Bill Text: FL S0600 | 2023 | Regular Session | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Assignment for the Benefit of Creditors

Spectrum: Slight Partisan Bill (? 2-1)

Status: (Passed) 2023-06-16 - Chapter No. 2023-219 [S0600 Detail]

Download: Florida-2023-S0600-Comm_Sub.html

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       Florida Senate - 2023                              CS for SB 600
       
       
        
       By the Committee on Judiciary; and Senator Martin
       
       
       
       
       
       590-02868-23                                           2023600c1
    1                        A bill to be entitled                      
    2         An act relating to an assignment for the benefit of
    3         creditors; amending s. 727.101, F.S.; revising
    4         legislative intent; amending s. 727.104, F.S.;
    5         revising requirements for the commencement of
    6         proceedings for general assignments; authorizing
    7         courts to determine compliance with a specified rule;
    8         amending s. 727.105, F.S.; authorizing assignees to
    9         rely on certain orders, judgments, decrees, rules, and
   10         documents; specifying that the assignee is not
   11         personally liable for certain good faith compliance,
   12         acts, or omissions; limiting the assets a creditor or
   13         other party in interest may pursue in an action
   14         against an assignee; providing requirements for a
   15         creditor or other party in interest in certain actions
   16         against an assignee; providing requirements for claims
   17         against an assignee or any agent or professional of
   18         the assignee; providing construction; amending s.
   19         727.106, F.S.; excluding certain creditors from being
   20         required to turn over assets of the estate upon notice
   21         of an assignment proceeding; amending s. 727.110,
   22         F.S.; requiring assignees to serve a copy of a notice
   23         of rejection by negative notice; authorizing the court
   24         to specify an effective date of rejection in its order
   25         of rejection; providing an effective date.
   26          
   27  Be It Enacted by the Legislature of the State of Florida:
   28  
   29         Section 1. Section 727.101, Florida Statutes, is amended to
   30  read:
   31         727.101 Intent of chapter.—The intent of this chapter is to
   32  provide a uniform procedure for the administration and orderly
   33  liquidation of insolvent estates, and to ensure full reporting
   34  to creditors and equal distribution of assets according to
   35  priorities as established under this chapter.
   36         Section 2. Paragraph (a) of subsection (2) of section
   37  727.104, Florida Statutes, is amended, and subsection (3) is
   38  added to that section, to read:
   39         727.104 Commencement of proceedings.—
   40         (2) Within 10 days after delivery of the assignment to the
   41  assignee, the assignee shall:
   42         (a) Record the original assignment, with or without the
   43  schedules, in the official public records of the county in which
   44  the assignor had its principal place of business and shall
   45  thereafter promptly record a certified copy of the assignment,
   46  with or without the schedules, in each county in this state in
   47  which real property where assets of the estate are located. The
   48  assignee shall promptly record a certified copy of the
   49  assignment, without schedules, in the land records of each
   50  recording jurisdiction outside of this state in which real
   51  property assets of the estate are located. If a certified copy
   52  of the assignment is not acceptable for recording in a
   53  particular jurisdiction, the assignee shall record a lis pendens
   54  or similar notice of action permitted in that jurisdiction
   55  referencing the pendency of the proceedings under this chapter.
   56  In either instance, the recorded original assignment, certified
   57  copy of the assignment, or lis pendens or similar notice of
   58  action shall include the legal description of any real property
   59  located in the recording jurisdiction.
   60         (3) The court may determine proper compliance with Rule
   61  1.200, Florida Rules of Civil Procedure, in an action filed
   62  under this chapter, including, but not limited to, scheduling a
   63  case management conference and requiring a periodic status
   64  report as warranted by the circumstances of the case.
   65         Section 3. Section 727.105, Florida Statutes, is amended to
   66  read:
   67         727.105 Actions Proceedings against assignee.—
   68         (1) An action Proceedings may not be commenced against the
