Senate Bill sb2118
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    Florida Senate - 2007                                  SB 2118
    By Senator Joyner
    18-619A-07
  1                      A bill to be entitled
  2         An act relating to debts and debtors; amending
  3         s. 222.25, F.S.; providing that personal
  4         property of a specified value is exempt from
  5         legal process if the debtor does not receive a
  6         homestead exemption; amending s. 727.103, F.S.;
  7         redefining the terms "asset" and "assignee";
  8         defining the term "consensual lienholder";
  9         amending s. 727.104, F.S.; revising the
10         assignment and schedule forms; providing forms
11         for verification and acceptance under oath for
12         assignments and schedules; amending s. 727.105,
13         F.S.; authorizing a consensual lienholder only
14         to enforce a security interest against the
15         assets of an estate; amending s. 727.108, F.S.;
16         revising and providing additional duties for
17         the assignee; amending s. 727.109, F.S.;
18         providing additional powers of the court;
19         amending s. 727.110, F.S.; conforming
20         cross-references; amending s. 727.111, F.S.;
21         requiring the assignee to give notice of the
22         assignee's continued operation of the
23         assignor's business; authorizing the assignee
24         to take action as described in the notice by
25         order of the court; requiring that notice be
26         given to all consensual lienholders and
27         counsel; amending s. 727.112, F.S.; providing
28         limitations on a claim for damages; amending s.
29         727.113, F.S.; authorizing a creditor of the
30         assignor to file an objection to a claim;
31         requiring an assignee to create a claims
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 1         register; providing that an assignee or any
 2         creditor has standing to challenge any claim by
 3         another creditor; authorizing certain creditors
 4         to file a claim for an unsecured deficiency
 5         within a certain time; amending s. 727.114,
 6         F.S.; providing that certain creditors are
 7         unsecured creditors for purpose of priority of
 8         distribution; revising the type and amount of
 9         claims receiving a priority distribution;
10         providing that a subordination agreement is
11         enforceable; providing that certain claims are
12         subordinate to other claims; providing an
13         exception for a claim for common stock;
14         providing an effective date.
15  
16  Be It Enacted by the Legislature of the State of Florida:
17  
18         Section 1.  Section 222.25, Florida Statutes, is
19  amended to read:
20         222.25  Other individual property exempt from legal
21  process.--The following property is exempt from attachment,
22  garnishment, or other legal process:
23         (1)  A debtor's interest, not to exceed $1,000 in
24  value, in a single motor vehicle as defined in s. 320.01.
25         (2)  A debtor's interest in any professionally
26  prescribed health aids for the debtor or a dependent of the
27  debtor.
28         (3)  A debtor's interest in a refund or a credit
29  received or to be received, or the traceable deposits in a
30  financial institution of a debtor's interest in a refund or
31  credit, pursuant to s. 32 of the Internal Revenue Code of
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 1  1986, as amended. This exemption does not apply to a debt owed
 2  for child support or spousal support.
 3         (4)  A debtor's interest in personal property, not to
 4  exceed $4,000, if the debtor does not claim or receive the
 5  benefits of a homestead exemption under s. 4, Art. X of the
 6  Florida Constitution.
 7         Section 2.  Section 727.103, Florida Statutes, is
 8  amended to read:
 9         727.103  Definitions.--As used in this chapter, unless
10  the context requires a different meaning, the term:
11         (1)  "Asset" means a legal or equitable interest of the
12  assignor in property, which includes shall include anything
13  that may be the subject of ownership, whether real or
14  personal, tangible or intangible, including claims and causes
15  of action, whether arising by contract or in tort, wherever
16  located, and by whomever held at the date of the assignment,
17  except property exempt by law from forced sale.
18         (2)  "Assignee" means a natural person solely in such
19  person's capacity as an assignee for the benefit of creditors
20  under the provisions of this chapter, which assignee shall not
21  be a creditor or an equity security holder or have any
22  interest adverse to the interest of the estate.
