IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFOURTH DISTRICT

CASE NO. 4Dll-3378

STAR FUNDING SOLUTIONS, LLC

Appellant

v.

JOHN J. KRONDES, ET AL

Appellee

On Appeal from the Circuit Court Of The Nineteenth Judicial CircuitIn And For Martin County, Florida

L.T. CASE NO. lO-1298-CA

ANSWER BRIEF OF APPELLEES, JOHN J. KRONDESAND FLORENCE T. KRONDES

Respectfully Submitted by: John J. Krondes and Florence T. KrondesAppelleesP.O. Box 1795Darien, CT 06820Tel: (203) 981-1926 - John

(203) 570-6164 - FloEmail: JJKrondes@yahoo.com

TABLE OF CONTENTS

TABLE OF CONTENTS i-iii

TABLE OF CITATIONS .iv-vi

PREFACE 1

STATEMENT OF THE FACTS 2-5

STANDARD OF REVIEW 6-8

SUMMARY OF ARGUMENT 9-10

ARGUMENT 11-26

FIRST ARGUMENT:

THE APPELLANT LACKS STANDING TO FILE THE INSTANT APPEALAND THUS THE 4TH DISTRICT COURT OF APPEAL LACKS SUBJECTMATTER JURISDICTION TO HEAR AND DECIDE ON THE STATEDAPPEAL AND THE ALLEGED MERITS OF THE CONTROVERSYPRESENTED HEREIN BY APPELLANT STAR FUNDING SOLUTIONS, LLC.

SECOND ARGUMENT:

THE APPELLANT LACKS THE AUTHORITY TO BEND THE FLORIDARULES OF CIVIL PROCEDURE AND THE 19TH JUDICIAL CIRCUIT COURTFOR MARTIN COUNTY AND/OR THE 4TH DISTRICT COURT OF APPEALLACKS JURISDICTION AND LIKE AUTHORITY TO PREJUDICE ANYPARTY AND OFFER A SPECIAL OR DIFFERENT SET OF RULES INFAVOR OF ANY PARTY TO AN ACTION.

i

THIRD ARGUMENT:

THE APPELLANT LACKED THE AUTHORITY TO FILE A SECOND (2ND)IDENTICAL POST-JUDGMENT MOTION IN ATTEMPT TO VACATE THEFINAL JUDGMENT OF DISMISSAL WITH PREJUDICE AND THE 4TH

DISTRICT COURT OF APPEAL LACKS JURISDICTION AND LIKEAUTHORITY TO HEAR SUCH IMPROPER APPEAL.

FOURTH ARGUMENT:

THE APPELLANT MAKES JUDICIAL ADMISSION IN ITS PREFACESECTION OF THE APPELLANT'S AMENDED INITIAL BRIEF THAT ITWAIVED ITS RIGHT TO FILE FOR AN APPEAL.

FIFTH ARGUMENT:

THE FLORIDA 4TH DCA IS BOUND BY THE FOUR CORNERS OFPLAINTIFF'S POST JUDGMENT MOTIONS, AND MUST NOT FURTHER AFRAUD.

SIXTH ARGUMENT:

APPELLANT MAKES JUDICIAL ADMISSION IN ITS INITIAL AMENDEDBRIEF & STATEMENT OF FACTS THAT IT FAILED TO RESPOND TOBOTH DEFENDANTS' 1ST & 2NDREQUESTS FOR PRODUCTION.

SEVENTH ARGUMENT:

THE DECISCION OF THE L.T. COURT, AND JUDGE SHERWOOD BAUER,JR., TO ORDER DISMISSAL WITH PREJUDICE AS A SANCTION FORFAILURE TO COMPLY WITH MULTIPLE DISCOVERY REQUESTS ANDSUBSEQUENT ORDER OF THE COURT IS JUSTIFIED AND WITHIN THEULTIMATE AUTHORITY OF THE JUDICIARY.

11

EIGHTH ARGUMENT:

THE LOWER COURT HAD THE ULTIMATE POWER AND AUTHORITYPURSUANT TO THE FLORIDA STATUTES AND RULES OF COURT TODENY PLAINTIFF'S ALLEGED RULE 1.540(b) MOTION TO VACATEORDER DISMISSING CASE WITH PREJUDICE OR IN THE ALTERNATIVETO AMEND ORDER DISMISSING CASE WITH PREJUDICE.

NINTH ARGUMENT:

THE FILING OF THE L.T. FORECLOSURE ACTION AND CONTINUEDATTEMPTED COLLECTION EFFORTS ON THE ALLEGED AND DISPUTEDDEBT ARE IN VIOLATION OF FEDERAL LAW, PARTICULARLY 15 USC §1601, ET SEQ.

