BK 41 Ex. 1 (163-175) de 286 Def's Motion Stay Judgments

Case 20-22398-MAM Doc 36-2 Filed 12/18/20 Page 163 of 294
EXHIBIT 1
Filing# 83837222 E-Filed 01/24/201 9 12: 17:25 PM
IN THE CIRCUIT COURT OF TIIE 15™

JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CASE NO.
LAURENCE S. SCHNEIDER
and STEPHANIE L. SCHNEIDER,
Plaintiffs,
vs.
FIRST AMERICAN BANK

HENRY H. BOLZ, III,
and KELLER & BOLZ, LLP,
Defendants.
- -- - - - - -- - - -I
VERIFIED COMPLAINT TO SET ASIDE JUDGMENT
The plaintiffs, Laurence S. Schneider and Stephanie L. Schneider (collectively, "the
Schneiders"), by and through their undersigned attorneys, hereby sue the defendants, First
American Bank, Henry H. Bolz, III, and Keller & Bolz, LLP, and state as follows:
Parties
1. The plaintiff, Laurence S. Schneider ("Mr. Schneider"), is a resident of Palm Beach
County, Florida.
2. The plaintiff, Stephanie L. Schneider ("Mrs. Schneider"), is a resident of Palm
Beach County, Florida.
3. The defendant, First American Bank ("First American"), is an Illinois banking
corporation with a principal place of business in Elk Grove Village, Illinois.
4. The defendant Keller & Bolz, LLP, is a limited liability partnership, which practices
law and whose address is 121 Majorca Avenue, Suite 200, Coral Gables, Florida.
1
5. The defendant, Henry H. Bolz, III ("Bolz"), is an individual with a principal place
of business at Keller & Bolz, LLP, 121 Majorca Avenue, Suite 200, Coral Gables, Florida. Bolz
represented First American in a foreclosure action (the "Foreclosure Action") against the
Schneiders. The Foreclosure Action was filed with this Court and is docketed as Case No. 502016-
CA-009292.
Jurisdiction
6. This action is brought pursuant to Rule 1.540 of the Florida Rules of Civil
Procedure. Rule 1.540 permits the Court ''to entertain an independent action to relieve a party
from a judgment, decree, order or proceeding or to set aside a judgment or decree for fraud upon
the court."
Background
7. On August 17, 2016, First American filed the Foreclosure Action against the
Schneiders, and others, seeking to foreclose on a mortgage on residential property located at 17685
Circle Pond Court, Boca Raton, Florida.
8. On November 16, 2016, the Schneiders, through their then-counsel, Kenneth Trent,
Esquire ("Trent"), filed an Answer and Affirmative Defenses.
9. On November 21, 2016, Trent, a solo practitioner, filed a "Notice of Absence" with
the Court. The Notice of Absence indicated that Trent was suspended from the practice of law
from December 12, 2016 through January 11, 2017 "due to a consent judgment upon a Bar
grievance" and asked that the notice be "construed as a motion to continue any events scheduled,
and toll any time periods set to elapse, during the 30-day suspension." During this period, Trent
could not represent the Schneiders.
2
10. Trent's bar suspension elapsed on January 11, 2017 and he was allowed to reengage
in the practice of law on January 12, 2017. Upon Trent's return, and upon First American
unilaterally setting hearings for a dispositive motion and carpet bombing Trent with document
requests, Trent's communications with the Schneiders was dismal and virtually non-existent, and
his representation of the Schneiders was at the same level.
11. On March 22, 2017, without the Schneiders' knowledge or consent, Trent filed a
motion to withdraw as counsel, stating in the motion:
This request is necessary because the undersigned does not have sufficient
time to properly represent the interests of the Defendants in this Action.
12. On May 1, 2017, the Court heard - and allowed - the motion to withdraw. As a
result, the Schneiders became pro se litigants in the Foreclosure Action.
13. Immediately thereafter, First American began its naked attempts to take advantage
of the Schneiders' unrepresented status.
14. On May 9, 2017, Bolz quickly, and unilaterally, noticed the depositions of Mr.
Schneider for June 13, 2017 and Mrs. Schneider for June 14, 2017. Later that same day, Bolz
unilaterally filed a Notice for Trial, claiming that his April 17, 2017 communication with Trent -
who, at the time of the communication, had a motion to withdraw pending, and who, at the time
Bolz filed his notices, had, in fact, withdrawn - satisfied the confer requirement (despite
acknowledging in the communication his keen awareness that Trent was not "in touch" with the
Schneiders).
15. On May 24, 2017, the Schneiders served written discovery on First American. At
the time of the summary judgment hearing, First American had still not responded to the discovery
requests.
3
16. On May 25, 2017, only three weeks after Trent withdrew, and despite having not
raised it as being on the horizon at the motion to withdraw hearing, First American filed a motion
for summary judgment. At that time, the Schneiders had still not been successful in retaining new
counsel.
17. On May 26, 2017, at 9:53 a.m., Bolz sent an e-mail to the Schneiders asking if they
could attend a hearing on June 26, 2017 on the just-filed motion for summary judgment. Bolz
wrote:
In accordance with the Court's procedures, we are attempting to coordinate