23         (3)  "Assignor" means the person or entity that which
24  has executed and delivered the assignment to the assignee.
25         (4)  "Assignment" means an assignment for the benefit
26  of creditors made under this chapter.
27         (5)  "Consensual lienholder" means a creditor that has
28  been granted a security interest or lien in personal property
29  or real property of the assignor before the date on which the
30  petition is filed with the court, and whose security or lien
31  has been perfected in accordance with applicable law.
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 1         (6)(5)  "Court" means the circuit court where the
 2  petition is filed in accordance with s. 727.104(2).
 3         (7)(6)  "Creditor" means any person having a claim
 4  against the assignor, whether such claim is contingent,
 5  liquidated, unliquidated, or disputed.
 6         (8)(7)  "Estate" means all of the assets of the
 7  assignor.
 8         (9)(8)  "Filing date" means the date upon which the
 9  original petition is filed in accordance with s. 727.104(2).
10         (10)(9)  "Lien" means a charge against or an interest
11  in property to secure payment of a debt or performance of an
12  obligation, and includes a security interest created by
13  agreement, a judicial lien obtained by legal or equitable
14  process or proceedings, a common-law lien, or a statutory
15  lien.
16         (11)(10)  "Liquidation value" means the value in cash
17  obtainable upon a forced sale of assets after payment of valid
18  liens encumbering said assets.
19         (12)(11)  "Petition" means the initial document filed
20  with the court, as set forth in s. 727.104(2), establishing
21  the court's jurisdiction under this chapter.
22         Section 3.  Subsection (1) of section 727.104, Florida
23  Statutes, is amended to read:
24         727.104  Commencement of proceedings.--
25         (1)(a)  An irrevocable assignment and schedules shall
26  be made in writing, containing the name and address of the
27  assignor and assignee and providing for an equal distribution
28  of the estate according to the priorities set forth in s.
29  727.114.
30         (b)  The assignment shall be in substantially the
31  following form:
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 1  
 2                            ASSIGNMENT
 3  
 4  ASSIGNMENT, made this .... day of ...., ...(year)..., between
 5  ...., with a principal place of business at ...., hereinafter
 6  "assignor," and ...., whose address is ...., hereinafter
 7  "assignee."
 8         WHEREAS, the assignor has been engaged in the business
 9  of ........;
10         WHEREAS, the assignor is indebted to creditors, as set
11  forth in Schedule A annexed hereto, is unable to pay its debts
12  as they become due, and is desirous of providing for the
13  payment of its debts, so far as it is possible by an
14  assignment of all of its assets for that purpose.
15         NOW, THEREFORE, the assignor, in consideration of the
16  assignee's acceptance of this assignment, and for other good
17  and valuable consideration, hereby grants, assigns, conveys,
18  transfers, and sets over, unto the assignee, her or his
19  successors and assigns, all of its assets, except such assets
20  as are exempt by law from levy and sale under an execution,
21  including, but not limited to, all real property, fixtures,
22  goods, stock, inventory, equipment, furniture, furnishings,
23  accounts receivable, bank deposits, cash, promissory notes,
24  cash value and proceeds of insurance policies, claims and
25  demands belonging to the assignor, and all books, records, and
26  electronic data pertaining to all such assets, wherever such
27  assets may be located, hereinafter the "estate," as which
28  assets are, to the best knowledge and belief of the assignor,
29  set forth on Schedule B annexed hereto.
30         The assignee shall take possession of, and protect and
31  preserve, all such assets and administer the estate in
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 1  accordance with the provisions of chapter 727, Florida
 2  Statutes, and shall liquidate the assets of the estate with
 3  reasonable dispatch and convert the estate into money, collect
 4  all claims and demands hereby assigned as may be collectible,
 5  and pay and discharge all reasonable expenses, costs, and
 6  disbursements in connection with the execution and
 7  administration of this assignment from the proceeds of such
 8  liquidations and collections.
