Filing # 59196253 E-Filed 07/18/2017 10:13:06 PM

IN THE CIRCUIT COURT OF

THE FIFTEENTH JUDICIALCIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA

Case No.: 50-2016-CA-009292

DIVISION AW

:
FIRST AMERICAN BANK, as :
:
successor by merger to Bank of Coral
Gables, LLC, :
:
Plaintiff :
:
:
vs. :
:
:
LAURENCE SCHNEIDER, STEPHANIE L. :
SCHNEIDER, et. Al. :
:
Defendants :
:
:

DEFENDANTS’ MOTION FOR RECONSIDERATION; AMENDED MOTION FOR

REHEARING AND TO VACATE JUDGMENT OF FORECLOSURE AND
REQUEST FOR SANCTIONS AGAINST COUNSEL FOR PLAINTIFF

Defendants Laurence Schneider and Stephanie L Schneider, (hereinafter referred to

collectively as “Defendants”, or individually as “Mr. Schneider” or “Mrs. Schneider”) appearing

pro se, hereby file this Motion for Reconsideration as to an Order entered on July 18, 2017 denying

Defendants’ Motion for Rehearing.

([KLELW
 Defendants, in light of this Order, hereby submit this instant Motion for Reconsideration,

inclusive of an Amended Motion for Rehearing and to Vacate the judgment of foreclosure

erroneously entered in this matter on June 26, 2017.

Defendants have additionally filed a Notice of Appeal with the Fourth District Court of

Appeals, and shall be filing a stay pending appeal with this Court. Defendants are additionally

requesting sanctions against counsel for Plaintiff for misleading the Court and Defendants by

deliberately and egregiously altering the judgment of foreclosure for the sole benefit of Plaintiff,

as more particularly described herein.

Defendants bring this motion, pursuant to Fla. R. Civ. P. Rules 25-22.060, Rule 1.530(a)

and 1.540(b), and in support would state the following unto the Court:

STANDARD OF REVIEW- MOTION FOR RECONSIDERATION

1. Rather than constituting a motion for rehearing under Fla. R. Civ. Pro. 1.530, a motion directed

to a nonfinal order is termed a “Motion for Reconsideration” based upon the trial court’s

inherent authority to reconsider and alter or retract orders prior to the entry of final judgment.

See Bettez v. City of Miami, 510 So. 2d 1242, 1242-43 (So. 3d DCA 1987).

2. An order merely granting summary judgment is not a final judgment; rather, it is a non-final

order. See e.g. White Palms of Palm Beach, Inc. v. Fox, 525 So. 2d 518, 519 (Fla. 4th DCA

1988).

1. As the Florida Supreme Court articulated in Hall v. Talcott, 191 So. 2d 40, 46-47 (Fla. 1966):

“The granting or denial of rehearing is a matter within the sound discretion of the trial

court, but it is never an arbitrary decision. As indicated above, when the motion is filed

by one against whom a summary judgment has been entered, the discretion not to grant

is narrowed and every disposition should be indulged in favor of granting the motion.

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 Only after it has been conclusively shown that the party moved against cannot offer proof

to support his position on the genuine and material issues in the case should his right to

trial be foreclosed.” Emphasis added and citations omitted.

2. The proper standard of review for a Court when considering a motion to reconsider is set forth

in Prudential Securities, Inc. v. Emerson, 919 F.Supp. 415 (M.D.Fla.1996).

3. The court in Prudential held that “[a] Court will not alter a prior decision absent a showing of

clear and obvious error where ‘the interests of justice’ demand correction.” Id. at 417 (quoting

American Home Assurance Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237, 1239 (11th

Cir.1985)).

4. Moreover, the refusal to grant relief in a motion for reconsideration is reviewed by the appellate

court under an abuse of discretion standard. See Hancock v. City of Okla. City, 857 F.2d 1394,

1395 (10th Cir.1988).

5. Defendants allege that this Court incorrectly granted Summary Judgment in favor of the

Plaintiff where genuine issues of material fact exist which were timely raised and objected to

by the Defendants.

Summary Judgement Was, and Is Inappropriate

6. A Motion for Summary Judgment is properly plead under Florida Rules of Civil Procedure

1.510(b).

7. Under Florida law, summary judgment is proper if, and only if, based on an examination of

evidence, no genuine issue of material fact exists and the movant is entitled to judgment as a

matter of law. See The Florida Bar v. Green, 926 So. 2d 1195, 1200 (Fla. 2006); Volusia

County: v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

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8. Furthermore, pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, a Court may grant

summary judgment if, and only if, "the pleadings, depositions, answers to interrogatories, and

admissions on file together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of law." Fla.

R. Civ. P. 1.510(c).

9. In summary judgment proceedings, the Court must take all the facts that the non-movant states

as true and must draw all reasonable inferences in favor of the non-moving party. See Bradford

v. Bernstein, 510 So.2d 1204 (Fla. 2d DCA 1987); Petruska v. Smartparks-Silver Springs, Inc.,

914 So.2d 502 (Fla. 5th DCA 2005); Maynard v. Household Finance Corp. III, 861 So.2d 1204

(Fla. 2d DCA 2003).

10. The burden of proving that such issues exist does not shift to the non-moving party until the

movant has successfully met his burden. Nard, Inc. v. DeVito Contracting & Supply, Inc., 769

So.2d 1138 (Fla. 2d DCA 2000).

11. In this matter, Defendants have raised an abundance of triable issues, therefore, summary

judgment was, and is inappropriate.

12. The Third District Court of Appeals of Florida held that “the party moving for summary

judgment must factually refute or disprove the affirmative defenses raised, or establish that the

defenses are insufficient as a matter of law.” Leal v. Deutsche Bank National Trust Company,

21 So.3d 907, 909 (Fla. 3d DCA 2009). The Plaintiff must either factually refute the alleged

affirmative defenses to foreclosure or establish that they are legally insufficient to defeat

summary judgment. Knight Energy Services, Inc. v. Amoco Oil Co., 660 So.2d 786 (Fla. 4th

DCA 1995).

