Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 100 of 314

Exhibit Cover Sheet

Party
Submitting: First American Bank – Judgment Creditor Ex. #17-DE 109

Admitted: Yes or No (circle one)

Debtor: Stephanie Lynn Schneider

Case No.: 20-22398-MAM

Adv. No._________________

Nature of Hearing/ Motion for Relief from Automatic Stay

Docket No.: 27

United State Bankruptcy Court

Southern District of Florida

Dated ___________________ , 2020

By: _____________________, Deputy Clerk

Filing # 56958443 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 101 of 314
E-Filed 05/25/2017 05:16:29 PM

IN THE CIRCUIT COURT OF

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

CASE NO.: 502016-CA-009292

DIVISION AW

FIRST AMERICAN BANK, as

successor by merger to Bank of
Coral Gables, LLC,

Plaintiff,

v.

LAURENCE S. SCHNEIDER,
STEPHANIE L. SCHNEIDER, et al.,

Defendants.
/

FIRST AMERICAN’S MOTION FOR SUMMARY

JUDGMENT AND INCORPORATED MEMORANDUM OF LAW

COMES NOW the Plaintiff, FIRST AMERICAN BANK (hereinafter “FIRST

AMERICAN”), by and through its undersigned counsel, and pursuant to Fla. R. Civ. P.

1.510, hereby files this Motion for Summary Judgment, and in support thereof states:

I. INTRODUCTION/BACKGROUND

FIRST AMERICAN instituted this foreclosure action on August 17, 2016 [D.E. 2].

FIRST AMERICAN seeks, among other things, to foreclose a Mortgage on the residential

property located at 17685 Circle Pond Court, Boca Raton, Florida 33496-1002

(hereinafter the “Property”). On November 16, 2016, the Defendants, LAURENCE S.

SCHNEIDER and STEPHANIE L. SCHNEIDER (collectively “the SCHNEIDERS” or

“Defendants”) filed their Answer and Affirmative Defenses to FIRST AMERICAN’s

DE 109
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 102 of 314

Verified Foreclosure Complaint, which included two Affirmative Defenses [D.E. 32]. On

January 26, 2017, this Court entered an Order Striking the SCHNEIDERS’ Affirmative

Defenses (hereinafter “January 26 Order”) [D.E. 49]. The SCHNEIDERS were granted

20 days from the entry of the Court’s January 26 Order to file amended affirmative

defenses.

On March 6, 2017 – 39 days after entry of this Court’s January 26 Order – the

SCHNEIDERS filed their Amended Affirmative Defenses [D.E. 61].1 The SCHNEIDERS

asserted the following three Amended Affirmative Defenses: (1) Anticipatory Breach/Prior

Breach; (2) Usury and (3) Set-off. As all three Amended Affirmative Defenses were legally

insufficient and immaterial to this foreclosure proceeding, FIRST AMERICAN requested

the Court strike each Amended Affirmative Defense [D.E. 67]. On April 7, 2017, this Court

entered an Order striking all three Amended Affirmative Defenses with prejudice

(hereinafter “April 7 Order”) [D.E. 85]. This Court specifically denied the SCHNEIDERS

motion for leave to file second amended affirmative defenses.

As will be demonstrated below, the Defendants have admitted: (a) that they

executed the Note and/or Mortgage and (b) that they have defaulted under the terms of

the Note and/or Mortgage by: (i) failing to pay the monthly interest payment due on May

1, 2016 and all subsequent months, (ii) failing to pay the entire balance owing in a single

balloon payment on July 28, 2016 and (iii) failing to pay the Florida Ad Valorem property

taxes on the Property for 2014, 2015 and 2016. Furthermore, Defendants have no

1 As detailed in FIRST AMERICAN’s Motion to Compel Defendants to Comply with this Court’s Order
(bearing a Certificate of Service date of March 1, 2016), the SCHNEIDERS and their former counsel have
interposed numerous extension requests primarily, if not solely, for the purpose of delay [D.E. 60].

Page 2 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 103 of 314

affirmative defenses. Thus, there is no genuine issue of material fact and FIRST

AMERICAN is entitled to judgment as a matter of law.

