(20-22398 17) Ex. B Hearing Transcript Receivership 03.28.2017-Ferrara

Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 125 of 314
1 IN THE CIRCUIT COURT OF THE 15th

JUDICIAL CIRCUIT IN AND FOR
2 PALM BEACH COUNTY, FLORIDA
3 CASE NO: 50-2016 CA 009292
5 FIRST AMERICAN BANK,
6 Plaintiff.
7 vs.
8 LAURENCE S. SCHNEIDER, ET AL.,
9 Defendants.
- - - - - - - - - - - - - - -I
10
11 Proceedings had and taken place before the
12 Honorable THOMAS BARKDULL, one of the Judges of
13 said Court, at Palm Beach Courthouse, 205 North
14 Dixie Highway, West Palm Beach, FL 33401,on
15 Tuesday, the 28th day of March, 2017, commencing
16 at the hour of 1:15 p.m., and being a Hearing.
17
18
19
20
21
22
23
24
25
Exhibit "2"
JULIO A. MOCEGA & ASSOCIATES (305) 374-0181
1 APPEARANCES :
2 Appearing on behalf of the Pla in tiff:
3 KELLER BOLZ, LLP

121 Majorca Avenue , Suite 200
4 Coral Gables , Florida 33134
305 - 529-8500
5 [email protected]
BY: HENRY H. BOLZ III, ESQUIRE
6
Appeari ng on behalf of the Defendant:
7
KENNETH ERIC TRENT , P.A.
8 831 E Oakland Park Blvd.
Fort Lauderdale , Florida 33334 -27 52
9 954-567 - 5877
Trentlawoffice@yahoo . com
10 BY : KENNETH E. TRENT , ESQUIRE
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
JULIO A . MOCEGA & ASSOC IAT ES (305 ) 374-0181

1 (Th ereupon, the fo llowin g proceedings were
2 had : )
3 THE COURT : Is everyb ody present now?
4 MR. TRENT : No , Your Honor , unfortunate ly my
5 c li e nt i s still not here but , you know , I
6 underst and --
7 THE COURT : It ' s an important enough mot i on
8 that I j ust want to proceed . I mean , he is - - and
9 is that Mr . S chne ider?
10 MR . TRENT : It is.
11 THE COURT : Okay .
12 MR. TRENT: And he is planning t o testi fy,
13 and we have evidence that he ' s going to present.
14 But I u ndersta nd the Cou rt h as it se t for 1 :00,
15 and we' ll leave it up to t he Court .
16 TH E COURT : How lo ng do you believe he ' s
17 go ing to take to p resen t the motion in its
18 entirety?
19 MR . BOLZ: Your Honor , it is a n evidenti a ry
20 mot ion. We ' ve go t cert ain things we h ave to do.
21 THE COURT : All right .
22 MR. BOLZ : I think I have the p residen t of
23 the ba n k here wi t h me . He can tes tif y - -
24 TH E COURT : Just give me a n idea as t o wh at
25 it is th e pres iden t ' s go ing to be test ifyin g to.
JUL I O A . MOCEGA & ASSOCIATES (305) 374-0181

1 MR. BOLZ: It's going to be the note, the
2 mortgage, the fact that it the real property
3 taxes have not been paid by the owner, and the
4 bank stepped in and paid those to the tune of
5 $60,000. We found out earlier
6 THE COURT: I don't want to go too far down
7 the road. I'm just -- this is not the hearing.
8 I'm just trying to get a feel for how much time it
9 is that we're going to take to present because now
10 two of them have kind of settled out in a way. Do
11 you think we can -- can we get this hearing done
12 in a half hour?
13 MR. BOLZ: I certainly think we can get it
14 done by 2:00, Your Honor, if we look at --
15 THE COURT: I do have a specially set hearing
16 at 2:00. But I it is important, but I do want
17 Mr. Schneider to be present if he's going to offer
18 testimony. Is there -- this is this is the
19 bank's motion. Can we begin while we're waiting
20 for Mr. Schneider? I imagine he's going to be --
21 we're going to be providing testimony in response
22 to the bank's motion. I just don't want to run
23 out of time. This is a fairly important hearing.
24 MR. TRENT: Yes, Your Honor. I think we
25 could go ahead and get started, but I would state

1 that with Mr. Snider's testimony in
2 cross-examination, et cetera, it probably will be
3 more than a 30-minute hearing. We have about
4 about six or seven exhibits, I guess, to
5 introduce, and I know they have several as well.
6 MR. BOLZ: Again, Your Honor, I think that
7 we're going to simplify this fairly substantially.
8 Because I don't know if Your Honor is aware of it,
9 but we had arranged for inspection of the property
10 to occur on Friday. That inspection went forward.
11 THE COURT: You know what, let's start the
12 hearing.
13 MR. BOLZ: Okay.
14 THE COURT: It was noticed for 1:00 and we're
15 going to begin -- I'm certainly not going to delay
16 this matter another day. Mr. Schneider is not
17 present in the courtroom
18 MR. BOLZ: Your Honor, I think we can begin
19 with a little of open -- not opening statements
20 exactly --
21 THE COURT: I have read the motion.
22 MR. BOLZ: Okay.
23 THE COURT: And so I know about the
24 inspection, I know about the history with regards
25 to Mr. Schneider, so you don't need to fill me

1 back in on those details. But by all means, let's
2 get going.
3 MR. BOLZ: Okay. Your Honor -- and, again,
4 if I may, then -- and I can call Mr. Eggland right
5 now. He is ready, I'm ready, I'll put him on the
6 stand. But the property was inspected on Friday
7 and, as I had kind of figured, everything was
8 good. It looks good. The property is shipshape
9 and up to date and they knew that this hearing was
10 coming, and it's spiffy.
11 So I'm not going to call the inspector to say
12 the property is spiffy. The air -- the power this
13 time was working, the air-conditioning system is
14 working, the appliances are working, the outside
15 has been cleaned up and some painting's been done.
16 So we are not talking about waste here --
17 THE COURT: Okay.
18 MR. BOLZ: -- on allowing the property to
19 deteriorate. That's -- at least for the time
20 being, snapshot on Friday, it was fine. And so we
21 can avoid all of that testimony.
22 We're talking about property taxes,
23 insurance, and some big things that we believe
24 constitute waste on a larger scale, which entitle
25 us to receive them.