CONCLUSION 8

CERTIFICATE OF SERVICE 8

CERTIFICATE OF COMPLIANCE 8

111

TABLE OF CITATIONS

Cases

Dade County Sch. Bd. V. Radio Station WQBA,731 So. 2d 638,644 (Fla. 1999) 6

King 205, LLC v. Dick Pittman Roof Services, Inc.,31 So.3d 242 (Fla. 5th DCA 2010) 7

Canakaris v. Canakaris,382 So.2d 1197 (Fla.1980) 7

Delno v. Market Street Railway Company,124 F.2d 965,967 (9th eire 1942) 7

La Rossa v. Glynn,302 So. 2d 467 (Fla. 3d DCA 1974) 8

State v. Wagner,825 So. 2d 453 (Fla 5th DCA 2002) .13

Paul Jones v. Julia Marie Jones,Case No. 5D02-838 (Fla 5th DCA 2003) 13, 18

State ex rel. Davis v. Parks,194 So. 613,615 (Fla 1939) 13

Serzysko v. Chase Manhattan Bank,461 F.2d 699, 702 (2d Cir.1972) 20

Figgie International, Inc.v. Alderman,698 So.2d 563, 567 (Fla. 3rd DCA 1997) 20

Anderson v. State,267 S02d 8 (Fla. 1972) .20

IV

Hanono v. Murphy,rd )723 So.2d 892,895 (Fla. 3 DCA 1998 21

Circuit Court Cases

U.S. Bank National Association vs. Ernest E. Harpster,(Case No. SI-2007-CA-6684ES), 6th Judicial Circuit Courtin Pasco County 22

RSBC Bank USA, N.A. As vs. Orlando Eslava,(Case No. 1-2008-CA-OS5313), 11th Judicial Circuit Courtin Miami-Dade County 23

Statutes

§S01.201, et seq, Florida Statutes (FDUTPA) 16

IS USC § 1692g(b), United States Code (FDCPA) 26

Rules

Rule I.S30(b), Fla.R.Civ.P 12

Rule 9.11O(b), Fla.R.App.P 13, 17

Rule I.S30, Fla.R.Civ.P IS

Rule 1.IS0, Fla.R.Civ.P 20

Rule 1.380(b)(C), Fla.R.Civ.P 21

Rule 1.420, Fla.R.Civ.P 23

Rule I.S40(b), Fla.R.Civ.P 24

Rule 1.3S0(b), Fla.R.Civ.P 3

v

Federal Law

7 Moore's Federal Practice f 60.33 at 515 (1971 ed.) .20

VI

PREFACEAppellant, Star Funding Solutions, LLC, shall be referred to hereafter as

"Plaintiff' and/or "Appellant."

Appellees, John J. Krondes, and Florence T. Krondes, shall be referred to

hereafter as "Defendants," and/or "Appellees."

The L.T., L.T. Court, Lower Tribunal, Lower Court, and/or Lower Tribunal

Court shall hereafter all refer to the 19th Judicial Circuit Court in Martin County,

Florida.

The Judiciary shall be construed to mean the Court.

I

STATEMENT OF THE FACTS

The Appellees, John J. Krondes and Florence T. Krondes, herewith provide and

restate some of the pivotal evidentiary facts which are part of the Lower Court

record, so as to make the true timelines and record of pleadings and discovery lucid

for the Appellate review of this case.

Appellees do agree with the factual L.T. case file evidence that Plaintiff

IAppellant filed a Civil Complaint on May 18,2010 in the 19th Judicial Circuit

Court in Martin County, styled as "Star Funding Solutions, LLC v. John J.

Krondes, et al. (L.T. Case No. 10-1298-CA). It is a fact of the case file that on

09102/2010 the summons was returned UNSERVED on 1st named Defendant John

1. Krondes. John J. Krondes was never served by any means with a summons and

complaint in this action. The alleged Plaintiff, Star Funding Solutions, in violation

of the stated Defendant's United States Constitutional Rights of Due Process,

proceeded with the prosecution of its Florida Foreclosure Action.

On November 8, 2010 the court record shows the filing of the Defendants'

Notice of Requests For Production (This was the 1st Set). As factually stated by

the Appellant in its Brief, the Plaintiff, Star Funding Solutions, LLC, at no time

during the pendency of the above cited action complied and produced any of the

2

request documents. The Defendants request extensive documents and records

necessary for the alleged Plaintiff to prove its standing, alleged chain of title, and

custody and ownership of the alleged "note".

On December 13,2010, the L.T. court record of evidence shows that the

Defendants served a 2nd Set of Requests For Production, Notice of Service duly

filed. The stated 2nd Request For Production, was different, separate, and unique,

as compared with the outstanding First (1st) Request, and sought totally different

information. As was the case with the 1st Request For Production, the Plaintiff

failed to respond to the 2nd Request For Production, thus waiving its rights to

object to the multiple sets of discovery per Florida Rule, 1.350(b). The Defendants

filed a Notice Of Non-Compliance To Discovery Request on January 1,2011.

Said document was "notice" to the Plaintiff that it failed to respond to the 1st

Request For Production within legal timeframes. On January 21,2011 Plaintiff

received by FedEx the 1st Motion To Compel, which in turn was filed on January

25,2011 with the Court. On January 28,2011 Plaintiff received by FedEx the 2nd

Notice Of Non-Compliance advising it that it again failed to respond to the

Defendants' 2nd Request For Production. The court clerk record shows the filing of

this notice on February 7, 2011.

3

On February 9,2011 Plaintiff received by FedEx Defendants' 2nd Motion To

Compel as no response had been received to the 2nd Request For Production.

Said document is part of the court record as filed on 02/09/2011.

