Filing# 155376319 E-Filed 08/ 15/2022 09:24:23 PM

IN THE CIRCUIT COURT OF THE 15TH

JUDICIAL CIRCUIT TN AND FOR PALM
BEACH COUNTY, FLORIDA

FIRST AMERICAN BANK, as successor CASE No. : 5020 16-CA-009292

By merger to Bank of Coral Gables, LLC,

Plaintiff,

V.

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

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Defendant(s) .
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FIRST AMERICAN BANK, as successor
By merger to Bank of Coral Gables, LLC, IE
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Petitioner,
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V.

STEPHANIE L. SCHNEIDER,
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Respondent.
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RES PONDENT'S MOTION TO DIS MISS PETITIONER'S PETITION FOR

DEFICIENCY .JUDGMENT WITH PRE.TUDICE, OR IN THE AIJERNATIVE,
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MOTION FC)R A MORE DEEINIT-E SIATEM-ENT

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COMES NOW Defendant/Respondent STEPHANIE L. SCHNEIDER (hereinafter "S.

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Schneider"), by and through the undersigned counsel and pursuant to Fla. R. Civ. P. I. 140, and

hereby fi les this Motion to Dismiss Plaintiff/Petitioner FIRST AMERICAN BANK's, as successor

by merger to Bank of Coral Gables, LLC (hereinafter "First American Bank") Petition for

Defic iency Judgment with prejudice, or in the alternative, Motion for a More Definite Statement,

and states in support thereof:

FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 08/15/2022 09:24: 23 PM
 Procedural Historv

I. First American Bank fi led a Petition for Deficiency Judgment against S. Schneider only

seeking entry of a defic iency judgment against S. Schneider in tbe amount of Ooe Million Five

Hundred T hirty-Seven Thousand Three Hundred Twenty-Three Dollars and Nine Cents

($1,537,323.09) pursuant to the foreclosure proceedi ngs within this case sub Judice and cites the

Supplemental Judgment [D.E. 384] in support of its alleged entitlement. Paragraph I of the

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Supplemental Judgment (D.E. 384] states in pertinent part: "Judgment is GRANTED in favor of

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Plaint iff, FIRST AMERICAN BANK, and against Defendant, LAURENCE S. SCHNEIDER."

2. Stephan ie Schneider is NOT mentioned at all in the Supplemental Judgment [D.E. 384].

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3. On March 9, 2022, the Fourth District COLtrt of Appeals in the appeal styled as Stephanie
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L. Schneider v. First American Bank, Case No.: 4D21-571 entered its Opinion reversing the final
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deficiency judgment against S. Schneider and remanded for the entry of an amended judgment
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agaiost on ly Defendant, Laurence S. Schneider in the case subJudice in tbe amount of One Mill ion

Five Hundred Th irty-Seven Thousand T hree Hundred Twenty-T hree Dollars and Nine Cents
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($1 ,537,323.09). Wherein the COLtrt stated: ""'e reverse th e final defici ency judgment against
Schneider and remand for the entry of an amended judgment against only her husband."
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(Emphasis added).
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4. On March 22, 2022, First American Ba11k as Appellee in tbe appeal styled as Stephan ie L.
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Schneider v. First American Bank, Case No. : 4D21-57 I, tiled a Motion for Rehearing, and, Motion
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for Rehearing en Banc, and on April 28, 2022, the Fourth District Court of Appeals entered an

Order denying Plaintiff/Appellee's Motion for Rehearing, and, Motion for Rehearing En Banc.

5. On May 20, 2022, the Fourth District Court of Appeals issued its Mandate stating:
 "This cause having been brought to tbe Court by appeal, and after due
consideration the Court having issued its opinion; YOU ARE HEREBY
COMMANDED that such further proceedings be had in said cause as may
be in accordance with the opinion of this Court, and with the rules of
procedure and laws of the State of Florida. "

6. T his Motion to Dismiss timely foll ows.

Legal Standard for Motion 10 Dismiss

" Whether a complaint is sufficient to state a cause of action is an issue of law."

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W.R. Townsend Contracting. Inc. v. Jensen Civil Construction. Inc., 728 So. 2d 297, 300 (Fla. 4th

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DCA l 999). "To state a cause of acti on, a complaint must allege sufficient ultimate facts to show

that the pleader is entitled to relief." Id . at 300 (quoting Perry v. Cosgrove, 464 So. 2d 664, 665

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(Fla. 2d DCA 1985)); Fla. R. Civ. P. 1. 1I0(b) (requiring "a short and plain statement of the ultimate

facts showing that the pleader is entitled to relief'). IE

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("A dismissal w ith prejudice for failure to state a cause of action should not be ordered
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w ithout giving tbe pa,t y offering the defective pleading an opportunity to amend, unless it is

apparent that the pleading cannot be amended so as to state a cause of action.") ( emphasis added).
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A mot ion to dismiss tests whether a plaintiff has alleged a good cause of action in a complaint.

