In The Supreme Court of Florida

Filing # 150911448 E-Filed 06/06/2022 12:47:55 PM
IN THE SUPREME COURT OF FLORIDA

_________________________
CASE NO. SC22-727

L.T. Case Nos. 4D21-0571
502016CA009292
_________________________
FIRST AMERICAN BANK,
Petitioner,
RECEIVED, 06/06/2022 12:48:38 PM, Clerk, Supreme Court
vs.
LAWRENCE S. SCHNEIDER and STEPHANIE L. SCHNEIDER,
Respondents.
_________________________________________________________________
ON DISCRETIONARY REVIEW OF AN OPINION

OF THE FOURTH DISTRICT COURT OF APPEAL
_________________________________________________________________
_________________________
PETITIONER'S JURISDICTIONAL BRIEF

_________________________
SIOLI ALEXANDER PINO HICKS, PORTER, EBENFELD &

9155 S. Dadeland Blvd. STEIN, P.A.
Suite 1600 799 Brickell Plaza, 9th Floor
Miami, FL 33156 Miami, FL 33131
Tel: (305) 428-2470 Tel: (305) 374-8171
jkeller@siolilaw.com mhicks@mhickslaw.com
smesa@siolilaw.com eclerk@mhickslaw.com
Counsel for First American Bank Appellate Counsel for First
American Bank
HICKS, PORTER, EBENFELD & STEIN, P.A.

799 BRICKELL PLAZA, SUITE 900, MIAMI, FL 33131 • TEL. 305/374-8171 • FAX 305/372-8038
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES...........................................................ii-iii
STATEMENT OF THE ISSUES PETITIONER INTENDS TO RAISE IF

THE COURT GRANTS REVIEW (Rule 9.210(f)) ................................1
STATEMENT OF THE CASE AND FACTS ........................................1
ARGUMENT ...................................................................................5
CONCLUSION .............................................................................. 11
CERTIFICATE OF SERVICE ......................................................... 12
CERTIFICATE OF COMPLIANCE .................................................. 13
i
799 BRICKELL PLAZA, 9TH FLOOR, MIAMI, FL 33131 • TEL. 305/374-8171 • FAX 305/372-8038
TABLE OF AUTHORITIES
Pages
Cases
Aluia v. Dyck-O’Neal, Inc.,

205 So. 3d 768 (Fla. 2d DCA 2016)..........................................3, 6
Bank of Am., N.A. v. Nash,

200 So. 3d 131 (Fla. 5th DCA 2016) ........................................... 4
Bank of Florida in South Florida v. Keenan,

519 So. 2d 51 (Fla. 3d DCA 1988)........................................ 5, 7, 9
Bank of N.Y. Mellon v. Reyes,

126 So. 3d 304 (Fla.3d DCA 2013).............................................. 4
Coffrin v. Sayles,
175 So. 236 (Fla. 1937) ....................................................... 7, 8, 9
Degge v. First State Bank of Eustis,

199 So. 564 (Fla. 1941) .............................................................. 8
McPhee v. State,
254 So. 2d 406 (Fla. 1st DCA 1971) ............................................ 5
Moore v. Trevino,
612 So. 2d 604 (Fla. 4th DCA 1992) ........................................... 4
Schneider v. First American Bank,

252 So. 3d 264 (Fla. 4th DCA 2018) ........................................... 2
Stockman v. Downs,
573 So. 5 5 2d 835 (Fla. 2d DCA 2016) ....................................... 3
The Florida Star v. B.J.F.,

530 So. 2d 286 (Fla. 1988) ......................................................... 6
ii
Timmers v. Harbor Federal Savings and Loan Ass'n,
548 So. 2d 282 (Fla. 1st DCA 1989) ....................................... 7, 10
Valladares v. Bank of America Corp.,

