FL
Florida House Bill H0491

Florida 2023 Regular Session

Florida House Bill H0491 Compare Versions

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1010 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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1414 A bill to be entitled 1
1515 An act relating to an assignment for the benefit of 2
1616 creditors; amending s. 727.101, F.S.; revising 3
1717 legislative intent; amending s. 727.104, F.S.; 4
1818 revising requirements for the commencement of 5
19-proceedings for general assignments; providing courts 6
20-with judicial discretion to determine compliance with 7
21-specified Florida Rules of Civil Procedure; amending 8
22-s. 727.105, F.S.; providing for an assignee's abi lity 9
23-to rely on, and a defense for good faith compliance 10
24-with, court orders, judgments, decrees, and rules of 11
25-law; providing for an assignee's ability to rely on, 12
26-and be protected by, certain documents believed to be 13
27-genuine and to have been signed or pres ented by the 14
28-proper parties; establishing nonliability of assignee 15
29-when certain requirements are met; establishing an 16
30-exception to nonliability of an assignee when certain 17
31-requirements are met; limiting the assets a creditor 18
32-or other party in interest may pursue in an action 19
33-against an assignee; providing requirements for a 20
34-creditor or other party in interest in certain actions 21
35-against an assignee; providing requirements for claims 22
36-against an assignee or any agent or professional of 23
37-the assignee; providing construction; amending s. 24
38-727.106, F.S.; excluding certain creditors from being 25
19+proceedings for general assignments; providing for the 6
20+filing or publishing of an assignment to give notice 7
21+to interested parties in certain instances; providing 8
22+courts with judicial discretion to determine 9
23+compliance with specified Florida Rules of Civil 10
24+Procedure; amending s. 727.105, F.S.; providing for an 11
25+assignee's ability to rely on, and a defense for good 12
26+faith compliance with, court orders, judgments, 13
27+decrees, and rules of law; providing for an assignee's 14
28+ability to rely on, and be protected by, certain 15
29+documents believed to be genuine and to have been 16
30+signed or presented by the proper parties; 17
31+establishing nonliability of assignee when certain 18
32+requirements are met; establishing an exception to 19
33+nonliability of an assignee when certain requirements 20
34+are met; limiting the assets a creditor or other party 21
35+in interest may pursue in an action against an 22
36+assignee; providing requirements for a creditor or 23
37+other party in interest in certain actions against an 24
38+assignee; providing requirements for claims against an 25
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4747 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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51-required to turn over assets of the estate upon notice 26
52-of an assignment action or proceeding; amending s. 27
53-727.110, F.S.; requiring negative notice in an 28
54-assignment action by an assignee upon the filing of a 29
55-notice of rejection; authorizing the court to specify 30
56-an effective date of rejection in its order of 31
57-rejection; providing an effective date. 32
58- 33
59-Be It Enacted by the Legislature of the State of Florida: 34
60- 35
61- Section 1. Section 727.101, Florida Statutes, is amended 36
62-to read: 37
63- 727.101 Intent of chapter. —The intent of this chapter is 38
64-to provide a uniform procedure for the administration and 39
65-orderly liquidation of insolvent estates, and to ensure full 40
66-reporting to creditors and e qual distribution of assets 41
67-according to priorities as established under this chapter. 42
68- Section 2. Paragraph (a) of subsection (2) of section 43
69-727.104, Florida Statutes, is amended, and subsection (3) is 44
70-added to that section, to read: 45
71- 727.104 Commencement of proceedings. — 46
72- (2) Within 10 days after delivery of the assignment to the 47
73-assignee, the assignee shall: 48
74- (a) Record the original assignment , with or without the 49
75-schedules, in the official public records of the county in which 50
51+assignee or any agent or professional of the assignee; 26
52+providing construction; amending s. 727.106, F.S.; 27
53+excluding certain creditors from being required to 28
54+turn over assets of the estate upon notice of an 29
55+assignment action or proceeding; amending s. 727.110, 30
56+F.S.; requiring negative notice in an assignment 31