On February 18, 2011, the Court by Hon. Sherwood Bauer, Jr. GRANTED the

Defendant's 2nd Motion To Compel Discovery for Plaintiffs failure to respond to

the 2nd Request For Production. The Order of the Court was for Plaintiff to comply

to the outstanding discovery, and produce all the requested material by March 1,

2011 at 5PM (est). The discovery that was outstanding as of2118/2011 was that of

both the 1st and 2nd Requests For Production. As part of the Court Order,

Defendant's may apply for an Ex Parte Order granting the relief as stated if

Plaintiff failed to obey the Court's Order. The Appellant incorrectly cites in its

Brief that the Court Order gave 7 Days to comply, when the Order gave 11 days

from the issuance of the Order on the is" of February.

On March 7, 2011 the Court, by Honorable Sherwood Bauer, Jr. issued an

Order Granting Dismissal Of Action With Prejudice for Plaintiff s failure to Obey

the Court's Order of 02118/2011.

On March 18,2011, the Plaintiff filed its First (1st) Post-Judgment Motion,

styled as "Motion To Reinstate Case To Active Status". It should be noted in the

4

Appellate Record, that at no time did Plaintiff file a proper Motion For Rehearing

in the L.T. case. On March 28,2011, the Defendants filed an Objection to the

subject motion. On April 15, 2011, the Court Denied said Post-Judgment pleading,

Motion to Reinstate Case To Active Status.

On May 2,2011, Plaintiff filed its Second (2nd) Post-Judgment Motion, styled

as "Motion To Vacate Order Dismissing Case With Prejudice Or In The

Alternative To Amend Order Dismissing Case With Prejudice". In response, on

May 18,2011, Defendants filed an Objection thereto Plaintiffs 2nd Post-Judgment

Motion.

On July 28, 2011, after oral argument, Judge Sherwood Bauer, Jr. Denied

Plaintiffs 2nd Post-Judgment Motion with Prejudice, and upheld the prior Order of

Dismissal Of Action With Prejudice. On August 12,2011, Judge Bauer signed the

Order which Sustained Defendant's Objection to Plaintiffs 2nd Post-Judgment

Motion. Said Order was filed by the clerk on 08/1 7/2011.

On September September 8, 2011 the Clerk of Court received and filed the

Plaintiffs Notice Of Appeal of the instant matter.

5

STANDARD OF REVIEW

The instant Appellate case, Star Funding Solutions, LLC v. John J. Krondes, et

al, pertains to issues both as to fact and law, and as such, warrants a mixed

standard of review.

The Appellees deny the allegations by Appellant that the L.T. Court Judge,

Sherwood Bauer, Jr., acted unreasonably and abused his discretion.

The Appellees charge that the failure to comply with discovery by

Appellant/Plaintiff was egregious, and not just a mere oversight or one time

occurrence. The Appellees further charge that the Plaintiff acted freely,

knowingly, and willfully in its disregard of discovery rules, rules of court, and an

Order of the Court.

Accordingly, The L.T. Court's order shall be affirmed if there is any basis

appearing in the record that would support the judgment. See Dade County Sch.

Bd. V. Radio Station WQBA, 731 So. 2d 638,644 (Fla. 1999).

The Lower Tribunal Court's Judgment of Dismissal With Prejudice shall not be

disturbed unless the Appellees' claims can be shown to be void of any supporting

evidence and truthful facts.

In Like fashion, The lower court's ultimate factual determinations may not be

disturbed on appeal unless shown to be unsupported by competent and substantial

6

evidence or to constitute an abuse of discretion. King 205, LLC v. Dick Pittman

Roof Services, Inc., 31 So.3d 242 (Fla. 5th DCA 2010).

In the instant appeal the Appellant fails to address or challenge the lower court's

factual findings and whether the court had substantial competent facts and

evidence to grant Dismissal With Prejudice in favor of the Appellees.

The Florida Supreme Court set forth the test used in determining whether the

trial court abused its discretion in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.

1980), when it found that:

In reviewing a true discretionary act, the appellate court must fully recognize

the superior vantage point of the trial judge and should apply the 'reasonableness'

test to determine whether the trial judge abused his discretion. If reasonable men

could differ as to the propriety of the action taken by the trial court, then the action

is not unreasonable and there can be no finding of an abuse of discretion. The

discretionary ruling of the trial judge should be disturbed only when his decision

fails to satisfy this test of reasonableness. Id. At 1203 (emphasis added).

"Discretion, in this sense, is abused when the judicial action is arbitrary,

fanciful, or unreasonable, which is another way of saying that discretion is abused

only where no reasonable man would take the view adopted by the trial court."

Delno v. Market Street Railway Company, 124 F.2d 965, 967 (9th eire 1942).

7

It is believed and presumed by the Appellees, that the L.T. Judge, Sherwood

Bauer, Jr. acted prudently, impartially, and with careful diligence reviewed the

evidence of the court file prior to making any ruling in this matter.

"'It is well established that the trial judge, sitting as the trier of fact, has the

responsibility of determining the weight, credibility and sufficiency of the

evidence, and that these findings come to this court on appeal clothed with a

presumption of correctness and will not be disturbed unless it is shown that there is

a total lack of substantial evidence to support those conclusions.'" See La Rossa v.

Glynn, 302 So. 2d 467 (Fla. 3d DCA 1974).

