Florida Senate - 2022                                    SB 1888
       
       
        
       By Senator Gruters
       
       
       
       
       
       23-01617-22                                           20221888__
    1                        A bill to be entitled                      
    2         An act relating to federal home loan banks; amending
    3         s. 626.9541, F.S.; conforming cross-references;
    4         amending s. 631.011, F.S.; defining the terms “federal
    5         home loan bank” and “insurer-member”; conforming
    6         cross-references; amending s. 631.025, F.S.;
    7         conforming a cross-reference; amending s. 631.041,
    8         F.S.; conforming a cross-reference; providing
    9         construction; requiring federal home loan banks to
   10         repurchase certain stock under certain circumstances;
   11         requiring federal home loan banks to provide specified
   12         processes and timelines within a specified timeframe;
   13         requiring federal home loan banks to provide options
   14         for insurer-members to renew or restructure loans
   15         under certain circumstances; amending s. 631.261,
   16         F.S.; prohibiting receivers for insurer-members from
   17         voiding certain transfers; providing an exception;
   18         providing construction; amending s. 817.2341, F.S.;
   19         conforming cross-references; providing an effective
   20         date.
   21          
   22  Be It Enacted by the Legislature of the State of Florida:
   23  
   24         Section 1. Paragraph (w) of subsection (1) of section
   25  626.9541, Florida Statutes, is amended to read:
   26         626.9541 Unfair methods of competition and unfair or
   27  deceptive acts or practices defined.—
   28         (1) UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE
   29  ACTS.—The following are defined as unfair methods of competition
   30  and unfair or deceptive acts or practices:
   31         (w) Soliciting or accepting new or renewal insurance risks
   32  by insolvent or impaired insurer prohibited; penalty.—
   33         1. Whether or not delinquency proceedings as to the insurer
   34  have been or are to be initiated, but while such insolvency or
   35  impairment exists, no director or officer of an insurer, except
   36  with the written permission of the office, shall authorize or
   37  permit the insurer to solicit or accept new or renewal insurance
   38  risks in this state after such director or officer knew, or
   39  reasonably should have known, that the insurer was insolvent or
   40  impaired. “Impaired” includes impairment of capital or surplus,
   41  as defined in s. 631.011 s. 631.011(12) and (13).
   42         2. Any such director or officer, upon conviction of a
   43  violation of this paragraph, is guilty of a felony of the third
   44  degree, punishable as provided in s. 775.082, s. 775.083, or s.
   45  775.084.
   46         Section 2. Present subsections (9) through (15) and (16)
   47  through (23) of section 631.011, Florida Statutes, are
   48  redesignated as subsections (10) through (16) and (18) through
   49  (25), respectively, new subsections (9) and (17) are added to
   50  that section, and present subsections (14) and (16) of that
   51  section are amended, to read:
   52         631.011 Definitions.—For the purpose of this part, the
   53  term:
   54         (9) “Federal home loan bank” means a federal home loan bank
   55  established under the Federal Home Loan Bank Act, 12 U.S.C. s.
   56  1421, et seq.
   57         (15)(14) “Insolvency” means that all the assets of the
   58  insurer, if made immediately available, would not be sufficient
   59  to discharge all its liabilities or that the insurer is unable
   60  to pay its debts as they become due in the usual course of
   61  business. When the context of any provision of this code so
   62  indicates, insolvency also includes and is defined as
   63  “impairment of surplus,” as defined in subsection (14)(13), and
   64  “impairment of capital,” as defined in subsection (13)(12).
   65         (17)“Insurer-member” means an insurer who is a member of a
   66  federal home loan bank.
   67         (18)(16) “Liabilities,” as used in subsections (13)(12) and
   68  (15)(14), means all liabilities, including those specifically
   69  required in s. 625.041.
   70         Section 3. Section 631.025, Florida Statutes, is amended to
   71  read:
   72         631.025 Persons subject to this part.—Delinquency
   73  proceedings authorized by this part may be initiated against any
   74  insurer, as defined in s. 631.011 s. 631.011(15), if the
   75  statutory grounds are present as to that insurer, and the court
   76  may exercise jurisdiction over any person required to cooperate
   77  with the department and office pursuant to s. 631.391 and over
   78  all persons made subject to the court’s jurisdiction by other
   79  provisions of law. Such persons include, but are not limited to:
   80         (1) A person transacting, or that has transacted, insurance
   81  business in or from this state and against whom claims arising
   82  from that business may exist now or in the future.
   83         (2) A person purporting to transact an insurance business
   84  in this state and any person who acts as an insurer, transacts
   85  insurance, or otherwise engages in insurance activities in or
   86  from this state, with or without a certificate of authority or
   87  proper authority from the department or office, against whom
   88  claims arising from that business may exist now or in the
   89  future.
   90         (3) An insurer with policyholders resident in this state.
   91         (4) All other persons organized or in the process of
   92  organizing with the intent to transact an insurance business in
   93  this state.
   94         Section 4. Present subsections (2) through (6) of section
   95  631.041, Florida Statutes, are redesignated as subsections (3)
   96  through (7), respectively, a new subsection (2) is added to that
   97  section, and subsection (1) of that section is amended, to read:
   98         631.041 Automatic stay; relief from stay; injunctions.—
   99         (1) An application or petition under s. 631.031 operates as
  100  a matter of law as an automatic stay applicable to all persons