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13. In a recent decision from the Fourth District Court of Appeals (DCA) of Florida, the Fourth

DCA held that “when a party raises affirmative defenses, a summary judgment should not be

granted where there are issues of fact raised by affirmative defenses which have not been

effectively challenged and refuted factually.” Alejandre v. Deutsche Bank Trust Co., 44 So. 3d

1288, 1289 (Fla. 4th DCA 2010).

14. According to Knight Energy Services, Inc. v. Amoco Oil Co., 660 So.2d 786 (Fla. 4th DCA

1995), the plaintiff failed to prove the absence of genuine issues of material fact as to the

defendant’s affirmative defenses of tortious interference and unclean hands, so that summary

judgment of foreclosure was inappropriate.

15. Defendants, much like in the Knight Energy Services, Inc holding supra, argue that summary

judgment of foreclosure is inappropriate, especially given the multitude of unresolved issues,

and the Court should not have made a dispositive Order while several items are left hanging at

the pleading stage of this matter.

16. Florida case law is exceedingly clear that where a motion to dismiss which raises viable

defenses is pending in a foreclosure action, summary judgment is not proper, such as this case.

See Douglas v. Deutsche Bank Trust Co., 995 So.2d 1144 (Fla. 5th 2008).

17. Here, a multitude of conflicts in material facts exist that should have precluded a ruling of

summary judgment in favor of the Plaintiff, as more particularly described herein.

18. Courts have considerable discretion to reconsider an order. Johnston v. Tampa Sports Authority,

442 F.Supp.2d 1257, 1261 (M.D.Fla.2006) (citing O’Neal v. Kennamer, 958 F.2d 1044, 1047

(11th Cir.1992)).

19. The … court abuses its discretion if it overlooks a relevant factor that deserves significant

weight. Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D.Fla.1994). The

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 … court also abuses its discretion if it considers all relevant factors, but, nonetheless, commits

a “palpable error of judgment in calibrating the decisional scales.” Id. (citing U.S. v. Hastings,

847 F.2d 920, 924 (1st Cir.1988), cert. denied, 488 U.S. 925, 109 S.Ct. 308, 102 L.Ed.2d 327

(1988)).

20. As such, Defendants pray this Court reconsider its prior decision of July 18, 2017, as well as

the June 26, 2017 Order granting summary judgment, and allow for a rehearing on the matter,

as substantial new facts and relevant information described herein, provides a compelling case

which merits a redress of this.

STANDARD OF REVIEW- MOTION FOR REHEARING

21. Florida Rule of Civil Procedure 1.530(a) provides: “A new trial may be granted to all or any

of the parties and on all or a part of the issues. On a motion for rehearing of matters heard

without a jury, including summary judgments, the court may open the judgment if one has been

entered, take additional testimony, and enter a new judgment.”

22. Florida Rule of Civil Procedure 1.540(b) provides in pertinent part: “On motion and upon such

terms as are just, the court may relieve a party or a party’s legal representative from a final

judgment, decree, order, or proceeding for the following reasons… (3) Fraud (whether

heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an

adverse party; (4) that the judgment or decree is void; This rule does not limit the power of a

court to entertain an independent action to relieve a party from a judgment, decree, order, or

proceeding or to set aside a judgment or decree for fraud upon the court.”

3. Defendants allege that the judgment is void, due to the conduct and deceit described herein,

which rises to an undisputable level of fraud and misrepresentation, pursuant to Florida Rule

of Civil Procedure 1.540(b), and thus, the Order of judgment must be vacated.

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4. However, even if the Court were not to find the judgment is void or voidable, pursuant to

Florida Rule of Civil Procedure 1.530(a), the Court may open the judgment to take additional

testimony.

5. Despite the recent July 18, 2017 ruling denying Defendants’ initial Motion for Rehearing, this

Amended version, inclusive of the Motion for Reconsideration, warrants further argument. The

issues presented in this Amended Motion articulate the basis for reconsidering both the

summary judgment Order, and the July 18, 2017 Order, as described infra.

6. “If a judgment is ‘void’ then under rule 1.540(b) it can be attacked at any time, but if it is only

‘voidable’ then it must be attacked within a year of entry of the judgment.” Condo. Ass’n of La

Mer Estates, Inc. v. Bank of New York Mellon Corp., 137 So. 3d 396, 398 (Fla. 4th DCA 2014).

7. In the instant case, Defendants are bringing this Motion within the statutory guidelines

imposed, as the judgment was rendered on June 26, 2017.

8. Florida courts have long drawn a distinction between a “void” judgment and a “voidable”

judgment. A void judgment is one entered in the absence of the court’s jurisdiction over the

subject matter or the person. See, e.g., Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.

2d 658, 665 (Fla. 2d DCA 2007); Palmer v. Palmer, 479 So. 2d 221, 221 (Fla. 5th DCA 1985);

Miller v. Preefer, 1 So. 3d 1278, 1282 (Fla. 4th DCA 2009).

9. “In contrast, a voidable judgment is a judgment that has been entered based upon some error

in procedure that allows a party to have the judgment vacated, but the judgment has legal force

and effect unless and until it is vacated.” Zitani v. Reed, 992 So. 2d 403, 409 (Fla. 2d DCA

2008) (citing Sterling Factors, 968 So. 2d at 665)).

10. While a borrower is allowed to object to a foreclosure sale under section 45.031, Florida

Statutes (2013), “the substance of an objection to a foreclosure sale under section 45.031(5)

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 must be directed toward conduct that occurred at, or which related to, the foreclosure sale

itself.” IndyMac Fed. Bank FSB v. Hagan, 104 So. 3d 1232, 1236 (Fla. 3d DCA 2012); see

also Indian River Farms v. YBF Partners, 777 So. 2d 1096, 1098 (Fla. 4th DCA 2001).

ARGUMENT AND PROCEDURAL HISTORY

The Scheduling Conflict

11. On or about June 8, 2017, Mr. Schneider communicated with Plaintiff’s Counsel’s Henry Bolz

(hereinafter referred to as “Bolz”), and his staff member, Sheyla Mesa by electronic mail

regarding a deposition of Mr. Schneider and Mrs. Schneider, as well as a special set trial

hearing which posed a scheduling conflict for Defendants.

12. In said email, Mr. Schneider requested that Plaintiff’s Motion for Specially Set Trial Date be

postponed to a mutually agreeable time, given Mr. Schneider’s conflict of schedule, which

included a trip to Washington D.C. at the time of the hearing, in which judgment was entered.

