FOURTH DISTRICT COURT OF APPEALS

IN AND FOR THE STATE OF FLORIDA

FIRST AMERICAN BANK, as

LAURENCE SCHNEIDER, STEPHANIE L.

Appellants

Laurence Schneider and Stephanie L Schneider, (hereinafter referred to as "Appellants" or

"Mr. Schneider" or "Mrs. Schneider"), appearing In pro per, and pursuant to Fla. R. App. P.

9.310, moves this Court for a stay pending appeal or, to use the correct procedural vernacular,

review of the lower court's Order denying a stay pending appeal, and would show the following

unto the Court:

INTRODUCTION

1. Appellants filed the instant appeal based upon a Final Judgment of Foreclosure which the

lower Court erroneously rendered [see Fla. R. App. P. 9.020(h)] on June 26, 2017.

2. On or about June 8, 2017, Mr. Schneider communicated with Appellee's Counsel's Henry

Bolz (hereinafter referred to as "Bolz"), and his staff member, Sheyla Mesa by electronic

mail regarding a deposition of Mr. Schneider and Mrs. Schneider, as well as a special set trial

hearing which posed a scheduling conflict for Appellants.

postponed to a mutually agreeable time, given Mr. Schneider's conflict of schedule, which

included a trip to Washington D.C. at the time of the hearing, in which judgment was entered.

4. Bolz was abundantly aware of this material fact, yet did not afford Appellants the opportunity

to even defend themselves at the Special Set Trial, resulting in judgment being entered

against Appellants on June 26, 2017.

5. The judgment was based upon a granting of summary judgment, despite the material fact that

Appellants were blindsided by the Special Set Trial which ultimately wound up with the

judgment of foreclosure.

6. Appellants allege that the Trial Court incorrectly granted Summary Judgment in favor of the

Appellee where genuine issues of material fact exist which were timely raised and objected

to by the Appellants.

7. Upon judgment being entered, Appellants timely filed a Motion for Rehearing on the matter,

and a Motion to Vacate the judgment, which was denied by the Court without any rational

basis.

8. Appellants then subsequently filed an Amended Motion for Rehearing, along with a Motion

for Reconsideration, which laid forth the grounds and evidence in support, that the lower

Court abused its distraction and noted in said Motion that Appellants would be bringing this

instant Motion for a Stay Pending Appeal.

9. Appellants understands that this Court receives many appeals with accompanying requests

for a stay. That said, Appellants respectfully submits that the unique facts at bar justify a stay

pending appeal To wit, and as more fully explained, infra, (i) Appellants argue that summary

judgment of foreclosure is inappropriate, especially given the multitude of unresolved issues,

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 and the Court should not have made a dispositive Order while several items are left hanging

at the pleading stage of this matter. See e.g. Knight Energy Services, Inc. v. Amoco Oil Co.,

660 So.2d 786 (Fla. 4th DCA 1995); and (ii) the loan history upon which the amounts

awarded in the Final Judgment was predicated was unintelligible, padded with egregious fees

and falsified as more particularly described herein.

10. Quite simply, unlike many borrowers, Appellants can easily afford this property. To illustrate,

and as a condition of a stay pending appeal, Appellants will not only continue maintaining

the property, they will pay all property taxes and property insurance.

11. On the unique facts at bar, this Court should grant a stay pending appeal. See Fla. R. App.

Pro. 9.310.

ANALYSIS

12. Appellants are confident that their appeal in this cause will be meritorious. That argument,

though, is for another day. For now, this Court should grant a stay pending appeal, ensuring

the foreclosure sale does not proceed on August 10, 2017, as presently scheduled.

13. The prejudice to Appellants if they are foreclosed and ultimately prevails on appeal is

enormous.

14. The prejudice to innocent third parties is likewise significant. Candidly, it would be awful if

an innocent third party purchases this property at a foreclosure sale only to then be forced to

leave because Appellants prevailed on appeal.

15. Conversely, the prejudice to Appellee if a stay is granted is negligible. Appellants are

maintaining the home and will continue to do so while an appeal is pending. In the event

Appellants do not prevail on the appeal, the property will still be there for Appellee to

foreclose.

