this Court sh~ I

7 order is that Mr. Schneider make the tax am ts
8 as they come due and make the maintenan)(S: ,1; ents
10 the appeal on the basis, as you
11 there's been multiple judgm - s this

12 file, amended judgments, i ~ judgments with
13 execution without an ~ . . basis for them or
14 motion in the r ~ anything on the record
15 supporting al e, and therefore there is no
16 worry abour a . us quo here.

17 Mr. s~ /ider will pay the taxes if you order
18 him t the taxes. He'll pay the maintenance if
19 , order him to pay the maintenance. There is no
20 loss to that, Your Honor.
2 THE COURT: You didn't respond to the one
22
'y issue that I asked you to respond to, to hold off
23 on during your rebuttal, which was the stay as it

24 applies to Mrs. Schneider.
25 MR. GESTEN: Yes. I don't think that was teed

49
1 up for today. I would really like to argue why I
2 think that everything is wrong with the judgment,
3 like we've limited me just to the amount of the --
4 THE COURT: Mrs. Schneider, what I'm hearing
5 is that this was the -- both Schneider's motion
6 that was presented, and Mr. Bolz says that the
7 Fourth entered an order
8 appeal, RIGHT.
9 MR. GESTEN: I am not prepared w
10 argument that would dismiss
11 it as we move, your Honor. wasn't -
~
12
13 THE COURT: 0
14 MR. GESTEN: see that within the
15 evidentiary was set for today, but I'm
16 not sure t B - would change tomorrow that even
17 if it was SBt) that I can find some reason. She's
18 not pa ~ r the appeal that's admitted. The only

19 ~ g that is --
20
2
0 THE COURT:
she's not in the

So it's moot as to her because
appeal.
22
'y MR. GESTEN: Unless there is some case law
23 that says that just by simply having her name as a
24 person on the property, you know, and I don't know
25 because I'm not prepared on that, but really what

50
1 they're trying to do is something else, Your Honor.

2 What I believe they're trying to do is they know
3 very well that all of Mr. Schneider's assets are
4 entitled with tenants in common with his wife, and
5 they're trying to remove one of the barriers to
6 execution hoping that he will not bond off theA,

7 money judgment, and they can
8 execution, even if you don't
9 That's why I'm saying I just
10 because I don't know what the
11 line are in this chess

12 THE COURT: Okay. Did you represent
13 just Mr.?
14 MR. GESTEN: represent Stephanie as well
15 in this acti I don't represent anybody
16 in the ap ny of the other litigation that's
17 ongoing, i ~ ding the United States litigation or

18 anythi ~ ~ ike that. So I'm only limited to this one
19 at this point in time.
20 THE COURT: Because how do I grant a Motion
2 for Stay pending appeal as to a party whose appeal
22 ~ has been dismissed? I think that's, you know,
23 boiling it down, right?

24 MR. GESTEN: It makes sense to me, Your Honor.
25 I don't have --

51
1 THE COURT: Okay.

2 MR. GESTEN: I'm not prepared, so it would be
3 improper for me to agree.
4 THE COURT: I understand. All right. So let me
5 hear -- so I understand that you've responded t : {

6 think everything, right? ~
7 MR. GESTEN: I believe so, Your Ho
8 THE COURT: Okay.
9 MR. GESTEN: There were a lot
10 presented, and I made notes,
11 responded to every one oft

12 THE COURT:
13 issue, Your Honor,
14 actually ~ d to. It will take me 30
15 seconds.
16 THE
17 MR. Mr. Bolz says that you did not

18 have on the amount with the interest.
wrong. That is pursuant to the rule
and posts the bond.
COURT: That's automatic. I understand
22 that.
23 MR. GESTEN: That's automatic.

24 THE COURT: But when you come in front of the
25 judge and ask if there's a --

52
1 MR. GESTEN: You have why discretion.

2 THE COURT: Yeah, I actually know this.
3 MR. GESTEN: Thank you, Your Honor.
4 THE COURT: Okay. So I'll hear the sur-reply.
5 MR. BOLZ: Just briefly, Your Honor. Number
6 one, and again, there was never any discovery

7 by the defendant in the -- this case. No
8 depositions. It just -- it didn't' har ther

9 he wants to blame the attorney or whateve~ , I
10 don't' -- it makes no is what it is.
11 They did not

12 to our affidavit, and the or Summary
13 Judgment is a very , ument, and had a lot --
14 THE COURT: on the -
15
16 MR.
17 MR. I got to go back and present all

18 the a t about Mr. Trent, which we
19 THE COURT: No, I understood that, but I'm
20 st going to hear this last reply, and then I'll
2 really clear.
22 ~ MR. GESTEN: Okay.
23 THE COURT: Okay.

