Florida Senate - 2023                                     SB 600
       
       
        
       By Senator Martin
       
       
       
       
       
       33-00675-23                                            2023600__
    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; providing for the
    7         filing or publishing of an assignment to give notice
    8         to interested parties under certain circumstances;
    9         authorizing courts to determine compliance with a
   10         specified rule; amending s. 727.105, F.S.; authorizing
   11         assignees to rely on certain orders, judgments,
   12         decrees, rules, and documents; specifying that the
   13         assignee is not personally liable for certain good
   14         faith compliance, acts, or omissions; limiting the
   15         assets a creditor or other party in interest may
   16         pursue in an action against an assignee; providing
   17         requirements for a creditor or other party in interest
   18         in certain actions against an assignee; providing
   19         requirements for claims against an assignee or any
   20         agent or professional of the assignee; providing
   21         construction; amending s. 727.106, F.S.; excluding
   22         certain creditors from being required to turn over
   23         assets of the estate upon notice of an assignment
   24         proceeding; amending s. 727.110, F.S.; requiring
   25         assignees to serve a copy of a notice of rejection by
   26         negative notice; authorizing the court to specify an
   27         effective date of rejection in its order of rejection;
   28         providing an effective date.
   29          
   30  Be It Enacted by the Legislature of the State of Florida:
   31  
   32         Section 1. Section 727.101, Florida Statutes, is amended to
   33  read:
   34         727.101 Intent of chapter.—The intent of this chapter is to
   35  provide a uniform procedure for the administration and orderly
   36  liquidation of insolvent estates, and to ensure full reporting
   37  to creditors and equal distribution of assets according to
   38  priorities as established under this chapter.
   39         Section 2. Paragraph (a) of subsection (2) of section
   40  727.104, Florida Statutes, is amended, and subsection (3) is
   41  added to that section, to read:
   42         727.104 Commencement of proceedings.—
   43         (2) Within 10 days after delivery of the assignment to the
   44  assignee, the assignee shall:
   45         (a)1. Record the original assignment, with or without the
   46  schedules, in the public records of the county in which the
   47  assignor had its principal place of business and shall
   48  thereafter promptly record; or
   49         2.If recording in a county outside this state is not
   50  possible, file or publish in a manner reasonably calculated,
   51  under all the circumstances, to apprise interested parties of
   52  the pendency of the assignment a certified copy of the
   53  assignment, with or without the schedules, in each county where
   54  assets of the estate are located.
   55  
   56  The assignee’s good faith effort to record, file, or publish in
   57  accordance with this paragraph is effective even if a minor
   58  error or omission exists that renders the assignee’s effort
   59  incomplete or seriously misleading.
   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.