a hearing on the Motion for Summary Judgment (filed yesterday). The
earliest possible hearing date that we can now get is 1:30 p.m. or 2:30 p.m.
on Monday, June 26, 2017. Please let us know (by noon) if you can attend
the hearing on June 26, 2016 [sic] and at what time.
18. On May 26, 2017, at 11 :12 a.m., Mr. Schneider responded to the e-mail:
I am unavailable from between June 26, 2017 and July 5, 2017.
[Emphasis added].
19. In response, Bolz wrote:
Your advices [sic] that you are "unavailable from between June 26, 2017 to
July 5, 2017" precludes our ability to set the Motion for Summary
Judgment down for hearing on June 26, 2017. We will pursue alternate
dates for the hearing.
[Emphasis added].
20. Despite this communication, sometime between May 25, 2017 and June 2, 2017,
without the Schneiders knowledge or consent, Bolz unilaterally scheduled a hearing on First
American's soon-to-be served motion for summary judgment for June 26, 2017.
21. Over the telephone, Mr. Schneider also told Bolz that he would not be available the
week prior to June 26, 2017, specifically informing Bolz that he would be in Phoenix, Arizona on
Thursday, June 22 and 23, 2017 attending depositions in another matter.
4
22.. On the afternoon of May 26, 2017, despite knowing the dates on which the
Schneiders would be unavailable, Bolz addressed a letter to Judge James Ferrara requesting that
the hearing occur before June 26, 2017 and recommended dates that Mr. Schneider had told him
the Schneiders would be out of town and unavailable. Regardless, Bolz already knew the Court
would not be able to accommodate a request for a date earlier than June 26, 2017 because he had
already communicated to Mr. Schneider that the earliest possible hearing date available was June
26, 2017.
23. Bolz also requested in his letter that the motion for summary judgment be heard
before the start of the Court's June 28, 2017 trial calendar period- meaning, in effect, that he was
requesting that the hearing be held on June 26 or 27, 2017, both dates on which the Schneiders
were not available and across the country at depositions in an unrelated matter.
24. Despite his promise ''to pursue alternate dates for the hearing", which, interpreted
reasonably, meant dates on which the Schneiders would actually be available, Bolz requested only
dates on which he knew either the Court or the Schneiders would be unavailable.
25. First American and Bolz's actions were in bad faith.
26. In the purported letter, Bolz also misrepresented that ''the Schneiders refuse[d] to
agree to a hearing date."
27. The Schneiders never refused to agree on a hearing date, and, in fact, fully informed
Bolz about the dates on which they were not available so that the hearing could be scheduled on a
date they were available.
28. The Schneiders recently learned that the Court does not have a record of the May
26, 2017 letter on the docket. The Schneiders suspect that Bolz never submitted the letter to the
Court.
5
29. On June 2, 2017, despite the Schneiders' unavailability - and likely because Bolz
unilaterally scheduled the hearing on the Court's online system and then did not change it or inform
the Court about the Schneiders' unavailability - the Court issued an order setting the special
hearing for June 26, 2017.
30. On June 9, 2017, the Schneiders filed a Notice of Removal of the Foreclosure
Action to the U.S. District Court for the Southern District of Florida (the "District Court").
31. On June 12, 2017, the District Court issued an order requiring the Schneiders to
respond by showing good cause why the matter should not be remanded to state court.
32. On June 22, 2017, without the Schneiders' knowledge or consent, First American
filed a document titled "Defendants' Response to Court's Order to Show Cause" (the "Response")
with the District Court and this Circuit Court. Bolz alleges to have received it in the mail from the
Schneiders - but neither Mr. Schneider nor Mrs. Schneider ever drafted, reviewed, signed, or
mailed it.
33. The Response provides, in relevant part:
Defendants indicate their consent to this remand, and will pursue their
remedies to prevent the sale of the subject property in the separate filed
action before this Court, Schneider v. First American Bank, Case No. 9: 17-
cv-80728-DMM.1
34. The Response purports to have been signed by either Mr. or Mrs. Schneider, but,
again, at no point in time did the Schneiders sign, or permit First American to sign, the Response.
35. The notice was filed by Bolz after he purportedly received the document in the U.S.
postal mail from Schneiders purportedly mailed while they were in Arizona. The Response is
1 The document claims that the Schneiders intend to ''pursue their remedies to prevent the sale of the subject property''
through a separate action that was already pending in the federal court. Such a reasoning is illogical on its face since
the "agreement to remand" would effective give the Circuit Court unfettered ability to determine the future actions as
to the subject property. There is no rationale that would support an action such as this by the Schneiders.
6
dated June 21, 2017 and was filed by Bolz on June 22, 2017. The envelope in which it allegedly
arrived at Bolz's has never been produced by FAB or Bolz.
36. The "scrawl" purporting to be the signature of only one of the Schneiders - despite
both being pro se and parties to the case - is not similar in any respect to either of their signatures,
as can be seen in any of the several documents executed by the Schneiders in this matter.
37. On information and belief, First American and Bolz submitted the document in an
attempt to push the action back to state court before June 26, 2017, so that First American could
move forward with the unilaterally set hearing on the motion for summary judgment while the
Schneiders were still out of town.
38. On June 22, 2017, upon receipt of the Response from Bolz, the District Court issued
an order remanding the Foreclosure Action back to state court. It is unclear when the District
Court actually notified this Circuit Court about the remand, as opposed to Bolz notifying the
Circuit Court about the remand in his quest to have the motion heard while the Schneiders were
still out of town.
39. On Friday, June 23, 2017, Bolz sent an e-mail to Mr. Schneider:
Although you may have already seen it, we attach a copy of United States
District Court Judge Donald Middlebrooks' June 22, 2017 Order remanding
the Foreclosure Litigation back to Circuit Court.
We are advised by the Circuit Court that First American Bank's Motion for
Summary Judgment ... remains scheduled to be heard by the Circuit Court
at 2:30 p.m. on Monday, June 26, 2017.
40. Stunned by the e-mail - as a result of both his lack of awareness about the remand
and his repeated communications with Bolz about his unavailability on that date and Bolz's
assurances that the hearing would not be scheduled for that date - Mr. Schneider responded:
7
As I had explained to you, I am in Phoenix doing depositions and will not

