First American Bank V Schneider 50-2016-CA-009292 - Transcript Hearing-Mot. Receivership & Mot. To Dismiss, Mot. Appointment of Receiver, Honorable Judge Eli Breger, Oct. 14, 2016

1 IN THE CIRCUIT COURT OF THE 15th
JUDICIAL CIRCUIT IN AND FOR

2 PALM BEACH COUNTY, FLORIDA
3 CASE NO: 50-2016-CA-009292-XXXX-MB
5 FIRST AMERICAN BANK, as successor by merger

to Bank of Coral Gables, LLC,
6
Plaintiff.
7
vs.
8
LAURENCE S. SCHNEIDER, STEPHANIE L. SCHNEIDER,
9 JEFFREY MARC HERMAN, UNKNOWN TENANT #1,
UNKNOWN TENANT #2, and THE OAKS AT
10 BOCA RATON PROPERTY OWNERS' ASSOCIATION, INC.,
11 Defendants.
12 ______________________________________/
13 Proceedings had and taken place before the
14 Honorable Eli Breger, one of the Judges of said
15 Court, at the Palm Beach County Courthouse, 205
16 North Dixie Highway, West Palm Beach, Florida, on
17 Friday, the 14th day of October 2016, commencing
18 at the hour of 10:00 a.m., and being a Hearing.
19
20
21
22
23
24
25
JULIO A. MOCEGA & ASSOCIATES (305)374-0181

1 APPEARANCES:
2 Appearing on behalf of the Plaintiff:
3 KELLER & BOLZ, LLP

121 Majorca Avenue, Suite 200
4 Coral Gables, Florida 33134
305-529-8500
5 Hbolz@kellerbolz.com
BY: HENRY BOLZ, ESQUIRE
6
Appearing on behalf of the Defendant:
7
KENNETH ERIC TRENT, P.A.
8 831 East Oakland Park Boulevard
Fort Lauderdale, Florida 33334
9 954-567-5877
Trentlawoffice@yahoo.com
10 BY: KENNETH TRENT, ESQUIRE
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

3
1 (Thereupon, the following proceedings were
2 had:)
3 THE COURT: This matter is what, First
4 American Bank, Schneider?
5 MR. BOLZ: That's correct, Your Honor.
6 THE COURT: Somebody has a motion pending.
7 MR. BOLZ: There are three motions here
8 today, Your Honor.
9 My name is Henry Bolz. I'm with the firm of
10 Keller & Bolz. I represent the Plaintiff, First
11 American Bank. I have with me Brian Hagan, who is
12 the executive vice president of the bank.
13 There are three motions noticed today. One
14 is the defense motion to dismiss. And then we,
15 the bank, have a motion to get an assignment of
16 rents order and a motion to appoint receiver.
17 This is billed as an evidentiary hearing as
18 30 minutes. I don't think we're going to have to
19 take any testimony because I think that between
20 the verified pleadings that we're relying on and
21 the affidavit that was filed the day before
22 yesterday provide all the evidentiary bases that
23 you need to consider. I think we can get through
24 these motions pretty easily today.
25 I filed yesterday a notice of additional

4
1 authority.
2 MR. TRENT: Counsel, before you get into the
3 argument, can I introduce myself and address a
4 procedural issue?
5 MR. BOLZ: Sure.
6 MR. TRENT: Thank you. Good morning, Your
7 Honor. My name is Kenneth Trent. I represent
8 Laurence Schneider and Stephanie Schneider, the
9 Defendants or some of the Defendants in this case.
10 Counsel mentions that this matter was billed
11 as an evidentiary hearing. I'm not aware of that.
12 And as I've expressed to him prior, I do object to
13 this matter proceeding as a non-evidentiary
14 hearing.
15 I have a copy of the order setting hearing in
16 this case, order specially setting hearing. This
17 is dated 21st day of September, 2016, signed by
18 Judge Peter Blanc.
19 It doesn't say anything in here about it
20 being an evidentiary hearing. For a matter to be
21 evidentiary, it needs to be noticed as such.
22 Furthermore, it says in here that the party
23 scheduling the hearing confirms that since the
24 filing of the subject motion, the lead attorneys
25 for the parties or self-representing parties have