The communications between Mr. Bolz and Mr. Schneider regarding this scheduling conflict

are shown in “Exhibit A”.

13. Bolz was abundantly aware of this material fact, yet did not afford Defendants the opportunity

to even defend themselves at the Special Set Trial, resulting in judgment being entered against

Defendants on June 26, 2017.

14. A true and correct copy of the email conversations is attached hereto and incorporated fully

throughout this brief as “Exhibit B”.

15. A true and correct copy of the judgment entered against Defendants, and on appeal, is attached

hereto and incorporated fully throughout this brief as “Exhibit C”.

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 The ‘Amended’ Judgment

16. Defendants further allege that Bolz perpetrated a fraud upon the Court, by amending the

judgment for a minor reason, then surreptitiously slipping an “uncertified copy” of the

Summary Judgment and attaching it to the Amended Judgment submitted for the Court’s

signature.

17. Defendants allege that the difference in the proffered Amended Judgment is that Bolz changed

the sale date from August 19, 2017 to August 10, 2017.

18. A true and correct copy of the Amended Judgment sent to Defendants is attached hereto and

incorporated fully throughout this brief as “Exhibit D”.

19. Defendants have the original executed judgment order which was mailed, as required by the

Clerk, and the Amended Judgment, which is handwritten in with a new, and accelerated sale

date.

20. Furthermore, on or about July 10, 2017, Bolz mailed the amended paperwork to the Palm

Beach County Clerk of Court.

21. Bolz additionally emailed Defendants just the cover letter, in order to continue the alleged

fraud.

22. Defendants allege that this fraudulent activity continues a pattern of such activity by Bolz in

this action, including his prior filing of a knowingly false affidavit to obtain the appointment

of a receiver, and, as such, monetary sanctions against Bolz are both needed and warranted.

23. Furthermore, Defendants’ counsel withdrew from the case on May 1, 2017. Despite repeated

requests, former counsel has not provided the file or any document production by Plaintiff to

Defendants.

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24. As a direct and proximate result, this has made Defendants’ ability to hire new counsel

impossible. Additionally, Defendants’ former counsel has illegally held funds from the

Defendants after the representation had concluded, also hampering the ability to hire new

counsel, thereby resulting in Defendants failing to have counsel during the most crucial and

critical portion of the case, as the Court Contemplated Plaintiff’s summary judgment motion.

FAB’s Misappropriation of Payments

25. On or about June 5, 2015, FAB sent confirmation that it had erroneously printed an incorrect

billing address and due to FAB's clerical error, Mr. Schneider’s payments were “not

considered late” [Emphasis Added].

26. Mr. Schneider alleges that the FAB clerical error occurred during the merger with the Bank of

Coral Gables and that FAB assured Mr. Schneider that the delinquencies reported in April

2015 with all three credit bureaus would be immediately corrected. Attached as “Exhibit E.”

27. This was not done, despite reassurances from FAB, which was in breach of the implied

covenant of good faith and fair dealing, along with the express terms of the Home Equity Line

of Credit (hereinafter referred to as “HELOC”).

28. FAB, however, continued to calculate accrued interest on the outstanding balance, which

included the late fees, even though the late fees were reversed and representations to of this

reversal were made to Mr. Schneider.

29. On or about June 8, 2015, Mr. Schneider reaffirmed to FAB that payment for the periodic

billing due June 1, 2015, was immediately made on June 5, 2015, as instructed.

30. On or about June 20, 2015, Mr. Schneider wrote to FAB’s James Kielbasa, affirming receipt

of the statement for the July 1, 2015 payment due date and confirmed FAB’s use of Mr.

Schneider’s correct mailing address.

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31. On or about June 20, 2015, Mr. Schneider sent a written request for the year to date

charge/payment history and a copy of the promissory note to reconcile the interest with the

outstanding balance owed on the HELOC.

32. On or about June 26, 2015, Mr. Schneider informed Milton Espinoza, Vice President, and

Commercial Loan Relationship Manager at FAB, that he was continuing to be billed for late

charges prior to the payment due date and that this advanced billing was part of the continuing

problems Mr. Schneider was encountering with his account.

33. Mr. Schneider advised FAB that the loan was boarded by FAB with numerous errors, including

a wrong billing address which delayed Mr. Schneider’s receipt of monthly statements, and

made yet another written demand for copies of the note, mortgage, and the year to date payment

history in an attempt to reconcile interest charged and outstanding balance to date.

34. Milton Espinoza of FAB, provided Mr. Schneider with a partial loan history, which was dated

June 26, 2015, but which neither offered nor provided an explanation of the partial loan history

extracted from FAB's recordkeeping systems.

35. On June 26, 2015, Milton Espinoza emailed Mr. Schneider pdf versions of the promissory note

and mortgage from the Bank of Coral Gables.

36. On June 27, 2015, Mr. Schneider emailed a written request for explanation to Milton Espinoza

regarding FAB’s s July 1, 2015 statement and attached the July statement referenced in the

letter to request clarification about whether the due date was the 1st or 15th of every month,

because FAB’s system continued to record payments as late and assessed a late charge on each

of Mr. Schneider’s payments.

37. On July 15, 2015, FAB received $4,055.91 through a wire payment from Mr. Schneider for

the July 1, 2015 billing amount owed.

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38. On October 30, 2015, Mr. Schneider also asked for an explanation for the failure of the

application of the September 2015 payment, as the promised verification did not occur and the

September 2015 payment was not applied properly.

39. On October 30, 2015, Brian Hagan wrote to thank Mr. Schneider for the email and to advise

him that the October 1, 2015 payment in the amount of $4,646.05 was due, along with the

November 1, 2015 payment in the amount of $3,823.29.

40. Brian Hagan also requested that Mr. Schneider provide his personal tax returns and personal

financial statement for consideration of a deed in lieu.

41. On October 30, 2015, Mr. Schneider wired FAB the sum of $4,646.05.

42. On November 4, 2015, Mr. Schneider again wrote to FAB's authorized representative, Brian

Hagan, requesting information and documentation regarding the steps FAB had taken to ensure

that the erroneous reporting made by FAB to the credit bureaus had been remedied, as Mr.