197 So. 3d 1 (Fla. 2016) ............................................................. 6
Wachovia Mortg. Corp. v. Posti,

166 So. 3d 944 (Fla. 4th DCA 2015) ........................................3, 4
Statutes
Article V, § 3, Fla. Const ............................................................... 6
Rules
Fla. R. Civ. P. 1.100 ...................................................................... 4
Fla. R. Civ. P. 1.510 ...................................................................... 4
Fla. R. Civ. P. 1.110 ...................................................................... 4
Fla.R.App.P. 9.210 ........................................................................ 1
iii
STATEMENT OF THE ISSUES PETITIONER INTENDS TO
RAISE IF THE COURT GRANTS REVIEW (Rule 9.210(f))
If the Court grants review, the Bank intends to raise the
following issues on the merits.
(1) The trial court had jurisdiction to entertain the motion for
deficiency because the case was not concluded and because the
Amended Final Judgment of Foreclosure entered in 2018 specifically
retained jurisdiction "to enter further orders that are proper
including, without limitation, a deficiency judgment."
(2) The proceeding brought against Ms. Schneider to recover
the deficiency in accordance with established Florida law afforded her
full due process.
(3) The trial court's award of the deficiency against both
husband and wife jointly and severally is fully supported by the
record and by Florida law and should be affirmed.
STATEMENT OF THE CASE AND FACTS
In 2016, First American Bank (The Bank) filed a two count
Complaint against Stephanie Schneider and her husband. (App. 2)
Count I sought foreclosure of their jointly owned property because
there was a default on a home equity line of credit secured by the
1
property. Both the husband and wife signed the mortgage and only
the husband signed the note. (App. 1)
Count II of the Complaint was against the husband only for
breach of contract and for recovery of any deficiency. (App. 2)
In 2017 the Bank moved for a summary judgment on Count I
foreclosure and Count II for any deficiency remaining after the
foreclosure sale. (App. 2-3) At the hearing, the Bank stated that
Count II only named the husband. (App. 2-3) The wife was not named
in Count II. (App. 2-3) The wife was only named in Count I for
foreclosure of the property which is essentially an in rem or quasi in
rem proceeding. (App. 2)
The trial court entered a judgment of foreclosure and for money
damages against the husband. This was reversed by the Fourth
District because the Bank was allowed to simultaneously execute on
the money judgment and foreclose on the property. Schneider v. First
American Bank, 252 So. 3d 264 (Fla. 4th DCA 2018). (App. 3-4)
On remand in 2018, the trial court entered an Amended Final
Judgment of Foreclosure, and the Bank purchased the property and
sold it for $807,100 leaving a deficiency of $1,547,391.54. At this
point, the Bank sought a deficiency judgment against both Ms.
2
Schneider as well Mr. Schneider. (App. 4)
The trial court granted the Bank's motion to pursue a deficiency
claim against Ms. Schneider and ultimately entered a joint and
several judgment against both husband and wife for the deficiency.
(App. 4)
The appeal below followed and the district court of appeal
reversed the judgment against Ms. Schneider.
The Fourth District reasoned as follows:
The problem with the entry of a deficiency judgment

against Schneider is that the bank pursued the case to
final judgment with a complaint and motion for summary
judgment that sought the entry of damage and deficiency
judgments against the husband only. Until the bank
changed its position after remand, this case proceeded
against Schneider’s interest in the Boca Raton property,
without seeking any type of personal money judgment
against her. “A judgment of foreclosure is a judgment in
rem or quasi in rem that directs the sale of the mortgaged
property to satisfy the mortgagee’s lien. . . . [I]t applies only
to the property secured by the mortgage, and does not
impose any personal liability on the mortgagor.” Aluia v.
Dyck-O’Neal, Inc., 205 So. 3d 768, 773–74 (Fla. 2d DCA
2016) (citations and internal quotation marks omitted).
“Modern pleading requirements serve to notify the

opposing party of the claims alleged and prevent unfair
surprise.” Stockman v. Downs, 573 So. 5 2d 835, 837 (Fla.
1991). “A trial court is without jurisdiction to award relief
that was not requested in the pleadings or tried by
consent.” Wachovia Mortg. Corp. v. Posti, 166 So. 3d 944,
945 (Fla. 4th DCA 2015). “Thus, ‘a judgment which grants
3
relief wholly outside the pleadings is void.’” Id. (quoting
Bank of N.Y. Mellon v. Reyes, 126 So. 3d 304, 309 (Fla.3d
DCA 2013)). “Further, granting relief which was never
requested by the appropriate pleadings, nor tried by
consent, is a violation of due process.” Id.
"Pleadings sufficient to invoke a court's jurisdiction,