5
1 spoken to each other in person or by phone in a
2 good faith effort to resolve or narrow the issues
3 raised.
4 I didn't hear anything from Mr. Bolz at
5 anytime prior to him setting this for hearing. So
6 that proviso has been violated. It's not accurate
7 and that's another ground.
8 My client could not be here today, Judge,
9 because he had previously booked a flight out of
10 state to visit his daughter at the university for
11 parents weekend. So he wasn't able to be here
12 today.
13 They've set this for 30 minutes. There are
14 questions which basically if you don't have an
15 evidentiary hearing, all you have are competing
16 affidavits. Those are clearly hearsay. It's not
17 proper for the Court to make its determination on
18 that basis as long as someone objects.
19 THE COURT: On this order setting the
20 hearing, I see it's a matter, verified petition
21 for appointment of receiver, verified motion to
22 compel assignment of rents.
23 Where is the motion to dismiss?
24 MR. BOLZ: Your Honor, it was added onto it
25 and it was --

6
1 THE COURT: Is there another order by Judge
2 Blanc?
3 MR. BOLZ: There was no order. Under the
4 rules, Your Honor, there was an amended notice of
5 hearing that was filed and it was filed on October
6 4th, 10 days ago.
7 THE COURT: Okay.
8 MR. BOLZ: And the amended notice -- it's in
9 the file. If you flip over to the second page, it
10 has all three motions identified as being heard
11 today.
12 THE COURT: Okay. So they're all noticed for
13 today.
14 MR. BOLZ: Yes.
15 MR. TRENT: Yes, Judge.
16 THE COURT: You say that without proper
17 notification, your client is not here and
18 therefore, he wants to be here on an evidentiary
19 hearing.
20 MR. TRENT: Yes, Judge. There are questions
21 of fact not relating to the motion to dismiss. I
22 certainly would agree that that could be resolved
23 on the basis of the pleading itself and the
24 motion.
25 But when we get into the motion for

7
1 assignment of rents and the motion for appointment
2 of receiver, there are very fact intensive
3 questions which are not appropriate for a
4 non-evidentiary hearing.
5 Let me give you an example. In the affidavit
6 that my client has filed with my assistance, this
7 is what we're talking about was considered an
8 investment property where there's a tenant living
9 in the property and paying rent.
10 This tenant is the Defendant in this case,
11 but is not here today. The tenant has been
12 served. My client served the tenant with a notice
13 of termination of tenancy and a 15 day notice
14 under Florida law for him to move out.
15 In my client's affidavit, he states that he
16 intends to occupy this residence as soon as
17 possible as his primary residence as he is selling
18 what was previously his primary residence.
19 Now, that would mean that there's no rent
20 coming into be assigned to the Plaintiff, that
21 there would be no need for a receiver because it
22 would simply be the borrower who is living in the
23 property. It would be owner occupied property.
24 So, counsel, I'm sure from what I've heard
25 speaking to him outside, wishes to argue that

8
1 well, the notice to the tenant was not sufficient
2 or the tenant is not going to be moving out or
3 maybe the tenant will continue to pay rent or
4 maybe this is a pretext by my client to avoid the
5 effect of this particular motion.
6 Judge, those are clearly fact intensive
7 questions. He's brought his clients here today,
8 apparently, with the intention of them giving
9 testimony. I suggest that's a tacit recognition
10 that the taking of evidence is integral to the
11 proper disposition of this motion under the
12 Florida rules.
13 There has been no notice setting this for an
14 evidentiary hearing and he didn't confer with me
15 prior to obtain the order specially setting the
16 hearing as is required by the order specially
17 setting the hearing.
18 We're only here for 30 minutes. My client
19 was booked to be out of state ahead of time. And
20 under the circumstances, I have no problem having
21 the motion to dismiss heard and ruled upon.
22 It makes sense for this Court to hear that
23 anyway before we get into something as substantive
24 as appointment of receiver, assignment of rents,
25 that kind of thing.