  101  and entities, other than the receiver and the office, which
  102  shall be permanent and survive the entry of an order of
  103  conservation, rehabilitation, or liquidation, and which shall
  104  prohibit:
  105         (a) The commencement or continuation of judicial,
  106  administrative, or other action or proceeding against the
  107  insurer or against its assets or any part thereof;
  108         (b) The enforcement of a judgment against the insurer or an
  109  affiliate obtained either before or after the commencement of
  110  the delinquency proceeding;
  111         (c) Any act to obtain possession of property of the
  112  insurer;
  113         (d) Any act to create, perfect, or enforce a lien against
  114  property of the insurer, except that a secured claim as defined
  115  in s. 631.011 s. 631.011(21) may proceed under s. 631.191 after
  116  the order of liquidation is entered;
  117         (e) Any act to collect, assess, or recover a claim against
  118  the insurer, except claims as provided for under this chapter;
  119  and
  120         (f) The setoff or offset of any debt owing to the insurer,
  121  except offsets as provided in s. 631.281.
  122         (2)(a)After the seventh day following the filing of an
  123  application or a petition under s. 631.031, a stay does not
  124  apply to or prohibit a federal home loan banks exercise of its
  125  rights regarding collateral pledged by an insurer-member.
  126         (b)If a federal home loan bank exercises its rights
  127  regarding collateral pledged by an insurer-member who is subject
  128  to a delinquency proceeding pursuant to s. 631.031, the federal
  129  home loan bank must repurchase any outstanding capital stock in
  130  excess of the amount of federal home loan bank stock which the
  131  insurer-member is required to hold as a minimum investment, to
  132  the extent the federal home loan bank in good faith determines
  133  the repurchase to be permissible under applicable laws,
  134  regulations, regulatory obligations, and the federal home loan
  135  bank’s capital plan and to be consistent with the federal home
  136  loan bank’s current capital stock practices applicable to its
  137  entire membership.
  138         (c)Following the appointment of a receiver for an insurer
  139  member, the federal home loan bank shall, within 10 business
  140  days after a request from the receiver, provide a process and
  141  establish a timeline for all of the following:
  142         1.The release of collateral that exceeds the amount
  143  required to support secured obligations remaining after any
  144  repayment of loans, as determined in accordance with the
  145  applicable agreements between the federal home loan bank and the
  146  insurer-member.
  147         2.The release of any of the insurer-member’s collateral
  148  remaining in the federal home loan bank’s possession following
  149  repayment in full of all outstanding secured obligations of the
  150  insurer-member.
  151         3.The payment of fees the insurer-member owes and the
  152  operation of deposits and other accounts of the insurer-member
  153  with the federal home loan bank.
  154         4.The possible redemption or repurchase of federal home
  155  loan bank stock or excess stock of any class which an insurer
  156  member is required to own.
  157         (d)Upon request from a receiver, the federal home loan
  158  bank shall provide any available options for an insurer-member
  159  subject to a delinquency proceeding to renew or restructure a
  160  loan to defer associated prepayment fees, subject to market
  161  conditions, the terms of any loans outstanding to the insurer
  162  member, the applicable policies of the federal home loan bank,
  163  and the federal home loan bank’s compliance with federal laws
  164  and regulations.
  165         Section 5. Paragraph (c) is added to subsection (1) of
  166  section 631.261, Florida Statutes, to read:
  167         631.261 Voidable transfers.—
  168         (1)
  169         (c) The receiver for an insurer-member may not void any
  170  transfer of, or any obligation to transfer, money or any other
  171  property arising under or in connection with any federal home
  172  loan bank security agreement; any pledge, security, collateral,
  173  or guarantee agreement; or any other similar arrangement or
  174  credit enhancement relating to a federal home loan bank security
  175  agreement made in the ordinary course of business and in
  176  compliance with the applicable federal home loan bank agreement.
  177  However, a transfer may be avoided under this section if the
  178  transfer was made with intent to hinder, delay, or defraud the
  179  insurer-member, the receiver for the insurer-member, or existing
  180  or future creditors. This section does not affect a receiver’s
  181  rights regarding advances to an insurer-member in delinquency
  182  proceedings pursuant to 12 C.F.R. s. 1266.4.
  183         Section 6. Paragraph (b) of subsection (2) and paragraph
  184  (b) of subsection (3) of section 817.2341, Florida Statutes, are
  185  amended to read:
  186         817.2341 False or misleading statements or supporting
  187  documents; penalty.—
  188         (2)
  189         (b) If the false entry of a material fact is made with the
  190  intent to deceive any person as to the impairment of capital, as
  191  defined in s. 631.011 s. 631.011(12), of the insurer or entity
  192  or is the significant cause of the insurer or entity being
  193  placed in conservation, rehabilitation, or liquidation by a
  194  court, the person commits a felony of the first degree,
  195  punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  196         (3)
  197         (b) If the material false statement or report or the
  198  material overvaluation is made with the intent to deceive any
  199  person as to the impairment of capital, as defined in s. 631.011
  200  s. 631.011(12), of an insurer or entity organized pursuant to
  201  chapter 624 or chapter 641, or is the significant cause of the
  202  insurer or entity being placed in receivership by a court, the
  203  person commits a felony of the first degree, punishable as
  204  provided in s. 775.082, s. 775.083, or s. 775.084.
  205         Section 7. This act shall take effect July 1, 2022.