II. STATEMENT OF UNDISPUTED FACTS

1. On July 28, 2006, Defendant, LAURENCE S. SCHNEIDER, executed and

delivered a Credit Agreement for a 10-year Home Equity Line of Credit (HELOC) with a

credit limit of $1,500,000.00 and promised to pay any and all amounts borrowed from the

$1,500,000.00 Credit Agreement (hereinafter “Credit Agreement” or “Note”) by making a

single balloon payment on July 28, 2016. A true and correct copy of the Credit

Agreement, which constitutes the Note with respect to this credit transaction, is attached

hereto and fully incorporated herein as Exhibit “1.” Defendant, in his Answer, admitted

the allegations stated in Paragraph 10 of FIRST AMERICAN’s Verified Foreclosure

Complaint that he executed the Note and promised to pay and any and all amounts

borrowed from the $1,500,000.00 Note by making a single balloon payment on July 28,

2016 [D.E. 32, ¶10 and D.E. 61, ¶10]. Furthermore, during an evidentiary hearing on

March 28, 2017, Defendants stipulated to the authenticity of the Credit Agreement and

that Defendant, LAURENCE S. SCHNEIDER, executed the Credit Agreement. A true

and correct copy of the Transcript of the March 28, 2017 Evidentiary Hearing is attached

hereto as Exhibit “2,” at p. 10.

2. On January 28, 2006, Defendant, LAURENCE S. SCHNEIDER, joined by

his wife, Defendant, STEPHANIE L. SCHNEIDER, executed and delivered a Mortgage

securing payment of the Note (Exhibit “1”) to FIRST AMERICAN’s predecessor in interest,

Bank of Coral Gables. A true and correct copy of the Mortgage is attached hereto and

fully incorporated herein as Exhibit “3.” Defendants, in their Answer, admitted the

Page 3 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 104 of 314

allegations stated in Paragraph 11 of FIRST AMERICAN’s Verified Foreclosure

Complaint that they executed the Mortgage and that the Mortgage secured payment of

the Note [D.E. 32, ¶11 and D.E. 61, ¶ 11]. See also Ex. “2” at p. 10 (during the March 28,

2017 evidentiary hearing, Defendants stipulated to the authenticity of the Mortgage and

that Defendant, LAURENCE S. SCHNEIDER, executed the Mortgage). The Mortgage

was recorded on July 31, 2006 in Official Records Book 20662 at Page 0250 of the Public

Records of Palm Beach County, Florida. The legal description of the Property is:

“Lot 37 of the Fox Hill Estates of Boca Raton, according to the

Plat thereof, as recorded in Plat Book 87, Page 4, of the Public
Records of Palm Beach County, Florida.”

3. FIRST AMERICAN is the entity entitled to enforce the Note and Mortgage

under applicable law because of FIRST AMERICAN’s merger with Bank of Coral Gables,

which was effective on December 5, 2014. See Ex. “2” at p. 9. See also Affidavit of Garry

S. Smith attached hereto as Exhibit “4,” ¶ 10.

4. FIRST AMERICAN is the current owner and holder of the Note and

Mortgage and has possession of the original Note and Mortgage. See Ex. “2” at p. 12

and Ex. “4,” ¶ 10. The original Note and Mortgage will be filed with the Court prior to the

hearing on this Motion.

5. The terms of the Note and Mortgage provided that Defendant, LAURENCE

S. SCHNEIDER, would make 119 monthly payments equaling the amount of his accrued

interest charges, “plus any amount due and other charges,” and the entire principal

balance in a single balloon payment on or before July 28, 2016. Ex. “1” at p. 1 & Ex. “3”

at p. 1. Defendant, LAURENCE S. SCHNEIDER, and/or Defendant, STEPHANIE L.

SCHNEIDER, defaulted under the Note and/or Mortgage by, among other things:

Page 4 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 105 of 314

(a) Failing to pay the monthly interest payment due on May 1, 2016 and all

subsequent monthly payments. Defendants, in their Answer to FIRST

AMERICAN’s Verified Foreclosure Complaint, admitted “that all payments have

not been made and/or that one or more payments was not timely made.” [D.E.

32, ¶14 and D.E. 61, ¶14]. See also Ex. “2” at p. 13-14 (during the March 28,

2017 evidentiary hearing, Defendant stipulated that they have not made any

monthly payments since April 2016) and Ex. “4,” ¶ 11.