 9         The assignee shall then pay and discharge in full, to
10  the extent that funds are available in the estate after
11  payment of administrative expenses, costs, and disbursements,
12  all of the debts and liabilities now due from the assignor,
13  including interest on such debts and liabilities.  If funds of
14  the estate shall not be sufficient to pay such debts and
15  liabilities in full, then the assignee shall pay from funds of
16  the estate such debts and liabilities, on a pro rata basis and
17  in proportion to their priority as set forth in s. 727.114,
18  Florida Statutes.
19         If In the event that all debts and liabilities are paid
20  in full, any funds of the estate remaining shall be returned
21  to the assignor.
22         To accomplish the purposes of this assignment, the
23  assignor hereby appoints the assignee its true and lawful
24  attorney, irrevocable, with full power and authority to do all
25  acts and things which may be necessary to execute the
26  assignment hereby created; to demand and recover from all
27  persons all assets of the estate; to sue for the recovery of
28  such assets; to execute, acknowledge, and deliver all
29  necessary deeds, instruments, and conveyances; and to appoint
30  one or more attorneys under her or him to assist the assignee
31  in carrying out her or his duties hereunder.
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 1         The assignor hereby authorizes the assignee to sign the
 2  name of the assignor to any check, draft, promissory note, or
 3  other instrument in writing which is payable to the order of
 4  the assignor, or to sign the name of the assignor to any
 5  instrument in writing, whenever it shall be necessary to do
 6  so, to carry out the purpose of this assignment.
 7         The assignee hereby accepts the trust created by the
 8  assignment, and agrees with the assignor that the assignee
 9  will faithfully and without delay carry out her or his duties
10  under the assignment.
11  
12                                               ................
13                                                   Assignor
14                                                       
15                                               ................
16                                                   Assignee
17  
18  STATE OF FLORIDA
19  COUNTY OF ........
20  
21         The foregoing assignment was acknowledged before me
22  this .... day of ...., ...(year)..., by ...., as assignor, and
23  by ...., as assignee, for the purposes therein expressed.
24  
25           ...(Signature of Notary Public - State of Florida)...
26           ...(Print, Type, or Stamp Commissioned Name of Notary
27  Public)...
28  
29         Personally Known .... OR Produced Identification ....
30  
31         Type of Identification Produced............
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 1  
 2  
 3         (c)  The assignment shall have annexed thereto as
 4  Schedule A a true list of all of the assignor's known
 5  creditors, their mailing addresses, the amount and nature of
 6  their claims, and whether their claims are disputed; and as
 7  Schedule B a true list of all assets of the estate, including
 8  the estimated liquidation value of the assets, their location,
 9  and, if real property, a legal description thereof, as of the
10  date of the assignment.
11         (d)  The schedules shall be in substantially the
12  following forms:
13  
14                    SCHEDULE A--CREDITOR LIST
15  
16  1.  List all secured creditors showing:
17                                              Whether or
18  Name    Address     Amount   Collateral     not disputed
19  
20  2.  List all wages owed showing:
21                                              Whether or
22  Name    Address    Amount                   not disputed
23  
24  3.  Consumer deposits:
25                                              Whether or
26  Name    Address    Amount                   not disputed
27  
28  4.  List all taxes owed showing:
29                                              Whether or
30  Name    Address    Amount                   not disputed
31  
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 1  5.  List all unsecured claims showing:
 2                                              Whether or
 3  Name    Address    Amount                   not disputed
 4  
 5  6.  List all owners or shareholders showing:
 6  
 7  Name    Address              Percent of Ownership
 8  
 9  7.  List all pending litigation and opposing counsel of
10  record:
11  
12  Style   Parties              Opposing Counsel of Record
13  
14                    SCHEDULE B--LIST OF ASSETS
15  
16  List each category of assets and for each give approximate
17  value obtainable for the asset on the date of assignment, and
18  address where asset is located.
