IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH 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 Circuit In And For Martin County, Florida L.T. CASE NO. lO-1298-CA

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

Respectfully Submitted by:

John J. Krondes and Florence T. Krondes Appellees P.O. Box 1795 Darien, CT 06820 Tel: (203) 981-1926 - John (203) 570-6164 - Flo Email: JJKrondes@yahoo.com

TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF CITATIONS PREFACE STATEMENT OF THE FACTS STANDARD OF REVIEW SUMMARY OF ARGUMENT ARGUMENT FIRST ARGUMENT: THE APPELLANT LACKS STANDING TO FILE THE INSTANT APPEAL AND THUS THE 4TH DISTRICT COURT OF APPEAL LACKS SUBJECT MATTER JURISDICTION TO HEAR AND DECIDE ON THE STATED APPEAL AND THE ALLEGED MERITS OF THE CONTROVERSY PRESENTED HEREIN BY APPELLANT STAR FUNDING SOLUTIONS, LLC. SECOND ARGUMENT: THE APPELLANT LACKS THE AUTHORITY TO BEND THE FLORIDA RULES OF CIVIL PROCEDURE AND THE 19TH JUDICIAL CIRCUIT COURT FOR MARTIN COUNTY AND/OR THE 4TH DISTRICT COURT OF APPEAL LACKS JURISDICTION AND LIKE AUTHORITY TO PREJUDICE ANY PARTY AND OFFER A SPECIAL OR DIFFERENT SET OF RULES IN FAVOR OF ANY PARTY TO AN ACTION. i-iii .iv-vi 1 2-5 6-8 9-10 11-26

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 PREJUDICE AND THE 4TH DISTRICT COURT OF APPEAL LACKS JURISDICTION AND LIKE AUTHORITY TO HEAR SUCH IMPROPER APPEAL. FOURTH ARGUMENT: THE APPELLANT MAKES JUDICIAL ADMISSION IN ITS PREFACE SECTION OF THE APPELLANT'S AMENDED INITIAL BRIEF THAT IT WAIVED ITS RIGHT TO FILE FOR AN APPEAL. FIFTH ARGUMENT: THE FLORIDA 4TH DCA IS BOUND BY THE FOUR CORNERS OF PLAINTIFF'S POST JUDGMENT MOTIONS, AND MUST NOT FURTHER A FRAUD. SIXTH ARGUMENT: APPELLANT MAKES JUDICIAL ADMISSION IN ITS INITIAL AMENDED BRIEF & STATEMENT OF FACTS THAT IT FAILED TO RESPOND TO BOTH 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 FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY REQUESTS AND SUBSEQUENT ORDER OF THE COURT IS JUSTIFIED AND WITHIN THE ULTIMATE AUTHORITY OF THE JUDICIARY.

11

EIGHTH ARGUMENT: THE LOWER COURT HAD THE ULTIMATE POWER AND AUTHORITY PURSUANT TO THE FLORIDA STATUTES AND RULES OF COURT TO DENY PLAINTIFF'S ALLEGED RULE 1.540(b) MOTION TO VACATE ORDER DISMISSING CASE WITH PREJUDICE OR IN THE ALTERNATIVE TO AMEND ORDER DISMISSING CASE WITH PREJUDICE. NINTH ARGUMENT: THE FILING OF THE L.T. FORECLOSURE ACTION AND CONTINUED ATTEMPTED COLLECTION EFFORTS ON THE ALLEGED AND DISPUTED DEBT ARE IN VIOLATION OF FEDERAL LAW, PARTICULARLY 15 USC 1601, ET SEQ. CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE 8 8 8

