Florida Senate - 2013                                    SB 1098
       By Senator Richter
       23-00725A-13                                          20131098__
    1                        A bill to be entitled                      
    2         An act relating to general assignments; amending s.
    3         727.103, F.S.; defining the term “negative notice”;
    4         amending s. 727.104, F.S.; requiring an assignee’s
    5         bond to be in at least a specific amount or double the
    6         liquidation value of the unencumbered and liquid
    7         assets of the estate, whichever is higher; amending s.
    8         727.108, F.S.; authorizing an assignee to conduct
    9         certain discovery to determine whether to prosecute
   10         certain claims or causes of action; extending the time
   11         period an assignee may conduct the business of the
   12         assignor; authorizing the assignee to continue
   13         conducting the business of the assignor under certain
   14         circumstances by serving negative notice; amending s.
   15         727.109, F.S.; extending the time period for which a
   16         court may authorize an assignee to conduct the
   17         business of the assignor; amending s. 727.110, F.S.;
   18         providing procedures for an assignee’s rejection of an
   19         unexpired lease of nonresidential real property or of
   20         personal property; requiring the assignee to serve a
   21         notice of rejection on certain persons and file it
   22         with the court; requiring that a notice of rejection
   23         for personal property include certain information
   24         about the affected property; specifying the effective
   25         date of the rejection; requiring the estate’s rights
   26         and obligations to and liability for the affected
   27         property to terminate under certain circumstances;
   28         amending s. 727.111, F.S.; extending the minimum time
   29         period for giving notice to the assignor and
   30         creditors; conforming language; providing a procedure
   31         for serving notice on certain persons; requiring an
   32         objection to be filed and served within a specific
   33         time period; requiring the notice to be in a specified
   34         form; providing that the assignee may take certain
   35         actions if an objection is not filed; requiring the
   36         court to hear a filed objection; authorizing the court
   37         to shorten negative notice under certain
   38         circumstances; providing that a party may raise the
   39         shortened notice period in certain objections;
   40         requiring a certificate of service for negative notice
   41         to be filed with the court under certain
   42         circumstances; requiring negative notice to be given
   43         to certain persons under certain circumstances;
   44         amending s. 727.113, F.S.; providing procedures for
   45         serving an objection to a claim; providing that the
   46         Florida Rules of Civil Procedure apply to objections
   47         to claims in all pending cases beginning on a specific
   48         date; creating s. 727.117, F.S.; requiring an
   49         assignee’s deed to be in a specific form; providing an
   50         effective date.
   52  Be It Enacted by the Legislature of the State of Florida:
   54         Section 1. Present subsection (13) of section 727.103,
   55  Florida Statutes, is redesignated as subsection (14), and a new
   56  subsection (13) is added to that section, to read:
   57         727.103 Definitions.—As used in this chapter, unless the
   58  context requires a different meaning, the term:
   59         (13) “Negative notice” means notice as set forth in s.
   60  727.111(4) which, unless a response is filed within 21 days
   61  after the date of service thereof, allows certain actions set
   62  forth in the notice to occur.
   63         Section 2. Subsection (2) of section 727.104, Florida
   64  Statutes, is amended to read:
   65         727.104 Commencement of proceedings.—
   66         (2) Within 10 days after delivery of the assignment to the
   67  assignee, the assignee shall:
   68         (a) Record the original assignment in the public records of
   69  the county in which the assignor had its principal place of
   70  business and shall thereafter promptly record a certified copy
   71  of the assignment in each county where assets of the estate are
   72  located.;
   73         (b) File, in the office of the clerk of the court in the
   74  county of the assignor’s place of business if it has one, in the
   75  county of its chief executive office if it has more than one
   76  place of business, or in the county of the assignor’s residence
   77  if the assignor is an individual not engaged in business, in
   78  accordance with the procedures for filing a complaint as set
   79  forth in the Florida Rules of Civil Procedure, a petition
   80  setting forth the name and address of the assignor and the name
   81  and address of the assignee; a copy of the assignment, together
   82  with Schedules A and B; and a request that the court fix the
   83  amount of the assignee’s bond to be filed with the clerk of the
   84  court. This bond is shall be subject to reconsideration upon the
   85  motion of any party in interest after notice and hearing. The
   86  bond is shall be payable to the clerk of the court, in an amount
   87  not less than $25,000 or double the liquidation value of the
   88  unencumbered and liquid assets of the estate as set forth in
   89  Schedule B, whichever is higher, conditioned upon the assignee’s
   90  faithful discharge of her or his duties. Within 30 days after
   91  the court enters an order setting the amount of such bond, the
   92  assignee shall file the bond with the clerk of the court, who
   93  shall approve the bond.