9
1 THE COURT: Let me do this. Before I rule on
2 the question of it, I assume you would want the
3 continuance on the motions for appointment of
4 receiver and a motion to compel assignment of
5 rents?
6 MR. TRENT: Correct.
7 THE COURT: Let me hear the motion to dismiss
8 first. If we can resolve that and we'll see where
9 we go from there.
10 MR. BOLZ: I agree with that.
11 THE COURT: All right. Whose motion is it?
12 MR. BOLZ: It is his motion.
13 THE COURT: Go right ahead.
14 MR. TRENT: Now, we had a couple of grounds
15 asserted in the motion. Counsel has pointed out
16 to me that there's been a very recent decision of
17 the Fourth DCA that pretty much --
18 MR. BOLZ: Yesterday, Your honor.
19 MR. TRENT: -- disposes of one of my
20 arguments. So I won't be -- I'm not sure why he's
21 handing you that, but I won't be making the
22 argument regarding 559.715 of the Florida
23 statutes, a condition precedent.
24 So that's actually not an argument that we're
25 going to be presenting.

10
1 THE COURT: Okay.
2 MR. TRENT: What I do wish to argue is
3 another ground set forth in our motion to dismiss
4 and it's essentially, failure to state a claim as
5 to standing.
6 Now, as Your Honor well knows, normally, when
7 you have a Plaintiff who is not the original
8 lender, you need to have an assignment of mortgage
9 or an allonge or endorsement on the loan
10 instruments.
11 So that we can see from looking at the
12 complaint how it is that this Plaintiff
13 potentially has a claim to enforce a loan that
14 it's not a party to, where it wasn't the original
15 lender.
16 There is another ground that Plaintiffs can
17 use when they're not the original lender and that
18 is when there has been a merger of the Plaintiff
19 with the lender named in the loan documents. That
20 is the ground that the Plaintiff seeks to rely
21 upon to state a claim for standing.
22 In other words, the original loan was made by
23 the Bank of Coral Gables. This lawsuit is brought
24 by First American Bank. The promissory note and
25 mortgage -- there's no assignment of mortgage.

11
1 There's no endorsement.
2 Instead, they're saying First American Bank
3 absorbed or was merged with the Bank of Coral
4 Gables. And therefore, First American Bank has
5 standing.
6 Well, the problem is that they say in the
7 text of their complaint, but they don't attach any
8 merger documents or any other evidence that we can
9 rely upon to see that that merger has, in fact,
10 occurred.
11 Just judging the complaint within its four
12 corners, it's very similar where if you had a
13 Plaintiff who said we are the holder of the note.
14 Yet, they attach a note that's payable to another
15 entity without an endorsement on it. They would
16 fail to state a claim because the exhibits would
17 contradict with the allegations in the body of the
18 complaint and that's the same here.
19 So as you know, there's a rule of civil
20 procedure that says you need to attach documents
21 upon which your claim is based or which give rise
22 to a cause of action. You need to attach those to
23 the complaint.
24 In this case, the deficiency is they have
25 failed to attach any certificate of merger or

12
1 other indication to the complaint leaving us
2 simply with a loan -- a mortgage and note payable
3 to one entity, a lawsuit brought by another
4 entity, and a statement within the complaint that
5 the two have merged.
6 We suggest that the Florida rules require
7 more than that in order to rectify the potential
8 inconsistency between the pleading and the
9 exhibits. That's the ground for our motion to
10 dismiss.
11 THE COURT: Thank you. Counsel?
12 MR. BOLZ: Number one, there's no law being
13 argued here. There is -- I think that's
14 important. It's noticed pleadings still in the
15 State of Florida and we're very much aware of
16 Florida Statute 702.015, which says that you have
17 to be very specific in your allegations and that
18 you have to explain what the basis is for your
19 standing.
20 We have done that. We have demonstrated that
21 we are the holder of the note and the mortgage.
22 We have indicated that there has been a merger and
23 we do not think that there is anything that
24 requires us to have attached the notice of merger
25 to the complaint.