As described and set forth above, when reviewing evidence presented to the

Lower Court at time of Granting Judgment Of Dismissal With Prejudice the

standard of review on appeal is abuse of discretion.

8

SUMMARY OF ARGUMENT

The Appellants have and continue to mischaracterize Appellees' pleadings,

propounded discovery, Court Orders, Florida Rules Of Civil Procedure, and

Florida Statutes, in persistent hopes of overturning and/or altering a sanction and

judgment of Dismissal With Prejudice which was properly entered and executed by

the Circuit Court, Judge Sherwood Bauer, Jr., and pursuant to the wealth of

relevant Florida case law and rules of court.

Appellees recounting the clear record of evidence in the Lower Tribunal case

will show that Appellant, Star Funding Solutions, LLC, simply knowingly and

perpetually ignored discovery rules and issued orders of the Court.

The record of facts and evidence will also show that the Appellant, Star

Funding Solutions, additionally ignored and/or failed to follow the well established

Florida Rules Of Civil Procedure in filing appropriate, timely, and legally

recognized pleadings pertaining to Rehearing, Post-Judgment procedure, and

appeal. The trail of evidence illuminates the egregious constant failures of

PIaintiff/ Appellant.

The proceeding argument and lucid facts will make clear that the Lower Court

did not abuse its discretion in dismissing Plaintiffs Complaint with Prejudice as a

sanction for failure to comply with a Court Order and Florida Discovery Rules.

9

Second, the facts further establish the authority of the Lower Court to render final

Judgment of Dismissal without a Hearing. Lastly, the facts are clear and

established Florida Rules conclude that the Lower Court had ultimate authority to

deny Plaintiffs Motion To Vacate Order Dismissing Case With Prejudice Or In

The Alternative To Amend Order Dismissing Case With Prejudice.

10

ARGUMENTS

FIRST ARGUMENT

THE APPELLANT LACKS STANDING TO FILE THE INSTANT APPEALAND THUS THE 4TH DISTRICT COURT OF APPEAL LACKS SUBJECT

MATTER JURISDICTION TO HEAR AND DECIDE ON THE STATEDAPPEAL AND THE ALLEGED MERITS OF THE CONTROVERSY

PRESENTED HEREIN BY APPELLANT STAR FUNDING SOLUTIONS,LLC.

After the Court, and Honorable Sherwood Bauer, Jr. dismissed Plaintiffs (Star

Funding Solutions, LLC) Complaint and Foreclosure Action with Prejudice,

Plaintiff continued its pattern of missing deadlines and attempting to make up its

own rules of court. The Florida Rules of Civil Procedure, however, are clear-cut,

well defined and contrarily bar Plaintiff/Appellant from seeking and maintaining

an Appeal stemming from the final Order and Judgment Of Dismissal With

Prejudice by the L.T. Court.

On March 7, 2011, Judge Sherwood Bauer, Jr. Granted and issued an Order of

Dismissal Of Action With Prejudice, filed March 8, 2011. On March 18, 2011

Plaintiff filed a pleading styled as "Motion To Reinstate Case To Active Status".

Eleven days after final Dismissal was Granted, Star Funding Solutions (Plaintiff)

filed a legally unrecognized motion. Procedurally, Plaintiff filed the wrong

motion, and failed to invoke the jurisdiction of the Court by not filing a proper

11

Motion For Rehearing and/or a Motion For Reconsideration, within ten (10) days

of entry of judgment. On March 28, 2011 Defendants John J. Krondes and

Florence T. Krondes filed an Objection thereto said Motion To Reinstate Case To

Active Status. On April IS, 2011, the Court by Hon. Sherwood Bauer, Jr. Denied

Plaintiffs Post-Judgment motion. On September 8, 2011 Plaintiff filed a Notice Of

Appeal with the 19th Judicial Circuit Court in Martin County, Florida. On

September 20,2011, the 4th District Court Of Appeals acknowledged filing of

Plaintiffs Appeal. The L.T. Court record reflects that Plaintiff filed its Notice Of

Appeal 184 Days after the Granting and Rendition of a Final Court Order

Dismissing said foreclosure action with Prejudice. The Time for filing a Notice Of

Appeal is within thirty (30) days after rendition, which in the instant case filing by

Plaintiff was due no later than April 7, 2011. If in fact Plaintiff had filed a Motion

For Rehearing, which is denied and rejected by Appellees, the April 15,2011

Denial by the L.T. Court would have given Plaintiff until Monday, May 16,2011

to file a Notice Of Appeal. Plaintiff failed to file a timely Notice Of Appeal within

30 Days of rendition of final judgment or within 30 Days of rendition and denial of

its improperly recognized and filed Motion To Reinstate Case To Active Status.

Florida Rules Of Civil Procedure 1.S30(b) stipulates, that a motion for rehearing

12

shall be served not later than 10 days after the date of the filing of the judgment.

Florida Rules Of Appellate Procedure 9.11O(b) states, jurisdiction of the court shall

be invoked by proper filing of notice within 30 days of rendition of the order to be

reviewed. Jurisdictional time limits may not be altered by the actions or inactions

of the parties or the trial court. State v. Wagner, 825 So. 2d 453 (Fla 5th DCA

2002). See also Paul Jones v. Julia Marie Jones, Case No. 5D02-838 (Fla 5th DCA

2003).