(b) Failing to pay the entire balance owing in a single balloon payment on July 28,

2016. See [D.E. 32 ¶¶10 & 14 and D.E. 61, ¶¶ 10 (Defendants admit that

Defendant, LAURENCE S. SCHNEIDER, “promised to pay any and all

amounts borrowed from the $1,500,000.00 Credit Agreement by making a

single balloon payment on July 28, 2016.”) & 14 (“Defendants admit that all

payments have not been made”)]. See also Ex. “2” at p. 17 (during the March

28, 2017 evidentiary hearing, Defendants stipulated that the balloon payment

“has not been made”) and Ex. “4,” ¶ 11.

(c) Failing to pay the Florida Ad Valorem/real property taxes on the Property for

2014, 2015 and 2016 (on or about March 31, 2016, FIRST AMERICAN

advanced and paid the Florida Ad Valorem/real property taxes on the Property

for 2014 and 2015 in the amount of $46,148.17, and, on or about January 4,

2017, FIRST AMERICAN advanced and paid the Florida Ad Valorem/real

property taxes on the Property for 2016 in the amount of $20,722.76).

Defendant, LAURENCE S. SCHNEIDER, in his Objections and Responses to

FIRST AMERICAN’s First Set of Interrogatories, specifically Interrogatory No.

Page 5 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 106 of 314

4, stated “I did not pay the taxes before First American paid them.” A true and

correct copy of Defendant’s Objections and Responses to Plaintiff First

American Bank’s First Set of Interrogatories is attached hereto as Exhibit “5.”

Furthermore, Defendants, in their Response to First American’s Request for

Admissions (specifically Request for Admission Nos. 4 & 5), admitted that they

failed to pay the Property’s Ad Valorem/Real Property Taxes for 2014 and

2015. A true and correct copy of First American’s First Request for Admissions

and Defendants’ Response to First American’s Request for Admissions is

attached hereto as Composite Exhibit “6.” See also Ex. “2” at pp. 15 & 25

(during the March 28, 2017 evidentiary hearing, Defendants stipulated that they

did not pay the property taxes) and Ex. “4,” ¶¶ 11 & 12.

6. On numerous occasions FIRST AMERICAN notified Defendant,

LAURENCE S. SCHNEIDER, in writing, of his material defaults/breaches of the Note and

Mortgage. Specifically,

(a) By letter dated March 18, 2016, FIRST AMERICAN demanded that Defendant,

LAURENCE S. SCHNEIDER, pay the Florida Ad Valorem/real property taxes

on the Property for 2014 and 2015. The demand letter further warned

Defendant, LAURENCE S. SCHNEIDER, that: “Under the terms of your

HELOC mortgage and loan agreement, failure to pay your property taxes when

due puts your loan into default.” A true and correct copy of the March 18, 2016

letter FIRST AMERICAN sent Defendant, LAURENCE S. SCHNEIDER, is

attached hereto as Exhibit “7.” See also Ex. “4,” ¶ 13.

Page 6 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 107 of 314

(b) By letter dated April 22, 2016, FIRST AMERICAN notified Defendant,

LAURENCE S. SCHNEIDER, that: (1) the Florida Ad Valorem/real property

taxes on the Property for 2014 and 2015 were delinquent, (2) FIRST

AMERICAN paid the Florida Ad Valorem/real property taxes on the Property

for 2014 and 2015 in the amount of $46,148.17 and (3) if Defendant,

LAURENCE S. SCHNEIDER, did not repay the $46,148.17 paid by FIRST

AMERICAN his account “will be in default.” A true and correct copy of the April

22, 2016 letter FIRST AMERICAN sent Defendant, LAURENCE S.

SCHNEIDER, is attached hereto as Exhibit “8.” See also Ex. “4,” ¶ 13.

(c) By letter dated July 7, 2016, FIRST AMERICAN notified Defendant,

LAURENCE S. SCHNEIDER, that his “loan was delinquent for failure to make

the monthly payment(s)” and that “failure to make payments when due is a

material breach under the terms of [his] loan.” The notice further provided that

“If the loan default is not cured on or before July 17, 2016, the Bank reserves

its right to demand payment of [his] loan balance in full and take whatever legal

action is necessary to protect [its] interest.” A true and correct copy of the July

7, 2016 letter FIRST AMERICAN sent to Defendant, LAURENCE S.