13
1 Indeed, I think that Florida Rule of Civil
2 Procedure 1.130, which talks about attaching
3 documents to a pleading, precludes that because we
4 are not -- the grounds for this motion, which, you
5 know, the 113 says that you produce documents upon
6 which an action may be brought.
7 Our action is being brought on the credit
8 agreement, the promissory note, and the mortgage.
9 They are attached to the verified pleading. Those
10 are the documents upon which our action is being
11 brought.
12 Now, if they have an issue with the merger of
13 the bank, then they're welcome to explore that in
14 discovery, but it is not a condition precedent
15 that we have that attached to the complaint.
16 It is not the basis for a motion to dismiss
17 and we think that the Fourth District case of
18 Campbell versus Wells Fargo, which is decided in
19 July of 2016, talks about the certification and we
20 think that our certification fully and effectively
21 fits -- complies with the statute and gives them
22 all the notice that they're entitled to and
23 therefore, the motion to dismiss is not well
24 taken.
25 If they want to raise it and if they want to

14
1 take some discovery, get a copy of the merger
2 documents, they can, but it's not grounds as a
3 matter of law for dismissing the complaint as
4 filed.
5 THE COURT: Thank you. Anything further?
6 MR. TRENT: The only thing I would reiterate,
7 Judge, is that this situation is directly
8 analogous to a situation where you have attached a
9 mortgage payable to one entity. A separate entity
10 has brought suit and there's no assignment of
11 mortgage and no endorsement attached to the loan
12 instruments.
13 Without that, you have a potential
14 inconsistency and you have failed to state a claim
15 especially given the heightened pleading standards
16 under the Florida rules for pleading residential
17 foreclosure matters.
18 So it should be a simple matter for them to
19 just attach what they need, a certificate of
20 merger or what have you.
21 They say we can explore it in discovery.
22 That's telling Your Honor that it is a relevant
23 matter, a potentially relevant matter upon which a
24 defense could be based and which is necessary to
25 their cause of action.

15
1 THE COURT: Okay. Defendant's motion to
2 dismiss is denied. How many days do you need to
3 answer?
4 MR. TRENT: 20.
5 MR. BOLZ: Your Honor, I've got an order
6 which denies it and --
7 THE COURT: Show it to counsel, if you will.
8 MR. BOLZ: Okay. I left it blank for the
9 number of days for the Court to fill in. It's a
10 very simple order, Your Honor.
11 THE COURT: All right. Let me comment on
12 your simple order. This is probably 1950, '51. I
13 was an old practitioner by then and I walked into
14 one of the judges. I'll never forget him, Judge
15 Grady Crawford in Dade County. I presented an
16 order, a simple order just like you did to me. He
17 looked at it and he said don't you know this, done
18 and ordered on a page all by itself is not proper.
19 As a matter of fact, it happens to be in the
20 rules here, too, but second point, I'm going to
21 add done and ordered on the bottom.
22 You can't have the judge's signature with
23 done and ordered on a separate page unless you
24 have some part of the order on there. Okay? You
25 learned something today.

16
1 MR. BOLZ: I learn something every day, Your
2 Honor.
3 THE COURT: When you use the term simple
4 order, I think back. I'm in my 68th year as a
5 member of the Bar. So I'm thinking back a few
6 years. All right.
7 Before you leave, I don't know how much
8 testimony you need, but if you feel you need it,
9 I'm not going to deny you that opportunity. I'm
10 going to continue the matter on the motion for,
11 what, appointment of receiver and assignment of
12 rents.
13 Do we have some time -- I know I'm going to
14 be back in two weeks.
15 THE CLERK: I don't think we have time in two
16 weeks. Let me check the calendar.
17 THE COURT: I have no problem -- instead of
18 waiting for months. If I can get it done in a
19 couple of weeks --
20 MR. BOLZ: Your Honor, if we can get it done
21 in a couple of weeks, Your Honor, I'm okay with
22 it, but here's the problem or here's -- on the
23 assignment of rents and that is the lease calls
24 for a payment of $7,500 per month and that's in
25 our verified pleadings. And it is -- the last