   94         Section 3. Subsections (1) and (4) of section 727.108,
   95  Florida Statutes, are amended to read:
   96         727.108 Duties of assignee.—The assignee shall:
   97         (1) Collect and reduce to money the assets of the estate,
   98  whether by suit in any court of competent jurisdiction or by
   99  public or private sale, including, but not limited to,
  100  prosecuting any tort claims or causes of action that which were
  101  previously held by the assignor, regardless of any generally
  102  applicable law concerning the nonassignability of tort claims or
  103  causes of action., and;
  104         (a) With respect to the estate’s claims and causes of
  105  action, the assignee may:
  106         1. Conduct discovery as provided under the Florida Rules of
  107  Civil Procedure to determine whether to prosecute such claims or
  108  causes of actions.
  109         2. Prosecute such claims or causes of action as provided in
  110  this section. or
  111         3. Sell and assign, in whole or in part, such claims or
  112  causes of action to another person or entity on the terms that
  113  the assignee determines are in the best interest of the estate
  114  under to s. 727.111(4).; and
  115         (b) In an action in any court by the assignee or the first
  116  immediate transferee of the assignee, other than an affiliate or
  117  insider of the assignor, against a defendant to assert a claim
  118  or chose in action of the estate, the claim is not subject to,
  119  and any remedy may not be limited by, a defense based on the
  120  assignor’s acquiescence, cooperation, or participation in the
  121  wrongful act by the defendant which forms the basis of the claim
  122  or chose in action.
  123         (4) Conduct the business of the assignor for a limited
  124  period that may not to exceed 45 14 calendar days, if doing so
  125  is in the best interest of the estate, or for a longer period
  126  if, in the best interest of the estate, upon notice and until
  127  such time as an objection, if any, is sustained by the court;
  128  however, the assignee may not operate the business of the
  129  assignor for longer than 45 calendar days without a court order
  130  authorizing such operation if an objection by a party in
  131  interest is interposed to the assignee’s motion for authority to
  132  operate the assignor’s business. An assignee’s authorization to
  133  conduct the business of the assignor may be extended for a
  134  period longer than 45 days upon service of negative notice. If
  135  no timely objection is filed with the court, the assignee may
  136  continue to operate the assignor’s business for an additional 90
  137  days. The court may extend the 90-day period if it finds an
  138  extension to be in the best interest of the estate.
  139         Section 4. Subsection (3) of section 727.109, Florida
  140  Statutes, is amended to read:
  141         727.109 Power of the court.—The court shall have power to:
  142         (3) Upon notice and a hearing, if requested, authorize the
  143  business of the assignor to be conducted by the assignee for
  144  longer than 45 14 calendar days, if in the best interest of the
  145  estate.
  146         Section 5. Subsection (3) is added to section 727.110,
  147  Florida Statutes, to read:
  148         727.110 Actions by assignee and other parties in interest.—
  149         (3) As to an assignee’s rejection of an unexpired lease of
  150  nonresidential real property or of personal property, as
  151  provided under ss. 727.108(5) and 727.109(6):
  152         (a) The assignee shall file a notice of rejection with the
  153  court and serve a copy on the owner or lessor of the affected
  154  property and, for personal property, on the landlord of the
  155  premises on which the property is located. A notice of rejection
  156  relating to personal property must identify the affected
  157  property, the address at which the affected property is located,
  158  the name and telephone number of the person in possession of the
  159  affected property, and the deadline for removal of the affected
  160  property.
  161         (b) The effective date of the rejection is the date of
  162  entry of a court order authorizing such rejection.
  163         (c) If the lessor of the affected property fails to take
  164  possession thereof after notice of the rejection, the estate’s
  165  rights and obligations to and liability for the property
  166  terminate upon the effective date of the rejection.