Schneider’s credit was continuing to suffer as a direct and proximate result of FAB’s failure to

apply payments to the HELOC account and continued reporting of negative and inaccurate

information to all credit agencies.

43. Mr. Schneider specifically cited the need for documentation to that effect, and included a copy

of the correspondence which FAB sent to the credit agencies, acknowledging that Mr.

Schneider’s payments had been timely.

44. Mr. Schneider alleges that a letter of explanation, although helpful, was inadequate since

reported mortgage delinquencies have the most profound negative impact on his credit score

and that Mr. Schneider was seeking financing for several items.

45. On November 4, 2015, Brian Hagan responded that he was in possession of the payment

history, which would be sent to Mr. Schneider, and that although he had been advised that the

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 credit reporting was accurate, he would “double check” and provide Mr. Schneider with

correspondence between FAB and the credit reporting agencies regarding the issue.

46. Mr. Schneider alleges that no such correspondence was ever received from Brian Hagan or

FAB.

47. On November 5, 2015, Mr. Schneider again wrote to Brian Hagan expressing extreme concern

over assurances by FAB employees regarding the accuracy of the credit reporting since Mr.

Schneider’s payments were reported as late.

48. When Mr. Schneider requested an explanation from Brian Hagan as to why his account was

being marked delinquent, when Hagan had confirmed it to be current, Mr. Schneider was then

told to deal with Brian Hagan solely.

49. Mr. Schneider was making multiple payments as directed by Brian Hagan himself.

50. Mr. Schneider again requested detailed explanations for interest rate calculations, specific

billing cycle information for the months of September 1, 2015, October 1, 2015, and November

1, 2015, and the reason "the information which you have provided to me below and represented

to be accurate differs from the information contained in the [bank’s] servicing system of

records for these two periods.” Exhibit F is an attachment of relevant statements indicating

the discrepancies described herein.

FAB’s Counsel Was Well Aware of the Misappropriation

51. On or about January 18, 2016, Mr. Schneider wrote to Bolz and carbon copied Brian Hagan,

Gary Smith, and James Berton of FAB, to reiterate the ongoing erroneous servicing caused by

the lack of quality control and openly questioned why no one at the bank would investigate,

provide an account history, or review the loan documents which had caused substantial

financial problems, and requested the correction of the false reporting and a retraction of the

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 erroneous information which was causing financial difficulties as a result of the balloon

mortgage on his subject property.

52. Mr. Schneider informed Bolz, exactly as Bolz had instructed, concerning the continued

fraudulent and erroneous reporting and misapplication of his payments. Mr. Schneider

specifically stated in the email to Bolz the following.

“You have caused me some substantial financial problems over the past year, now
you’ve put me in a terrible financial predicament driven by a February 12, 2016,
line in the sand deadline, as I have a balloon mortgage due on my primary
residence and this false reporting is the reason for my inability to obtain
conventional refinancing. As you are aware, there is not a blemish on my credit,
with the exception of First American’s continued reporting. Prior to First
American acquiring the Bank of Coral Gables, I had a stellar banking relationship
with them from the time it opened its doors in 2006, over eight years. Once again…
I demand that you immediately retract the false reporting of my account from all
credit repositories.am speaking with Brian, in an attempt workout some sort of
deal structure, to rectify several issues including the mortgage referenced above,
the problem with the balloon mortgage on my property, which cannot not be
rectified in time to appease the private lender who owns the balloon mortgage on
my home (due to the torturous timelines and verifications pursuant to the new
Dodd䇲 䇲㻲㼞㼍㼚㼗㻌㼜㼞㼛㼢㼕㼟㼕㼛㼚㼟㻕㻌㼍㼚㼐㻌㼠㼔㼑㻌㼏㼛㼘㼘㼍㼠㼑㼞㼍㼘㼕㼦㼑㼐㻌㼘㼛㼍㼚㻌㼒㼞㼛㼙㻌㻮㼍㼚㼗㻌㼛㼒㻌㻯㼛㼞㼍㼘㻌㻳㼍㼎㼘㼑㼟㻌
to S & A Capital Partners, an entity of mine which also had a great banking
relationship with the Bank of Coral Gables including a collateralized business
loan. As you are aware, the collateralized business loan with S & A Capital had
been long since paid off but the Bank of Coral Gables never released the collateral
assignment on the Johnnie Washington mortgage. A title company called First
American Bank, and since the First American representative did not recognize
the borrowers name in your system of records, and didn’t bother to further
research the situation by even looking at the “collateral Assignment” which
provided our company contact info, the First American employee executed a
satisfaction of the mortgage and underlying promissory note. The owner walked
away from the property without having to pay the mortgage, which was owned by
S & A Capital. Hopefully, Brian and I can work something out regarding a
collateralized business loan, so that we can clean the slate and start a fresh
banking relationship. I’d rather not contemplate the alternative!”

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53. Defendants allege that both Mr. Hagan and Bolz acted in bad faith as to their intent to resolve

the fraudulent and erroneous applications of Mr. Schneider’s payment and the subsequent

knowingly fraudulent reporting of his credit history.

54. Furthermore, Defendants allege that Mr. Hagan not only lied on numerous occasions about the

proper application of Mr. Schneider’s payments but also lied about his intent to work out a

collateral commercial loan, as Mr. Schneider had every intent to pay off the FAB loan.

55. Despite the January 18, 2016 email to Bolz concerning the continued Fair Credit Reporting

Act (“FCRA”) violations, which Bolz fraudulently misrepresented that he was resolving and

handling for FAB going forward, Bolz neither responded to this email or the additional emails

and voicemails Mr. Schneider made to Bolz to remediate the matter.

56. Mr. Hagan pulled a copy of Mr. Schneider’s credit report for both Equifax and Experian credit

reporting repositories.

57. It is paramount to note that Mr. Hagan had direct knowledge again on November 19, 2015,

that FAB had again made fraudulent and erroneous reports of Mr. Schneider’s payment history

and account balance.

58. Mr. Schneider was made aware of these inquiries due to his Experian Credit Monitoring due

to FAB’s ongoing fraudulent and erroneous reporting of his payment history for the past seven

months.