111

TABLE OF CITATIONS Cases Dade County Sch. Bd. V. Radio Station WQBA, 731 So. 2d 638,644 (Fla. 1999) King 205, LLC v. Dick Pittman Roof Services, Inc., 31 So.3d 242 (Fla. 5th DCA 2010) Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) Delno v. Market Street Railway Company, 124 F.2d 965,967 (9th eire 1942) La Rossa v. Glynn, 302 So. 2d 467 (Fla. 3d DCA 1974) State v. Wagner, 825 So. 2d 453 (Fla 5th DCA 2002) Paul Jones v. Julia Marie Jones, Case No. 5D02-838 (Fla 5th DCA 2003) State ex rel. Davis v. Parks, 194 So. 613,615 (Fla 1939) Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 702 (2d Cir.1972) Figgie International, Inc.v. Alderman, 698 So.2d 563, 567 (Fla. 3rd DCA 1997) Anderson v. State, 267 S02d 8 (Fla. 1972)

.13

13, 18

13

20

20

.20

IV

Hanono v. Murphy, 723 So.2d 892,895 (Fla. 3rd DCA 1998 ) Circuit Court Cases U.S. Bank National Association vs. Ernest E. Harpster, (Case No. SI-2007-CA-6684ES), 6th Judicial Circuit Court in Pasco County RSBC Bank USA, N.A. As vs. Orlando Eslava, (Case No. 1-2008-CA-OS5313), 11th Judicial Circuit Court in Miami-Dade County Statutes S01.201, et seq, Florida Statutes (FDUTPA) IS USC 1692g(b), United States Code (FDCPA) Rules Rule I.S30(b), Fla.R.Civ.P Rule 9.11O(b), Fla.R.App.P Rule I.S30, Fla.R.Civ.P Rule 1.IS0, Fla.R.Civ.P Rule 1.380(b )(C), Fla.R.Civ.P Rule 1.420, Fla.R.Civ.P Rule I.S40(b), Fla.R.Civ.P Rule 1.3S0(b), Fla.R.Civ.P

21

22

23

16 26

12 13, 17 IS 20 21 23 24 3

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

VI

PREFACE
Appellant, 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.

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

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 (1 st) 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.

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 (1 st) Post-Judgment Motion, styled as "Motion To Reinstate Case To Active Status". It should be noted in the

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.

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.

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.

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 APPEAL AND THUS THE 4TH DISTRICT COURT OF APPEAL LACKS SUBJECT MATTER JURISDICTION TO HEAR AND DECIDE ON THE STATED APPEAL 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 9.11 O(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 FLORIDA RULES OF CIVIL PROCEDURE AND THE 19TH JUDICIAL CIRCUIT COURT FOR MARTIN COUNTY AND/OR THE 4TH DISTRICT COURT OF APPEAL LACKS JURISDICTION AND LIKE AUTHORITY TO PREJUDICE ANY PARTY AND OFFER A SPECIAL OR DIFFERENT SET OF 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 PREJUDICE AND 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) postjudgment 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 PREFACE SECTION 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 OF PLAINTIFF'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 replead 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 INITIAL AMENDED BRIEF & STATEMENT OF FACTS THAT IT FAILED TO RESPOND TO BOTH DEFENDANTS' 1ST & 2ND REQUESTS FOR PRODUCTION.
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
21

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 SHERWOOD BAUER, JR., TO ORDER DISMISSAL WITH PREJUDICE AS A SANCTION FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY REQUESTS AND SUBSEQUENT ORDER OF THE COURT IS 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 22

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 1.420 Dismissal Of Actions, - (b) Involuntary Dismissal, stipulates in part that ... Any party may move for dismissal of an action or of any claim 23

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 AND AUTHORITY PURSUANT TO THE FLORIDA STATUTES AND RULES OF COURT TO DENY PLAINTIFF'S ALLEGED RULE 1.540(b) MOTION TO VACATE ORDER DISMISSING CASE WITH PREJUDICE OR IN THE ALTERNATIVE TO AMEND ORDER DISMISSING CASE WITH PREJUDICE. 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 repleads in its entirety the fallacious and fraudulent claims which had already been 24

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 25

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 CONTINUED ATTEMPTED 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 FDCP A, 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).

26

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.

27

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 Krondes PO Box 1795, Darien, CT 06820 Tel: (203) 981-1926 Email: JJKrondes@yahoo.com

28