1 MR. TRENT: If I might, with that --
2 THE COURT: Sure.
3 MR. TRENT: Your Honor, just for
4 clarification purposes --
5 THE COURT: Why don't you step up.
6 MR. TRENT: Thank you. Again, Kenneth Trent
7 on behalf of the defendants. Nice to see Your
8 Honor.
9 THE COURT: Nice to see you.
10 MR. TRENT: Actually, the thing is, their
11 motion is based upon an affidavit of this person
12 who conducted both the property inspection
13 occurring January 19th and the property inspection
14 occurring -- I guess it was the 23rd or
15 thereabouts of March. And we -- obviously, we
16 would oppose the Court considering that affidavit,
17 because it is hearsay --
18 THE COURT: But we're not -- we're not on
19 that issue now. Counsel has already kind of
20 stipulated today that as of last Friday, that he's
21 not making the same complaints with regards to
22 what I'll characterize as the physical waste of
23 the property versus I'll say the financial. So
24 let's not go down the road; we don't need to talk
25 about the lack of a witness with regards to the

1 inspection conducted in January.
2 MR. TRENT: But for clarification, he only
3 made reference to the second inspection, and I
4 just wanted to make sure that that's the case, as
5 well as he's also relying upon anything regarding
6 the first inspection. Is that
7 THE COURT: I think he was rather clear as to
8 what the basis for his motion now is, and that is
9 because the property taxes have not been paid and
10 the homeowners' association assessments have not
11 been paid. Was there a third?
12 MR. BOLZ: Insurance, Your Honor.
13 THE COURT: Insurance.
14 MR. BOLZ: There was an affidavit that was
15 filed recently.
16 THE COURT: So with that --
17 MR. TRENT: Understood, Your Honor. We just
18 object to, obviously, any affidavits as hearsay.
19 THE COURT: They haven't been presented, so
20 let's move on. Okay.
21 So why don't you bring up your witness, sir,
22 and then we will --
23 MR. BOLZ: Mr. Eggland, if you would -
24 THE COURT: Sir, let me get your last name.
25 THE WITNESS: Eggland.

1 THE COURT: And if you would want to take a
2 seat there , and I ' ll swear you in .
3 THEREUPON:
4 DANIEL EGGLAND
5 Having been first duly sworn and responding ,
6 '' I do , " was examined and testified as follows :
7 THE COURT : All right . Counsel .
8 DIRECT EXAMINATION
9 BY MR . BOLZ:
10 Q Would you please state your full name for the
11 record , sir?
12 A Yes . Daniel Eggland.
13 Q And by whom are you presently employed?
14 A Fi rst American Ban k.
15 Q And what is your ti tle or your positio n at
16 First American Bank?
17 A Branch president.
18 Q And where is that branch of the bank located?
19 A 22 95 Galiano Street , Coral Gables, Florida.
20 Q Wh e n did you begi n your employment with th e
21 bank at Coral Gables, the First American Bank?
22 A Bank of Coral Gables was March of 2012 , and ,
23 through a merger, Bank of Coral Gables was purchased by
24 First American Bank , and that was completed on December
25 of 2014 .
JULIO A . MOCEGA & ASSOCIATES (305) 374-0181

10
1 Q We're here today on a --
2 MR. TRENT: This is my client.
3 THE COURT: Okay. You can just take a seat
4 at counsel table.
5 BY MR. BOLZ:
6 Q Let me -- I would like to show the witness
7 two documents and ask him if he could just take a look
8 at them and identify them. It is the credit agreement
9 and the mortgage, which I have a copy for counsel there
10 attached to the complaint. I don't think these
11 documents -- may I approach the witness, Your Honor?
12 THE COURT: Absolutely. And you don't need
13 to ask.
14 MR. TRENT: Defense would stipulate to the
15 authenticity of these documents.
16 THE COURT: Okay.
17 MR. BOLZ: Will you stipulate then it's Mr.
18 Snider's signature on them?
19 MR. TRENT: Yes.
20 MR. BOLZ: Making this easy on me. Okay.
21 THE COURT: We're all about getting along.
22 MR. TRENT: I wouldn't go that far.
23 THE COURT: All right. Well, about halfway
24 getting along.
25 (Thereupon, Plaintiff's Exhibits A

11
1 and B were marked for
2 identification.)
3 MR. BOLZ: Okay. Well, anyhow, I want to --
4 I'd like to ask him a couple of questions about
5 these, anyhow, the numbers. And so they're
6 admitted into evidence, Your Honor?
7 THE COURT: Is there any objection to
8 admitting them into evidence?
9 MR. TRENT: No, Your Honor.
10 THE COURT: Okay. They are admitted in
11 evidence without objection.
12 MR. BOLZ: The HELOC credit agreement is A
13 and the mortgage is B, Your Honor.
14 THE COURT: Okay. A is the HELOC agreement,
15 and Bis the mortgage.
16 MR. BOLZ: Yes, sir.
17 THE COURT: Okay.
18 MR. BOLZ: And
19 THE COURT: Do you have a copy for the Court?
20 MR. BOLZ: Yes, I do. Yes, I do.
21 THE COURT: Thank you, sir.
22 MR. BOLZ: All right.
23 BY MR. BOLZ:
24 Q Mr. Eggland, would you briefly just explain
25 to the Court what Exhibit A is?