59. On November 20, 2015, Brian Hagan wrote to Mr. Schneider regarding possible settlement

strategies and confirmed that FAB had run a credit report to ensure that Plaintiff’s account was

not showing past due payments. In relevant part, the communication stated:

As an aside, we have submitted corrections to the credit reporting agencies

and we have verified by running a credit report that the account is showing no
past due payments and is reporting all payments made as agreed.

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60. On November 19, 2015, Brian Hagan and Mr. Schneider met, but FAB did not provide Mr.

Schneider with an explanation for or the requested details regarding the loan, payment histories

or the accounting for the HELOC loan. Thus, Mr. Schneider sent Mr. Hagan a Qualified

Written Request (hereinafter referred to as “QWR”).

61. On or about January 25, 2016, FAB received $4,500.00 via a wire payment from Mr.

Schneider.

62. On or about January 27, 2016 Mr. Schneider again wrote to Brian Hagan to confirm his

payment of $4,500.00, as requested.

63. On June 13, 2016, Brian Hagan requested that Mr. Schneider provide FAB with a completed

personal financial statement.

64. On or about June 30, 2016, Mr. Schneider again wrote to Brian Hagan regarding the sensitive

financial information requested by FAB, and provided attachments to several of Mr.

Schneider’s financial forms that documented the remitted debt.

65. Specifically, Mr. Schneider wanted to see accurate periodic billing statements reflecting the

amount which FAB claimed to be owed by Mr. Schneider, as well as an accurate payment

history, acknowledging and correcting the erroneous application of Mr. Schneider’s payments.

66. On or about July 7, 2016, Mr. Schneider received a delinquency letter from FAB for the months

of May, June, and July 2016, which advised that the amount owed was $59,481.27, of which

$50,154.44 was due for the June 1, 2016 payment.

67. Mr. Schneider alleges that no rational explanation, calculation, or information was included

with the one-page request for payment

68. On or about August 9, 2016, Mr. Schneider contacted Brian Hagan to provide the financial

information requested by FAB.

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69. Mr. Schneider subsequently advised Bolz that FAB has severely compromised the ability of

entities in which he is a guarantor to obtain personal and business credit on multiple occasions

due to FAB’s negligent servicing practices.

70. FAB had not, and to date has not, remedied the past due status of the subject HELOC, and

instead was granted a judgment of foreclosure supra.

71. A credit report obtained by Mr. Schneider indicated that FAB had reported delinquencies for

payments due on October 2015 and September 2015 with all three credit bureaus, along with

a balance of $1,495,469.00.

72. On or about January 1, 2016, FAB reported that the Mr. Schneider was 30 days late in making

his payment.

73. In May 2016, FAB reported to the Equifax credit agency that Mr. Schneider was 30 days late

in making payment, 60 days late in June and July of 2016, and 120 days late every month since.

74. Since April 3, 2017, the TransUnion credit agency has reported that the outstanding balance

has been $1,495,457.00

75. Credit agencies Equifax, and Experian, continue to report an unpaid balance of $1,708,894.00

and falsely state that the Mr. Schneider is using 114% of the HELOC limit.

76. On or about February 20, 2017, an Experian report revealed data that contradicted the verbal

and written statements of FAB and reported no data for the months of January and February

2016, despite FAB receiving $9,300.00 on January 25, 2016 from Mr. Schneider.

77. Mr. Schneider alleges that FAB has added fees for which no explanation or information has

been provided; and upon information and belief, Mr. Schneider alleges that FAB has added,

and will continue to add fees and costs not contemplated or agreed to by the HELOC contract

and/or would make the loan usurious.

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78. On or about April 3, 2017, the high balance reported by FAB to Experian was the sum of

$1,708,894, and $161,729 more than the highest balance reported by FAB to Equifax of

$1,539,165.

79. On or about May 18, 2017, Equifax provided the following information concerning Mr.

Schneider’s FCRA dispute

80. As of the date of the FCRA inquiry, FAB reported that the balance was $756,754.72. Mr.

Schneider alleges that this amount was an arbitrary amount, and provides prima facie evidence

of wrongdoing on the part of FAB, insomuch as the affidavit as to the amount due by Garry

Smith, FAB Vice President, was knowingly fraudulent and erroneous.

81. Mr. Schneider alleges that the amount past due indicates $1,738,596.

82. Again, Mr. Schneider alleges that this amount reflects prima facie fraud in the amount utilized

by Bolz in submitting FAB proof for the Summary Judgment.

83. Bolz acted to purposely defraud Mr. Schneider.

84. This conspiracy between Bolz and Mr. Schneider’s former counsel is most noticeably

evidenced in Bolz’ May 4, 2017 email to Mr. Schneider concerning the Notice of Non-Jury

Trial May 9, 2017.

85. On May 9, 2017, Bolz filed a Notice for Trial.

86. On May 10, 2017, Bolz again misrepresented to the Court by filing a Notice for a hearing, then

subsequently filed a Notice of Unavailability with the Court, in Bolz and FAB’s continued

efforts to fast track the foreclosure, and not provide any reasonable meet and confer, or

discovery, in a veiled attempt to conceal their fraud.

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87. Prior to the May 10, 2017 misrepresentation upon the Court and Mr. Schneider’s rights, Bolz

used the same unscrupulous tactics to set a trial, then immediately file a Notice of

Unavailability to expedite the hearing.

88. On May 23, 2017, Bolz filed a Notice of Unavailability with the court, stating, among other

things:

“COMES NOW, Henry H. Bolz, III, counsel of record for the Plaintiff, FIRST
AMERICAN BANK, in the captioned litigation and hereby files this his Notice
to the Court, all parties, and all counsel of record of the fact that counsel for
FIRST AMERICAN BANK has long-standing out-of-state vacation plans
beginning on Friday, July 14, 2017, to Wednesday, July 26, 2017, inclusive.
Although other attorneys at Keller & Bolz, LLP will be able to cover
ministerial matters, the undersigned would respectfully request the
forbearance of all counsel and the Court from scheduling any significant
hearings, trials, or deadlines during my absence.”