be back in town until Thursday of next week.
41. Based on the Schneiders' unavailability, Mr. Schneider reasonably believed that
Bolz would inform the Court and request another date for the hearing on his motion. Instead, Bolz
did nothing to change the date of the hearing from June 26, 2017 - which he unilaterally scheduled
and kept despite knowing the Schneiders' unavailability - and then, after the issuance of the
remand order, pressed hard for the Court to hear the motion for summary judgment on that date,
while the Schneiders were still out of town.
42. Mr. Schneider's June 23, 2017 e-mail, and almost all of his prior communications
with Bolz, Mr. Schneider made clear that the Schneiders intended to oppose the motion for
summary judgment - but, in light of the truncated timeframe resulting from the remand after two
weeks in federal court, and the calendar requirements of Rule 1.51 a2, it would have been
impossible for the Schneiders to submit evidence in opposition prior to the Monday, June 26, 2017
hearing.
43. On June 26, 2017, Bolz attended the hearing and Judge Susan R. Lubitz presided
over it. Judge Lubitz had not scheduled the hearing and was not the addressee of Bolz' s alleged
May 26, 2017 letter.
44. During the hearing, Bolz did not inform Judge Lubitz about the May 26, 2017 e-
mail exchange between him and Mr. Schneider in which he was advised of the Schneiders'
unavailability and in which he promised to pursue hearing dates other than June 26, 2017. On
information and belief, Judge Lubitz did not have any independent knowledge of this exchange.
2 Rule 1.510 of the Florida Rules of Civil Procedure provides that ''the adverse party shall identify, by notice mailed
to the movant's attorney at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business
days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies."
8
45. During the hearing, Judge Lubitz had the following preliminary exchange with
Bolz:
THE COURT: Okay. He [Laurence Schneider] hasn't filed any notice on