according to the rules of civil procedure, include a
complaint, petition, counterclaim, crossclaim, and a third-
party complaint." Bank of Am., N.A. v. Nash, 200 So. 3d
131, 135 (Fla. 5th DCA 2016) (citing Fla. R. Civ. P.
1.100(a)). Florida Rule of Civil Procedure 1.110(b) requires
a pleading to set forth a claim with a "short and plain
statement of the ultimate facts showing that the pleader is
entitled to relief' and a "demand for judgment for the relief
to which the pleader deems" itself "entitled."
Nothing in the bank’s complaint hints that it would

seek a deficiency judgment against Schneider. It seeks a
deficiency judgment against the husband. Nor does the
complaint set forth the theory of recovery against
Schneider that the bank pursued on remand—that the
terms of the mortgage made Schneider jointly and
severally liable for a deficiency judgment. “When an award
of relief is not sought by the pleadings, it is error to grant
such relief.” Moore v. Trevino, 612 So. 2d 604, 606 (Fla.
4th DCA 1992).
Similarly, the bank’s motion for summary judgment

sought a deficiency against the husband only, with no
mention of Schneider. Under the summary judgment rule
in effect at the time the bank’s motion was heard, a motion
for summary judgment “must state with particularity the
grounds upon which it is based and the substantial
matters of law to be argued.” Fla. R. Civ. P. 1.510(c) (2017).
The bank’s motion did not specifically argue the legal
theory the bank urged upon remand—that the mortgage
created Schneider’s liability for the deficiency.
4
Finally, the bank’s attorney conceded at the
summary judgment hearing that the bank was seeking a
deficiency against the husband only. See generally McPhee
v. State, 254 So. 2d 406, 409–10 (Fla. 1st DCA
1971)(recognizing the “general rule is that a party cannot
occupy inconsistent positions in the course of a
litigation”).
The bank contends that Bank of Florida in South

Florida v. Keenan, 519 So. 2d 51 (Fla. 3d DCA 1988),
supports its position, but that case differs in a significant
way from the situation here. In Keenan, after the entry of
a foreclosure judgment, the bank brought a separate
action at law to recover the deficiency, naming two
defendants against whom it did not seek a deficiency in the
foreclosure case. Id. at 51. The trial court granted
summary judgment for the defendants. Id. The Third
District reversed, holding that the “subsequent action was
not barred . . . regardless of the foreclosure suit complaint”
that did not seek a deficiency against either defendant. Id.
at 52.
Unlike Keenan, this case did not involve a separate