89. Defendants allege that Bolz evidently forgot about the “Notice of Unavailability” he filed on

May 23, 2017, in which he falsely filed a notice with the Court in this matter, of his “long-

standing out-of-state vacation plans beginning on Friday, July 14, 2017, to Wednesday, July

26, 2017, inclusive.” Ironically enough, Mr. Bolz was not in fact out of state on vacation, but

rather was working in the office as revealed in an email conversation that Mr. Schneider had

with him on July 18, 2017, which is attached as “Exhibit G.”

90. In that Notice for Trial Date, Bolz certified to the Court,

“The undersigned certifies that a bona fide effort to agree to or narrow the
issues has been made or will be made prior to the hearing in this cause.”

91. Defendants allege that Bolz lied to the Court, as Bolz did not discuss the matter with Mr.

Schneider, prior to filing the Motion of Unavailability and Motion for Special Hearing.

92. In addition to lying to the Court and defrauding Schneider about the hearing, Bolz had not, and

has not to date, produced any discovery requested by Mr. Schneider in the matter, nor any

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 communications regarding the outstanding FCRA fraudulent billing statements and reporting,

since his November 30, 2015 letter.

93. At that time, he was acting on behalf of FAB to assist Mr. Schneider with FAB’s fraudulent

and erroneous billing errors, which he specifically acknowledges in the November 30, 2015

letter.

94. However, Bolz filed this notice to the court to expedite the foreclosure action, despite knowing

that Mr. Schneider’s upcoming schedule made it impossible to be present at the trial, where

judgment was erroneously granted.

95. Furthermore, Defendants allege that Bolz purposely filed the Notice of Unavailability in an

attempt to foreclose on the property. The documents representing Mr. Bolz’ attempts to

inappropriately fast track this case are attached as “Exhibit H”.

96. Furthermore, Bolz has attempted to tarnish Mr. Schneider’s reputation, as he was well aware

that Mr. Schneider had an upcoming deposition in a case of great public interest, which

happens to involve the similar types of tactics used by FAB and its counsel, but on a far

greater scale.

97. The case is S&A Capital Partners, Inc. et al. v. JPMorgan Chase Bank, N.A. et al., No. 15-

cv-00293-LTS-JCF, pending in the United States District Court for the Southern District of

New York.

98. The District Court Judge in that matter has already denied the Defendants’ Motion to Dismiss

the Breach of Contract, Fraud, and Negligent Misrepresentation Counts. There is a fully

briefed Motion for Leave to File a Fourth Amended Complaint including Civil RICO claims

currently before that Court.

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 Mr. Schneider’s District Court Complaint Against FAB

99. After discovering all of the above and below noted transgressions, Mr. Schneider filed a case

in Federal District Court for the District of South Florida on June 9, 2017.

100. The complaint addresses operative facts relevant to the instant foreclosure litigation.

101. In addition to the violations of Federal laws impacting Mr. Schneider’s rights, the pending

federal litigation will also require FAB to provide the various discovery materials which FAB,

by and through Bolz, has refused to provide in this matter.

102. Despite Bolz’ misrepresentations and schemes to deny Mr. Schneider access to justice in

this foreclosure matter, Mr. Schneider acquiesced to Bolz’ request for a thirty-day extension

to for FAB a respond to the complaint.

Brian Hagan and Bolz Acted in Concert to

Deprive Mr. Schneider the Benefit of the Bargain

103. On November 20, 2015, Mr. Schneider wrote to express his gratitude to Brian Hagan for

making corrections to the credit reports and request documentation regarding the payment

history of the loan since origination and all executed loan documents.

104. On November 20, 2015, after speaking with Mr. Hagan, Mr. Schneider called the customer

service number for FAB and once again, the customer service agent told Mr. Schneider that

they were unable to determine the status of the HELOC account.

105. Once again, Mr. Schneider alleges that Mr. Hagan knowingly made a false and/or

fraudulent statement to Mr. Schneider concerning the status of his HELOC account.

106. To date, no documentation or correspondence has been sent to Mr. Schneider to satisfy the

QWR, and numerous written requests.

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107. Mr. Schneider alleges that both Mr. Hagan and Bolz acted in bad faith as to their intent to

resolve the fraudulent and erroneous applications of Mr. Schneider’s payment and the

subsequent knowingly fraudulent reporting of his credit history.

108. Furthermore, Mr. Hagan not only misrepresented material facts on numerous occasions

about the proper application of Mr. Schneider’s payments but also lied about his intent to work

out a collateral commercial loan, as Mr. Schneider had every intent to pay off the FAB loan.

109. Despite the January 18, 2016 email to Bolz concerning the continued FCRA violations,

which he misrepresented that he was resolving, and handling for FAB going forward, Bolz

neither responded to this email or the additional emails and voicemails Mr. Schneider initiated

to Bolz to remediate the matter.

110. Mr. Schneider has made numerous requests to FAB and Bolz for the numerous billing

statements which FAB never sent to Mr. Schneider, so that Mr. Schneider could confirm that

FAB had corrected the erroneous information reported to the credit bureaus, resulting in a

domino effect on his ability to refinance the FAB debt, obtain collateral loans on other assets

to pay FAB, obtain credit for his entities and obtain credit for his investigation into the False

Claims Act allegations made against JPMorgan Chase on behalf of the United States and States

Treasuries.

111. As part of a plan to expedite the foreclosure process, and conceal his participation in the

fraud upon Schneider, Bolz made numerous misrepresentations to the Court and Mr.

Schneider.

112. Specifically, on May 9, 2017, Bolz misrepresented the Court by setting the Case for Trial.

113. Bolz represented to the Court the following:

“In accordance with this Court’s Divisional Instructions, on May 4, 2017,

undersigned counsel contacted the Defendants, LAURENCE S. SCHNEIDER

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 and STEPHANIE L. SCHNEIDER, via email, requesting each Defendant
provide the number of witnesses he/she intends to call and the amount of time
needed for trial. Defendants have not responded to undersigned’s May 4, 2017
email.”

Most notably, the sentence included a footnote, stating

“On April 17, 2017, undersigned contacted Defendants’ former counsel, via
email, requesting the same information. Former counsel for the Defendants
did not respond to undersigned’s email.”

114. FAB had not, and to date has not, remedied the past due status of the subject HELOC, and

thus, the instant motion to vacate the foreclosure judgment entered in this matter has been filed

and should be granted.

