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: [email protected]
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 [email protected] 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: [email protected]
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