SECOND ARGUMENT

THE APPELLANT LACKS THE AUTHORITY TO BEND THE FLORIDARULES OF CIVIL PROCEDURE AND THE 19TH JUDICIAL CIRCUIT

COURT FOR MARTIN COUNTY AND/OR THE 4TH DISTRICT COURTOF APPEAL LACKS JURISDICTION AND LIKE AUTHORITY TO

PREJUDICE ANY PARTY AND OFFER A SPECIAL OR DIFFERENT SETOF RULES IN FAVOR OF ANY PARTY TO AN ACTION.

Every litigant in the State Of Florida is given and afforded the same rights and

opportunity to be heard in civil actions pursuant to the Florida Rules Of Civil

Procedure. No party has the right to change or alter the rules of court so as to have

the Court establish a favoritism or bias to any particular party to an action. See

State ex reI. Davis v. Parks, 194 So. 613, 615 (Fla 1939) ("Every litigant is entitled

to nothing less than the cold neutrality of an impartial court."). This historical case

13

has set precedent that it is the duty of the Courts to scrupulously guard this right

and to refrain from attempting to exercise jurisdiction in any matter where its

qualification to do so is seriously brought in question. Every judge must act

prudently, impartially and uphold the rules of court. If the judiciary fails to

navigate its rulings through the avenues which reflect justice and square dealings,

the systems thus fails, and the judge's usefulness is destroyed. State ex reI. Davis

v. Parks has made known and reinforced the ideology that the administration of

justice is the most sacred rite known to the social order of a democracy.

THIRD ARGUMENT

THE APPELLANT LACKED THE AUTHORITY TO FILE A SECOND(2ND) IDENTICAL POST-JUDGMENT MOTION IN ATTEMPT TO

VACATE THE FINAL JUDGMENT OF DISMISSAL WITH PREJUDICEAND THE 4TH DISTRICT COURT OF APPEAL LACKS JURISDICTION

AND LIKE AUTHORITY TO HEAR SUCH IMPROPER APPEAL.

On May 2, 2011, the Plaintiff, Star Funding Solutions, LLC, improperly filed a

second (2nd) post-judgment motion to vacate judgment, styled as "Motion To

Vacate Order Dismissing Case With Prejudice, Or In The Alternative, To Amend

Order Dismissing Case With Prejudice". On May 26, 2011, Plaintiff paid the

$50.00 reopen fee. On May 18, 2011, Defendants filed an Objection to Plaintiffs

14

subject 2nd Post-Judgment motion. On August 17, 2011, Order was filed

rendering Plaintiffs said motion Denied and Defendants' Objection Sustained by

the Court.

The Plaintiffs subject 2nd Post-Judgment motion was essentially identical in

content to the prior and first (1st) Post-Judgment motion (Motion To Reinstate

Case To Active Status) which was already Denied by the Court on April 15, 2011.

Puzzlingly, Plaintiff virtually copied and pasted the entirety of its previous denied

motion, word for word, into its attempted new 2nd Post-Judgment motion and did

nothing more than to change the name of the motion and style it, " Motion To

Vacate Order Dismissing Case With Prejudice, Or In The Alternative, To Amend

Order Dismissing Case With Prejudice".

The Plaintiff was barred by Florida Law from filing its Second (2nd) post-

judgment motion. Florida Rule 1.530 permits only a single post-judgment motion

for rehearing. If the motion is denied, it is not subject to reconsideration because

the trial court loses jurisdiction when it denies a Rule 1.530 Motion For Rehearing.

Plaintiff unsuccessfully made effort to re-argue the same allegations which

were proven false in its first Post-Judgment motion and Denied by the Court. The

Plaintiff offered no new evidence in its 2nd identical Post-Judgment motion, which

15

further still could not have invoked the jurisdiction of the Court. The Plaintiffs

attempt at seeking to move the L.T. Court to hear the same motion and allegations

twice is unconscionable and violates the Florida Deceptive and Unfair Trade

Practices Act, F.S. § 501.201, et seq .. Additionally, the later attempt to seek a

Third (3rd) chance to have the 4th DCA again hear the same twice argued

allegations is further unfair and deceptive. Finally, the first (1st) Post-Judgment

motion was not a legally recognized motion for rehearing timely filed. A motion

for rehearing is a creature of the rules of procedure, and must be filed within 10

days of entry of a final order or judgment.

FOURTH ARGUMENT

THE APPELLANT MAKES JUDICIAL ADMISSION IN ITS PREFACESECTION OF THE APPELLANT'S AMENDED INITIAL BRIEF THAT IT

WAIVED ITS RIGHT TO FILE FOR AN APPEAL

The Appellant's Preface Section of the brief represents for the first time that its

alleged true purpose is to appeal from the trial court order, what it now calls the

denial of Appellant's Motion For Rehearing. As the Appellees have factually

apprised the Court and cited above, Star Funding Solutions, LLC (Plaintiff) never

did file a Motion For Rehearing (emphasis added). Appellant's language and

representations in said Preface are misleading and deceptive. First, Appellant

mischaracterizes its own pleadings, and is leading the 4th DCA to believe that it

16

had only filed one Post-Judgment motion, when in fact it improperly filed two (2)

Post-Judgment motions, and was given two bites at the apple and an unfair

advantage. Neither Post-Judgment Motion was entitled "Motion For Rehearing".