24 MR. GESTEN: Thank you.
25 MR. BOLZ: So the fact of the matter is we

53
1 have a judgment of foreclosure. We have a judgment
2 -- a money judgment. We have both of them. We can
3 double track them. I would suggest, and ask that
4 you read the two cases, the Hammond and Bonita case
5 because I think that they will explain to you an
6 basically Bonita is very clear.
8 is not going to happen, if at all,
9 27 th • Up until then we can go -- we
10 both. That means that we can
11 execution on the money judg - rr
12 Because they filed ~~ ~ ce of Appeal, and

13 because they filed t ~ rgency Motion for TRO
14
15 and so we're - sically still have both irons
16 in the fir e~ Wi e not, we are not, the bank is
17 aware ~ re entitled to a double recovery.
18 entitled to one recovery, but we can go
path to get there, and our position is
at on the money judgment until it is the Fourth
of Appeal in its wisdom overrules it
22 or changes it, if they want to bond that out and
23 not have -- not allow us to execute then they need
24 to post a bond for the million -- the number that
25 I've given you a couple of times.

54
1 MR. GESTEN: Bonita just --

2 THE COURT: I understand.
3 MR. BOLZ: I would ask you to read it is all
4 I'm saying, Your Honor, because
5 THE COURT: I am going to read the cases th~

6 were handed to me in of The Court so that I'm ~ \ : .
7 on what they say. So you're
8 ruling from me during the hearing becau~
9 some time to review them, right, and same
10 opportunity that you both them.
11
12 I want to get this out a n , he task complete.

13 I want to get this y -- my ruling
14 complete to you, in advance of the sale
15 so that it' tever it may be, right. So I
16 would dire / sel to send The Court proposed
17 orders. I w;:x/ I haven't ruled on it. If you have

18 one I' ake it right now.
19 MR. BOLZ: I have four of them, Your Honor.
20 st so you know, one is the bond amount on the
2 final judgment. One is on the final
22 ~ judgment of foreclosure, and one is on both if you
23 choose to do -- have one brought for both --

24 THE COURT: Give ma copy for --
25 MR. BOLZ: But last but not least is the order

55
1 denying stay ending appeal just across the board.

2 THE COURT: Okay. So those are all of your
3 alternative orders?
5 THE COURT: Okay. Now, Mr. Gesten, if you
6 would please send me electronically, okay,

7 Wednesday, November 15h. I think that's it,
8 November 15 th , I'll give you
9 from today from the hearing, okay. I' of
10
11
12
13
14 can take what you t now, or if you wanted

15 to further r ~~ revise them and have the same
16 opportunit~ , ot -- I want to be fair. You both
17 have the s~ w / deadline, so what would --
18 Realistically, Your Honor, I just
sure that a week is needed for proposed
it can be done by week's end.
COURT: I'm just
22 MR. BOLZ: And I'm not going to need to
23 change.
24 THE COURT: I'll just tell you now, I'm not
25 going to be here Friday because the courthouse is

56
1 closed.
2 MR. BOLZ: Okay.
3 THE COURT: If you want to send -- Mr. Gesten,
4 can you send it to me on Monday?
5 MR. GESTEN: Yes, I can, Your Honor.
6 THE COURT: Okay. Monday.

7 MR. BOLZ: I will give you my
8 and
9 THE COURT: Very good.
10 MR. BOLZ: And these, Mr. G ·n got a copy of
11 these the day before yester · .

12 THE COURT: Okay. Ve~ ~ .
13 MR. BOLZ: of those.
14 THE COURT: you. Okay. So I
15 have all of orders, and then Mr. Gesten
16 you'll send no later than --
17 MR. GES ~EN: Monday, yes, Your Honor.

18 URT: Monday, November 13 th , so that I
19 ve the benefit of your proposed order, and
20 a ruling of Tuesday to you. I start a
2 trial at 9:30 on the 13 th , but I could stay
22
'y late to keep up with my orders, okay.
23 MR. GESTEN: Okay.