unavailability, nor has he filed a motion to continue the case?
MR. BOLZ: Neither.
THE COURT: Okay. Let's proceed.
46. Despite having had the opportunity to do so, and despite having an obligation of
candor to the Court, Bolz did not reveal to Judge Lubitz that the Schneiders had told him a month
prior that they would not be available for a hearing on June 26, 2017; that Bolz had informed Mr.
Schneider that this precluded First American from scheduling a hearing on that date; and that Bolz
had promised Mr. Schneider that First American would pursue alternate dates for the hearing
(meaningfeasible dates other than June 26, 2016).
47. During the hearing, Bolz also did not inform the Court that First American's
responses to the Schneiders' discovery requests - which were served before First American served
its motion for summary judgment - were still outstanding. On information and belief, Bolz' s
actions were an intentional attempt to thwart the well-settled law that a trial court should not
entertain a motion for summary judgment until discovery is concluded.
48. As a result of First American and Bolz's fraudulent, deceptive, and bad faith
conduct, the Court went forward with the hearing, and, at its conclusion, granted the motion for
summary judgment.
49. On June 27, 2017, the Court issued a Final Judgment for monetary damages against
Mr. Schneider only (Bk.29187/Pg.733), and a Final Judgment for Foreclosure against Mr.
9
Schneider, Mrs. Schneider, and The Oaks at Boca Raton Property Owners' Association, Inc.
(29187/1515).
50. On June 30, 2017, the Court issued an Amended Final Judgment against Mr.
Schneider (29205/1606; 29207/353). The Schneiders did not receive any notification of the
hearing or its results until they received an email from Bolz at 2:30 p.m. on June 30, 2017 attaching
the Amended Final Judgment.
51. On October 12, 2018, the Court issued an Amended Final Judgment for Foreclosure
against Mr. Schneider, Mrs. Schneider, and The Oaks at Boca Raton Property Owners'
Association, Inc. (30184/1587; 30186/720). The Judgments and Amended Judgments referenced
herein are attached as Composite Exhibit "A" hereto.
Countl
Fraud on the Court
52. The Schneiders repeat and reallege the allegations contained in paragraphs 1 to 51
of the Verified Complaint.
53. First American and Bolz's misrepresentations and deception prevented the
Schneiders from presenting an opposition to the motion for summary judgment and participating
in the hearing on the motion for summary judgment.
54. First American and Bolz's actions caused hann to the Schneiders and resulted in
the entry of the Judgments and Amended Judgments against the Schneiders in the Foreclosure
Action.
WHEREFORE, the defendants, Laurence and Stephanie Schneider, respectfully request
that this Court enter an Order (1) setting aside the judgment entered tn tbe Foreclosure Action,
and (2) granting such other and further relief as the Court deems just and proper.
VERIFICATION
Under penalties of perjury, I declare that I have read the foregoing Verified Complaint to
Set Aside Judgment, and that the facts stated in it are true to the best of my knowledge and
belief.
-=--
-- S. SCHNEIDER
LAURENCE
-
~ ~
STEPHANIE L. SCHNEIDER
Dated: January~ 2019.
RESPECTFULLY SUBMITTED,
RODMAN EMPLOYMENT LAW
181 WELLS AVENUE, SUITE 20 I
NEWTON, MA 0245 9
P: (617) 820-5250
BY: Isl Charles F Rodman. Esq.