12
1 A It's the credit agreement, similar to a
2 promissory note. It's for a million five. It was
3 executed and dated on July 28th, 2016 -- or 2006 and
4 insured on July 8, 2016.
5 Q So it was a ten-year, fixed term loan?
6 A Ten-year, yes, it was a ten-year revolving
7 credit, home equity line of credit.
8 Q And the -- what is the property secured by
9 the mortgage, Exhibit B?
10 A It's a home, and the address is 17 -- I think
11 it's 885 or 685 -- Circle Pond Court -- I can't read it
12 on this document -- Boca Raton, Florida.
13 MR. BOLZ: Your Honor, it is
14 THE COURT: I see it. I see it. I see the
15 address.
16 MR. BOLZ: It was 17685.
17 BY MR. BOLZ:
18 Q And is that the property that's being
19 foreclosed in these proceedings that we're here on
20 today?
21 A Yes, it is.
22 Q Where are the originals of the credit
23 agreement and the promissory note?
24 A I have them with me.
25 MR. BOLZ: Your Honor, do you want to see

13
1 originals or --
2 THE COURT: No. If he testifies he has them,
3 I don't want to accept them because we're not at
4 the conclusion of the case, but as long as he has
5 them, I'll accept that.
6 BY MR. BOLZ:
7 Q I'd like to briefly talk about payments and
8 some defaults that have occurred, at least been
9 alleged, and ask you to testify about those.
10 From the bank's records, when did Mr.
11 Schneider and his wife miss making their monthly
12 payments under the HELOC?
13 A May of '16.
14 MR. TRENT: Your Honor, I would just object
15 to this question on relevance grounds. It's not
16 we're not here -- there's no question but that
17 there has been a cessation in payments and that
18 the balloon payment has not been made, which
19 purports to be required. Doesn't mean we don't
20 have defenses, but it is true, and we wouldn't
21 quibble with the plaintiff's characterization with
22 regard to the last payment made.
23 THE COURT: Well, and I appreciate, Mr.
24 Trent, you making that point; however, he does
25 need to make a showing, though, that there is a

14
1 fairly good chance that they're going to prevail
2 in the case, and I think what he's trying to
3 demonstrate, basically, is the basis for the
4 foreclosure action and get some testimony from the
5 president. If you are willing to stipulate that
6 -- I'm looking for the precise wording that is
7 necessary -- that --
8 MR. BOLZ: Your Honor, if I may, essentially,
9 no payments have been made after April of 2016.
10 THE COURT: Okay.
11 MR. BOLZ: And I -- you know, Mr. Eggland
12 will testify that there have been no monthly
13 payments made, that the balloon payment, the
14 ten-year anniversary payment, was missed and that
15 no funds at all have been paid by Mr. Schneider to
16 First American Bank since April of 1916.
17 THE COURT: Mr. Trent, can you stipulate to
18 that fact?
19 MR. TRENT: Yes, albeit with the caveat that
20 it's 2016, not 1916.
21 THE COURT: That would be the oldest case in
22 this division, but okay. We have a stipulation
23 with regards to what the status is of the
24 payments. So --
25 MR. BOLZ: Okay. If we may then, Your Honor,

15
1 let's -- Mr. Eggland
2 THE COURT: Why don't we get to the portions
3 about what payments have not been made to the
4 homeowners' association and to the taxes, because
5 I know that was kind of the gist of your argument.
6 MR. BOLZ: Okay. Again, we'll go to the
7 taxes first.
8 THE COURT: Okay.
9 BY MR. BOLZ:
10 Q Mr. Eggland, did Mr. Schneider pay the
11 property taxes for the property that's being foreclosed
12 for the years 2014, 2015, or 2016?
13 l \.
Q) He has not?
15 l \.
16 Q All right. Were those tax -- property taxes
17 paid?
18 l \.
Q2 Who paid them?
1\. First American Bank.
C) And what was the -- do you know what the
22 total of those payments were?
23 A It's around $60,000.
24 Q All right, sir.
25 MR. BOLZ: Your Honor, I'd just like to --

16
1 might as well get the numbers correct .
2 THE COURT: Okay.
3 MR. BOLZ: It was f or 20 1 6 , the calenda r ye ar
4 t h a t the amount was $2 0,722.76.
5 THE COURT : All righ t.
6 MR. BOLZ : And for the years 2014 and 2015 ,
7 the bank paid 46
8 MR . TRENT : Your Honor, I don ' t know tha t the
9 exact numbers are rele vant. I mea n, the y didn't
10 pay fo r those
11 MR . BOLZ : There's essent i ally $20 , 000 --
12 THE COURT : I think -- I think we ' re working
13 on a stipulation that three years of taxes - -
14 MR. BOLZ : Right . And th ey were $20 , 0 00 a
15 yea r. Bu t they were i n arrea rs , so that ' s why we
16 had to pay .
17 THE COURT : Okay.
18 MR. BOLZ: Like $25 , 000 for the two years ,
19 and then 20 for the third. So it ' s a total o f
20 about 65 or 66 thousa nd dollar s . Okay .
21 THE COURT : All righ t. Let ' s move on to the
22 issue of homeowners ' assoc i ation assessments .
23 Un l ess , Mr . Trent , you can stipulate that those
24 have n ot been paid for a whi le , but I don ' t want
25 t o force you into anyt hing.
JU LI O A . MOCEGA & ASSOCIATES (305) 374-018 1