19  
20  I.  Nonexempt Property
21  
22    Description and                            Liquidation Value
23    Location                               at Date of Assignment
24  
25  1.  Legal description and street address of real estate,
26  including leasehold interests:
27  2.  Fixtures:
28  3.  Cash and bank accounts:
29  4.  Inventory:
30  5.  Accounts receivable:
31  6.  Equipment:
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 1  7.  Prepaid expenses, including deposits, insurance, rents,
 2  and utilities:
 3  8.  Other, including loans to third parties, claims, and
 4  choses in action:
 5  
 6  II.  Exempt Property
 7  
 8    Description and                            Liquidation Value
 9    Location                               at Date of Assignment
10  
11         (e)  The assignment and schedules shall be duly
12  verified upon oath by the assignor, and accepted by the
13  assignee under oath in substantially the following form:.
14  
15                    VERIFICATION OF ASSIGNMENT
16                    AND SCHEDULES BY ASSIGNOR
17  
18         The undersigned, (name), (position with assignor) of
19  (assignor), hereby verifies the Assignment of all of its
20  rights, title, and interest in and to all of its assets, as
21  indicated on the attached Schedules to that Assignment as
22  filed with this Court on (date), and further verifies each of
23  the facts set forth in the Schedules annexed to the Assignment
24  to the best of my knowledge and belief.
25                                                      
26                            Name, Position with Assignor
27  
28  STATE OF FLORIDA
29  COUNTY OF ........
30  
31  
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 1         Sworn to and subscribed before me this .... day of
 2  ...., ...(year)....
 3  
 4           ...(Signature of Notary Public - State of Florida)...
 5           ...(Print, Type, or Stamp Commissioned Name of Notary
 6  Public)...
 7  
 8         Personally Known .... OR Produced Identification ....
 9  
10         Type of Identification Produced............
11  
12                      ACCEPTANCE BY ASSIGNEE
13  
14         The undersigned, (assignee), the Assignee herein, duly
15  acknowledges that the Assignee accepts delivery of the
16  assignment and that he or she will duly perform the duties
17  imposed upon the Assignee pursuant to chapter 727, Florida
18  Statutes.
19  
20                                                
21                                    Assignee
22  
23  
24  STATE OF FLORIDA
25  COUNTY OF ........
26  
27         Sworn to and subscribed before me this .... day of
28  ...., ...(year)....
29  
30           ...(Signature of Notary Public - State of Florida)...
31           ...(Print, Type, or Stamp Commissioned Name of Notary
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 1  Public)...
 2  
 3         Personally Known .... OR Produced Identification ....
 4  
 5         Type of Identification Produced............
 6  
 7         Section 4.  Section 727.105, Florida Statutes, is
 8  amended to read:
 9         727.105  Proceedings against assignee.--Proceedings No
10  proceeding may not be commenced against the assignee except as
11  provided in this chapter, but nothing contained in this
12  chapter affects herein shall affect any action or proceeding
13  by a governmental unit to enforce such governmental unit's
14  police or regulatory power. Except in the case of a consensual
15  lienholder secured creditor enforcing its rights in personal
16  property or real property collateral under chapter 679, there
17  shall be no levy, execution, attachment, or the like in
18  respect of any judgment against assets of the estate, other
19  than real property, in the possession, custody, or control of
20  the assignee.