SCHNEIDER, is attached hereto as Exhibit “9.” See also Ex. “4,” ¶ 13.

(d) By letter dated August 16, 2016, FIRST AMERICAN notified Defendants,

LAURENCE S. SCHNEIDER and STEPHANIE L. SCHNEIDER, that they had

defaulted under the terms of the Note and Mortgage by failing “to pay the entire

principal balloon payment on the ten-year HELOC Line of Credit which was due

on July 28, 2016.” A true and correct copy of the August 16, 2016 letter FIRST

Page 7 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 108 of 314

AMERICAN sent to Defendant, LAURENCE S. SCHNEIDER, is attached

hereto as Exhibit “10.” See also Ex. “4,” ¶ 13.

7. To date, Defendants have failed to tender or attempt to tender the amounts

owed under the Note and Mortgage, including the Florida Ad Valorem/real property taxes

on the Property for 2014, 2015 and 2016. See Ex. “4,” ¶ 14. See also Exhibit “2” at pp.

13, 14, 15, 17 & 25.

8. The Defendant, LAURENCE S. SCHNEIDER, owes FIRST AMERICAN

$1,488,554.76 in unpaid principal,2 interest thereon, unpaid Florida Ad Valorem/real

property taxes on the Property for 2014, 2015 and 2016 in the amount of $66,870.93,

interest thereon, along with expenses that have been incurred by FIRST AMERICAN,

costs and reasonable attorneys’ fees.3 See Ex. “4” at ¶ 14.

9. As a result of Defendants’ defaults, FIRST AMERICAN instituted this

foreclosure action on August 17, 2016.

10. On March 6, 2017, Defendants filed their Answer and Amended Affirmative

Defenses [D.E. 61]. On April 7, 2017, this Court entered an Order striking all three

Amended Affirmative Defenses with prejudice, as all three of Defendants’ Amended

Affirmative Defenses were legally insufficient and immaterial to this foreclosure

2 In its Verified Foreclosure Complaint, FIRST AMERICAN alleged that Defendant, LAURENCE S.
SCHNEIDER, owed FIRST AMERICAN the unpaid principal balance of $1,488,748.05 [D.E. 2]. On April
17, 2017, FIRST AMERICAN received a Qualified Written Request (“QWR”) from Defendant, LAURENCE
S. SCHNEIDER (dated April 10, 2017). In preparing its response to the Defendant’s QWR, FIRST
AMERICAN reviewed the entire loan history of the HELOC account. That investigation revealed that there
were two clerical errors made (an $0.80 clerical error in June 2012 and another of $192.49 in August 2011).
The aggregate amount of those two clerical errors, totaling $193.29, has been credited to Defendant’s loan
history. See Ex. “4,” ¶16. Accordingly, the actual unpaid principal balance under the HELOC is
$1,488,554.76.

3 Defendant, LAURENCE S. SCHNEIDER, incurred $732.84 in late fees from March 2015 to April
2016, and $2,679.29 in late fees from May 2016 to the present. FIRST AMERICAN is not seeking to recover
any late fees incurred by Defendant, LAURENCE S. SCHNEIDER, from March 2015 to the present.

Page 8 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 109 of 314

proceeding [D.E. 85]. Accordingly, Defendants have no affirmative defenses to FIRST

AMERICAN’s Verified Foreclosure Complaint.

III. MEMORANDUM OF LAW

A. Summary Judgment Standard.

In Florida, summary judgment “must be rendered immediately if the pleadings and

summary judgment evidence” (affidavits, answers to interrogatories, admissions and

other materials as would be admissible in evidence) “on file show that there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.” Fla. R. Civ. P. 1.510(c). The moving party bears the initial burden to show the

nonexistence of any disputed issue of material fact. 770 PPR, LLC v. TJCV Land Trust,

30 So. 3d 613, 618 (Fla. 4th DCA 2010). 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.” Id. Once the moving party meets its burden of

demonstrating through “competent evidence” that no genuine issues of material facts

exist, the burden shifts to the non-moving party to “come forward with counterevidence

sufficient to reveal” that a genuine issue of material fact exists. Id. “It is not enough for

the opposing party merely to assert that an issue does exist.” Id. citing Landers v. Milton,

370 So. 2d 368, 370 (Fla. 1979).

B. Count I - Foreclosure of Mortgage.

(1) There is no genuine issue of material fact and FIRST AMERICAN is entitled to
judgment as a matter of law.