17
1 MR. TRENT: Okay. I believe if I could just
2 ask my client.
3 THE COURT: Sure.
4 MR. TRENT: Mr. Schneider would stipulate
5 without being exact that he hasn't paid the
6 association payments for several months and same
7 thing, I guess, albeit maybe a bit late, he's
8 telling me that the date of the last payment is
9 not correct on the mortgage payments. But,
10 nonetheless, it's still been several months, and
11 there was a balloon payment that has not been
12 made, so we can continue to stipulate in that
13 regard.
14 THE COURT: Okay.
15 MR. BOLZ: If we could, Your Honor, I would
16 then -- opposing counsel -- the homeowners'
17 association has filed a claim for lien of
18 assessments. We now have $8,192.21. I cannot get
19 this document entered into evidence through Mr.
20 Eggland. I was planning on calling Mr. Schneider
21 and assume that he is aware of what his assessment
22 status is.
23 THE COURT: How is it that Mr. Eggland's
24 going to be able -- going to have the capability
25 of introducing the document that you

18
1 MR. BOLZ: He is not. That's what I said.
2 THE COURT: Okay. But let me see the
3 document.
5 THE COURT: Just to see
6 MR. BOLZ: Then I'll mark this as an exhibit.
7 It's been filed as an attachment to the renewed
8 motion, I believe, Your Honor. I think it's
9 Exhibit C to the verified motion.
10 (Thereupon, Plaintiff's Exhibit C
11 was marked for identification.)
12 THE COURT: Okay. Is this part of the --
13 this is a recorded document?
14 MR. BOLZ: Yes, it is. Yes, it is.
15 THE COURT: So I could take judicial notice
16 of it and we wouldn't have to have any --
18 THE COURT: -- wouldn't have to have any
19 witnesses to vouch for it. Is that all right with
20 you, Mr. Trent?
21 MR. TRENT: Well, I believe it has to be a
22 certified copy, Your Honor, in order for that rule
23 to apply.
24 THE COURT: Fair enough.
25 MR. TRENT: But we are stipulating that my

19
1 client has not paid for several months. I'm not
2 trying to be obstructive, it's just --
3 THE COURT: Okay. No, I understand. To be
4 honest with you, sir, I'm not sure that either Mr.
5 Schneider or Mr. Eggland is going to be able to
6 introduce this document. It's either going to be
7 by the attorney who prepared it at, I guess, Mr.
8 Jay Levin, or it's going to have to be certified
9 copy so I could take judicial notice of it.
10 But we do have a stipulation from Mr. Trent
11 with regards to the fact that there has been a
12 failure to pay several months' worth of
13 homeowners' association assessments. So I think
14 we can proceed now on -- there's been an agreement
15 to that.
16 MR. BOLZ: Your Honor, the other thing that
17 has to be demonstrated -- and the burden of proof
18 is on the homeowner, not on the bank -- but it's
19 to demonstrate that the property is underwater.
20 Okay.
21 THE COURT: Or lacks equity for a --
22 MR. BOLZ: There's -- there's no -- the
23 equity is insufficient to pay the amount owed to
24 the bank. All right.
25 BY MR. BOLZ:

20
1 Q And so with that, Mr. Eggland, what is the
2 present amount, the payoff amount owed by Lawrence
3 Schneider to First American Bank?
4 A $1,740,783.61.
5 Q So 1,740,783.61. Mr. Eggland, what is the --
6 what does the bank determine that the present value of
7 the property being foreclosed is today?
8 MR. TRENT: I would object on hearsay
9 grounds, Your Honor, because it would necessarily
10 be based on some kind of statement from another
11 entity or party.
12 THE COURT: I have to sustain that objection.
13 I don't know how -- unless Mr. Eggland has
14 actually done the assessment, or I should say the
15
16 MR. BOLZ: Appraisals.
17 THE COURT: appraisals himself, I'm not
18 sure how we're able to have him discuss that
19 subject.
20 MR. BOLZ: Your Honor, two reasons. One is
21 that the -- there are two appraisals that we have
22 that have been commissioned by the bank, one in
23 August of 2015, the other one in January 2017.
24 THE COURT: Are those appraisals here today?
25 MR. BOLZ: Yes, they are.

21
1 THE COURT: Okay.
2 MR. BOLZ: And there are documents that he
3 did not do the appraisals, but they have --
4 THE COURT: The actual witnesses themselves?
5 MR. BOLZ: I'm sorry, what?
6 THE COURT: The witnesses who prepared those
7 appraisals.
8 MR. BOLZ: No, they are not here today.
9 THE COURT: How do I permit that to go into
10 evidence?
11 MR. BOLZ: These are documents that are
12 ordinarily used in the course of the bank's
13 business and they're business records, and that
14 they demonstrate that -- what the value is.
15 THE COURT: But to be honest with you, sir,
16 for them to qualify as a business record, they
17 actually have to be prepared by the bank, not
18 something that they just simply commission and
19 then put into their bank file. I mean, that's the
20 definition of a business record, not what you're
21 promoting. I mean, if you wanted me to hear
22 evidence with regards to the value of the
23 property, I would need to hear from the appraiser.
24 MR. BOLZ: That or I think Mr. Schneider's
25 also competent to testify about that. It's his

22
1 property.
2 THE COURT: I understand. I mean, certainly
3 an owner of property is able to testify as to the
4 value of his own property.
6 THE COURT: Okay. So if you want to leave it
7 to him, I'm just not going to be able to hear it
8 from Mr. Eggland, and I'm not going to be able to
9 hear it based upon the just simply the reports
10 that you're wanting to present.
11 MR. BOLZ: Opposing counsel then sent to me
12 yesterday evening a copy of one of the appraisal
13 reports that I was trying to enter, and so, again,
14 I don't know whether he plans to enter it or not.
15 But one of the documents that he planned --
16 indicated he was going to present his evidence
17 today, so maybe he'll do it, but again, I've got
18 to -- and -- okay.
19 BY MR. BOLZ:
20 Q Has the bank gone out to determine what
21 amount the Palm Beach property appraiser appraises this
22 resident at, Mr. Eggland?
23 A Yes.
24 Q And what was that -- what was that dollar
25 amount?