If in fact though, we are to believe and/or agree that Plaintiffs Post-Judgment

motions are Motions For Rehearing, than we also must agree with the Florida

Rules Of Civil and Appellate Procedure that a notice of appeal must be filed within

30 days of rendition of the order to be reviewed. Ifwe are further in agreement

with Florida Law, then a Motion For Rehearing must be filed within ten (10) days

of entry of judgment. Following Appellant's own judicial admission and account,

it is now claiming in its "Preface" that it filed a Motion For Rehearing, and is

professedly seeking an appeal of the trial court order denying said Motion For

Rehearing. The now alleged first Motion For Rehearing was Denied by the Court

on April 15,2011. Pursuant to Florida Rule of Appellate Procedure 9.ll0(b),

Appellant/Plaintiff was required to file its Notice Of Appeal within 30 days of the

rendition of the Order of April 15, 2011 Denying its motion. The time for filing of

Plaintiffs Notice of Appeal was no later than May 15, 2011. A review of the L.T.

Court file reflects that Appellant/Plaintiffs Notice of Appeal filed September 8,

2011, 146 Days after rendition of the Order it seeks appeal, is untimely filed. Ifwe

17

are in agreement with the Florida Rules of Civil Procedure, then Plaintiff was not

entitled to file a second (2nd) Motion For Rehearing after the April IS, 2011 denial

of its initial 1st Post-Judgment motion. Plaintiffs option to continue would be to

timely file an appeal, which it failed to do following the thirty (30) days of

rendition of Honorable Sherwood Bauer, Jr. 's Order and ruling of April IS, 2011.

See Paul Jones v. Julia Marie Jones, Case No. SD02-838 (Fla Sth DCA 2003).

If Appellant, Star Funding Solutions, is wanting the Fla 4th DCA to believe that

there was only one Post-Judgment motion, and that said motion is purposed to be

Motion For Rehearing as represented in the Appellants "Preface", and such exact

Motion for which appeal is sought is that filed on May 2, 2011, styled as "Motion

To Vacate Order Dismissing Case With Prejudice Or In The Alternative To

Amend Order Dismissing Case With Prejudice"; then accordingly Appellants are

still lacking the legal sufficiency and standing necessary to file this Appeal.

Again, according to Appellants own recount and representations, as well as the

Lower Tribunal Case History, this alleged Motion For Rehearing, filed May 2,

2011, is untimely and improperly filed 5S days after rendition of the Court's Order

Granting Dismissal Of Action With Prejudice. The subject Motion of May 2,2011

seeks to vacate the final Order of Dismissal of the Court entered on March 8, 2011.

18

FIFTH ARGUMENT

THE FLORIDA 4TH DCA IS BOUND BY THE FOUR CORNERS OFPLAINTIFF'S POST JUDGMENT MOTIONS, AND MUST NOT

FURTHER A FRAUD

The Court, by Honorable Sherwood Bauer, Jr. Sustained Defendant's Objection to

Plaintiffs 1st Post-Judgment Motion, "Motion To Reinstate Case To Active

Status", on April 15, 2011. The L.T. Court in Sustaining Defendants' Objections

found that Plaintiff made material misrepresentations when it falsely claimed in

said motion that its "discovery was not yet due". The Court also found that

Plaintiff mischaracterized timelines, discovery types, documents, and frequency,

and the true evidence as filed in the Court. The Court found as true, that the

Plaintiff was in fact served with two (2) distinctly different and separate sets of

Requests For Production, all by traceable methods of FedEx Delivery, and

subsequent certified and first class U.S. Mail delivery. The Plaintiff, contrarily

alleged and implied that Defendant served only one set of Request For Production,

and that such responses therefore were not yet due. Defendants, in their Objection

to said motion, provided a detailed, factual account of the filed evidence

disproving Plaintiff s main crux that its discovery was "not yet due". The Court

agreed with Defendants Objections and the fact that Plaintiffs fabricated

representations in its Motion To Reinstate Case To Active Status are a Fraud Upon

19

The Court. The Court Sustained the Objection and further claim of Defendants

that Plaintiffs subject motion was a Sham Pleading under Florida Law, Rule

1.150, was constructed and filed in bad faith, with purpose of deceiving the court,

and grounds for dismissal with prejudice and an adjudication on the merits of the

case.

The Defendants, in their Objection to Plaintiffs second (2nd) Post-Judgment

Motion, filed May 18, 2011, outlined how Plaintiff knowingly plead the same false

account of discovery timelines, and again for a second time, fallaciously made the

untrue allegation that its discovery was "Not Yet Due".

Fraud on the court is a "species of fraud which does or attempts to, subvert the

integrity of the court itself. ... " 7 Moore's Federal Practice ~ 60.33 at 515 (1971

ed.) See Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 702 (2d Cir.1972).

A court has "inherent authority to do all things that are reasonably necessary for

the administration of justice within the scope of its jurisdiction." Figgie

International, Inc.v. Alderman, 698 So.2d 563,567 (Fla. 3rd DCA 1997) (quoting

Anderson v. State, 267 S02d 8 (Fla. 1972).