The Mortgage states that it is

Page 9 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 110 of 314

“GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS4 AND (B)

PERFORMANCE OF EACH OF [Defendants’] AGREEMENTS AND
OBLIGATIONS UNDER THE CREDIT AGREEMENT WITH THE CREDIT
LIMIT OF $1,500,000.00, THE RELATED DOCUMENTS, AND THIS
MORTGAGE.”

Ex. “3” at p. 1 (emphasis in original). The Mortgage provides that Defendants “shall pay

to Lender all Indebtedness5 secured by this Mortgage as it becomes due” and “shall pay

when due (and in all events prior to delinquency) all taxes ... levied against or on account

of the Property.” Ex. “3” at pp. 1 & 2. Further, the Mortgage provides:

“EVENTS OF DEFAULT. [Defendants] will be in default under the Mortgage

if any of the following happen: … (B) [Defendant, LAURENCE S.
SCHNEIDER] does not meet the repayment terms of the Credit Agreement.
(C) [Defendants] action or inaction adversely affects the collateral or
Lender’s rights in the collateral. This can include … failure to pay taxes.”

Ex. “3” at p. 4. Further, the Mortgage provides that FIRST AMERICAN may exercise the

following rights and remedies in the event of a default:

“Judicial Foreclosure. Lender may obtain a judicial decree foreclosing

[Defendants’] interest in all or any part of the Property.”

“Deficiency Judgment. If permitted by applicable law, Lender may obtain

judgment for any deficiency remaining in the Indebtedness6 due to Lender
after application of all amounts received from the exercise of the rights
provided in this section.”

“Attorneys’ Fees; Expenses. If the Lender institutes any suit or action to

enforce any of the terms of this Mortgage, Lender shall be entitled to recover
such sum as the court may adjudge reasonable as attorneys’ fees at trial
end upon any appeal. Whether or not any court action is involved, and to
the extent not prohibited by law, all reasonable expenses Lender incurs that
in Lender’s opinion are necessary at any time for the protection of its interest

4 The Mortgage defines “Indebtedness” as “all principal, interest, and other amounts, costs and
expenses payable under the Credit Agreement or Related Documents together with … any amounts
expended or advanced by Lender to discharge [Defendants] obligations or expenses incurred by Lender to
enforce [Defendants] obligations under this Mortgage, together with interest on such amounts as provided
in this Mortgage.” Ex. “3” at p. 5.

5 See n. 4, supra.

6 See n. 4, supra.

Page 10 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 111 of 314

or the enforcement of its rights shall become a part of the Indebtedness7

payable on demand and shall bear interest at the Credit Agreement rate
from the date of expiration until repaid. Expenses covered by this
paragraph include, without limitation … Lender’s reasonable attorneys’ fees
and Lender’s legal expenses … [and] surveyors’ reports, to the extent
permitted by law. [Defendants] also will pay any court costs, in addition to
all other sums provided by law.”

Ex. “3” at p. 4.

Here, Defendants admitted “that all payments have not been made and/or that one

or more payments was not timely made,” see [D.E. 32, ¶ 14 and D.E. 61, ¶14], and that

they did not pay the Florida Ad Valorem/real property taxes on the Property, see Ex. “6,”

Admis. Nos. 4 & 5. Accordingly, it is undisputed that Defendants, LAURENCE S.

SCHNEIDER and/or STEPHANIE L. SCHNEIDER,: (a) failed to pay the monthly interest

payment due on May 1, 2016 and all subsequent monthly payments; (b) failed to pay the

entire balance owing in a single balloon payment on July 28, 2016; and (c) failed to pay

the Florida Ad Valorem/real property taxes on the Property for 2014, 2015 and 2016. See

[D.E. 32 ¶¶ 10 & 14 and D.E. 61, ¶¶ 10 & 14], Ex. “2” at pp. 13-14, 15, 17 & 25, Ex. “4,”

¶¶ 11, 12 & 14, Ex. “5,” Interrogatory No. 4 and Ex. “6,” Admissions Nos. 4 & 5.