21         Section 5.  Section 727.108, Florida Statutes, is
22  amended to read:
23         727.108  Duties of assignee.--The assignee shall:
24         (1)  Collect and reduce to money the assets of the
25  estate, whether by suit in any court of competent jurisdiction
26  or by public or private sale, including, but not limited to,
27  prosecuting any tort claims or causes of action which were
28  previously held by the assignor, regardless of any generally
29  applicable law concerning the nonassignability of tort claims
30  or causes of action, and;
31  
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 1         (a)  With respect to the estate's claims and causes of
 2  action, the assignee may prosecute such claims or causes of
 3  action as provided in this section or sell and assign, in
 4  whole or in part, such claims or causes of action to another
 5  person or entity on the terms that the assignee determines are
 6  in the best interest of the estate under to s. 727.111(4); and
 7         (b)  In an action in any court by the assignee or the
 8  first immediate transferee of the assignee, other than an
 9  affiliate or insider of the assignor, against a defendant to
10  assert a claim or chose in action of the estate, the claim is
11  not subject to, and any remedy may not be limited by, a
12  defense based on the assignor's acquiescence, cooperation, or
13  participation in the wrongful act by the defendant which forms
14  the basis of the claim or chose in action.;
15         (2)  Within 30 days after the filing date, examine the
16  assignor, under oath, concerning the acts, conduct, assets,
17  liabilities, and financial condition of the assignor or any
18  matter related to the assignee's administration of the estate,
19  unless excused by the court for good cause shown.;
20         (3)  Give notice to creditors of all matters concerning
21  the administration of the estate, pursuant to the provisions
22  of s. 727.111.;
23         (4)  Conduct the business of the assignor for a limited
24  period that may not exceed 14 calendar days, if in the best
25  interest of the estate, or for a longer period limited
26  periods, if, in the best interest of the estate, upon notice
27  and until such time as an objection, if any, is sustained by
28  the court; however, the assignee may not operate the business
29  of the assignor for longer than 45 calendar days without a
30  court order authorizing such operation if an objection by a
31  party in interest is interposed to the assignee's motion for
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 1  authority to operate the assignor's business. authorization of
 2  the court;
 3         (5)  To the extent reasonable in the exercise of the
 4  assignee's business judgment, reject an unexpired lease of
 5  nonresidential real property or of personal property under
 6  which the assignor is the lessee.
 7         (6)(5)  To the extent reasonable and necessary, pay
 8  administrative expenses of the estate, subject, however, to s.
 9  727.114(1).;
10         (7)(6)  To the extent necessary, employ at the expense
11  of the estate one or more appraisers, auctioneers,
12  accountants, attorneys, or other professional persons, to
13  assist the assignee in carrying out his or her duties under
14  this chapter.;
15         (8)(7)  Keep regular accounts and furnish such
16  information concerning the estate as may be reasonably
17  requested by creditors or other parties in interest.;
18         (9)(8)  File with the court an interim report of
19  receipts and disbursements within 6 months after the filing
20  date unless excused by the court or unless the estate has been
21  sooner distributed in full.;
22         (10)(9)  Examine the validity and priority of all
23  claims against the estate.;
24         (11)(10)  Abandon assets to duly perfected secured or
25  lien creditors, where, after due investigation, he or she
26  determines that the estate has no equity in such assets or
27  such assets are burdensome to the estate or are of
28  inconsequential value and benefit to the estate.;
29         (12)(11)  Pay dividends and secured or priority claims
30  as often as is compatible with the best interests of the
31  estate and close the estate as expeditiously as possible.; and
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 1         (13)(12)  File with the court a final report of all
 2  receipts and disbursements and file an application for his or
 3  her discharge pursuant to the provisions of s. 727.116.
 4         Section 6.  Section 727.109, Florida Statutes, is
 5  amended to read:
 6         727.109  Power of the court.--The court shall have
 7  power to:
 8         (1)  Enforce all provisions of this chapter.;
 9         (2)  Set, approve, or reconsider the amount of the
10  assignee's bond.;
11         (3)  Upon notice and a hearing, if requested, authorize
12  the business of the assignor to be conducted for limited
13  periods by the assignee for longer than 14 calendar days, if
14  in the best interest of the estate.;
15         (4)  Allow or disallow claims against the estate and
16  determine their priority and establish a deadline, upon motion
17  by the assignee, for the filing of all claims against the
18  assignment estate arising on or after the date on which the
19  assignor's petition for assignment was filed with the court.
20  The deadline may not occur less than 30 days before notice is
21  received by mail of the order establishing the deadline.;
22         (5)  Determine any claims of exemption by the assignor,
23  if disputed.;
24         (6)  Authorize the assignee to reject an unexpired
25  lease of nonresidential real property or of personal property
26  under which the assignor is the lessee pursuant to s.