23
1 MR. TRENT: Objection. Hearsay.
2 THE COURT: Sustained.
3 MR. BOLZ: Your Honor, I would then move to
4 get this record into evidence under the take
5 judicial notice rule, and that is Dorothy Jacks is
6 the Palm Beach County Property Appraiser and,
7 going onto her website January 30, 2017, this is
8 documents from the county appraiser.
9 MR. TRENT: May I --
10 THE COURT: Mr. Trent, any objection?
11 MR. TRENT: Yes. Yes, Your Honor. Several.
12 First of all, if he wishes the Court to take
13 judicial notice, he's supposed to file a motion in
14 advance of the hearing and give all parties the
15 opportunity to review what he's attempting to have
16 the Court take judicial notice of. And, secondly,
17 this is not a certified copy, same argument as
18 before.
19 THE COURT: I'm going to -- I cannot take it
20 into evidence because the fact is that you want me
21 to take judicial notice at the hearing itself. I
22 mean, this matter has been scheduled since
23 February 14th, and I think there would have been
24 plenty of time for you to have given the
25 appropriate notice for the Court to take judicial

24
1 notice. So Mr. Trent's objection is well taken.
2 MR. BOLZ: All right, Your Honor. Like I
3 said, the case law is very clear that the burden
4 of demonstrating that there's sufficient equity in
5 the property to satisfy the indebtedness is with
6 the homeowner, and so we will see if that burden
7 is carried by then.
8 THE COURT: Okay.
9 MR. BOLZ: But we'll go that route.
10 THE COURT: All right.
11 MR. BOLZ: And those are all the questions
12 that I have for this witness at this time, Your
13 Honor.
14 THE COURT: All right. Mr. Trent, do you
15 have anything?
16 MR. TRENT: Nothing for this witness, Your
17 Honor.
18 THE COURT: All right. Mr. Eggland, thank
19 you.
20 MR. BOLZ: At this point in time, Your Honor,
21 First American Bank would call Laurence Schneider
22 to the stand.
23 THE COURT: All right. Mr. Schneider, can
24 you come up?
25 THEREUPON:

25
1 LAURENCE SCHNEIDER
2 Having been first duly sworn and responding,
3 "I do," was examined and testified as follows:
4 THE COURT: All right.
5 DIRECT EXAMINATION
6 BY MR. BOLZ:
7 Q All right. Would you please state your full
8 name for the record, sir?
9 A Laurence Scott Schneider.
10 Q I would like to -- let me ask you a question.
11 Do you know whether the property tax on the property
12 being foreclosed is the property insurance current
13 and up to date?
14 MR. TRENT: Objection. We've already
15 stipulated that the property tax has not been
16 paid.
17 MR. BOLZ: No, not property tax, I'm sorry.
18 Property insurance.
19 MR. TRENT: Okay. I stand corrected.
20 Proceed, Counsel.
21 THE WITNESS: I don't believe that --
22 actually, I take that back. I believe I do have
23 the blanket policy. I know for sure it was
24 active, at least through the end of last year;
25 it's with PURE AIG, if it's still in place. But

26
1 it was i n sured at least in Feb ruary of this year .
2 THE COURT : As of today , though , is it
3 in sured?
4 THE WITNESS : I 'm not. I just pai d t he
5 premium for -- blanket fo r t he house that we a re
6 currently i n and the house in The Oaks for 17685
7 Circ l e Po nd Court. So I ' m not a hundred percent
8 sure , bu t I still may be in that grace period .
9 And we are taking care of the p roperty i n
10 que stion.
11 THE COURT : Go ahead .
12 MR. BOLZ : I ' m just -- I wo u ld like to show
13 the -- approach the witne ss and show him a
14 do cument, Your Honor .
15 THE COURT : Okay .
16 BY MR. BOLZ :
17 Q Mr. Sch n eider , do you recognize that
18 document?
19 A Not - - sorry . I ' ll didn ' t see the second
20 side . I I d on ' t know if I've se en this part icular
21 document o r not .
22 THE COURT: I need to just quickly , and I
23 apologize if I ' m mistaken , but was this docume n t ,
24 may I inqu i re of counsel , was this document
25 provided t o me in adv ance of th e hearing? I don't
JU LIO A . MOCEGA & ASSOCIAT ES (305) 374-0 181

27
1 recall seeing it.
2 MR . BOLZ : Yes . It was filed under -- an
3 affi da vit was filed , I b el ieve , last week. Yes.
4 It is, Your Honor .
5 THE COURT : Okay . If that ' s the case ,
6 proceed .
7 BY MR . BOLZ :
8 Q Al l right . So you do n' t remember gett i ng a
9 notice of canc ellation of insuran ce?
10 A I do remember that . We reinstated -- i t's a
11 policy it ' s a blanket po l icy that covers nume r ous
12 a couple of properties , access liability , I can ' t tell
13 you with a hundred percent certainty that it ' s up to
14 date . I don' t think this dat e of 9/6/94 is corre ct,
15 but I c an't b e you know , I'm not a hundred percent
16 sure. I normally don ' t handle the bills .
17 Q Who does handle the bills?
18 A Well I pay them fro m time to time , but my
19 wife used t o write the checks .
20 THE COURT: Counse l, a p oint of order , the
21 affidavit -- the only affidavit I see on the
22 docket was 2/23/17 , and that was the affidavit of
23 your property inspection .
24 MR . BOLZ: It's in the - - notice of filing
25 aff idavit, 3/23 , and here's a copy -- Exhib it A i s
JUL IO A. MOCEGA & ASSOCIATES (305) 374-0181