Visor v. Buhl, 760 So. 2d 274, 275 (Fla. 4th DCA 2000).
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While "courts must liberally construe, a11d accept as true, factual allegations in a complai11t
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and reasonably deduct ible inferences therefrom," they "11eed not accept .. . co11clusory allegati ons,
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unwarranted deductions, or mere legal conclusions made by a party." Id. (citing Response
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Oncology, Inc. v. Metrahealth Ins. Co., 978 F. Supp. 1052, 1058) (S. D. Fla. 1997). Thus, the

question for the trial court to decide is whether, assumi11g the well-pleaded factual allegations in

the Complaint are true, Plaitlliffs would be entitled to the relief requested.
 A motion to dismiss a complaint raises as a question of law the sufficiency of the facts

alleged to state a cause of action. Chaire.s v. N. Fla. Nat'l Bank, 432 So. 2d 183, 184 (Fla. 1st

DCA 1983).

Add itio nally, when presented with a motion to dismiss, a trial court is required to "treat the

factual allegations of the complaint as true and to consider those allegations in the light most

favorable to the plaintiffs." Hollywood Lakes Section Civic Ass'n, Inc. v. City of Hollywood. 676

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So.2d 500,501 (Fla. 4th DCA 1996) (citing Carella Trucking. Inc. v. Cheoy Lee Shipyards. Ltd ..

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647 So.2d 1028, 1030 (Fla. 4th DCA I 994)).

As such, a complaint must allege sufficient ulti mate facts to show that the pleader is entitled

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to relief. Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489, 500 (F la. 4th DCA

2001) . IE
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Finally, where, as here, it is clear that the plaintiffs are unable to amend a pleading to state
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a claim, dismissal w ith prejudice is appropriate. See Hansen v. Central Adjustment Bureau, Jnc.,

348 So.2d 608, 6 10 (Fla. App. 4th DCA 1977) (citing JO Fla. Jur., Dismissal § 33, p. 544) ("A
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dismissal with prejudice for failure to state a cause of action sho uld not be ordered without giving

the party otforing the defoctive pleading an opportunity to amend, unless it is apparent that the
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pleading cannot be amended so as to state a cause of action.") (emphasis added).

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FIRST AMERICAN BAN K'S PETIT ION FOR DEFICIENCY JUDGMENT IS BARRED
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BY THE DOCTRINE OF RES .IUD/CATA

Even if the causes of action are not identical, whereas here a point was directly an issue

in a fonner suit, and was judicially passed upon by a CoLu-t of competent jurisdiction, the issue

cannot again be drawn into question in any future action between the same parties or their privities.

See In re Senate Joint Resolution of Legislative Apportionment 2-8, 89 So. 3d 872, 883-84 (Fla.
2012).

"Res judicata is a judicial doctrine used to bar parties from relitigating claims previously decided

by a final adjudication on the merits." Woodward v. Woodward, 192 So. 3d 528, 530 (Fla. 4th

DCA 2016) (internal citations omitted). "Typically affirmative defenses, like resjudicata in this

case, cannot be properly considered on a mot ion to dismiss." May v. Salter, 139 So. 3d 375, 376

(Fla. 1st DCA 2014). "There is an exception, however. when the face of the compla int and

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attachments demonstrate a defense's unquestionable merit." Id.

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Res ju<licata bars rel itigation of a claim decided in a prior final adjudication if the
subsequent claim satisfies tbe following four elements:" I) identity in the thing sued
for; 2) identity of the cause of action; 3) identity of persons and parties of the action;
and 4) identity of the quality in the person for or against whom the claim is made."