27  727.108(5).
28         (7)  Upon notice as provided under s. 727.111 to all
29  creditors and consensual lienholders, hear and determine a
30  motion brought by the assignee for approval of a proposed sale
31  of assets of the estate other than in the ordinary course of
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 1  business, or the compromise or settlement of a controversy,
 2  and enter an order granting such motion notwithstanding the
 3  lack of objection if the assignee reasonably believes that
 4  such order is necessary to proceed with the action
 5  contemplated by the motion.
 6         (8)(6)  Hear and determine any of the following actions
 7  brought by the assignee, which she or he is hereby empowered
 8  to maintain:
 9         (a)  Enforce the turnover of assets of the estate
10  pursuant to s. 727.106.;
11         (b)  Determine the validity, priority, and extent of a
12  lien or other interests in assets of the estate, or to
13  subordinate or avoid an unperfected security interest pursuant
14  to the assignee's rights as a lien creditor under s. 679.301.;
15         (c)  Avoid any conveyance or transfer void or voidable
16  by law.;
17         (9)(7)  Approve the assignee's final report and interim
18  and final distributions to creditors.;
19         (10)(8)  Approve reasonable fees and the reimbursement
20  of expenses for the assignee and all professional persons
21  retained by the assignee, upon objection of a party in
22  interest or upon the court's own motion.;
23         (11)(9)  Hear and determine any motion brought by a
24  party in interest or by the court to close the estate after
25  the passage of 1 year from the date of filing of the
26  petition.;
27         (12)(10)  Discharge the assignee and the assignee's
28  surety from liability upon matters included in the assignee's
29  final report.;
30         (13)(11)  Reopen estates for cause shown.;
31  
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 1         (14)(12)  Punish by contempt any failure to comply with
 2  the provisions of this chapter or any order of the court made
 3  pursuant to this chapter.; and
 4         (15)(13)  Exercise any such other and further powers
 5  that as are necessary to enforce or carry out the provisions
 6  of this chapter.
 7         Section 7.  Subsection (1) of section 727.110, Florida
 8  Statutes, is amended to read:
 9         727.110  Actions by assignee and other parties in
10  interest.--
11         (1)  All matters requiring court authorization under
12  this chapter shall be brought by motion, except for the
13  following matters, which shall be brought by supplemental
14  proceeding, as provided in subsection (2):
15         (a)  An action by the assignee to recover money or
16  other assets of the estate;
17         (b)  An action by the assignee to determine the
18  validity, priority, or extent of a lien or other interest in
19  property or to subordinate or avoid an unperfected security
20  interest under s. 727.109(8)(b) s. 727.109(6)(b); and
21         (c)  An action by the assignee to avoid any conveyance
22  or transfer void or voidable by law under s. 727.109(8)(c) s.
23  727.109(6)(c).
24         Section 8.  Subsections (4) and (8) of section 727.111,
25  Florida Statutes, are amended to read:
26         727.111  Notice.--
27         (4)  The assignee shall give the assignor and all
28  creditors not less than 20 days' notice by mail of a proposed
29  sale of assets of the estate other than in the ordinary course
30  of business, the assignee's continued operation of the
31  assignor's business for longer than 14 calendar days, the
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 1  compromise or settlement of a controversy, and the payment of
 2  fees and expenses to the assignee and to professional persons
 3  employed by the assignee pursuant to s. 727.108(7) s.
 4  727.108(6). Any and all objections to the proposed action must
 5  be filed and served upon the assignee and the assignee's
 6  attorney, if any, not less than 3 days before the date of the
 7  proposed action. The notice must shall include a description
 8  of the proposed action to be taken, and the date of the
 9  proposed action, and shall set forth the date and place for
10  the hearing at which any objections will shall be heard.  If
11  no objections are not timely filed and served, the assignee
12  may take such action as described in the notice without
13  further order of the court or may obtain an order of the court
14  granting such motion if the assignee reasonably believes that
15  the order is necessary to proceed with the action contemplated
16  by the motion.