deficiency action at law, initiated with a new complaint
setting forth the basis of the defendant’s liability. (App. 4-
6)
ARGUMENT
The Fourth District's holding against the Bank is that the
foreclosure complaint against Mr. and Ms. Schneider only named the
husband in Count II which sought a deficiency judgment and the
motion for summary judgment as to Count II only involved the
husband. The Court erroneously concluded that "modern pleading
5
requirements" of notice of a deficiency claim against the wife would
be violated. The Fourth District erroneously held that, because the
original complaint did not specifically seek a deficiency decree
against the wife, granting such relief would be a violation of due
process.
The Fourth District's holding itself violates several established
rules of law applicable to foreclosure proceedings which have existed
for nearly a century. Thus, the improper reliance on legal principles
not applicable to foreclosure and deficiency proceedings creates
express direct conflict with the decisions of this court and the district
courts of appeal on the same question of law. The Florida Star v.
B.J.F., 530 So. 2d 286 (Fla. 1988); Valladares v. Bank of America
Corp., 197 So. 3d 1 (Fla. 2016); Article V, § 3(b)(3), Fla. Const.
Prior to the Fourth District's opinion, a bank has never had to
plead a claim for deficiency in the foreclosure complaint because the
claim is in rem or quasi in rem solely against the property. Thus, an
action to enforce a deficiency does not even accrue until the
foreclosure sale results in insufficient proceeds to pay the debt. Aluia
v. Dyck-O’Neal, Inc., 205 So.3d 768 (Fla. 2DCA 2016).
6
The Fourth District's ruling in favor of the wife based upon the
failure of the foreclosure complaint to specifically request a deficiency
decree against her improperly holds that failure of the Bank to assert
a claim against the wife for any deficiency in the foreclosure
complaint bars recovery. This holding has universally been rejected
in Florida. Lenders have always had the legal right of including a
count for any deficiency in the complaint against a husband and/or
wife or have the option of filing a motion for deficiency after the
foreclosure sale when the deficiency is determined, and such motion
then becomes the operative pleading. Lenders also have the option of
filing a separate suit seeking to recover any deficiency. Coffrin v.
Sayles, 175 So. 236 (Fla. 1937); Timmers v. Harbor Federal Savings
and Loan Ass'n, 548 So. 2d 282 (Fla. 1st DCA 1989); Bank of Florida
in South Florida v. Keenan, 519 So. 3d 51 (Fla. 3rd DCA 1988).
If a bank chooses to proceed by motion, the party opposing the
motion is afforded all of the due process protections which are
afforded to persons or entities who are sued in separate proceedings
to recover any deficiency after the foreclosure and sale of the
property.
7
In the present case, the Bank moved to recover the deficiency
after foreclosure from the wife and she was afforded every right to
contest the motion.
In Coffrin, supra, this Court held that where a foreclosure suit
does not contain a request for deficiency decree but does seek general
relief, a deficiency decree may be entered upon "motion or other
appropriate pleading filed after confirmation of the sale, and notice
given to defendant, giving defendant an opportunity to be heard and
to contest the motion." 175 So. at 238. Consequently, jurisdiction to
grant a deficiency decree may be invoked either by express prayer in
the complaint, or by motion, or by subsequent appropriate pleading,
all of which are at the option of the lender.
This Court in Degge v. First State Bank of Eustis, 199 So. 564
(Fla. 1941) held: "It is contended further that the chancellor was
without authority to enter a deficiency against the bank because no
express prayer was made for it in the bill. This condition is without
merit." Thus, the Fourth District's decision below conflicts with
Degge.
In reaching its holding, the Fourth District attributed an
erroneous interpretation of the law to the case relied upon by the
8
Bank, Bank of Florida in South Florida v. Keenan, 519 So. 2d 51 (Fla.
3rd DCA 1988).
In Keenan, after entry of a foreclosure judgment and sale, the
bank did not seek a deficiency judgment in the foreclosure case.
Rather, it sued two parties in a separate action for recovery of the
deficiency. In rejecting the Bank's reliance on Keenan, the Fourth
District reasoned that Keenan "differs in a significant way" from this
case because it involved a separate action with a new complaint.
Under existing Florida law, however, a bank may recover a
deficiency against a party by motion for a deficiency decree or by filing
a separate suit. (Coffrin, supra) Thus, there is no way to attribute a
rule of law to Keenan that a separate deficiency action -rather than
a motion- must be filed in order to preserve a cause of action for
deficiency against the wife/owner of the property. Thus, the
erroneous interpretation of the law relied upon by the Fourth District
to distinguish Keenan actually expressly and directly conflicts with
Keenan.
Here, the motion against Ms. Schneider properly initiated the
deficiency proceeding which afforded her the right to fully defend
herself. Due process was fully satisfied.
9
Another case which conflicts on the same question of law with
the Fourth District's decision below is Timmers v. Harbor Federal Sav.
and Loan Ass'n, 548 So. 2d 282 (Fla. 1st DCA 1989).
In Timmers, defendants in the foreclosure proceeding were
owners of the property. They appeared in the foreclosure proceeding
and filed an answer to the complaint. After the foreclosure and the
deficiency were determined, the bank sought to recover the deficiency
by filing a motion against the husband and wife.
Both filed separate motions to dismiss challenging insufficiency
of process and jurisdiction because the motion to recover the
deficiency was served only on their attorney.
The First District rejected this position and held as follows:
Thus, contrary to appellants' position, we hold that a

motion for a deficiency judgment does not constitute a
separate suit.
***
Generally, a defendant is considered properly before