28
1 the declarations page and Exhibit Bis the notice
2 of cancellation.
3 THE COURT: This shows it was e-filed? Okay.
4 I'd read the date there, but it's not showing on
5 my documents.
6 MR. BOLZ: 23rd. Last week, Your Honor.
7 THE COURT: I don't see anything on the
8 docket for March 23rd, but it does look like it's
9 e-filed. Pretty strange. Okay. I'm not going to
10 be able to accept it into evidence anyway, though.
11 MR. TRENT: That's true. Nonetheless,
12 objection to hearsay.
13 THE WITNESS: Can I please get my glasses?
14 MR. TRENT: I can grab them for you.
15 THE WITNESS: They are in my backpack.
16 MR. TRENT: Would that be acceptable, Your
17 Honor?
18 THE WITNESS: Does it even say this property
19 on here?
20 MR. TRENT: I can't answer.
21 THE WITNESS: Yeah. You know, as I said, I
22 don't know that this is for our -- this particular
23 property because it's a blanket policy and it
24 doesn't have the physical property address on it
25 as insured. I don't see it. Perhaps you could

29
1 help me. I'm a little nervous with this whole
2 process. First time I've testified or whatnot.
3 MR. BOLZ: Your Honor, if you look at the
4 affidavit, which has been filed, the declarations
5 page and the notice of cancellation reflect the
6 same policy number, and I -- this is a
7 cancellation notice that we obtained the bank
8 obtained from the insurance agent and, as a result
9 of this, we've force placed insurance on the
10 property.
11 THE COURT: That was going to be one of my
12 questions. Is there force placed insurance on the
13 property now?
14 MR. BOLZ: Yes, sir, as of last week, there
15 is, and, again, the bank is paying for that.
16 THE COURT: Okay.
17 MR. TRENT: And, Your Honor, if I may object,
18 that's hearsay. Counsel is not under oath, he
19 can't testify, and those facts are not in
20 evidence.
21 THE COURT: Fair enough.
22 THE WITNESS: And this is a blanket policy --
23 THE COURT: Sir, there's no question pending.
24 THE WITNESS: Okay.
25 BY MR. BOLZ:

30
1 Q All right. Mr. Schneider, what is the -- do
2 you know what the present fair market value of the
3 property that's located at 17685 Circle Pond Court is
4 today?
5 A Based on the excellent condition that I keep
6 it in, and we have kept it in, I'm not a Realtor, I'm
7 not an expert. I would think somewhere around 1.5
8 million.
9 Q Have you seen the appraisal on the property
10 that was sent to me by your attorney on August 20th,
11 2015, the appraisal that is at 1,200,000?
12 MR. TRENT: Objection to the form of the
13 question.
14 THE COURT: I think all he's doing is asking
15 if he's seen them.
16 MR. BOLZ: That's what I'm trying to ask.
17 THE WITNESS: I have seen it and I actually
18 sent it to you to send to the bank. But --
19 THE COURT: The question is --
20 THE WITNESS: The issue is because the
21 appraised value came in differently. There's been
22 a whole series of events which transpired.
23 BY MR. BOLZ:
24 Q So you are saying that the property value has
25 gone up $300,000 in the last year and a half?

31
1 A Well, I've disagreed and I've put that in
2 writing several times with -- Hagen. Does Mr. Hagen
3 work? I want to make sure I have the right name.
4 Q Right. Mr. Hagen.
5 A Yeah. So we had discussed the property value
6 and he said, okay, he wants one appraisal. I said,
7 obviously, the value is -- I think is much higher, and
8 actually while -- shortly after this process -- I'm
9 sorry, I don't know the attorney's name.
10 Q Mr. Bolz.
11 A Mr. Bolz. So I e-mailed you directly, and
12 you've told me to e-mail -- you said in your
13 communications with the bank, because of the
14 misapplication of payments was to be with you, and we
15 were attempting to do a short sale because the property
16 is in excellent condition, and then a number of things
17 happened and foreclosure happened in the middle of us
18
19 THE COURT: Gentlemen, we have 11 minutes
20 left before my 2:00 hearing begins, so I'm going
21 to wrap this hearing up.
22 MR. BOLZ: All right. Now, just a couple of
23 last questions.
24 BY MR. BOLZ:
25 Q And that is, the property at Circle Pond

32
1 Court was rented -- you rented i t to Jeff Hermand
2 (phonetic) beg inning on January 1 , 2016 , did you not?
3 A Correc t . A four -month lea se .
4 Q Okay. And that monthly lease payment was
5 $7 , 500?
6 A I believe so.
7 Q Okay . And Mr . Herma nd then occupied the
8 premises from January 1 , 2016, through the end of
9 October , 2016; is that cor rect?
10 A I believe it's about correct. I've
11 communicated with Mr. Hagen , and the property was
12 rented at the time we ' re talking about the whole --
13 trying to work something out together.
14 Q Okay. Now did Mr. Hermand pay the $7,500 to
15 you every month, or did he ever get in default o n those
16 payments?
17 A First month , the refrigerator went out , so I
18 believe we had to replace
19 MR. TRENT: Let me just object quickly on
20 re levance grounds, You r Honor, because the se
21 matters that went before the prior hearing on the
22 motion for appointment of receiver have already
23 been resolved and that motion was denied , so if
24 he's going to proceed , it needs to be on even ts
25 that have transpired since the denial of the prior

33
1 motion.
2 THE COURT: I'm really looking to hear what
3 evidence is there that the property is being
4 wasted or the asset is being wasted. That's
5 really what I want to focus on.
6 MR. BOLZ: That -- that -- Your Honor, the
7 reason I made these was because the $7,500 was
8 paid and he stopped paying payments to the bank.
9 THE COURT: And he should have been
10 MR. BOLZ: Four months into it
11 THE COURT: -- and I understand --
12 MR. BOLZ: Okay.
13 THE COURT: -- that you -- your point is that
14 you should have been --
15 MR. BOLZ: I need that for the -- to comply
16 with the case law, that's it, Your Honor. And
17 that, going back to your question, that
18 constitutes the waste. So --
19 THE COURT: But as I -- hold on. But as I
20 understand it, that tenant is no longer there.
21 MR. BOLZ: That's correct, Your Honor.
22 THE COURT: That tenant is no longer paying
23 rent.
24 MR. BOLZ: That's correct.
25 THE COURT: Let me ask a question. Mr.