  167         Section 6. Subsections (4), (6), and (8) of section
  168  727.111, Florida Statutes, are amended to read:
  169         727.111 Notice.—
  170         (4) The assignee shall give the assignor and all creditors
  171  at least not less than 21 20 days’ notice by mail of a proposed
  172  sale of assets of the estate other than in the ordinary course
  173  of business, the assignee’s continued operation of the
  174  assignor’s business for longer than 45 14 calendar days, the
  175  compromise or settlement of a controversy, and the payment of
  176  fees and expenses to the assignee and to professional persons
  177  employed by the assignee pursuant to s. 727.108(7). The notice
  178  shall be served on all creditors and their attorneys, if any, at
  179  the address provided in the creditor’s proof of claim. If a
  180  proof of claim has not been filed by a creditor that is
  181  registered to do business in this state, the notice must be
  182  served on the creditor’s registered agent as listed with the
  183  Division of Corporations of the Department of State and on the
  184  creditor’s attorney, if known. If a proof of claim has not been
  185  filed and the creditor does not have a registered agent within
  186  the state, the notice must be served on the creditor at the
  187  address listed in the schedules filed by the assignor. Objection
  188  Any objections to the proposed action must be filed and served
  189  upon the assignee and the assignee’s attorney, if any, within 21
  190  days after service of the notice not less than 3 days before the
  191  date of the proposed action. The notice shall be in the
  192  following form: must include a description of the proposed
  193  action to be taken, the date of the proposed action, and the
  194  date and place for the hearing at which any objections will be
  195  heard.
  200  OF THE ....
  202  .... COUNTY,
  203  FLORIDA
  205  IN RE:............,
  206         Assignor,
  207  TO:............,
  208         Assignee.
  212  PLEASE TAKE NOTICE that, pursuant to s. 727.111(4), Florida
  213  Statutes, the assignee may ...(List applicable action(s)
  214  described in s. 727.111(4))..., and the Court may consider these
  215  actions without further notice or hearing unless a party in
  216  interest files an objection within 21 days from the date this
  217  paper is served. If you object to the relief requested in this
  218  paper, you must file your objection with the Clerk of the Court
  219  at...(Clerk’s address)..., and serve a copy on the assignee’s
  220  attorney,...(attorney’s name and address)..., and any other
  221  appropriate person.
  223  If you file and serve an objection within the time permitted,
  224  the Court shall schedule a hearing and notify you of the
  225  scheduled hearing. If a hearing is already scheduled, list the
  226  date, time, and location of the hearing: ...(date, time, and
  227  location)...
  229  If you do not file an objection within the time permitted, the
  230  assignee and the Court will presume that you do not oppose the
  231  granting of the relief requested in the paper.
  233  ....................
  235  Attorney for assignee (if any):........
  236  Address:........
  238  If no objections are not timely filed and served, the assignee
  239  may take such action as described in the notice without further
  240  order of the court or may obtain an order approving the action
  241  without further notice or hearing of the court granting such
  242  motion if the assignee reasonably believes that the order is
  243  necessary to proceed with the action contemplated by the motion.
  244  If an objection is filed, the court shall hold a hearing on the
  245  objection.
  246         (6) For good cause shown and without notice of hearing, the
  247  court may shorten the notice or negative notice period or limit
  248  the parties to whom notice or negative notice need be given,
  249  pursuant to subsection (3) or subsection (4). This subsection
  250  does not affect the right of a party in interest to raise the
  251  shortened notice period in any objection to the relief sought
  252  under subsection (4).
  253         (8) Wherever notice or negative notice is required to be
  254  given under this chapter, a certificate of service of such
  255  notice or negative notice shall be filed with the court, and
  256  notice or negative notice shall be given to all consensual
  257  lienholders and counsel who have filed a notice of appearance
  258  with the court or who are identified in the assignor’s
  259  schedules.