The Complaint Filed by FAB Itself Was Flawed

115. In paragraph 15 of the Complaint, FAB claimed “The Defendant, Laurence Schneider

defaulted under the Credit Agreement and Mortgage by failing to pay the Florida Ad

Valorem/real property taxes on the property for 2014 and 2015, despite a demand letter made

on him by First American Bank to pay those real property taxes by no later than April 1, 2016.”

116. Mr. Schneider alleges that this statement is wholly incorrect.

117. Mr. Schneider alleges that FAB did not provide a notice until July 7, 2016 with a right to

cure on or before July 17, 2016.

118. Furthermore, the July 7, 2016 FAB demand letter stated that the full payoff of the

$1,552.842.00 was due by July 17, 2016.

119. When subtracting the $59,481.27, which includes the May 1, 2015 payment purported to

be $4,698.54, from the payoff amount provided in the July 17, 2016 demand letter, the total

payoff, including principal from April 1, 2016 would be, and is, the sum of $1,493,365.73.

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120. Based on the above and foregoing, Mr. Schneider alleges paragraph 19 of the complaint is

likewise incorrect, as FAB erroneously claimed that Mr. Schneider owed FAB the sum of

$1,552.842.00.

121. Mr. Schneider additionally alleges that the information provided to this Court in requesting

Final Judgment was fraudulent.

The Alleged Amount Owed Was, and Is, Incorrect

122. Bolz claimed that Mr. Schneider owed interest from March 15, 2016 to the date of the

judgment totaling $69,646.52, Florida Ad- Valorem/real property taxes of for 2014, 2015 and

2016 in the amount of $1,625,072.21.

123. However, as stated and proven on Mr. Schneider’s February 3, 2017 credit report, five

months before the request for Final judgment, FAB had reported to both Experian and Equifax

that the balance due was the sum of $1,708,894, notably $80,000.00 more.

124. Based on the above and foregoing, Mr. Schneider alleges that not only were the figures

used to obtain the Final Judgment fraudulent, but additionally, FAB has continued to provide

fraudulent information to the credit repositories pertaining to Mr. Schneider’s credit report.

125. On the February 20, 2017 credit report, the balance FAB reported did not match the

principal balance FAB claimed was owed in the instant complaint.

126. FAB claimed that interest in the unpaid principal amount of $1,488,748.05 from May 1,

2015 was allegedly owed.

127. However, in FAB’s Final Judgment request, Bolz claimed that interest was due from March

15, 2016.

128. Based upon this pattern of providing “alternative facts” to the Court, and misleading the

Court and Mr. Schneider, Defendants allege that both FAB and Bolz misrepresented the

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 amount owed by Mr. Schneider, under penalty of perjury, and, as such, this material

misrepresentation warrants vacating the judgment.

Mr. Schneider’s Former Counsel Has Been Disciplined for His Role

129. On March 22, 2017, Mr. Schneider’s attorney, Kenneth Eric Trent, filed a Motion to

Withdraw as counsel in the foreclosure matter.

130. This motion was filed without Mr. Schneider’s knowledge or consent.

131. Mr. Schneider did not become aware of Mr. Trent’s intention to withdraw until late April

2017.

132. Furthermore, Mr. Trent did not inform Mr. Schneider that a hearing was to be held

concerning his March 22, 2017 motion to withdraw.

133. Mr. Trent instead left a message with Mr. Schneider’s office that the judge granted Mr.

Trent’s motion to withdraw.

134. As part of the message, Mr. Trent claimed that Mr. Schneider had twenty days to find new

counsel and that the Judge ordered no hearing to be set during that period.

135. Mr. Schneider alleges that FAB, Bolz, and Mr. Trent collaborated a devious plan in which

Mr. Schneider provided certain scripted testimony immediately upon entering the courtroom.

136. Mr. Schneider alleges that this was only possible by Bolz convincing Mr. Trent to conspire

in the inducement in convincing Mr. Schneider to take time away from his busy schedule to

attend the unnecessary second Motion for a Receivership.

137. Mr. Schneider alleges that the FAB, Bolz, and Mr. Trent utilized the Court as their tool to

extract specific testimony, which did not accurately reflect the entirety of the evidence used in

the summary judgment proceedings.

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138. As noted herein, Mr. Trent filed a Motion to Withdraw, without Mr. Schneider’s

knowledge or consent on March 22, 2017, one week prior to the second Receivership hearing,

in an attempt to skirt his involvement in the alleged conspiracy to defraud Mr. Schneider and

the Court.

139. His timely and coordinated Motion to Withdraw further provides this Court with their true

intentions and alleged conspiracy.

140. After the Motion for Receivership hearing, Mr. Trent requested Mr. Schneider send him

his fee of $700.00 for his representation of the case in the month of April.

141. Mr. Trent requested Mr. Schneider pay him as soon as possible, as he had bills to pay.

142. On March 31, 2017, without any knowledge that Mr. Trent filed a Motion to Withdraw or

played a role in the conspiracy, Mr. Schneider wired $700.00 for his continued representation.

143. On May 1, 2017, his Motion to Withdraw was granted.

144. Mr. Schneider alleges that Bolz then further utilized Mr. Trent’s Motion to Withdraw, in

which it was claimed that “[Mr. Trent] has not been in touch with his client.”

145. Using this Motion, Bolz was able to expedite the foreclosure process, along with providing

fraudulent Notices to the Court, to deny Mr. Schneider the right to justice, and a fair trial.

146. The court should be also be aware that on May 23, 2017, after Mr. Trent ceased

representation in this matter, he was erroneously sent a wire for almost $10,000.00 which he

refuses to return.

147. Former Counsel for Mr. Schneider, Kenneth Eric Trent, has had a history of problematic

fiduciary responsibilities with representations of clients.

148. On October 25, 2016, The Florida Bar filed a case against Mr. Trent.

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149. On October 28, 2016, Mr. Trent entered into a Conditional Guilty Plea with the Florida

Bar regarding several representative matters.

150. On November 11, 2016, Mr. Trent entered into a Conditional Guilty Plea for his past

representative matters with prior clients, including Mr. Schneider.