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16. The sale can simply be rescheduled and Appellee will have lost nothing. Appellants'

willingness to pay property taxes and property insurance while the appeal is pending - as a

condition of the stay - reflect their good faith and show that Appellee will suffer no harm by

a stay.

THIS COURT HAS THE AUTHORITY TO ISSUE A STAY OF EXECUTION

17. The judgment entered by this Court included both injunctive relief and money damages.

18. Florida law is clear that when the same judgment includes both monetary and non-monetary

relief, the supersedeas bond requirements for automatically staying the execution of a purely

monetary judgment set forth in Fla. R. App. P. 9.3 lO(b)(l) do not apply. Florida Coast Bank

ofPompano Beach v. Mayes, 433 So. 2d 1033, 1034 (Fla. 4th DCA 1983).

19. Rather, in such circumstances, such as this matter, stays of execution pending appeal are

governed solely by Fla. R. App. P. 9.3 l0(a). Id. ("When monetary and other relief are granted

in the same judgment or order, then the Rule 9 .31 0(b)( 1) exception does not apply and the

parties must proceed in accord with the provisions of Rule 9.31 0(a)."); see also 2 Fla. Prac.,

Appellate Practice § 11 :2 (2015 ed.) ("If the judgment grants any other form of relief in

addition to ordering the payment of money, the trial court may exercise its discretion [under

Rule 9.3 lO(a)] to grant or deny a stay." ).

20. Rule 9.3 l0(a) provides that "a party seeking to stay a final or non-final order pending review

shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its

discretion, to grant, modify, or deny such relief.

21. A stay pending review may be conditioned on the posting of a good and sufficient bond,

other conditions, or both." Thus, trial courts have "discretion under Rule 9.31 0(a) as to the

nature and extent of security to be posted for a stay." Zuckerman v. Hofrichter & Quiat, PA. ,

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 622 So. 2d 1, 2 (Fla. 3d DCA 1993); see also Wilson v. Woodward, 602 So. 2d 545, 546 (Fla.

2d DCA 1991) ("When the court on remand exercised its discretion under subdivision (a) of

rule 9 .310, it was not bound to apply the formula provided in subdivision (b) for the

automatic stay of money judgments."); Lopez-Cantera v. Lopez-Cantera, 578 So. 2d 726,

726 (Fla. 3d DCA 1991) ("Upon motion for stay pending review pursuant to Florida Rule of

Appellate Procedure 9.310(a), the trial court has discretion to grant, modify or deny such

relief.").

22. Notably, the Second District Court of Appeal has made clear that, even where a judgment is

only for money damages, trial courts also retain discretion to enter stays based upon

conditions other than a supersedeas bond in the amount required for an automatic stay.

23. In particular, the appeals court has interpreted Rule 9.3 lO(b)(1) to mean that a trial court may

stay execution without requiring a bond at all, or by setting that bond at an amount it deems

reasonable under the circumstances. See Platt v. Russek, 921 So. 2d 5, 7-8 (Fla. 2d DCA

2004); see also Waller v. DSA Grp., Inc., 606 So. 2d 1234, 1235 (Fla. 2d DCA 1992) (" a trial

court has authority upon motion of a party to enter a stay order upon conditions other than a

bond").

24. The Legislature has also now expressly granted trial courts the same discretion. See Fla. Stat.

§ 45.045(2) ("The court, in the interest of justice and for good cause shown, may reduce the

supersedeas bond or may set other conditions for the stay with or without a bond.").

25. In other words, when presented with a motion to stay execution of judgment under Rule

9.3 lO(a), a trial court faces two questions: (1) should it enter a stay, and (2) under what

conditions?

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26. In Appellants Amended Motion for Rehearing, and Motion to Vacate, Appellants laid out the

procedural issues which transpired within the state action. Specifically, the Amended Motion

to Vacate laid out the multiple issues which ultimately resulted in the judgment being

entered, and the various and unscrupulous steps Appellee's took to achieve that objective.

27. A true and correct copy of the filed Amended Motion for Rehearing and Motion for

Reconsideration is attached hereto, and incorporated fully throughout this Motion as "Exhibit

A".