34
1 Schneider, are you occupying this home now?
2 THE WITNESS: No, but we intend to.
3 THE COURT: I heard that from months and
4 months ago that you intended to. As of today, you
5 do not occupy it?
6 THE WITNESS: We don't, but we are -- we have
7 a house in east Boca Raton.
8 THE COURT: I understand. Okay.
9 THE WITNESS: And we are -- I've brought, you
10 know, evidence with me that it's listed for sale,
11 and we need the money to pay our other attorneys.
12 I filed a --
13 THE COURT: Sir, all I asked you is whether
14 or not you were a tenant -- you were an occupant
15 of the house.
16 MR. BOLZ: Your Honor, as long as we
17 understand it's unoccupied and the rent was paid
18 prior to, that's all the questions I have for this
19 witness.
20 THE COURT: Okay. Mr. Trent, anything for
21 your client?
22 MR. TRENT: Well, yes, potentially, but that
23 would be on direct. I mean, I would -- I don't
24 know how Your Honor handles this, I don't know if
25 there is such a thing, but I would like to

35
1 basically move, if that's the conclusion of the
2 plaintiff's evidence, before I present my client,
3 I would like to seek a denial on the motion just
4 based on the plaintiff's failure to make a prima
5 facie case.
6 THE COURT: I'm ready to rule. When I walked
7 into the hearing based upon the representations
8 that were made in the motions, I was inclined to
9 grant the motion for the appointment of the
10 receiver because I was troubled by the fact that
11 the house apparently had not been kept up; there
12 had been allegations that there was no
13 electricity, no air-conditioning running in it,
14 that the pool was remaining that was not running,
15 and so I kind of thought those to be evidence that
16 the asset was being wasted.
17 However, today, based upon a stipulation, I
18 hear that the property is no longer in that
19 condition and the electricity is still on. I was
20 concerned by the fact that there was no insurance
21 on the property, which I would also see as a risk
22 to First American, but I see that they have taken
23 the appropriate steps to place that insurance.
24 I understand that there is an allegation that
25 the property is -- the fair market value of the

36
1 property is l ess than the debt out there , but
2 that 's kind of true for a lot of properties out
3 there in foreclosure . An d I also understand that
4 there is no payment by the owner to The Oaks
5 Homeown ers ' As soci at ion , bu t , a gai n , t hat' s also
6 commonplace in a foreclosure action.
7 And so , b eca use the appo in tmen t of a rec eiver
8 is an ordi n ary remedy , and I do not find that
9 there to be at the present time wa ste or that
10 there is the property is subject to serious
11 risk , I ' m going to go ahe ad and deny the motion
12 for the appointment of a receiver.
13 MR. TRENT: Your Honor , may I make a
14 statemen t?
15 THE COURT: No , we ' re kind of done .
16 MR. BOLZ: Your Honor, if -- I understand
17 what you have said. We -- it has been difficult
18 to i ns pect th e proper ty . We wo uld -- the ban k
19 would like the right to inspect the property on a
20 monthly basis . We don't think that that ' s
21 unrea s onable . We did not put -- I did not proffer
22 testimony here about the fact that the power was
23 off ; I don 't know when -- wh ether when Mr.
24 Schneider went there in J a nuary it came as a
25 surp ris e to h im or n ot . Th e power was n ot on , it
JULIO A . MOCEGA & ASSOCIATES (305) 374-01 8 1

37
1 was troublesome to us, the property has been
2 unoccupied since October 31st , almost six months
4 TH E COURT: But you ha ve a right under the
5 mortgage documents ; is that --
6 MR . BOLZ: That ' s correct , but --
7 THE COURT: Hold on . Let me finish.
8 MR . BOLZ : I don ' t wan t to have to come to
9 t h i s Cou rt every
10 THE COURT: I agree with you , so let me put
11 this on the record. You have the right under the
12 mortgage documents --
13 MR . BOLZ: Yes , we do .
14 TH E COURT : -- to make an inspection , right?
15 MR. BOLZ : Yes . It 's a gated community ,
16 though .
17 THE COURT: Okay . Then , first of all , before
18 I go further , where are we on the pleadings on
19 th i s ca se? Are the pleading s closed? Are we --
20 is this matter ready to be t ried?
21 MR . TRENT : No --
22 MR. BOLZ: There has been an amended
23 counterclaim and amended affirmative defenses .
24 We ' d move to strike the a mended affirmative
25 def enses. We ' d move to dismiss the counterc laim
JULIO A . MOCEGA & ASSOCIATES (305) 374 -0181