17         (8)  Wherever notice is required to be given under this
18  chapter, a certificate of service of such notice shall be
19  filed with the court and notice shall be given to all
20  consensual lienholders and counsel who have filed a notice of
21  appearance with the court or who are identified in the
22  assignor's schedules.
23         Section 9.  Subsections (6) and (7) are added to
24  section 727.112, Florida Statutes, to read:
25         727.112  Proof of claim.--
26         (6)  If a claim for damages results from the assignee's
27  rejection of a lease of real property, the claim shall be
28  limited to:
29         (a)  The rent reserved by such lease, without
30  acceleration, for the greater of 1 year or 15 percent of the
31  remaining term of the lease, following the earlier of the date
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 1  of assignment or the date on which the lessor repossessed, or
 2  the lessee surrendered, the leased property; and
 3         (b)1.  Any unpaid rent due under the lease, without
 4  acceleration, on the earlier of the dates specified in
 5  paragraph (a);
 6         2.  Reasonable attorney's fees and costs incurred by
 7  the lessor in connection with the lease; and
 8         3.  The lessor's reasonable costs incurred in reletting
 9  the premises previously leased by the assignor.
10         (7)  If a claim for damages results from the
11  termination of an employment contract, the claim shall be
12  limited to:
13         (a)  The compensation provided by the contract, without
14  acceleration, for 1 year following the earlier of the date of
15  assignment or the date on which the assignor or assignee, as
16  applicable, directed the employee to terminate, or such
17  employee terminated, performance under the contract; and
18         (b)  Any unpaid compensation due under the contract,
19  without acceleration, on the earlier of the dates specified in
20  paragraph (a).
21         Section 10.  Section 727.113, Florida Statutes, is
22  amended to read:
23         727.113  Objections to claims.--
24         (1)  At any time prior to the entry of an order
25  approving the assignee's final report, the assignee or any
26  party in interest, including another creditor of the assignor,
27  may file with the court an objection to a claim, which
28  objection must shall be in writing and shall set forth the
29  nature of the objection.  A copy of the objection, together
30  with notice of hearing thereon, shall be mailed to the
31  creditor at least 20 days prior to the hearing.  All claims
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 1  properly filed with the assignee and not disallowed by the
 2  court shall constitute all claims entitled to distribution
 3  from the estate.
 4         (2)  Following the last day in which a proof of claim
 5  may be served upon the assignee pursuant to s. 727.112(2), the
 6  assignee shall create a register of all creditors that have
 7  filed claims against the assignor's estate and shall make the
 8  register available upon request to any creditor or other party
 9  in interest.
10         (3)  The assignee, as well as any creditor or any party
11  in interest, has standing to challenge the validity, extent,
12  or priority of any claim filed by a creditor against the
13  assignor's estate.
14         (4)  A creditor whose claim is secured by a lien
15  against property of the estate has 60 days following the sale
16  or disposition of the property securing his or her claim to
17  file a claim for an unsecured deficiency, notwithstanding the
18  passage of the last date in which a proof of claim may be
19  served upon the assignee set forth in s. 727.112(2). If such a
20  creditor fails to file with the assignee a deficiency claim
21  within 10 days after the filing and service by mail of the
22  assignee's final report of all receipts and disbursements, the
23  creditor's deficiency claim shall be disallowed as untimely
24  and the creditor is not entitled to share in any distribution
25  made to holders of unsecured claims under s. 727.114(1)(f) on
26  account of its deficiency claim.
27         Section 11.  Section 727.114, Florida Statutes, is
28  amended to read:
29         727.114  Priority of claims.--Allowed claims shall
30  receive distribution under this chapter in the following order
31  
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 1  of priority and, with the exception of paragraph (1)(a)
 2  subsection (1), on a pro rata basis:
 3         (1)(a)  Creditors with liens on assets of the estate,
 4  which liens are duly perfected pursuant to applicable law,
 5  shall receive the proceeds from the disposition of their
 6  collateral, less the reasonable, necessary expenses of
 7  preserving or disposing of such collateral to the extent of
 8  any benefit to such creditors.  If and to the extent that such
 9  proceeds are less than the amount of a creditor's claim or a
10  creditor's lien is avoided pursuant to s. 727.109(8)(c) s.