the court on a motion to enter a deficiency judgment if he
is given timely notice that a deficiency decree is being
sought and given an opportunity to be heard.
The refusal of the Fourth District to allow the Bank to move to
recover the deficiency from the wife expressly and directly conflicts
10
with Timmers which recognizes this long established procedure
under Florida law.
Until the Fourth District’s decision in this case, the means for
invoking the circuit court’s jurisdiction to grant a deficiency
judgment were crystal clear, i.e., include a count for deficiency in the
foreclosure complaint, file a motion for deficiency after the
foreclosure sale, or file a separate action. Establishing the procedures
for invoking a circuit court’s jurisdiction is uniquely within the
province of this Court. However, the Fourth District’s decision closed
an avenue to invoke the circuit court's jurisdiction specifically
authorized by this Court and, thus, express direct conflict exists.
CONCLUSION
The Bank respectfully requests this Court to accept jurisdiction
of this case based upon the express direct conflict shown to exist
above.
Respectfully submitted,
BY: /s/ Mark Hicks

MARK HICKS
Fla. Bar No. 142436
HICKS, PORTER, EBENFELD &
& STEIN, P.A.
799 Brickell Plaza, 9TH Floor
Miami, FL 33131
11
Phone: (305) 374-8171
Fax: (305) 372-8038
mhicks@mhickslaw.com
eclerk@mhickslaw.com
Appellate Counsel for First American
Bank
-and-
JOHN W. KELLER, III

Fla. Bar No.: 229989
SHEYLA MESA
Fla. Bar No.: 86148
SIOLI ALEXANDER PINO
9155 S. Dadeland Blvd., Suite 1600
Miami, FL 33156
Phone: (305) 428-2470
Fax: (305) 428-2471
jkeller@siolilaw.com
smesa@siolilaw.com
Counsel for First American Bank
CERTIFICATE OF SERVICE
I hereby certify that on this 6th day of June, 2022, the

foregoing document was electronically filed with the Clerk of the
Courts by using the Florida’s E-Filing Portal system which will send
a notice of electronic filing to the following recipients: Martin G.
McCarthy, Esq., Emre Yersel, Esq., McCarthy & Yersel, PLLC, 4929
S.W.74th Court, Suite #5, Miami, FL 33155,
mccarthy@myattorneyservices.com,
eyersel@myattorneyservices.com.
BY: /s/ Mark Hicks

MARK HICKS
12
Fla. Bar No. 142436
CERTIFICATE OF COMPLIANCE
We hereby certify that this brief complies with the type/volume
requirements of Rules 9.045 and 9.210, Fla.R.App.P. The brief is
prepared in Bookman Old Style 14-pont font and does not exceed
2,500 words.
BY: /s/ Mark Hicks

MARK HICKS
Fla. Bar No. 142436
13
Appendix
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STEPHANIE L. SCHNEIDER,
Appellant,
v.
FIRST AMERICAN BANK, as successor by merger to

Bank of Coral Gables, LLC, and LAURENCE S. SCHNEIDER,
Appellees.
No. 4D21-571
[March 9, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No.
502016CA009292.
Martin G. McCarthy and Emre Yersel of McCarthy & Yersel, PLLC,

Miami, for appellant.
John W. Keller, III and Sheyla Mesa of Sioli Alexander Pino, Miami, for
appellee First American Bank, as successor by merger to Bank of Coral
Gables, LLC.
GROSS, J.
Stephanie Schneider appeals a deficiency judgment arising out of a

mortgage foreclosure case. We reverse because the bank’s complaint,
motion for summary judgment, and concession in open court expressly
sought a deficiency judgment against Schneider’s husband only.
In 2006, Schneider’s husband entered into a credit agreement with

appellee First American Bank for a 10-year home equity line of credit with
a credit limit of $1,500,000. The note defined “Borrower” as “each and
every person who signs this agreement, including all Borrowers named
above.” Schneider did not sign the note and was not named as a
“Borrower.”
To secure payment of the note, the husband and Schneider executed a

mortgage on residential property in Boca Raton.
The husband defaulted under the note. In 2016, the bank filed a
verified foreclosure complaint against the husband, Schneider, and others.
The complaint did not seek a personal money judgment against Schneider,
nor did it mention Schneider in connection with a deficiency judgment.
Count I sought to foreclose the mortgage on the Boca Raton property.