The discovery of a Fraud Upon The Court gives rise and authority to the

Florida Courts to order Dismissal, as well as other relief as may be necessary and

20

just. The remedies available for misrepresentations made to the Court include

striking pleadings, entry of default, dismissal, and monetary sanctions. See,

Hanono v. Murphy, 723 So.2d 892,895 (Fla. 3rd DCA 1998).

Being bound by the Four Corners Rule, the 4th DCA must not infer and or rely

upon any information which has been proven false, and worse, repeated and re-

plead in a second (2nd) improperly filed Post-Judgment Motion. The Appellate

Court cannot assist the Appellant/Plaintiff in furthering its fraud and operative

conduct sought to reopen the Judgment of Dismissal With Prejudice by fraudulent

and unfair means.

SIXTH ARGUMENT

APPELLANT MAKES JUDICIAL ADMISSION IN ITS INITIALAMENDED BRIEF & STATEMENT OF FACTS THAT IT FAILED TO

RESPOND TO BOTH DEFENDANTS' 1ST & 2ND REQUESTS FORPRODUCTION.

Appellant, in its brief admits that it failed to comply with multiple sets of served

discovery and thus, the Florida Rules governing discovery, particularly Rule

1.380(b)(C). The Defendants issued numerous pleadings and warnings that

Plaintiff had failed to comply with the multitude of propounded discovery. In the

end, Plaintiff simply failed and/or refused to comply, and additionally ignored the

Order of the Court to produce all outstanding discovery or face Dismissal With

Prejudice. Appellant, in its statement of facts argues that it could have easily

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objected and responded to the Defendants' discovery. Reality and the facts show

that for reasons which are unknown, Appellant, Star Funding Solutions freely

failed and thus waived its right to do so.

SEVENTH ARGUMENT

THE DECISCION OF THE L.T. COURT, AND JUDGE SHERWOODBAUER, JR., TO ORDER DISMISSAL WITH PREJUDICE AS ASANCTION FOR FAILURE TO COMPLY WITH MULTIPLE

DISCOVERY REQUESTS AND SUBSEQUENT ORDER OF THE COURTIS JUSTIFIED AND WITHIN THE ULTIMATE AUTHORITY OF THE

JUDICIARY.

Appellant, like any other litigant who uses the Florida Courts, must follow the

long standing rules. There is well established citings, and very recent precedent

setting Florida Decisions which support the action and ruling of Honorable

Sherwood Bauer, Jr. to Order Dismissal With Prejudice.

On March 25,2010, in the matter of Us. Bank National Association vs. Ernest

E. Harpster (Case No. 51-2007-CA-6684ES), 6th Judicial Circuit Court in Pasco

County, Judge Lynn Tepper Dismissed with Prejudice Plaintiff's Complaint, in

part as a sanction for the egregious failure of U.S. Bank National Association to

comply with discovery rules. Judge Tepper ordered that the Plaintiff shall be

prohibited from presenting the alleged Promissory Note to the Court. The Court

found that U.S. Bank National Association failed to produce answers to the

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Defendant's Interrogatories and Request For Production for a period of26 Months,

between January 8,2008 and March 1,2010. Additionally, it was found that the

Plaintiff also failed to produce responses to a Second (2nd)Set of Requests For

Production propounded in July 2009.

On May 6,2010, in the Foreclosure suit styled as HSBC Bank USA, N.A. As

vs. Orlando Eslava, (Case No. 1-2008-CA-055313), n- Judicial Circuit Court in

Miami-Dade County, Florida, Judge Jennifer Bailey Dismissed With Prejudice

the stated foreclosure action for HSBC's failure to obey Bailey's December 2009

Order and post a $414,000 Bond to indemnify homeowner Eslava from another

lender filing a claim as HSBC had lost the note. HSBC enraged Judge Bailey

when they ignored the Court Order and proceeded with an April 9, 2010

foreclosure sale giving HSBC title to the property. Judge Bailey further cancelled

the mortgage and Ordered HSBC to return the title of the condo back to Eslava.

Bailey stated, "when the order is simply ignored ... at the end of the day, you're

the lawyer, you're responsible."

The Order of Dismissal With Prejudice of Plaintiffs action was proper and

justified by the Florida Rules Of Civil Procedure, and particularly Rule 1.420.

Florida Rule 1.420Dismissal Of Actions, - (b) Involuntary Dismissal, stipulates

in part that ...Any party may move for dismissal of an action or of any claim

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against that party for failure of an adverse party to comply with these rules or any

order of the court. A dismissal under this subdivision, unless otherwise specified,

acts as an adjudication on the merits.

EIGHTH ARGUMENT

THE LOWER COURT HAD THE ULTIMATE POWER ANDAUTHORITY PURSUANT TO THE FLORIDA STATUTES AND RULES

OF COURT TO DENY PLAINTIFF'S ALLEGED RULE 1.540(b) MOTIONTO VACATE ORDER DISMISSING CASE WITH PREJUDICE OR IN

THE ALTERNATIVE TO AMEND ORDER DISMISSING CASE WITHPREJUDICE.

The facts and law as cited above and throughout this Answer Brief is

incorporated herein and duly made a part of the Eighth (8th) Argument.

The Appellant/Plaintiff, Star Funding Solutions, who was at all times

represented by licensed Florida Counsel, ignored discovery rules, an issued Order

of the Court, persistently missed deadlines stipulated in the Florida Rules Of Civil

Procedure, and filed several untimely motions.