Furthermore, under Florida law “failure to pay real estate taxes in accordance with

the terms of the mortgage, standing alone, is a sufficient basis for the trial court to grant

foreclosure.” Siahpoosh v. NOR Properties, Inc., 666 So. 2d 988, 989 (Fla. 4th DCA

1996). See also Lunn Woods v. Lowery, 577 So. 2d 705, 707 (Fla. 2d DCA 1991) and

Heimer v. Albion Realty & Mortg. Inc., 300 So. 2d 31, 33 (Fla. 3d DCA 1974) (same).

As discussed supra, all of Defendants’ affirmative defenses have been stricken.

Accordingly, FIRST AMERICAN is entitled to summary judgment as to Count I as there

7 See n. 4, supra.

Page 11 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 112 of 314

is no genuine issue of material fact as to FIRST AMERICAN’s claim for Foreclosure of

Mortgage. The Court should grant FIRST AMERICAN’s Motion for Summary Judgment

as to Count I of the Verified Foreclosure Complaint.

(2) Rebuttal of The Oaks at Boca Raton Property Owners’ Association, Inc.’s
Affirmative Defenses.

Defendant, THE OAKS AT BOCA RATON PROPERTY OWNERS’

ASSOCIATION, INC. (hereinafter “the ASSOCIATION”), administers a residential real

estate project known as Fox Hill Estates, which includes the residential property located

at 17685 Circle Pond Court, Boca Raton, Florida 33496-1002, which property is the

subject matter of this foreclosure action. The ASSOCIATION asserted three Affirmative

Defenses in its Answer and Affirmative Defenses [D.E. 12].

The ASSOCIATION’s First Affirmative Defense simply quotes Fla. Stat.

720.3085(2)(c), discussed in more detail infra, and is not a true affirmative defense. At

best, the ASSOCIATION’s First Affirmative Defense attempts to set out a statement of

Florida law. That law, while it may ultimately prove to be applicable, simply does not, in

and of itself, constitute a cognizable affirmative defense. See Black’s Law Dictionary 482

(9th ed. 2009) (An affirmative defense is “a defendant’s assertion of facts and arguments

that, if true, will defeat the plaintiff’s … claims, even if all the allegations in the complaint

are true.”).

In its Second Affirmative Defense, the ASSOCIATION states that it is entitled to

“judgment to the extent of its lien, plus accrued but unpaid assessments, interest, costs,

and attorneys’ fees.” However, Fla. Stat. §720.3085(2)(c) places a cap on the liability of

a foreclosing mortgagee. The safe harbor provision of Section 720.3085(2)(c), as it

concerns a first mortgagee … who acquires title to a parcel by foreclosure” states that

Page 12 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 113 of 314

“the liability of the first mortgagee … shall be the lesser of” either “unpaid common

expenses and regular periodic or special assessments that accrued or came due during

the 12 months immediately preceding the acquisition of title” or “one percent of the original

mortgage debt.” Fla. Stat. §720.3085(2)(c)1-2. Given the plain language of Section

720.3085(2)(c) (and the fact that FIRST AMERICAN joined the ASSOCIATION as a

Defendant in this action), the ASSOCIATION is not entitled to interest, late fees,

attorney’s fees and costs because the safe harbor provision of Section 720.3085 (2)(c)

applies. See Catalina W. Homeowners Ass’n. Inc. v. Fannie Mae, 188 So. 3d 76, 81 (Fla.

3d DCA 2016).

The ASSOCIATION’s Third Affirmative Defense states that the ASSOCIATION

“may have an interest superior to that of Plaintiff pursuant to a special equity in the event

that the Plaintiff fails to timely foreclose, thereby prejudicing the rights of the

ASSOCIATION.” Here, the ASSOCIATION is attempting to invoke a contingent

affirmative defense, dependent upon FIRST AMERICAN’s conduct in this action. In other

words, the ASSOCIATION is uncertain whether it “may have” the right to assert its

interest. Simply stated, like its First Affirmative Defense, the ASSOCIATION’s Third

Affirmative Defense is not a true affirmative defense.

Furthermore, pursuant to Section 5.10 of the ASSOCIATION’s Amended and

Restated Declaration of Covenants and Restrictions for The Oaks at Boca Raton

(hereinafter “Declaration”),

5.10 Subordination of the Lien. The lien of the Assessments provided for in
this Article shall be subordinate to … the lien of any first mortgage held by
a Mortgage Lender ….