24 THE COURT: Thank you very much.
25 MR. GESTEN: Thank you very much, Your Honor.

57
1 THE COURT: Thank you for your aggressive
2 advocacy and have a great day and rest of the week.
3 (Thereupon, the hearing was concluded.)
10
11
12
13
14
15
16
17
18
19
20
22
'y
23
24
25

58
1 CERTIFICATE OF COURT REPORTER

2
3
THE STATE OF FLORIDA:
4
: ss.
5
COUNTY OF MIAMI-DADE:
6
7
I, MALLORY MAZZA, a Court Reporter i
8
for the State of Florida at Large, do here-Cc
9
that I was authorized to and did
10
in the above-styled cause before
11
12
Small, at the time and places -
13 pages, numbered from 1 th_r~ constitute
14 a true and complete recoQ ~ my notes.
15 I further c that I am not an attorney or
16 counsel of any @T t arties, nor related to any of
17 the parties, no r-.f.Jnancially interested in the action.
~
18
19
D ted this 10th day of November, 2017
20
22
Mallory Mazza
23 Court Reporter
24
25

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Filing # 65271933 E-Filed 12/12/2017 11 :53 :07 AM

IN THE CIRCUIT COURT OF THE 15TH

CASE NO. 502016CA009292XXXXMB(AH)

FIRST AMERICAN BANK,

a rue and correct copy of the foregoing has been

furnished on December 1e, 2017, via transmission of a notice of electronic filing

1 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT

3 CASE NO.: 50-2016-CA-009292-XXXX-MB (AH)

5 FIRST AMERICAN BANK,

20 0 Palm Beach County Courthouse

205 North Dixie Highway, Courtroom llC

24 November 8th, 2017

JULIO A. MOCEGA & ASSOCIATES 305-374-0181

3 For the Plaintiff:

4 HENRY BOLZ, ESQUIRE

5 SHEYLA MESA, ESQUIRE

Keller & Bolz, LLP

7 121 Majorca Avenue, Suite 200

13 For the Defendants:

15 Shapir sserman & Hermann, P.A.

16 7777 , a s oad, Suite 400

17 Boca Ratl n, Florida 33434

JULIO A. MOCEGA & ASSOCIATES 305-374-0181

2 THE COURT: Good afternoon, everyone. This is

3 the case First American Bank versus Laurence

4 Schneider, Stephanie Schneider and the court

5 reporter. We'll just wait one moment. We'll have

6 appearances and then we'll proceed.

7 MR. BOLZ: Henry Bolz of the firm d

8 Bolz along with my associate, Sheyla ~

9 the plaintiff, First American Bank aloW -ith Dan

10 Pache (phonetic), Senior Vice the

12 THE COURT: Defen /,

14 Gesten of asserman, and Hermann on

15 behalf of th · s Laurence and Stephanie

16 Schneider, n~ ave with me Mr. Laurence

18 URT: Good afternoon, and I did read the

19 , , i on, the supplemental memo, the response, so I'm

20 up to speed on what the issues are seeing

2 perspective of both sides. So we'll

22 ~ proceed with the moving party, and then I'll hear

24 MR. GESTEN: Thank you very much, Your Honor.

25 I know we only have an hour set, and we are limited

JULIO A. MOCEGA & ASSOCIATES 305-374-0181

1 to a singular issue. However, this singular issue

3 bond is even required at all to -- The Court why

4 discretion, and that's the case law that I cited.

5 Now really, you could issue a stay even

6 without a bond if you wanted to, and as such I

8 of the case and the history of how we , ~ e is

10 very brief, Your Honor.

12 knows, I haven't been · very long, but

Mr. Schnei <SiB .r/is providing me with. I can

23 date of the hearing, but the date of those billing

JULIO A. MOCEGA & ASSOCIATES 305-374-0181

1 mortgage foreclosure on a residence with -- that

2 didn't even go to trial.

3 THE COURT: Right, it was disposed in the

5 MR. GESTEN: That's correct, Your Honor.

6 THE COURT: Without opposition.

7 MR. GESTEN: Correct. Well, it

8 Summary Judgment wasn't imposed. It

9 Schneider didn't appear.