A STAY IS REQUIRED BECAUSE APPELLANTS HAVE A CONSTITUTIONAL RIGHT

28. In the circumstances of this case, a stay is required because pursuant to both the federal and

Florida Constitutions, Appellants have a right to obtain appellate review of this judgment.

29. There are independent sources of that constitutional right: The federal Due Process Clause,

and two provisions of the Florida Constitution that guarantee access to appellate courts.

30. As multiple courts have recognized, that right would be infringed if the opposing party could

immediately render an appellant financially destitute by executing on the judgment during

the pendency of an appeal.

31. Indeed, even before the Supreme Court formally announced the rule requiring independent

appellate review, the Fifth Circuit had concluded that the First Amendment does not tolerate

that scenario. See Henry v. First Nat '/ Bank ofClarksdale, 595 F.2d 291 (5th Cir. 1979)

(affirming an injunction that barred plaintiffs from executing on a state court judgment

pending appeal).

Federal Due Process Also Requires a Meaningful Opportunity to Appeal

32. Though the federal Constitution does not contain a generalized right to appeal, the U.S.

Supreme Court has concluded that, once a state affirmatively chooses to provide a right of

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 appeal, it is a violation of due process for a defendant not to have "a fair opportunity to

obtain an adjudication on the merits of his appeal." Evitts v. Lucey, 469 U.S. 387,405 (1985).

33. As a result, multiple federal courts have concluded that bond requirements that are set so

high that they would effectively represent an "impermissible barrier to appeal" violate an

appellant's due process rights, unless they are relaxed to avoid that result. See, e.g., Adsani v.

Miller, 139 F.3d 67, 79 (2d Cir. 1998) (citing Boddie v. Connecticut, 401 U.S. 371,379

(1971)).

The Florida Constitution Guarantees Defendants a Meaningful Right to Appeal

34. Finally, this Court need not even reach any federal constitutional issue, because whatever due

process right the federal constitution guarantees in these circumstances, the Florida

Constitution provides broader rights. See Pennzoil, 487 U.S. at 11-12 (holding that a federal

court should have abstained from enjoining Texas's bond requirement, because the Texas

Constitution's Open Courts provision may provide broader rights than the federal due process

clause); Henderson v. Crosby, 883 So. 2d 847, 851 (Fla. 4th DCA 2004) (holding that "article

I, section 21, of the Florida Constitution affords [the appellants] more rights than does that

implied from the federal constitution").

35. Unlike the federal Constitution, the Florida Constitution unambiguously grants all litigants a

right to appeal all final trial court orders, regardless of the circumstances. Amendments to the

Fla. R. App. P., 696 So. 2d 1103, 1104 (Fla. 1996) ("we construe the language of article V,

section 4(b) as a constitutional protection of the right to appeal"); TA. Enters. v. Olarte, Inc.,

931 So. 2d 1016, 1018 (Fla. 4th DCA 2006) ("the Florida Constitution grants a constitutional

right to appeal 'as a matter ofright, from final judgments or orders of trial courts'") (citation

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 omitted); Bain v. State, 730 So. 2d 296, 298-99 (Fla. 2d DCA 1999) ("there is a Florida

constitutional right to appeal all final orders").

36. The right to appeal is guaranteed by both article V, section 4(b) and the open courts provision

of Article I, section 21 of the Declaration of Rights. Id. The "open courts" provision operates

as a "constitutional limitation on the legislature's power to limit the right to appeal." TA.

Enters., 931 So. 2d at 1018.

37. Florida law therefore provides that "the legislature may implement this constitutional right

and place reasonable conditions upon it so long as they do not thwart the litigants' legitimate

appellate rights." Amendments to the Fla. R. App. P., 696 So. 2d at 1104-05 (emphasis

added).

3 8. Indeed, just recently the Florida Supreme Court emphasized that Appeals to ... the District

Courts ofAppeal are constitutionally guaranteed rights in this State. This being true, it is

fundamental that statutes or rules regulating the exercise of such rights should be liberally

construed in favor of the appealing party and in the interest of manifest justice. McFadden v.

State, 177 So. 3d 562, 566 (Fla. 2015) (citation omitted).

39. Therefore, "[a] statutory condition that thwarts the litigants' legitimate appellate rights under

Article V, section 4(b)(2) also violates the access-to-courts provision." T.A. Enters., 931 So.