17
1 rental payment, I believe, was paid -- I don't
2 know, but I believe it was paid on October 1st.
3 So the month of October has been paid. So
4 Mr. Schneider has gotten that money and who knows
5 what he's done with it. It's his money.
6 Come November 1, just about two weeks time,
7 another rental payment is due. What we don't know
8 is whether or not the tenant that presently
9 occupies the premises will still be there.
10 I've talked with him and his attorney. And
11 their position is that the lease -- and he sent me
12 a copy of the lease and I'm happy to provide it to
13 anybody that wants it, but the lease is a
14 month-to- month, but it calls for a 30 day
15 termination provision.
16 So there is no viable termination of the
17 lease in effect now. The tenant advises he has a
18 family. It's -- the property is worth a
19 $1,300,000 or thereabouts and he can't get out by
20 tomorrow, which is when the eviction notice has
21 him out.
22 He's going to be holding over and he's going
23 to have to deal with his rental problems with the
24 landlord in another forum. You're not going to
25 handle that. It's not before you.

18
1 THE COURT: So therefore what?
2 MR. BOLZ: Therefore, I think that we are
3 entitled and we have demonstrated that we are
4 entitled to an assignment of the rents. An
5 assignment of rents merely means this.
6 It means that the tenant, instead of paying
7 Mr. Schneider, pays the bank. That is set out in
8 the mortgage documents. It is very clear that
9 assignment of rents is one of our remedies.
10 THE COURT: Why do you need testimony, facts,
11 or proof on this assignment of rents if it's set
12 forth in the mortgage?
13 MR. TRENT: Well, many reasons, Your Honor.
14 First of all, there's a question of whether or not
15 there is -- he is making statements up here just
16 now.
17 THE COURT: I'm not talking about assigning
18 to that side. I'm talking about an assignment to
19 the Court pending further review.
20 MR. TRENT: Well, because he's asking that
21 the money be paid to the bank. That's what he
22 just said.
23 MR. BOLZ: No. Again, Your Honor, we have
24 alternative -- we've asked for alternative relief.
25 THE COURT: There's no money going to be

19
1 transferred.
2 MR. TRENT: Okay.
3 THE COURT: But on the other hand, I don't
4 think it's proper for your client to pocket the
5 money while this suit is pending.
6 MR. TRENT: Well, we don't know, Your Honor,
7 that he has been pocketing it. The statement by
8 counsel --
9 THE COURT: Forget what has been. Let's talk
10 about now.
11 MR. TRENT: Going forward? There's not going
12 to be any rent paid to my client as far as I know
13 because there's been a notice of eviction served
14 upon the tenant.
15 And if the tenant wishes to contest the
16 eviction, then he's going to be posting his rent
17 with the court registry in the eviction case so --
18 because that's required.
19 When you get served with a notice and you get
20 served with a --
21 THE COURT: What if you posted it in our
22 court? What difference would it make to you?
23 MR. BOLZ: Your Honor, I have an order
24 requiring him to post the money with the registry
25 of the court. You know, I think that we're

20
1 entitled --
2 THE COURT: I have no problem with entering
3 that type of an order.
4 MR. BOLZ: Okay.
5 THE COURT: Does that still require an
6 evidentiary hearing?
7 MR. TRENT: Yes, Judge, I think it does
8 because my client says he's moving into the
9 property and there's not going to be anymore rent
10 coming in.
11 THE COURT: I'll tell you what.
12 MR. BOLZ: If there's no more rent coming in,
13 then it's a moot point.
14 THE COURT: You don't need your motions
15 anymore.
16 MR. BOLZ: But if there is rent and I can't
17 get a hearing within the next two weeks, then I
18 think it's appropriate that --
19 THE COURT: Here's what I'm going to do. The
20 money is not going to go astray if we post it with
21 the registry of the court.
22 MR. BOLZ: Yes, sir.
23 THE COURT: Do you have an order along those
24 lines to take care of it?
25 MR. BOLZ: I do indeed, Your Honor.