  260         Section 7. Subsection (1) of section 727.113, Florida
  261  Statutes, is amended, and subsection (5) is added to that
  262  section, to read:
  263         727.113 Objections to claims.—
  264         (1) At any time before prior to the entry of an order
  265  approving the assignee’s final report, the assignee or any party
  266  in interest, including another creditor of the assignor, may
  267  file with the court an objection to a claim, which objection
  268  must be in writing and set forth the nature of the objection,
  269  and shall serve a copy thereof on the creditor at the address
  270  provided in the proof of claim, and to the assignee and the
  271  assignee’s attorney, if any. The objection may be served on
  272  negative notice. A copy of the objection, together with notice
  273  of hearing thereon, shall be mailed to the creditor at least 20
  274  days prior to the hearing. All claims properly filed with the
  275  assignee and not disallowed by the court constitute all claims
  276  entitled to distribution from the estate.
  277         (5) The discovery provisions of the Florida Rules of Civil
  278  Procedure apply to objections to claims in all cases pending on
  279  July 1, 2013, or filed thereafter.
  280         Section 8. Section 727.117, Florida Statutes, is created to
  281  read:
  282         727.117Assignee’s deed form.—If an assignee sells property
  283  of the estate, the deed shall be in substantially the following
  284  form:
  286                           ASSIGNEE’S DEED                         
  288         This Assignee’s Deed is made and executed this .... day of
  289  ...., ...(year)..., by ...., as Assignee for the Estate of ....,
  290  Case No. .... in the Circuit Court of .... County, Florida,
  291  whose post office address is .... (hereinafter “Grantor”), to
  292  ...., whose post office address is .... (hereinafter “Grantee”).
  293         Wherever used herein, the terms “Grantor” and “Grantee”
  294  include all the parties to this instrument, singular and plural,
  295  and the heirs, legal representatives, and assigns of these
  296  individuals, and the successors and assigns of corporations,
  297  wherever the context so admits or requires.
  299                             WITNESSETH:                           
  301         That Grantor, for and in consideration of the sum of Ten
  302  Dollars ($10.00) and other good and valuable consideration in
  303  hand paid to said Grantor by Grantee, the receipt of which is
  304  hereby acknowledged, hereby grants, bargains, sells, aliens,
  305  remises, releases, conveys, and confirms unto Grantee, all of
  306  that certain real property lying and being in the County of
  307  ...., State of Florida, more particularly described as follows:
  309         SEE ATTACHED “EXHIBIT A,” which is incorporated herein by
  310  the term “Property”.
  312         This conveyance is subject to taxes accruing for the year
  313  of conveyance and subsequent years, and all encumbrances,
  314  covenants, conditions, and restrictions of record, except
  315  nothing herein operates to reimpose same.
  317         TOGETHER with all the tenements, hereditaments, and
  318  appurtenances thereto belonging or in anywise appertaining.
  320         TO HAVE AND TO HOLD the same in fee simple forever.
  322         AND the Grantor hereby covenants with said Grantee that
  323  Grantor has good right and lawful authority to sell and convey
  324  said Property.
  326         Grantor executed this instrument only in Grantor’s capacity
  327  as Assignee of the above referenced Assignment estate and no
  328  personal judgment shall ever be sought or obtained against
  329  Grantor individually by reason of this instrument.
  331         IN WITNESS WHEREOF, said Grantor has caused these presents
  332  to be executed the day and year first written above.
  334  GRANTOR:
  336  ...(Grantor’s Signature)...
  337  Print Name:........
  338  As Assignee for the Estate of ...(Assignor’s Name)...
  339  Case No. ....
  340  Circuit Court of .... County, Florida
  342  Signed, sealed and delivered
  343  in the presence of:
  345  ...(Witness’s Signature)...
  346  Witness
  347  ...(Witness’s Name Printed)...
  348  Print Name
  350  ...Witness’s Signature...
  351  Witness
  352  ...(Witness’s Name Printed)...
  353  Print Name
  356  COUNTY OF ....
  358  Sworn to and subscribed before me this .... day of ....,
  359  ...(year)..., by ...(Assignee’s Name)..., as Assignee for the
  360  Estate of ...(Assignor’s Name)..., Case No. ...., Circuit Court
  361  of .... County, Florida, on behalf of said estate.
  363  ...(Signature of Notary Public - State of Florida)...
  364  ...(Print, Type, or Stamp Commissioned Name of Notary Public)...
  365  Personally Known .... OR Produced Identification ....
  366  Type of Identification Produced:....
  367         Section 9. This act shall take effect upon becoming a law.