The complaint requested that if the proceeds of the foreclosure sale were
insufficient to pay off the outstanding indebtedness, then the court should
enter a deficiency judgment against the husband only:
WHEREFORE, the Plaintiff, FIRST AMERICAN BANK,

respectfully requests this Court to:
***
d) Establish, if the proceeds of the sale of the Property being

foreclosed are insufficient to pay FIRST AMERICAN BANK’s
claim, a Deficiency Judgment against the Defendant,
LAURENCE S. SCHNEIDER, unless that individual has been
discharged from liability under the attached Credit Agreement
and Mortgage pursuant to the provisions of the United States
Bankruptcy Code (11 U.S.C. § 101 et seq.)[.]
(emphasis supplied).
Count II of the complaint was a breach of contract claim against just

the husband. That count sought a
final judgment against the Defendant LAURENCE S.

SCHNEIDER for $1,488,748.05 in unpaid principal, interest
thereon, unpaid real estate property taxes due for the
calendar years 2014 and 2015 in the amount of $46,148.17,
along with any and all escrow amounts, expenses that have
been incurred by FIRST AMERICAN BANK, title search
expenses, expenses, costs and reasonable attorneys’ fees . . .
.
In 2017, the bank moved for summary judgment. Regarding count I,

the bank sought foreclosure of the mortgage. If the proceeds of the sale
were insufficient to pay the bank’s claim, the motion sought the entry of a
deficiency judgment against the husband only:
2
WHEREFORE, Plaintiff, FIRST AMERICAN BANK, respectfully
requests that this Court:
***
(d) direct the Clerk of Court to sell the Property which is the
subject matter of this foreclosure to satisfy FIRST
AMERICAN’s Mortgage lien in accordance with the provisions
of Fla. Stat. § 45.031;
(e) direct the Clerk of Court that the proceeds of the sale, the
amounts due and owing to FIRST AMERICAN be paid in full,
including reasonable attorneys’ fees, costs, expenses and pre-
judgment and post-judgment interest; [and]
(f) establish, if the proceeds of the sale of the Property being

foreclosed are insufficient to pay FIRST AMERICAN’s claim, a
Deficiency Judgment against the Defendant, LAURENCE
S. SCHNEIDER[.]
As to the breach of contract claim in count II of the complaint, the

bank’s motion requested the entry of a money judgment against the
husband only.
Like the complaint, the motion for summary judgment requested

neither a money judgment nor a deficiency judgment against the wife.
Schneider and her husband filed nothing in opposition to the motion

for summary judgment.
At the hearing on the motion, the bank’s attorney indicated that any
deficiency judgment would be against the husband only. 1
The trial court entered a final judgment of foreclosure and an amended

final judgment awarding damages against the husband. The husband
appealed both judgments. The wife did not participate in the appeal.
We affirmed in part and reversed in part. We held that the “judgments

improperly allowed the Bank to simultaneously execute on the money
1In discussing the deficiency judgment, the trial court asked the bank’s attorney,
“So, you would just go against [the husband]?” The attorney replied, “Right.”
3
judgment and foreclose on the [Boca Raton] property.” Schneider v. First
Am. Bank, 252 So. 3d 264, 265 (Fla. 4th DCA 2018). On remand, we
instructed the trial court to “modify the foreclosure judgment so as to
withhold the setting of the foreclosure sale of the property until the Bank
certifies that its money judgment [against the husband] remains
unsatisfied.” Id. at 265–66.
On remand in 2018, the trial court entered an amended final judgment

of foreclosure. The bank later moved for the assessment of attorney’s fees,
appellate attorney’s fees, and costs. The husband and Schneider
responded that as a non-borrowing spouse, Schneider had “no obligation
to pay any indebtedness due to [the bank] whether principal, interest,
attorneys’ fees, costs or deficiency.”
The bank replied to Schneider’s response and argued, for the first time
in the litigation, that the language of the mortgage made Schneider jointly
and severally liable with her husband for a deficiency judgment.
The trial court entered an amended final judgment of foreclosure. At

the foreclosure sale, the bank purchased the property for $807,100.
Thereafter, the bank sought a deficiency judgment against both Schneider
and her husband. At the hearing on the deficiency, the husband objected
to his wife’s liability for a deficiency, pointing to the language of the original
complaint and the motion for summary judgment.
The trial court entered a deficiency judgment against Schneider and