CHARLES F. RODMAN, ESQ.
FLORIDA STATE BAR No.: 0147737
chuckrodman@rodmanemploymentlaw.com
11
A TTORNEY FOR PLArNTIFFS

LAURENCE S. SCHNEIDER AND
R.ESPECTFULLY SUBMITTED,
WYMAN LEGAL SOLUTIONS
955 NW 17TH AVENUE, S UITE C
D ELRAY B EACH, FL 33445
P: (561) 361 -8700
F: (561 ) 361-8899
BY: Isl Andrew D. Wyman, Esq.

A NDREW D. WYMAN, ESQ.
FLORIDA S TA TE B AR No.: 326010
ANDY@WYMANLEGALSOLUTIONS.COM
ATTORNEY FOR PLArNTIFFS
LAURENCE S. SCHNEIDER AND
12

BK 41 Ex. 1 (163-175) de 286 Def's Motion Stay Judgments

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Case 20-22398-MAM Doc 36-2 Filed 12/18/20 Page 163 of 294

IN THE CIRCUIT COURT OF TIIE 15™

FIRST AMERICAN BANK

The plaintiffs, Laurence S. Schneider and Stephanie L. Schneider (collectively, "the

1. The plaintiff, Laurence S. Schneider ("Mr. Schneider"), is a resident of Palm Beach

2. The plaintiff, Stephanie L. Schneider ("Mrs. Schneider"), is a resident of Palm

Beach County, Florida.

3. The defendant, First American Bank ("First American"), is an Illinois banking

corporation with a principal place of business in Elk Grove Village, Illinois.

Circle Pond Court, Boca Raton, Florida.

Esquire ("Trent"), filed an Answer and Affirmative Defenses.

could not represent the Schneiders.

his representation of the Schneiders was at the same level.

motion to withdraw as counsel, stating in the motion:

result, the Schneiders became pro se litigants in the Foreclosure Action.

of the Schneiders' unrepresented status.

In accordance with the Court's procedures, we are attempting to coordinate

I am unavailable from between June 26, 2017 and July 5, 2017.

19. In response, Bolz wrote:

Thursday, June 22 and 23, 2017 attending depositions in another matter.

25. First American and Bolz's actions were in bad faith.

agree to a hearing date."

date they were available.

hearing for June 26, 2017.

33. The Response provides, in relevant part:

arrived at Bolz's has never been produced by FAB or Bolz.

Schneiders were still out of town.

still out of town.

As I had explained to you, I am in Phoenix doing depositions and will not

while the Schneiders were still out of town.

May 26, 2017 letter.

THE COURT: Okay. He [Laurence Schneider] hasn't filed any notice on

MR. BOLZ: Neither.

THE COURT: Okay. Let's proceed.

(meaningfeasible dates other than June 26, 2016).

entertain a motion for summary judgment until discovery is concluded.

the Amended Final Judgment.

herein are attached as Composite Exhibit "A" hereto.

of the Verified Complaint.

in the hearing on the motion for summary judgment.

WHEREFORE, the defendants, Laurence and Stephanie Schneider, respectfully request

Dated: January~ 2019.

BY: Isl Charles F Rodman. Esq.

A TTORNEY FOR PLArNTIFFS

BY: Isl Andrew D. Wyman, Esq.

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