SRMOF II 2012-1 Trust v. Garcia
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED SRMOF II 2012-1 TRUST, U.S. BANK TRUST NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE, Appellant, v. Case No. 5D16-973 JOSE GARCIA A/K/A JOSE GARCIA, SR., FREDDIE GARCIA, CANDIDA CANALAS, HOUSEHOLD FINANCE CORPORATION III AND JPMORGAN CHASE BANK, N.A., AS SUCCESSOR BY MERGER TO CHASE HOME FINANCE, LLC, ETC., Appellees. ______________________________________/ Opinion filed February 10, 2017 Appeal from the Circuit Court for Volusia County, Dawn D. Nichols, Judge. Sonia Hernriques McDowell, of Quintairos, Prieto, Wood & Boyer, P.A., Orlando, for Appellant. Andrew B. Greenlee, of Andrew B. Greenlee, P.A., Sanford and Mandy Pavlakos, of the Law Office of Mandy Pavlakos, P.A., Lake Mary, for Appellees. 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 Kozel1 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). 2
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