Page 13 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 114 of 314

Due to the voluminous nature of the Declaration, the pertinent portion of the Declaration

to this action is attached hereto as Exhibit “11.” The Declaration was recorded on October

25, 2004 in Official Records Book 17679 at Page 0883 of the Public Records of Palm

Beach County, Florida. Accordingly, any lien asserted by the ASSOCIATION is

subordinate to FIRST AMERICAN’s Mortgage.

* * *

WHEREFORE, Plaintiff, FIRST AMERICAN BANK, respectfully requests that this

Court:

(a) adjudicate that FIRST AMERICAN has a valid lien on the Property that is

superior to any right, title, interest or claim of all Defendants and all persons

and entities claiming by, through or under them;

(b) enter Final Judgment in favor of Plaintiff, FIRST AMERICAN BANK, and

against Defendant, LAURENCE S. SCHNEIDER,

a. for $1,488,554.76 in unpaid principal;

b. for $66,870.93 consisting of the Florida Ad Valorem/real property taxes

on the Property for 2014, 2015 and 2016;

c. for $64,304.08 in interest from March 16, 2016 through May 25, 2017;

and

d. post-judgment interest.

(c) enter Final Judgment foreclosing the Mortgage and determine that the rights,

title and interest of any Defendant (or any party claiming by, through, under or

against any Defendant) be forever barred and foreclosed;

Page 14 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 115 of 314

(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;

(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;

(g) determine that FIRST AMERICAN is entitled to attorneys’ fees, costs and

expenses incurred in connection with enforcing the terms, covenants,

conditions and agreements contained in the Mortgage; and

(h) retain jurisdiction to determine the total amounts of attorneys’ fees, costs and

expenses to which FIRST AMERICAN is entitled.

C. Count II – Breach of Contract Against Defendant, Laurence S. Schneider.

To establish a prima facie case for a breach of contract action, a plaintiff must

show: (1) a valid contract, (2) a material breach and (3) damages. J.J. Gumberg Co. v.

Janis Servs., Inc., 847 So. 2d 1048, 1049 (Fla. 4th DCA 2003). The Credit Agreement

states in pertinent part:

“Promise to Pay. [Defendant, LAURENCE S. SCHNEIDER] promise[s] to

pay [FIRST AMERICAN], or order, the total of all credit advances and
FINANCE CHARGES. Together with all costs and expenses for which you
are responsible under this Agreement or under the ‘Mortgage’ which
secures your Credit Line.”

Page 15 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 116 of 314

“Credit Limit. This Agreement covers a revolving line of credit for the
principal amount of One Million Five Hundred Thousand & 00/100 Dollars
($1,500,000.00), which will be your ‘Credit Limit’ under this Agreement.”

Ex. “1” at p. 1. The Credit Agreement and the admissions made by Defendants in their

Answer to the Verified Foreclosure Complaint and Responses to FIRST AMERICAN’s

Request for Admissions establish the undisputed facts that: (1) the Parties entered into a

valid contract, (2) Defendant, LAURENCE S. SCHNEIDER, defaulted under the Credit

Agreement and thereby breached the Credit Agreement by, inter alia,

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

subsequent monthly payments;8

(b) failing to pay the entire balance owing in a single balloon payment on July 28,

2016;9 and

(c) failing to pay the Florida Ad Valorem/real property taxes on the Property for

2014, 2015 and 2016 (on or about March 31, 2016, FIRST AMERICAN

advanced and paid the Florida Ad Valorem/real property taxes on the Property

for 2014 and 2015 in the amount of $46,148.17, and on or about January 4,

2017, FIRST AMERICAN advanced and paid the Florida Ad Valorem/real

property taxes on the Property for 2016 in the amount of $20,722.76). 10

8 See Ex. “1” at p. 1 (“Minimum Payment. Your ‘Regular Payment’ will equal the amount of your
accrued FINANCE CHARGES. You will make 119 of these payments. You will then be required to pay the
entire balance owing in a single balloon payment.”). See also [D.E. 32, ¶¶ 10 & 14 and D.E. 61, ¶¶ 10 &
14], Ex. “2” at pp. 13-14 and Ex. “4,” ¶ 11.