Plaintiff agrees and makes Judicial Admission that its purported 1.540(b) is a

Motion For Rehearing. Plaintiff straightforwardly filed the wrong motions, in

conflict with set timelines. Additionally, the subject motion referred to by

Plaintiff/Appellant and cited herein was its 2nd Post-Judgment Motion, which re-

pleads in its entirety the fallacious and fraudulent claims which had already been

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Denied by the Court on April 15, 2011. To think that the 4th DCA should reverse

the sound decision of the L.T. Court, and Judge Sherwood Bauer, Jr., thereby

endorsing Plaintiff s cause to Vacate a Judgment by fraudulent and false pretenses,

as well as changing the rules of court to allow this Plaintiff/Appellant to have

"Two Bites At The Apple" and be rewarded for such unconscionable conduct

would be a complete failure and breakdown of our system of fairness and equity.

Plaintiffs Post-Judgment conduct which was deemed a Fraud in the operation

of the First (1st) Post-Judgment Motion, was further employed, continued, and

knowingly incorporated into the scheme of moving the Court to open/vacate

judgment by false pretenses in the attempted Second (2nd) Post-Judgment Motion.

The Plaintiff did not offer new evidence in its 2nd Post-Judgment Motion, but rather

reincorporated known falsehoods. Plaintiffs unconscionable Post-Judgment

conduct and sham pleadings do not qualify for relief under Florida Rule 1.540.

Moreover, Plaintiffs blatant and persistent failures and/or refusal to adhere to,

and comply with Florida Discovery Rules and subsequent related Issued Order of

the Court is egregious, contumacious, knowing, and of its own free will. Plaintiff

at all times was represented by licensed florida counsel, who received multiple

separate and different discovery requests, notices of non-compliance, separate and

distinct motions to compel, a Court Order, and letters, all which lucidly pointed out

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and warned counsel of the Plaintiffs lack of compliance pursuant to F.R.C.P ..

NINTH ARGUMENT

THE FILING OF THE L.T. FORECLOSURE ACTION AND CONTINUEDATTEMPTED COLLECTION EFFORTS ON THE ALLEGED AND

DISPUTED DEBT ARE IN VIOLATION OF FEDERAL LAW,PARTICULARLY 15 USC § 1601, ET SEQ.

As well and clearly plead in Defendant's, John J. Krondes, Answer & Special

Defenses, the alleged Plaintiff, Star Funding Solutions, LLC, had no legal right or

authority to file and pursue the subject foreclosure action against Defendants. The

Defendant John J. Krondes served the two (2) previous alleged creditors with a

detailed Request For Validation Of Alleged Debt, and additional related Notices Of

Fault, Termination of Rights, Notices of Fraudulent Transfer, and Notice Of

Rescission. Neither alleged creditor, Kondaur Capital Corporation, or FCl Lender

Services, made any compliance or attempt to validate the alleged debt. Pursuant to

said alleged creditors' silence, there was agreement that the alleged debt was

forever unverifiable, cancelled, and void. The Estoppel By Silence Doctrine was

instituted and said alleged creditors' rights to continue collection on the alleged

and invalid alleged debt were terminated. By right and protection per the FDCPA,

15 USC § 1692g(b), all such alleged creditors and/or "debt collectors" were legally

stopped from collection (see Defendant John J. Krondes Answer & Special

Defenses).

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CONCLUSION

The Plaintiff, and now Appellant, on its own recognizance and free will failed,

and/or refused to respond and comply with multiple sets of discovery, and the

Order of the Court. Numerous other "notices" and pleadings additionally went

unanswered. The rules simply just didn't matter to Star Funding Solutions, LLC.

After the fact, once the its case was dismissed, Plaintiff became interested in the

cause, and began its Post-Judgment attempts to Vacate Judgment, which is

maintained by Defendants to be by Fraudulent and unfair methods.

The Court, and the Honorable Sherwood, Bauer, Jr. acted properly, honestly,

with careful and meticulous review of the evidence. It is an insult to the

administration of justice and the fairness to all the people of Florida, that the acting

Judge abused his power and discretion, as Appellant would have it. The upholding

of long standing rules and laws by the Honorable Sherwood Bauer,Jr. should be

commended by this Court and the citizens of Florida who have fallen victim to

abusive, unfair and deceptive practices in the seeking of foreclosure in this state.

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CERTIFICATE OF SERVICE

Appellees Hereby Certify that a true copy of the foregoing Appellees Answer

Briefwas efiled at efiling@flcourts.org and mailed by FedEx on March 10,2012.

A copy has been sent to the Appellant's attorney of record, Florida Foreclosure

Attorneys, at the address of 601 Cleveland Street, Ste. 690, Clearwater, FL 33755

CERTIFICATE OF FONT COMPLIANCE

The Appellees Hereby Certify that they have complied with the Font

Requirements of the Appellate Court with respect to this Answer Brief.

~ees

By: -{---4;~--+--"-+--+--If-------- Date.? (dJ~'------By: ==~==~ _

John & Florence KrondesPO Box 1795, Darien, CT 06820

Tel: (203) 981-1926 • Email: JJKrondes@yahoo.com

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