57+action by an assignee upon the filing of a notice of 32
58+rejection; authorizing the court to specify an 33
59+effective date of rejection in its order of rejection; 34
60+providing an effective date. 35
61+ 36
62+Be It Enacted by the Legislature of the State of Florida: 37
63+ 38
64+ Section 1. Section 727.101, Florida Statutes, is amended 39
65+to read: 40
66+ 727.101 Intent of chapter. —The intent of this chapter is 41
67+to provide a uniform procedure for the administration and 42
68+orderly liquidation of insolvent estates, and to ensure full 43
69+reporting to creditors and equal distribution of assets 44
70+according to priorities as established under this chapter. 45
71+ Section 2. Paragraph (a) of subsection (2) of section 46
72+727.104, Florida Statutes, is amended, and subsection (3) is 47
73+added to that section, to read: 48
74+ 727.104 Commencement of proceedings. — 49
75+ (2) Within 10 days after delivery of the assignment to the 50
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8484 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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88-the assignor had its principal place of business and shall 51
89-thereafter promptly record a certified copy of the assignment , 52
90-with or without the schedules, in each county in this state in 53
91-which real property where assets of the estate are located. The 54
92-assignee shall promptly rec ord a certified copy of the 55
93-assignment, without schedules, in the land records of each 56
94-recording jurisdiction outside of this state in which real 57
95-property assets of the estate are located. If a certified copy 58
96-of the assignment is not acceptable for recordi ng in a 59
97-particular jurisdiction, the assignee shall record a lis pendens 60
98-or similar notice of action permitted in that jurisdiction 61
99-referencing the pendency of the proceedings under this chapter. 62
100-In either instance, the recorded original assignment, certif ied 63
101-copy of the assignment, or lis pendens or similar notice of 64
102-action shall include the legal description of any real property 65
103-located in the recording jurisdiction. 66
88+assignee, the assignee shall: 51
89+ (a)1. Record the original assignment , with or without the 52
90+schedules, in the public records of the county in which the 53
91+assignor had its principal place of business and shall 54
92+thereafter promptly record ; or 55
93+ 2. If recording in a county outside the state is not 56
94+possible, file or publish in a manner reasonably calculated, 57
95+under all the circumstances, to apprise interested parties of 58
96+the pendency of the assignment, a certified copy of the 59
97+assignment, with or without the schedules, in each county where 60
98+assets of the estate are located. 61
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100+The assignee's good faith effort to record, file, or publish in 63
101+accordance with this paragraph is effective eve n if a minor 64
102+error or omission exists that renders the assignee's effort 65
103+incomplete or seriously misleading. 66
104104 (3) The court, at its discretion, may determine proper 67
105105 compliance with Rule 1.200, Florida Rules of Civil Procedure, in 68
106106 an action filed under thi s chapter, including, but not limited 69
107107 to, scheduling a case management conference and requiring a 70
108108 periodic status report as warranted by the circumstances of the 71
109109 case. 72
110110 Section 3. Section 727.105, Florida Statutes, is amended 73
111111 to read: 74
112112 727.105 Actions Proceedings against assignee.— 75
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121121 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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125125 (1) An action Proceedings may not be commenced against the 76
126126 assignee except as provided in this chapter, but nothing 77
127127 contained in this chapter affects any action or proceeding by a 78
128128 governmental unit to enforce such governmen tal unit's police or 79
129129 regulatory power. Except in the case of a consensual lienholder 80
130130 enforcing its rights in personal property or real property 81
131131 collateral, there shall be no levy, execution, attachment, or 82
132132 the like in respect of any judgment against assets of the estate 83
133133 in the possession, custody, or control of the assignee. 84
134134 (2) The assignee may: 85
135135 (a) Rely on any outstanding court orders, judgments, 86
136136 decrees, and rules of law, and is not personally liable for the 87
137137 assignee's own good faith compliance with any such orders, 88