21
1 THE COURT: Let's wait. We'll see if we can
2 stick in a short hearing.
3 MR. BOLZ: If you want to take a look at it,
4 Judge, it's --
5 THE COURT: By all means, let counsel look at
6 it.
7 How about this number four? Why do they have
8 to --
9 MR. BOLZ: Yes, sir. The assignment of rent
10 statute is Florida Statute Section 697.07 and the
11 applicable section is subsection four, which says,
12 "The Court shall require the mortgagor -- and the
13 mortgagor in this case is Mr. Schneider, "to
14 account to the Court and the mortgagee for the
15 receipt and use of collected rents."
16 That's what -- we requested in the motion.
17 The order calls for it and that's why it's in
18 there. We just want to know how much money --
19 THE COURT: Collected rents from when?
20 MR. BOLZ: May 1st, 1916 -- 2016. I haven't
21 been practicing law quite that long, Your Honor,
22 but --
23 THE COURT: Why May 1?
24 MR. BOLZ: Because that's the day when Mr.
25 Schneider stopped paying the mortgage payments and

22
1 he was due to continue to make a mortgage payment
2 on May 1st, June 1st, and July 1st. It's in our
3 verified pleadings. I'm not making this up.
4 THE COURT: Let's assume that is so.
5 Therefore what?
6 MR. BOLZ: We're entitled to an accounting as
7 to whether or not that rent was paid. Mr. Trent
8 just said he wasn't certain whether his client got
9 paid or not. We're entitled to know and --
10 THE COURT: Well, I don't think we're going
11 to know without an evidentiary hearing. I'm going
12 to strike number four for the time being.
13 MR. TRENT: Thank you, Judge.
14 THE COURT: What did we decide?
15 THE CLERK: There is time in two weeks,
16 October 28th in the afternoon.
17 MR. BOLZ: What day of the week is that?
18 THE CLERK: It's a Friday. It's exactly two
19 weeks from today.
20 THE COURT: All right. Let me strike number
21 four here.
22 MR. TRENT: I'm available on the afternoon of
23 the 28th.
24 THE CLERK: Is 1:30 okay for everyone?
25 MR. TRENT: Yes, it is.

23
1 MR. BOLZ: How long is that going to be?
2 THE CLERK: However long you needed.
3 MR. BOLZ: All right.
4 THE COURT: I think we've narrowed the time
5 by this assignment of rents.
6 MR. BOLZ: Yes, sir, I think we have.
7 THE COURT: Okay. I will give you copies of
8 this. I've stricken number 14.
9 MR. BOLZ: Four.
10 THE COURT: I'm sorry, number four. I'm just
11 trying to think. Do you want a notice of hearing
12 or --
13 MR. BOLZ: I would be happy to send out a
14 notice, Your Honor.
15 THE COURT: I wanted something for the file
16 and the fact that it's an evidentiary hearing.
17 MR. BOLZ: I will prepare a notice, run it by
18 Mr. Trent, and then I will file it. I don't think
19 that we need an order, but if you want an order,
20 I'll be happy to submit an order to you, but I
21 think that a --
22 THE COURT: I won't be here. So --
23 MR. TRENT: I don't even think you need to
24 run it by me if you will just notice it for an
25 evidentiary hearing at 1:30.

24
1 THE COURT: I think so. I think you're
2 right.
3 MR. TRENT: 1:30 on the 28th?
4 THE COURT: Yes. Okay. Madam Bailiff, do we
5 have any further matters?
6 THE BAILIFF: No, Judge.
7 THE COURT: That takes care of the morning.
8 MR. BOLZ: Thank you very much, Your Honor.
9 I appreciate your time.
10 THE COURT: You're welcome. Thank you.
11 MR. TRENT: Are we going to get a copy of
12 that order back or do we need to pick it up
13 online?
14 THE COURT: No, no. She takes care of it
15 right now, so stick around.
16 MR. TRENT: Thank you.
17 MR. BOLZ: Your Honor, I will take care of
18 sending copies to all of the parties who are not
19 here today of the orders.
20 THE COURT: Take that up with my favorite
21 copier.
22 THE CLERK: I will do an order. If you guys
23 can file a notice of hearing, but I will do an
24 order continuing the special set hearing for
25 October 28th at 1:30 in this courtroom.