   69  assignee except as provided in this chapter, but nothing
   70  contained in this chapter affects any action or proceeding by a
   71  governmental unit to enforce such governmental unit’s police or
   72  regulatory power. Except in the case of a consensual lienholder
   73  enforcing its rights in personal property or real property
   74  collateral, there shall be no levy, execution, attachment, or
   75  the like in respect of any judgment against assets of the estate
   76  in the possession, custody, or control of the assignee.
   77         (2) The assignee may:
   78         (a) Rely on any outstanding court orders, judgments,
   79  decrees, and rules of law, and is not personally liable for the
   80  assignee’s own good faith compliance with any such orders,
   81  judgments, decrees, or rules of law.
   82         (b) Rely on, and shall be protected in any action by, any
   83  resolution, certificate, statement, opinion, report, notice,
   84  consent, or other document believed by the assignee to be
   85  genuine and to have been signed or presented by the proper
   86  parties.
   87         (3) The assignee is not personally liable for:
   88         (a) The assignee’s good faith compliance with his or her
   89  duties and responsibilities as an assignee.
   90         (b) The assignee’s acts or omissions, except upon a finding
   91  by the court presiding over an action or proceeding under this
   92  chapter that the assignee’s acts or omissions:
   93         1. Were outside the scope of his or her duties;
   94         2. Were grossly negligent; or
   95         3. Constitute malfeasance.
   96         (4)(a) Except for matters in paragraph (3)(b), any creditor
   97  or party in interest seeking to assert a claim against the
   98  assignee must look only to the assignment estate assets and any
   99  bond posted by the assignee to satisfy any liability, and the
  100  assignee is not personally liable to satisfy any such
  101  obligation.
  102         (b) Any creditor or party in interest seeking to assert a
  103  claim against the assignee under paragraph (3)(b) must first
  104  obtain leave of the court presiding over the assignment action
  105  or proceeding based on a finding set forth in paragraph (3)(b).
  106         (5) Any claim against the assignee, or any agent or
  107  professional of the assignee who assists the assignee in the
  108  administration of the estate, must be brought before the
  109  discharge of the assignee under s. 727.116 to the extent the
  110  claim has accrued and is predicated upon facts that are known or
  111  reasonably should have been known at the time of the discharge,
  112  at which point all such claims are deemed released and forever
  113  barred.
  114         (6) This section does not alter or limit any other immunity
  115  otherwise held by the assignee or any agent or professional of
  116  the assignee who assists the assignee in the administration of
  117  the estate.
  118         Section 4. Section 727.106, Florida Statutes, is amended to
  119  read:
  120         727.106 Turnover.—Any person or entity, other than a
  121  creditor, in possession, custody, or control of assets of the
  122  estate, other than a creditor holding a lien or a right of
  123  setoff or recoupment with respect to the subject assets, shall,
  124  upon notice by the assignee of the assignment proceeding,
  125  promptly turn such assets over to the assignee or the assignee’s
  126  duly authorized representative.
  127         Section 5. Paragraphs (a) and (b) of subsection (3) of
  128  section 727.110, Florida Statutes, are amended to read:
  129         727.110 Actions by assignee and other parties in interest.—
  130         (3) As to an assignee’s rejection of an unexpired lease of
  131  nonresidential real property or of personal property, as
  132  provided under ss. 727.108(5) and 727.109(6):
  133         (a) The assignee shall file a notice of rejection with the
  134  court and serve a copy, by negative notice as defined in s.
  135  727.103, on the owner or lessor of the affected property and,
  136  for personal property, on the landlord of the premises on which
  137  the property is located. A notice of rejection relating to
  138  personal property must identify the affected property, the
  139  address at which the affected property is located, the name and
  140  telephone number of the person in possession of the affected
  141  property, and the deadline for removal of the affected property.
  142         (b) The effective date of the rejection is the date of
  143  entry of a court order authorizing such rejection, unless the
  144  court orders otherwise.
  145         Section 6. This act shall take effect July 1, 2023.