151. On November 11, 2016, Mr. Trent filed a Notice of Unavailability due to his Bar

Suspension. A copy of the documents related to Mr. Trent is attached herewith as “Exhibit

I”.

The ‘Molestina Affidavit’

152. In a March 9, 2017 email from Mr. Bolz to prior Counsel for Mr. Schneider, Bolz stated

the following:

Carlos Molestina is First American Bank’s Brokers Sales Manager. His

January 19, 2017 inspection of the Schneider’s residence at 17685 Circle Pond
Road was informal. His hand-written notes and communications with me
constitute either work product or attorney-client privilege and will not be
produced. Carlos Molestina’s Affidavit dated February 23, 2016 which we
filed with the Court on that same date (you were provided with a copy),
constitutes his inspection report. In an abundance of caution, our Notice of
Filing, his Affidavit (and his photographs) are attached for your ease of
reference.

153. Furthermore, Mr. Schneider alleges that Bolz made additional knowingly fraudulent

communications to Mr. Schneider’s prior counsel, asserting,

At this point in time, we are intending to call Mr. Molestina as a witness at the
March 28, 2017 hearing. In order for Mr. Molestina’s testimony to be
meaningful, it will be necessary for him to revisit the property. Again, can you
provide us with a time and date between Monday, March 20, 2017, and
Thursday, March 23, 2017 when Mr. Molestina can revisit the residence?

154. On or about March 28, 2017, the Court heard Bolz’s frivolous request for a receivership

on a property which had no tenant and was kept in pristine condition.

155. Mr. Schneider alleges that the intent of the hearing was twofold.

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156. Despite Bolz’ intent to have Mr. Molestina testify as to the alleged misrepresentations made

to this Court, Mr. Bolz had no intention of having Mr. Molestina commit perjury on the witness

stand.

157. Mr. Schneider provided Bolz, through prior counsel, copies of paid utility bills, pool

maintenance bills, and property landscaping bills.

158. Furthermore, both the owners of the landscaping company and the pool maintenance

company provided written sworn statements as to the eight years in which they meticulously

maintained the property.

159. Notably, Mr. Lemus took time away from his small business to prepare and execute his

affidavit, on behalf of Mr. Schneider, due to the alleged fraudulent conduct being perpetrated

by FAB and Bolz.

160. Mr. Lemus also took time off from his small business to appear in person as a material

witness at the March 21, 2017 hearing.

161. Defendants allege that Bolz never intended to have Mr. Molestina testify, despite outlining

his purported intent in writing.

162. Instead, Bolz enticed the court to set aside time for a seemingly unnecessary hearing, but

also induced the Court’s gracious accommodation, in allowing a second motion for

receivership (despite the prior motion being denied).

163. Defendants allege that the purpose of this hearing was to entice Mr. Schneider to appear at

the hearing, for the sole purpose of refuting Mr. Molestina’s fraudulent claims.

164. However, Defendants allege that Bolz’ sole intention was to ambush Mr. Schneider.

165. Mr. Schneider’s prior counsel reiterated the urgency that he appears in person for the

hearing.

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166. Not only was Mr. Molestina notably not at the hearing, but Bolz had brought a court

stenographer, to record every word of the hearing.

167. Since numerous employees working for FAB, as well as Bolz, have all painfully

acknowledged, they possess no documents reflecting the accuracy or integrity of the account

history or the amount owed by Defendants, Defendants are entitled to a re-hearing on the

matter, and a judicial determination to vacate the judgment erroneously entered in this matter.

SANCTIONS ARE APPROPRIATE

168. It is undisputed that Bolz represents FAB, both as an arm of the Plaintiff, and in their

mortgage servicing responsibilities.

169. Defendants allege that FAB knowingly and repeatedly misrepresented to Defendants,

both in its continued misapplication of payments and erroneous and harmful negative

reporting of Defendant’s payments under the FCRA.

170. Defendants further allege that Bolz specifically instructed Mr. Schneider to only

communicate with Bolz, regarding any FCRA related matters.

171. However, Mr. Schneider alleges that Bolz refused to respond to emails or return

numerous phone calls.

172. By committing the above and foregoing acts, including but not limited to, altering the

judgment to the benefit of Plaintiff, Bolz should be subject to sanctions, pursuant to Section

57.105, Florida Statutes.

173. "In determining whether sanctions are appropriate, a court must ask, first, whether the

claims are objectively frivolous, and, second, whether the person who signed the …[judgment]

should have been aware that they were frivolous.” Rogers v. Nacchio, 241 F. App’x 602, 610

(11th Cir. 2007).

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174. In this matter, it is abundantly clear that the documents altered were frivolous and Bolz

undoubtedly knew this fact.

175. In 1999, the standard for granting fees pursuant to Section 57.105 was lowered. Instead of

having to show a "complete absence of a justiciable issue of either law or fact raised by the

losing party" as required by the previous version of Section 57.105, now a "movant need only

show that the party and counsel `knew or should have known' that any claim … was (a) not

supported by the facts or (b) not supported by an application of 'then-existing' law." Boca

Burger, Inc. v. Forum, 912 So. 2d 561, 571 (Fla. 2005) (quoting Section 57.105, Fla. Stat.

(2000)).

176. "The amendments therefore greatly expand the statute's potential use." Id.; see also

Albritton v. Ferrera, 913 So. 2d 5, 8 (Fla. 1st DCA 2005) (holding the 1999 amendment

"lowered the bar" by permitting the imposition of attorney's fees for any stage of the

proceeding, if it is determined the claim or defense lacks a sufficient factual or legal basis).

177. The Court may award fees at any time during an action or proceeding, and need not wait

until the conclusion of the action. In Bridgestone/Firestone, Inc. v. Herron, the First District

Court of Appeal affirmed an award of appellate attorney's fees pursuant to Section 57.105 to

an appellee where the appellant's position on appeal was "plainly without merit and could not

be sustained under any interpretation of the law." 828 So. 2d 414, 416 (Fla. 1st DCA 2002).

178. Similarly, there is no logical nor rational defense Bolz can make, to altering a judgment of

foreclosure for the sole and singular benefit of the Plaintiff at the expense of the Defendants.

179. Defendants seek only to determine entitlement to sanctions, reserving the determination of

any amount for a subsequent evidentiary hearing or submission.

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