25
1 THE COURT: We're in recess.
2 (Thereupon, the proceedings were concluded at
3 10:30 a.m.)
10
11
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23
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25

26
1 C E R T I F I C A T E
3 STATE OF FLORIDA
4 COUNTY OF PALM BEACH
6 I, Karmen Dickerson, Reporter, certify that I
7 was authorized to and did report the foregoing
8 proceedings, and that the transcript is a true and
9 correct transcription of my notes to the
10 proceedings.
11 I further certify that I am not a relative,
12 employee, attorney, or counsel of any of the
13 parties, nor am I a relative or employee of any of
14 the parties' attorneys or counsel connected with
15 the action, nor am I financially interested in the
16 action.
17 Signed this 23rd day of January, 2017.
18
19
20 ________________________________
Karmen Dickerson, Reporter
21 Notary Public - State of Florida
Commission No: FF60368
22 Commission Expires: 10-15-2017
23
24
25

First American Bank V Schneider 50-2016-CA-009292 - Transcript Hearing-Mot. Receivership & Mot. To Dismiss, Mot. Appointment of Receiver, Honorable Judge Eli Breger, Oct. 14, 2016

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First American Bank V Schneider 50-2016-CA-009292 - Transcript Hearing-Mot. Receivership & Mot. To Dismiss, Mot. Appointment of Receiver, Honorable Judge Eli Breger, Oct. 14, 2016

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1 IN THE CIRCUIT COURT OF THE 15th

JUDICIAL CIRCUIT IN AND FOR

3 CASE NO: 50-2016-CA-009292-XXXX-MB

5 FIRST AMERICAN BANK, as successor by merger

13 Proceedings had and taken place before the

14 Honorable Eli Breger, one of the Judges of said

15 Court, at the Palm Beach County Courthouse, 205

16 North Dixie Highway, West Palm Beach, Florida, on

17 Friday, the 14th day of October 2016, commencing

18 at the hour of 10:00 a.m., and being a Hearing.

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

2 Appearing on behalf of the Plaintiff:

3 KELLER & BOLZ, LLP

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

1 (Thereupon, the following proceedings were

3 THE COURT: This matter is what, First

4 American Bank, Schneider?

5 MR. BOLZ: That's correct, Your Honor.

6 THE COURT: Somebody has a motion pending.

7 MR. BOLZ: There are three motions here

8 today, Your Honor.

9 My name is Henry Bolz. I'm with the firm of

10 Keller & Bolz. I represent the Plaintiff, First

11 American Bank. I have with me Brian Hagan, who is

12 the executive vice president of the bank.

13 There are three motions noticed today. One

14 is the defense motion to dismiss. And then we,

15 the bank, have a motion to get an assignment of

16 rents order and a motion to appoint receiver.

17 This is billed as an evidentiary hearing as

18 30 minutes. I don't think we're going to have to

19 take any testimony because I think that between

20 the verified pleadings that we're relying on and

21 the affidavit that was filed the day before

22 yesterday provide all the evidentiary bases that

23 you need to consider. I think we can get through

24 these motions pretty easily today.

25 I filed yesterday a notice of additional

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

2 MR. TRENT: Counsel, before you get into the

3 argument, can I introduce myself and address a

5 MR. BOLZ: Sure.

6 MR. TRENT: Thank you. Good morning, Your

7 Honor. My name is Kenneth Trent. I represent

8 Laurence Schneider and Stephanie Schneider, the

9 Defendants or some of the Defendants in this case.

10 Counsel mentions that this matter was billed

11 as an evidentiary hearing. I'm not aware of that.

12 And as I've expressed to him prior, I do object to

13 this matter proceeding as a non-evidentiary

15 I have a copy of the order setting hearing in

16 this case, order specially setting hearing. This

17 is dated 21st day of September, 2016, signed by

18 Judge Peter Blanc.

19 It doesn't say anything in here about it

20 being an evidentiary hearing. For a matter to be

21 evidentiary, it needs to be noticed as such.

22 Furthermore, it says in here that the party

23 scheduling the hearing confirms that since the

24 filing of the subject motion, the lead attorneys

25 for the parties or self-representing parties have

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

1 spoken to each other in person or by phone in a