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Woodward, 192 So. 3d at 530-31 (quoting W & W Lumber of Palm Beach, Inc. v.
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Town & Country Bui lders, Inc., 35 So. 3d 79, 83 (Fla. 4th DCA 2010)).
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"The fact that a different form or measure of relief is sought, however, does not preclude
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the application of the judgment to estop the maitllenance of the second action. " 32A FLA. JUR 2D

Judgments and Decrees§ 128 (Dec. 2017) (citing Estate of Paulk v. Lindamood. 529 So. 2d 1150,
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11 54 (Fla. 1st DCA 1988). The fact that the rel iefrequested in one case is the flip side of the relief

granted in the other case, that is, it is a different form or measure of relief, does not preclude
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application of the doctrine of res judicata under Florida law, so long as the cause of action is
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substantially the same in both actions. See In re Zoemack, 289 B.R. 220, 228 (Bankr. M.D. Fla.
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2003).
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"T he determin ing factor in deciding whether the causes of action are the same is whether

the facts and evidence necessary to maintain the suit are the same in both actions." In re Colony

Beach & Tennis Club Ass' n. Inc.• 423 B.R. 690, 712 (Bankr. M.D. Fla. 20 10),judgmenl rev 'd 011

other grounds, 454 B.R. 209 (M.D. Fla. 2011) (construing Florida law). For purposes of res

judicata, identity of the causes of action is established where the facts required to maintain both
actions are identical. Gold v. Bankier, 840 So. 2d 395, 397 (Fla. 4th DCA 2003). Sec id. at 397-

98 (Res judicata bars not on ly those issues that were subject to adjudication on the merits but also

bars tbose issues that coul d have properly been included in tbe same action); see also Seminole

T ribe of Florida v. State, Dc:.pt. of Revenue. 202 So. 3d 97 1 (Fla. 1st DCA 2016) (In detennining

whether res j udicata bars an action, the identity of the cause of action is extended to every other

matter which the parties might have litigated and had determined, within the issues as framed by

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the pleadings or as incident to or essentially connected with the subject matter of the first

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litigation).

T he general m le is that all persons who are neither pmties to the j udgment nor privies to

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such parties are wholly free from the estoppel of a judgment. See Stickney v. E.R. Squibb & Sons,
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Inc., 377 F. Supp. 785, 787 (M.D. Fla. 1974) (emphasis added). An exception to the general rule
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that a judgment binds only the parties to the lawsuit exists when it can be said that there is privity
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between a pa1ty to the second case aod tbe pa,t y who is bound by an earlier judgment. Udick v.

Harbor Hills Dev., L.P., 179 So. 3d 489, 492 (Fla. 5th DCA 20 15). T here is no general prevailing
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definition of privity that can be automatically applied to all cases involving res judicata and

collateral estoppel, but some examples where a nonparty may be considered in privity with a party
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to the prior action are: (1) the nonparty agreed to be bound by the litigation of others, (2) a
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substantive legal relationsh ip ex isted between the person to be bound aod a party to the judgment,
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(3) the nonparty was adequately represented by someone who was a party to the suit, (4) the
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nonparty assumed control over the litigation in which the j udgment was issued, (5) a party

attempted to rel itigate issues through a proxy, or (6) a stan1tory scheme foreclosed successive

litigation by nonlitigants. See Peter Coppola Beauty, LLC v. Casaro Labs, Ltd. , I 08 F. Supp. 3d
1323, 1331 (S.D. Fla. 2015).

Here, First American Bank has (I) already previously sought a Defic iency Judgment

agaiJJst S. Schneider and her Husband, Laurence SchJJeider in this case sub judice, (2) the

Deficiency Judgment sought herein the same deficiency judgment and amount that the Fourth

District Court of Appeals has reversed against S. Schneider in the appea l sty led as Stephanie L.

Schneider v. First American Bank. Case No.: 4D21-571, (3) First American Bank did not

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originally seek a deficiency judgment against S. Schneider until long after the original June 27,

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2017 MotioJJ for Summary Judgment was granted, but First American Bank thereafter obtained a

deficiency judgment against S. Schneider. However, the Fourth District Court of Appeals reversed

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said deficiency judgment against S. Schneider in the case styled as Stephanie L. Schneider v. First
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American Bank. Case No. : 4D21-571, and (4) the Fourth District Court of Appeals has already
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ruled that a deficiency judgment could not be entered against S. Schneider making the deficiency
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judgment sought by First American Bank against S. Schneider improper and barred by tbe Fourth

District Court of Appeals Mandate.

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First American Bank's Petit ion for Deficiency Judgment should be di sm issed with

prejudice based on res judicata, being that First American Bank is now attempting to persuade
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this Honorable Court to enter a Deficiency Judgment that the Fourth District Court of Appeals
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has already reversed and di sclaimed.

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FAILURE TO STATE A CAUSE OF ACTION

First Ameri can Bank's claim for a deficiency j udgment rel ies upon effectively the

Mortgage and NOT the Note that they foreclosed on subjudice. Due to the fact that S. Schneider
 NEVER SIGNED the Note! And there have never been an allegation that she agreed to assume

liability for the debt established by the Note solely signed by L. Schneider.