her husband “jointly and severally” in the amount of $1,547,391.54,
prompting this appeal.
The problem with the entry of a deficiency judgment against Schneider

is that the bank pursued the case to final judgment with a complaint and
motion for summary judgment that sought the entry of damage and
deficiency judgments against the husband only. Until the bank changed
its position after remand, this case proceeded against Schneider’s interest
in the Boca Raton property, without seeking any type of personal money
judgment against her. “A judgment of foreclosure is a judgment in rem or
quasi in rem that directs the sale of the mortgaged property to satisfy the
mortgagee’s lien. . . . [I]t applies only to the property secured by the
mortgage, and does not impose any personal liability on the mortgagor.”
Aluia v. Dyck-O’Neal, Inc., 205 So. 3d 768, 773–74 (Fla. 2d DCA 2016)
(citations and internal quotation marks omitted).
“Modern pleading requirements serve to notify the opposing party of the

claims alleged and prevent unfair surprise.” Stockman v. Downs, 573 So.
4
2d 835, 837 (Fla. 1991). “A trial court is without jurisdiction to award
relief that was not requested in the pleadings or tried by consent.”
Wachovia Mortg. Corp. v. Posti, 166 So. 3d 944, 945 (Fla. 4th DCA 2015).
“Thus, ‘a judgment which grants relief wholly outside the pleadings is
void.’” Id. (quoting Bank of N.Y. Mellon v. Reyes, 126 So. 3d 304, 309 (Fla.
3d DCA 2013)). “Further, granting relief which was never requested by the
appropriate pleadings, nor tried by consent, is a violation of due process.”
Id.
“Pleadings sufficient to invoke a court’s jurisdiction, according to the

rules of civil procedure, include a complaint, petition, counterclaim,
crossclaim, and a third-party complaint.” Bank of Am., N.A. v. Nash, 200
So. 3d 131, 135 (Fla. 5th DCA 2016) (citing Fla. R. Civ. P. 1.100(a)). Florida
Rule of Civil Procedure 1.110(b) requires a pleading to set forth a claim
with a “short and plain statement of the ultimate facts showing that the
pleader is entitled to relief” and a “demand for judgment for the relief to
which the pleader deems” itself “entitled.”
Nothing in the bank’s complaint hints that it would seek a deficiency

judgment against Schneider. It seeks a deficiency judgment against the
husband. Nor does the complaint set forth the theory of recovery against
Schneider that the bank pursued on remand—that the terms of the
mortgage made Schneider jointly and severally liable for a deficiency
judgment. “When an award of relief is not sought by the pleadings, it is
error to grant such relief.” Moore v. Trevino, 612 So. 2d 604, 606 (Fla. 4th
DCA 1992).
Similarly, the bank’s motion for summary judgment sought a deficiency

against the husband only, with no mention of Schneider. Under the
summary judgment rule in effect at the time the bank’s motion was heard, 2
a motion for summary judgment “must state with particularity the
grounds upon which it is based and the substantial matters of law to be
argued.” Fla. R. Civ. P. 1.510(c) (2017). The bank’s motion did not
specifically argue the legal theory the bank urged upon remand—that the
mortgage created Schneider’s liability for the deficiency.
2 After the trial court issued the final judgment of foreclosure, the Florida
Supreme Court amended Florida Rule of Civil Procedure 1.510(c). See In re
Amendments to Fla. Rule of Civ. Proc. 1.510, 317 So. 3d 72 (Fla. 2021). The
amendment, which became effective on May 1, 2021, does not apply here as the
final judgment predates the amendment. See id. at 77 (stating that “the new rule
must govern the adjudication of any summary judgment motion decided on or
after that date, including in pending cases”).
5
Finally, the bank’s attorney conceded at the summary judgment
hearing that the bank was seeking a deficiency against the husband only.
See generally McPhee v. State, 254 So. 2d 406, 409–10 (Fla. 1st DCA 1971)
(recognizing the “general rule is that a party cannot
occupy inconsistent positions in the course of a litigation”).
The bank contends that Bank of Florida in South Florida v. Keenan, 519
So. 2d 51 (Fla. 3d DCA 1988), supports its position, but that case differs
in a significant way from the situation here. In Keenan, after the entry of
a foreclosure judgment, the bank brought a separate action at law to
recover the deficiency, naming two defendants against whom it did not
seek a deficiency in the foreclosure case. Id. at 51. The trial court granted
summary judgment for the defendants. Id. The Third District reversed,
holding that the “subsequent action was not barred . . . regardless of the
foreclosure suit complaint” that did not seek a deficiency against either
defendant. Id. at 52.
Unlike Keenan, this case did not involve a separate deficiency action at
law, initiated with a new complaint setting forth the basis of the
defendant’s liability.
We reverse the final deficiency judgment against Schneider and remand

