House Bill 0715c1

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    Florida House of Representatives - 1999              CS/HB 715

        By the Committee on Business Regulation & Consumer Affairs
    and Representative Minton





  1                      A bill to be entitled

  2         An act relating to bulk sales; amending s.

  3         726.105, F.S.; specifying certain transfers or

  4         incurred obligations as fraudulent absent

  5         notice to unsecured creditors; creating s.

  6         726.202, F.S.; specifying certain transfers as

  7         fraudulent absent actual notice to unsecured

  8         creditors; providing notice criteria; providing

  9         an exemption; creating s. 726.203, F.S.;

10         providing for liability of affiliates or

11         insiders under certain circumstances; including

12         costs and attorney's fees; providing an

13         effective date.

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15  Be It Enacted by the Legislature of the State of Florida:

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17         Section 1.  Subsection (1) of section 726.105, Florida

18  Statutes, is amended to read:

19         726.105  Transfers fraudulent as to present and future

20  creditors.--

21         (1)  A transfer made or obligation incurred by a debtor

22  is fraudulent as to a creditor, whether the creditor's claim

23  arose before or after the transfer was made or the obligation

24  was incurred, if the debtor made the transfer or incurred the

25  obligation:

26         (a)  With actual intent to hinder, delay, or defraud

27  any creditor of the debtor; or

28         (b)  Without receiving a reasonably equivalent value in

29  exchange for the transfer or obligation, and the debtor:

30         1.  Was engaged or was about to engage in a business or

31  a transaction for which the remaining assets of the debtor

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CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999              CS/HB 715

    190-955-99






  1  were unreasonably small in relation to the business or

  2  transaction; or

  3         2.  Intended to incur, or believed or reasonably should

  4  have believed that he or she would incur, debts beyond his or

  5  her ability to pay as they became due; or

  6         (c)  Without giving the notice to unsecured creditors

  7  required by s. 726.202.

  8         Section 2.  Section 726.202, Florida Statutes, is

  9  created to read:

10         726.202 Notice to unsecured creditors.--

11         (1)  Any debtor who transfers 51 percent or more of the

12  fair market value of the assets, supplies, inventory,

13  merchandise, materials, or other property held by such debtor,

14  not in the ordinary course of the debtor's business, commits a

15  fraudulent transfer if such debtor fails to provide actual

16  notice of the proposed transfer to the debtor's unsecured

17  creditors, by personal delivery or certified mail, and by

18  publication in a local paper, not less than 15 days prior to

19  the effective date of the transfer.

20         (2)  Any debtor who has provided a security agreement

21  to his or her creditors pursuant to the provisions of chapter

22  679 is exempt from the notice requirements under subsection

23  (1) as to such creditors.

24         Section 3.  Section 726.203, Florida Statutes, is

25  created to read:

26         726.203 Liability of affiliates and insiders.--

27         Any affiliate or insider who knowingly participates,

28  either directly or indirectly, in a fraudulent transfer under

29  s. 726.105 shall be personally liable to any secured or

30  unsecured creditor for the full amount of such secured or

31  unsecured creditor's claim, including the cost and attorney's

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CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999              CS/HB 715

    190-955-99






  1  fees incurred by such secured or unsecured creditor in

  2  perfecting such claim.

  3         Section 4.  This act shall take effect October 1, 1999.

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