Florida Rule of Civi l Procedure J.130(a) provides that "(a] II bonds, notes, bil ls of

exchange, contracts, accounts, or documents upon which an action may be brought . .. shalI be

inc.orporated or attached UJ the pleading." The point of this rule is to put the defendant on notice

oft/re nature and extent oft/re cause of action so that defendant may plead with greater certainty

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in response thereto. See Sachse v. Tampa Music Co .. 262 So. 2d 17 (Fla. 2d DCA 1972).

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Co1Jsequently, a complaint based on a written instrument does not state a cause of action

until such time as the actual instrument, or an adequate porti on of the instrument, is attached to or

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incorporated in the pleadings. See Safeco Insurance Company of America v. Ware, 40 I So. 2d 1129

(Fla. 4th DCA 1981). IE

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Here, First America1J Bank fails to attach a full and complete copy of the of the Note and
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Mortgage to tbe Petition for Deficie1Jcy Judgment. hJstead, First American Batlk provides a copy

of the Amended Final Judgment of Foreclosure dated February 26, 2020, which is attached as
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Exhibi t "A" to First American Bank's Petition for De ficiency Judgment. However, as mentioned

above, the Note and Mortgage are not attached to tire Petition for Deficiency Judgment. Thus,
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First American Bank fai led to comply w ith Fla. R. Civ. Pro. l.130(a), which in return has limited
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S. Sclmeider's notice of the litigation and the extent of the causes of action asserted against her, and
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ultimately means the Complaint fails to state a cause of action against S. Schneider. As such, this
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Court must dismiss First American Bank's Petition for De ficiency Judgment against S. Schneider

until such time that the relevant contracts are attached .

 FAILURE TO S TATE A CAUSE OF ACTION

"A judgment of foreclosure is a judgment in rem or quasi in rem that directs the sale of

tbe mortgaged property to satisfy the mortgagee's lie11.... [I]t applies only to tbe property secured

by the mortgage, and does not impose any personal liability on the mo11gagor. " Aluia v. DX£k:

O 'Neal, Inc., 205 So. 3d 768, 773- 74 (Fla. 2d DCA 2016).

The Florida Supreme Court in, WVMF Funding v. OneWest Bank. FSB, 320 So. 3d 689

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(Fla. 2021), has recently held that where the Husband was the sole borrower on adjustable rate

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note secured by a reverse mo1t gage 011 his and his wife's primary residence and homestead, and

thus wife 's signature in the "Borrower" signature block on the mortgage did not make her a co-

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borrower under the mortgage, where husband was the sole defined "Borrower" under both the
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note and mortgage; disapproving Edwards v. Reverse Mortg. Solutions. Inc., 187 So.3d 895;
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Smith v. Reverse Mortgage Solutions. Inc., 200 So. 3d 221. Fla. Const. Art. 10, § 4(c) .
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In WVMF Funding v. One West Bank, FSB,320So.3d 689 (Fla.2021) the Comt stated:

"The comi shou ld read a mortgage together with the note it secures regardless of the type of
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mortgage being foreclosed." T he reason for the documents at issue- tell us why we should read

a mortgage together w ith the note it secures regardless of the type of mortgage being foreclosed :
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" (T]he promissory note, not the mortgage, is th e op erative instrument in a mortgage loan
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transaction, since 'a mortgage is but an incident to tbe debt, the payment of wh ich it secures,
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and its ownership follows the assignment of the debt. "' HSBC Bank USA, N.A. y. Perez, 165 So.
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3d 696, 699 (Fla. 4th DCA 20 15) (quoting WM Specialty Mortg., LLC v. Salomon, 874 So. 2d

680, 682 (Fla. 4th DCA 2004)); see also Palmero, 283 So. 3d at 363 (Miller, J., dissenting) ("The

note represents a promise to pay, while the mortgage merely secures that promise it1the event of

a default.").
 The Florida Supreme Court in Our foreclosure precedent is clear that the mortgage must

be read together with the note it secures and that, if the terms of the two documents conflict, the

note prevails. See, e.g., Graham v. Fitts, 53 Fla. 1046, 43 So. 512, 513-14 (1907) (requiring joint

construction of note and mortgage in foreclosure actions); Hotel Mgmt. Co. v. Krick! . 117 Fla.

626, 158 So. 11 8, 11 9 ( 1934). WVMF Funding v. OneWest Bank, FSB, 320 So. 3d 689 (Fla.

2021).

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Here, First Ame1ican Bank is attempting to obtaio a deficieocy judgment against S.

