SRMOF II 2012-1 TRUST, U.S. BANK TRUST NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE, APPELLANT,
v.
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
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The Fifth District affirmed the trial court's involuntary dismissal without prejudice for failure to perfect service, holding that such dismissals do not require consideration of Kozel factors, and certified conflict with the First and Third Districts.
An involuntary dismissal without prejudice does not require consideration of the Kozel factors.
[1] An involuntary dismissal without prejudice does not require the trial court to apply the Kozel factors before granting the dismissal.
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Join FLexlaw to unlock all legal intelligenceThe Bank, as trustee, sued multiple defendants including Jose Garcia and JPMorgan Chase Bank. The trial court dismissed the case without prejudice due…
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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.
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Citator
Cited By
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Deutsche Bank Nat'l Tr. Co. v. Bennett, 291 So. 3d 605 (Fla. 2d DCA 2020)
Authorities Cited
- Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)
- Fed. Nat'l Mortg. Ass'n v. Wild, 164 So. 3d 94 (Fla. 3d DCA 2015)
- BAC Home Loans Servicing L.P. v. Parrish, 146 So. 3d 526 (Fla. 1st DCA 2014)
- Fla. Wildlife Fed'n, Inc. v. Dep't of Env't Prot., 141 So. 3d 1290 (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. Linner, 193 So. 3d 1010 (Fla. 2d DCA 2016)
- HSBC Bank USA for Omac 2005-1 v. Cook, 178 So. 3d 548 (Fla. 1st DCA 2015)