11  727.109(6)(c), such a creditor shall be deemed to be an
12  unsecured creditor for such deficiency pursuant to paragraph
13  (f) subsection (6) of this section.
14         (b)(2)  Expenses incurred during the administration of
15  the estate, other than those expenses allowable under
16  paragraph (a) subsection (1), including allowed fees and
17  reimbursements of all expenses of the assignee and
18  professional persons employed by the assignee under s.
19  727.108(7), and rent incurred by the assignee in occupying any
20  premises in which the assets of the assignment estate are
21  located or the business of the assignor is conducted, from and
22  after the date of the assignment, through and until the
23  earlier of the date on which the lease for such premises is
24  rejected pursuant to an order of the court or the date of
25  termination of such lease pursuant to s. 727.108(6).
26         (c)(3)  Unsecured claims of governmental units for
27  taxes that which accrued within 3 years before prior to the
28  filing date.
29         (d)(4)  Claims for wages, salaries, or commissions,
30  including vacation, severance, and sick leave pay, or
31  contributions to an employee benefit plan earned by employees
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 1  of the assignor the individual within 180 90 days before of
 2  the filing date or the cessation of the assignor's business,
 3  whichever occurs first, but only to the extent of $10,000
 4  $2,000.
 5         (e)(5)  Allowed unsecured claims, to the extent of
 6  $2,225 $900 for each individual, arising from the deposit with
 7  the assignor before the filing date of money in connection
 8  with the purchase, lease, or rental of property or the
 9  purchase of services for personal, family, or household use by
10  such individuals that were not delivered or provided.
11         (f)(6)  Unsecured claims.
12         (2)  A subordination agreement is enforceable under
13  this chapter to the same extent that such agreement is
14  enforceable under applicable law.
15         (3)  For the purpose of distributions under this
16  chapter, a claim arising from rescission of a purchase or sale
17  of a security of the assignor or of an affiliate of the
18  assignor for damages arising from the purchase or sale of the
19  security or for reimbursement or contribution allowed under
20  this chapter on account of such a claim shall be subordinated
21  to all claims or interests that are senior to or equal to the
22  claim or interest represented by such security, except that if
23  the security is common stock, the claim has the same priority
24  as common stock.
25  
26  If all of the above classes have been paid in full, any
27  residue shall be paid to the assignor.
28         Section 12.  This act shall take effect July 1, 2007.
29  
30  
31  
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 1            *****************************************
 2                          SENATE SUMMARY
 3    Provides a legal-process exemption for personal property
      if the debtor does not receive a homestead exemption.
 4    Revises the assignment and schedule forms for the
      administration of insolvent estates. Provides forms for
 5    verification and acceptance under oath for assignments
      and schedules. Revises the circumstances under which
 6    there is no levy, execution, or attachment against assets
      of an estate. Revises the duties of the assignee.
 7    Provides additional powers of the court. Requires the
      assignee to give notice of the assignee's continued
 8    operation of the assignor's business. Authorizes the
      assignee to take action as described in the notice by
 9    order of the court. Requires that notice be given to all
      consensual lienholders and counsel. Provides limitations
10    on a claim for damages arising from a breach of a lease
      or employment contract. Authorizes a creditor of the
11    assignor to file an objection to a claim. Requires an
      assignee to create a claims register. Provides that an
12    assignee has standing to challenge any claim by a
      creditor. Authorizes certain creditors to file a claim
13    for an unsecured deficiency by a certain time period.
      Provides that certain creditors are unsecured creditors
14    for purpose of priority of distribution. Revises the type
      and amount of claims receiving a priority distribution.
15    Provides that a subordination agreement is enforceable.
      Provides that certain claims are subordinate to other
16    claims.
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