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Schneider in this case subJudice, and such deficiency judgment cannot be h'ranted as stated within

the precedent caselaw listed throughout this Motion and throughout the caselaw provided in the

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Fourth District Court of Appeals mling in the case styled as Stephanie L. Schneider v. First

American Bank. Case No.: 4D21 -571, which reversed the Deficiency Judgment against S.
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Schneider.
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S. Schneider only signed the Mortgage as she was a co-owner of the Property and the
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spouse of Laurence Scimeider; however, ber execution of the mortgage does NOT make her a

borrower, nor did she sign the Note securing the mo1igage.
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Here, First American Bank's Petition for Deficiency Judgment fails to plead a cause of
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action for a deficiency judgment by failing to allege the circumstances in which they are entitled
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to a deficiency judgment. Accordingly, First American Bank's Petition for Deficiency Judgmeot

should be dismissed with prejudice.

 CONCLUSION

First Amel'ica11 Bank's Petition for Deficiency Judgment should be dismissed wi th

prejudice based o n (i) resjudicata, (ii) failure to coll)ply with Fla. R. Civ. Pro. l . I 30(a) to attach

the necessary documents to the Petition for Deficiency Judgment, which in return has limited S.

Schneider's notice of the litiga(ion and (he extent of the causes of action asserted against her, and

ultimately means the Complaint fails to state a cause of action against S. Schneider, and (iii) First

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American Bank fails to state a cause of action within their Petition for Deficiency Judgment for

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a Deficiency Judgment due to their inabi lity to plead any basis to establ ish in personam liability

against S. Schneider. As such, the Petition for Deficiency Judgment must be dism issed o n this

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ground alone.
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In the Alternative the Plaintiff Should be Ordered to File a More Definite Statement
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Where a Complaint is vague or ambiguous, a motion for more definite statement is the
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proper avenue to seek redress. See Foerman v. Seaboard Coast Line R. Co., 279 So. 2d 825, 827

(Fla. 1973); Wajay Bakery. Inc. v. Carolina Freight Carriers Corp., 177 So. 2d 544, 546 (Fla. 3d
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DCA 1965); Patton v. Carlson, 132 So. 2d 793, 795-96 (Fla. 1st DCA 1961).

Here, the First American Bank's Petition for Deficiency Judgment fails to allege the
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required elements of the causes of action upon which it is prefaced.

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Accordingly, in the instance that the Cou,t does not dismiss the Petition for Deficiency
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Judgment for failure to state a cause of action upon which relief may be granted, S. Schneider
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re-q uests in the alternative the Court Orders the First American Bank to file a more definite

statement to plead each and every element of the causes of action in the more definite statement.

WHEREFORE, the Defendant/Respondent STEPHANIE L. SCHNEIDER hereby moves this

Cou,t to dismiss First American Bank's Petition for Deficie11cy Judgment witb prejudice, or in the
alternative, require First American Bank to provide a more definite statement, for an award of

reasonable attorney's fees and costs incurred pursuant to Fla. Stat. § 57. I 05( !)(a) for pursuing

claim(s) unsupported by tbe necessary material facts, and the mortgage sub Judice wh icb provides

for the Plai ntiff's recovery of attorney 's fees and costs pursuant to F la. Stat. § 57.105(7) such

creates a reciprocal entitlement sho uld S. Schneider prevail herein, and for any o ther relief as this

Court deems just and proper.

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CERTIFICATE OF SERVICE

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I CERTIFY that a copy hereof has been furnished on August 15, 2022, via email service to all
parties designated to receive Service of Court documents via Florida's eFil ing Po11al pertain ing to
this case, via e-mail to Meaghan E. Murphy, Esq., Meland Budw ick, P.A., 200 South Biscayne
Blvd., Ste. 3200, Miami, FL 33131 , mmuu>lw@melandbudwick.com,

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mramos@mclandbudwick.com. and mrbstate@yahoo.com. and via email to John W. Keller. lll ,
Esq., S ioli Alexander Pino, 9155 S. Dadeland Blvd., Ste. 1600, M iami, FL 33156,
jkeller@siol ilaw.com and smesa@siolilaw.com. IE
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Respectfully Submitted,
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MCCARTHY & YERSEL, PLLC

Attorneys for the Third-Party Defendants
4929 SW 74•h CT
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Miami, FL 33 155
Ph.: (305) 407-8006 / Fax.: (866) 676-4671

By: Isl Marti n G. McCarthy

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Martin G. McCarthy. Esq. Florida Bar No. : 149896

Service Email : mccarthv@myattomeyservices.com
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Emre Yersel, Esq., Florida Bar No.: 114485

Service Email: eyersel@myallorneyservices.com
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Service Email 2: lawclerk@myattorneyservices.com

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