for the entry of an amended judgment against only her husband.
Reversed and remanded with instructions.
CONNER, C.J., and MAY, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.

In The Supreme Court of Florida - CASE NO. SC22-727

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In The Supreme Court of Florida - CASE NO. SC22-727

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Filing # 150911448 E-Filed 06/06/2022 12:47:55 PM

CASE NO. SC22-727

FIRST AMERICAN BANK,

LAWRENCE S. SCHNEIDER and STEPHANIE L. SCHNEIDER,

ON DISCRETIONARY REVIEW OF AN OPINION

PETITIONER'S JURISDICTIONAL BRIEF

SIOLI ALEXANDER PINO HICKS, PORTER, EBENFELD &

HICKS, PORTER, EBENFELD & STEIN, P.A.

STATEMENT OF THE ISSUES PETITIONER INTENDS TO RAISE IF

STATEMENT OF THE CASE AND FACTS ........................................1

CERTIFICATE OF SERVICE ......................................................... 12

CERTIFICATE OF COMPLIANCE .................................................. 13

Aluia v. Dyck-O’Neal, Inc.,

Bank of Am., N.A. v. Nash,

Bank of Florida in South Florida v. Keenan,

Bank of N.Y. Mellon v. Reyes,

Degge v. First State Bank of Eustis,

Schneider v. First American Bank,

The Florida Star v. B.J.F.,

Valladares v. Bank of America Corp.,

Wachovia Mortg. Corp. v. Posti,

Article V, § 3, Fla. Const ............................................................... 6

Fla. R. Civ. P. 1.100 ...................................................................... 4

Fla. R. Civ. P. 1.510 ...................................................................... 4

Fla. R. Civ. P. 1.110 ...................................................................... 4

Fla.R.App.P. 9.210 ........................................................................ 1

If the Court grants review, the Bank intends to raise the

following issues on the merits.

Amended Final Judgment of Foreclosure entered in 2018 specifically

retained jurisdiction "to enter further orders that are proper

including, without limitation, a deficiency judgment."

(2) The proceeding brought against Ms. Schneider to recover

the deficiency in accordance with established Florida law afforded her

full due process.

(3) The trial court's award of the deficiency against both

husband and wife jointly and severally is fully supported by the

record and by Florida law and should be affirmed.

STATEMENT OF THE CASE AND FACTS

In 2016, First American Bank (The Bank) filed a two count

Complaint against Stephanie Schneider and her husband. (App. 2)

Count I sought foreclosure of their jointly owned property because

there was a default on a home equity line of credit secured by the

the husband signed the note. (App. 1)

Count II of the Complaint was against the husband only for

breach of contract and for recovery of any deficiency. (App. 2)

In 2017 the Bank moved for a summary judgment on Count I

foreclosure and Count II for any deficiency remaining after the

foreclosure of the property which is essentially an in rem or quasi in

rem proceeding. (App. 2)

The trial court entered a judgment of foreclosure and for money

damages against the husband. This was reversed by the Fourth

District because the Bank was allowed to simultaneously execute on

the money judgment and foreclose on the property. Schneider v. First

On remand in 2018, the trial court entered an Amended Final

Judgment of Foreclosure, and the Bank purchased the property and

sold it for $807,100 leaving a deficiency of $1,547,391.54. At this

point, the Bank sought a deficiency judgment against both Ms.

The trial court granted the Bank's motion to pursue a deficiency

claim against Ms. Schneider and ultimately entered a joint and

The appeal below followed and the district court of appeal

reversed the judgment against Ms. Schneider.