2d at 1018 (citation omitted). "[T]o find a violation of the right of access, it is not necessary

for [a] statute to produce a procedural hurdle which is absolutely impossible to surmount,

only one which is significantly difficult." Id. (citation omitted).

40. Applying these principles, this Court must in turn apply Rule 9 .310 in a manner that is

"liberally construed in favor of' Appellants. McFadden, 177 So. 3d at 566.

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41. Moreover, long before it was clear that there was a state constitutional right to appeal, the

Florida Supreme Court held that a requirement to post a bond to take an appeal from a

municipal to a circuit court was constitutional, only because it did not "place an unreasonable

or prohibitive burden on one seeking review by the circuit court." Austin v. Town ofOviedo,

92 So. 2d 648, 650 (Fla. 1957).

42. Here, setting too high a bond amount would place an unreasonable and prohibitive burden on

Appellants.

43. In short, it would violate the Florida Constitution to apply Rule 9.310 in any manner.

44. Therefore, this Court should grant a stay of execution, or in the alternative require

Appellants to post alternative security.

THE INTERESTS OF JUSTICE ALSO WEIGH IN FAVOR OF A STAY

45. To determine whether to issue a stay to maintain the status quo during an appellate

proceeding pursuant to Fla. R. App. P. 9 .310, Florida courts have traditionally considered:

"[1] the moving party's likelihood of success on the merits, and [2] the likelihood of harm

should a stay not be granted." Sepich v. Papadoulos, 145 So. 3d 156, 157 n.6 (Fla. 3d DCA

2014), citing State ex. rel. Price v. McCord, 380 So. 2d 1037 (Fla. 1980).

46. Both factors weigh heavily in favor of staying execution of judgment pending appeal in this

case, and cancelling or postponing the aforementioned foreclosure auction sale pending

review.

There is a Substantial Likelihood of Total or Partial Success on the Merits

47. The reasons why Appellants are likely to succeed on the merits of their appeal have been

exhaustively addressed in their post-trial motions, and Exhibit A, and there is little to be

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 served by repeating those points here. Rather, what is particularly relevant here is that there

can be no serious damage to either party pending a stay.

48. While the parties and the Court may disagree about whether the District Court of Appeal's

rulings at the temporary injunction phase of this case are dispositive, there can be no serious

question that important and potentially dispositive issues in this case have "already been

49. significantly tested in the appellate fire," and, as a result, it is clear that Appellants' position

on the merits is hardly "implausible and farfetched."

50. Moreover, the wholly unprecedented magnitude of the judgment here also strongly weighs in

favor of a stay and points to a likelihood of at least partial success on the merits.

Appellants Will Unquestionably Be Harmed If a Stay Is Not Granted

51. The circumstances of this case also present certain - not merely likely - "harm should a stay

not be granted." Sepich, 145 So. 3d 156, 157

52. An important consideration in applying this factor is whether the harm is "irremediable."

McCord, 380 So. 2d at 1039.

53. Here, the failure to grant a stay would cause irreparable harm to Appellants, insomuch as

they would lose their property.

54. As other courts have recognized, that would amount to irreparable injury. In Miami Int'l

Realty Co., 807 F.2d at 874.

55. Finally, staying execution of judgment pending appeal would also be in the public interest, as

this case, and many other foreclosures matters where a judgment is entered without

consideration of all parties' positions, is rampant in the trial court.

56. In light hereof, this Court should grant a stay pending appeal, allowing Appellants to pursue

their appellate rights without fear of a foreclosure sale.

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WHEREFORE Appellants respectfully requests relief in accordance with the foregoing.

Respectfully Submitted,

Date: August 7, 2017

2-
-
LAURENCE S. SCHNEIDER, Pro Se
STEPHANIE L. SCHNEIDER, Pro Se
360 E. COCONUT PALM DRIVE
BOCA RATON, FL 33432
larry@sacapitalpartners.com

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 CERTIFICATE OF SERVICE

I hereby certify that a copy hereof has been furnished to Henry H. Bolz III, 121 Majorca

Ave. #200. Coral Gables, FL 33134, by mail this J1h day of August 2017.

Laurence Schneider, pro se ~

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