138138 judgments, decrees, or rules of law. 89
139139 (b) Rely on, and shall be protected in any action by, any 90
140140 resolution, certificate, statement, opinion, report, notice, 91
141141 consent, or other document believed by the assignee to be 92
142142 genuine and to have bee n signed or presented by the proper 93
143143 parties. 94
144144 (3) The assignee is not personally liable for: 95
145145 (a) The assignee's good faith compliance with his or her 96
146146 duties and responsibilities as an assignee. 97
147147 (b) The assignee's acts or omissions, except upon a 98
148148 finding by the court presiding over an action or proceeding 99
149149 under this chapter that the assignee's acts or omissions: 100
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158158 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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162162 1. Were outside the scope of his or her duties; 101
163163 2. Were grossly negligent; or 102
164164 3. Constitute malfeasance. 103
165165 (4)(a) Except for matters in paragraph (3)(b), any 104
166166 creditor or party in interest seeking to assert a claim against 105
167167 the assignee must look only to the assignment estate assets and 106
168168 any bond posted by the assignee to satisfy any liability, and 107
169169 the assignee is not personally liable to sat isfy any such 108
170170 obligation. 109
171171 (b) Any creditor or party in interest seeking to assert a 110
172172 claim against the assignee under paragraph (3)(b) must first 111
173173 obtain leave of the court presiding over the assignment action 112
174174 or proceeding based on a finding set forth in paragraph (3)(b). 113
175175 (5) Any claim against the assignee, or any agent or 114
176176 professional of the assignee who assists the assignee in the 115
177177 administration of the estate, must be brought before the 116
178178 discharge of the assignee under s. 727.116 to the extent the 117
179179 claim has accrued and is predicated upon facts that are known or 118
180180 reasonably should have been known at the time of the discharge, 119
181181 at which point all such claims are deemed released and forever 120
182182 barred. 121
183183 (6) This section does not alter or limit any other 122
184184 immunity otherwise held by the assignee or any agent or 123
185185 professional of the assignee who assists the assignee in the 124
186186 administration of the estate. 125
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195195 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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199199 Section 4. Section 727.106, Florida Statutes, is amended 126
200200 to read: 127
201201 727.106 Turnover.—Any person or entity , other than a 128
202202 creditor, in possession, custody, or control of assets of the 129
203203 estate, other than a creditor holding a lien or a right of 130
204204 setoff or recoupment with respect to the subject assets, shall, 131
205205 upon notice by the assignee of the assignment proceeding, 132
206206 promptly turn such assets over to the assignee or the assignee's 133
207207 duly authorized representative. 134
208208 Section 5. Paragraphs (a) and (b) of subsection (3) of 135
209209 section 727.110, Florida Statutes, are amended to read: 136
210210 727.110 Actions by assignee and other parties i n 137
211211 interest.— 138
212212 (3) As to an assignee's rejection of an unexpired lease of 139
213213 nonresidential real property or of personal property, as 140
214214 provided under ss. 727.108(5) and 727.109(6): 141
215215 (a) The assignee shall file a notice of rejection with the 142
216216 court and serve a copy, by negative notice as defined in s. 143
217217 727.103, on the owner or lessor of the affected property and, 144
218218 for personal property, on the landlord of the premises on which 145
219219 the property is located. A notice of rejection relating to 146
220220 personal property must identi fy the affected property, the 147
221221 address at which the affected property is located, the name and 148
222222 telephone number of the person in possession of the affected 149
223223 property, and the deadline for removal of the affected property. 150
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232232 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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236236 (b) The effective date of the reje ction is the date of 151
237237 entry of a court order authorizing such rejection , unless the 152
238238 court orders otherwise . 153
239239 Section 6. This act shall take effect July 1, 2023. 154