9 See Ex. “1” at p. 1 (“Balloon Payment. Your Credit Line Account is payable, in full upon maturity
in a single balloon payment. You must pay the entire outstanding principal, interest and any other charges
then due.”). Pursuant to the Credit Agreement, the “Maturity Date” was July 28, 2016. See also [D.E. 32,
¶¶ 10 & 14 and 61, ¶¶ 10 & 14], Ex. “2,” at p. 17 and Ex. “4,” ¶ 11.
10 See Ex. “1” at p. 1 (“Charges to your Credit Line. We may charge your Credit Line to pay other
fees and costs that you are obligated to pay under this Agreement, the Mortgage or any other document
related to your Credit Line. … We may also, at our option, charge your Credit Line to pay any costs or
expenses to protect or perfect our security interest in your principal dwelling. … If you do not pay your

Page 16 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 117 of 314

and (3) that said breaches caused FIRST AMERICAN the following damages:

(a) $1,488,554.76 in unpaid principal;

(b) $66,870.93 in Florida Ad Valorem/real property taxes on the Property for 2014,

2015 and 2016;

(c) $64,304.08 in interest from March 16, 2016 through May 25, 2017; and

(d) post-judgment interest; and

(e) all costs, expenses and reasonable attorneys’ fees incurred in connection with

enforcing the covenant, conditions and agreements contained in the Credit

Agreement;11

Thus, there is no genuine issue of material fact as to FIRST AMERICAN’s claim for breach

of contract against Defendant, LAURENCE S. SCHNEIDER. Accordingly, the Court

should grant FIRST AMERICAN’s Motion for Summary Judgment as to Count II of the

Verified Foreclosure Complaint.

WHEREFORE, Plaintiff, FIRST AMERICAN BANK, respectfully requests that this

Court to enter Final Summary Judgment in favor of Plaintiff, FIRST AMERICAN BANK,

and against Defendant, LAURENCE S. SCHNEIDER:

(a) for $1,488,554.76 in unpaid principal;

(b) for $66,870.93 consisting of the Florida Ad Valorem/real property taxes on the

Property for 2014, 2015 and 2016;

(c) for $64,304.08 in interest from March 16, 2016 through May 25, 2017; and

property taxes, we may charge your Credit Line and pay the delinquent taxes.”). See also Ex. “2,” at pp.
15 & 25, Ex. “4,” ¶¶ 11 &12, Ex.”5,” Interrog. No. 4 and Ex. “6,” Admissions Nos. 4 & 5.
11 See Ex. “1” at p. 4 (Collection Costs. “You will pay us the amount of these costs and expenses,
which include, subject to any limits under applicable law, our reasonable attorneys’ fees and our legal
expenses …. If not prohibited by applicable law, you also will pay any court costs, in addition to other sums
provided by law.”). See also Ex. “4,” ¶ 8.

Page 17 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 118 of 314

(d) post-judgment interest;

(e) determine that FIRST AMERICAN is entitled to attorneys' fees, costs and

expenses incurred in connection with enforcing the terms, covenants,

conditions and agreements contained in the Mortgage; and

(f) retain jurisdiction to determine the total amounts of attorneys' fees, costs and

expenses to which FIRST AMERICAN is entitled.

Respectfully submitted,

KELLER & BOLZ, LLP

Attorneys for Plaintiff
121 Majorca Avenue, #200
Coral Gables, FL 33134
Telephone: (305) 529-8500

JGi
Telefax: (305) 529-0228

::ail olz
H. Bolz, I
a Bar No.

Page 18 of 19
 Case 20-22398-MAM Doc 36-1 Filed 12/18/20 Page 119 of 314

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing, First

American's Motion for Summary Judgment and Incorporated Memorandum of Law, was

delivered to: LAURENCE S. SCHNEIDER, (larry@sacapitalpartners.com), 360 E.

Coconut Palm Road, Boca Raton , FL 33432 ; STEPHANIE L. SCHNEIDER

(steffschneider13@gmail.com), 360 E. Coconut Palm Road, Boca Raton, FL 33432; and

JAY S. LEVIN, ESQ. (foreclosures@ssclawfirm.com), Sachs, Sax, Caplan, Attorneys for

Oaks at Boca Raton, 6111 Broken Sound Parkway, N.W., #200, Boca Raton, FL 33487

via the E-filing Portal on this 25 th day of May, 2017.

KELLE~ & B LP ~

By:-+_t-1--'1-----l~_.,_----~- - - -
. '

Page 19 of 19