38
1 t hat wa s set for heari ng on a 30 -minu te spe cial
2 set h earing on April 7th .
3 THE COURT : Okay . Okay . So we have some
4 movemen t . We 're workin g towards gett ing th e
5 pleadings closed . I - - now , I understand your
6 fru stration. Al l right . Here ' s wha t I ' m go ing to
7 do .
8 I'm going to deny the mot i on for the
9 appointme n t o f a recei ver b ased upon what I 've
10 stated on the record . I wi l l give the bank the
11 right to inspect the property on a monthly basis ;
12 we can d o it on th e fir st o f t he month, what ever
13 date you wa n t to select you can put it in the
14 orde r, work it o ut with Mr. Trent . And , Mr .
15 Tre nt, your cl ien t ' s goi ng to have t o make
16 arrangements to permit the inspector to enter the
17 communi ty an d ent er the property a lso.
18 MR . TRENT : Understood . Understood .
19 THE COURT : Okay . Is that satisfactory to
20 ever ybody ?
21 MR . TREN T: Perhaps we could j ust do i t on
22 the 2 3 rd since you did it on the 23 rd --
23 TH E COURT : Whateve r d ate you ge n tlemen wa nt
24 to agree upon . Very good . Thank you . Mr. Bo l z ,
25 are you going t o p repare th at orde r?
JULIO A . MOCEGA & ASSOCIATES (305) 374 - 0181

39
1 MR. BOLZ : I will get with Mr. Trent and work
2 it out .
3 (Thereupon , the hearing was concluded at 1 : 55
4 p .m.)
5 C E R T I F I C A T E
7 STATE OF FLORIDA
8 COUNTY OF PALM BEACH
10 I, Karmen Dickerson, Reporter , certify that I
11 was authorized to and did report the foregoing
12 proceedings, and that the transcript is a tr ue and
13 correct transcr i ption of my notes to the
14 proceedin gs .
15
16 Signed this 20th day of Apri l, 2017.
17
18
19
Karmen Dickerson, Repor ter
20
21
22
23
24
25
JULIO A . MOCEGA & ASSOCIATES (305) 374 - 0181

39
1 MR. BOLZ: I will get with Mr. Trent and work
2 it out.
3 (Thereupon, the hearing was concluded at 1:55
4 p.m.)
5 C E R T I F I C A T E
7 STATE OF FLORIDA
8 COUNTY OF PALM BEACH
10 I, Karmen Dickerson, Reporter, certify that I
11 was authorized to and did report the foregoing
12 proceedings, and that the transcript is a true and
13 correct transcription of my notes to the
14 proceedings.
15
16 Signed this 20th day of April, 2017.
17
18
~
19
20
21
22
23
24
25

(20-22398 17) Ex. B Hearing Transcript Receivership 03.28.2017-Ferrara

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

(20-22398 17) Ex. B Hearing Transcript Receivership 03.28.2017-Ferrara

Uploaded by

Copyright:

Available Formats

Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 125 of 314

1 IN THE CIRCUIT COURT OF THE 15th

3 CASE NO: 50-2016 CA 009292

5 FIRST AMERICAN BANK,

8 LAURENCE S. SCHNEIDER, ET AL.,

11 Proceedings had and taken place before the

12 Honorable THOMAS BARKDULL, one of the Judges of

13 said Court, at Palm Beach Courthouse, 205 North

14 Dixie Highway, West Palm Beach, FL 33401,on

15 Tuesday, the 28th day of March, 2017, commencing

16 at the hour of 1:15 p.m., and being a Hearing.

2 Appearing on behalf of the Pla in tiff:

3 KELLER BOLZ, LLP

JULIO A . MOCEGA & ASSOC IAT ES (305 ) 374-0181

1 (Th ereupon, the fo llowin g proceedings were

3 THE COURT : Is everyb ody present now?

4 MR. TRENT : No , Your Honor , unfortunate ly my

5 c li e nt i s still not here but , you know , I

7 THE COURT : It ' s an important enough mot i on

8 that I j ust want to proceed . I mean , he is - - and

9 is that Mr . S chne ider?

11 THE COURT : Okay .

12 MR. TRENT: And he is planning t o testi fy,

13 and we have evidence that he ' s going to present.

14 But I u ndersta nd the Cou rt h as it se t for 1 :00,

15 and we' ll leave it up to t he Court .

16 TH E COURT : How lo ng do you believe he ' s

17 go ing to take to p resen t the motion in its

19 MR . BOLZ: Your Honor , it is a n evidenti a ry

20 mot ion. We ' ve go t cert ain things we h ave to do.

21 THE COURT : All right .

22 MR. BOLZ : I think I have the p residen t of

23 the ba n k here wi t h me . He can tes tif y - -

24 TH E COURT : Just give me a n idea as t o wh at

25 it is th e pres iden t ' s go ing to be test ifyin g to.

JUL I O A . MOCEGA & ASSOCIATES (305) 374-0181

1 MR. BOLZ: It's going to be the note, the

2 mortgage, the fact that it the real property

3 taxes have not been paid by the owner, and the

4 bank stepped in and paid those to the tune of

5 $60,000. We found out earlier

6 THE COURT: I don't want to go too far down

7 the road. I'm just -- this is not the hearing.

8 I'm just trying to get a feel for how much time it

9 is that we're going to take to present because now

10 two of them have kind of settled out in a way. Do

11 you think we can -- can we get this hearing done

13 MR. BOLZ: I certainly think we can get it

14 done by 2:00, Your Honor, if we look at --

15 THE COURT: I do have a specially set hearing

16 at 2:00. But I it is important, but I do want

17 Mr. Schneider to be present if he's going to offer

18 testimony. Is there -- this is this is the

19 bank's motion. Can we begin while we're waiting

20 for Mr. Schneider? I imagine he's going to be --

21 we're going to be providing testimony in response

22 to the bank's motion. I just don't want to run

23 out of time. This is a fairly important hearing.

24 MR. TRENT: Yes, Your Honor. I think we

25 could go ahead and get started, but I would state

JULIO A. MOCEGA & ASSOCIATES (305) 374-0181

1 that with Mr. Snider's testimony in