SRMOF II 2012-1 Trust v. Garcia

District Court of Appeal of Florida

SRMOF II 2012-1 Trust v. Garcia

209 So. 3d 681, 2017 WL 539787, 2017 Fla. App. LEXIS 1666

CourtDistrict Court of Appeal of Florida

DecidedFebruary 10, 2017

Docket5D16-973, SRMOF, II, 2012-1

StatusPublished

This text of 209 So. 3d 681 (SRMOF II 2012-1 Trust v. Garcia) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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SRMOF II 2012-1 Trust v. Garcia, 209 So. 3d 681, 2017 WL 539787, 2017 Fla. App. LEXIS 1666 (Fla. Ct. App. 2017).

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Opinion

PER CURIAM.

SRMOF II 2012-1 Trust, U.S. Bank Trust National Association, not in its Individual Capacity, but Solely as Trustee (the “Bank”), plaintiff below, appeals a final Order of Involuntary Dismissal Without Prejudice for its failure to perfect service on one of the defendants and an order denying its motion to vacate the same. The Bank contends that the court erred in failing to consider the Kozel 1 factors in granting the involuntary dismissal without prejudice.

We align our position with that of the Second District in Federal National Mortgage Ass’n v. Linner, 193 So.3d 1010, 1012-13 (Fla. 2d DCA 2016), and held that an involuntary dismissal without prejudice does not require a consideration of the Kozel factors. Accordingly, like the Second District, we certify conflict with the First District and Third District on this matter. HSBC Bank USA v. Cook, 178 So.3d 548 (Fla. 1st DCA 2015); BAC Home Loans Servicing L.P. v. Parrish, 146 So.3d 526 (Fla. 1st DCA 2014); BAC Home Loans Servicing, L.P. v. Ellison, 141 So.3d 1290 (Fla. 1st DCA 2014); Fed. Nat’l Mortg. Ass’n v. Wild, 164 So.3d 94, 95 (Fla. 3d DCA 2015). Otherwise, we find no merit to the Bank’s remaining claims.

AFFIRMED. CONFLICT CERTIFIED.

COHEN, C.J., EVANDER, J„ and JACOBUS, B.W., Senior Judge, concur.

1

. Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993).

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PER CURIAM.

SRMOF II 2012-1 Trust, U.S. Bank Trust National Association, not in its Individual Capacity, but Solely as Trustee (the “Bank”), plaintiff below, appeals a final Order of Involuntary Dismissal Without Prejudice for its failure to perfect service on one of the defendants and an order denying its motion to vacate the same. The Bank contends that the court erred in failing to consider the Kozel 1 factors in granting the involuntary dismissal without prejudice.

We align our position with that of the Second District in Federal National Mortgage Ass’n v. Linner, 193 So.3d 1010, 1012-13 (Fla. 2d DCA 2016), and held that an involuntary dismissal without prejudice does not require a consideration of the Kozel factors. Accordingly, like the Second District, we certify conflict with the First District and Third District on this matter. HSBC Bank USA v. Cook, 178 So.3d 548 (Fla. 1st DCA 2015); BAC Home Loans Servicing L.P. v. Parrish, 146 So.3d 526 (Fla. 1st DCA 2014); BAC Home Loans Servicing, L.P. v. Ellison, 141 So.3d 1290 (Fla. 1st DCA 2014); Fed. Nat’l Mortg. Ass’n v. Wild, 164 So.3d 94, 95 (Fla. 3d DCA 2015). Otherwise, we find no merit to the Bank’s remaining claims.

AFFIRMED. CONFLICT CERTIFIED.

COHEN, C.J., EVANDER, J„ and JACOBUS, B.W., Senior Judge, concur.

1

. Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993).

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209 So. 3d 681, 2017 WL 539787, 2017 Fla. App. LEXIS 1666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/srmof-ii-2012-1-trust-v-garcia-fladistctapp-2017.

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