Florida Senate - 2020                                     SB 660
       By Senator Berman
       31-00405A-20                                           2020660__
    1                        A bill to be entitled                      
    2         An act relating to the Uniform Commercial Real Estate
    3         Receivership Act; creating chapter 714, F.S., relating
    4         to the Uniform Commercial Real Estate Receivership
    5         Act; providing a short title; defining terms;
    6         prohibiting a court from issuing certain orders unless
    7         certain requirements are met; providing requirements
    8         for certain court orders; authorizing certain parties
    9         to move to dissolve or modify certain orders;
   10         requiring that such motions be heard within a
   11         specified timeframe; providing construction and
   12         applicability; specifying that a court has exclusive
   13         jurisdiction to direct receivers and determine
   14         controversies under certain circumstances; providing
   15         requirements and authorizations relating to the
   16         appointment of a receiver; specifying when a person is
   17         or is not disqualified from appointment as a receiver;
   18         authorizing certain persons to nominate someone to
   19         serve as a receiver; specifying the court is not bound
   20         by such nomination; requiring a receiver to post a
   21         bond with the court which meets certain requirements;
   22         providing an exception; prohibiting a claim against a
   23         receiver’s bond or alternative security from being
   24         made after a certain time; providing that an appointed
   25         receiver has certain statuses of a lien creditor;
   26         providing that certain property is subject to
   27         specified security agreements; providing requirements
   28         relating to the collection and turnover of
   29         receivership property; providing for powers and duties
   30         of a receiver; authorizing the court to expand,
   31         modify, or limit such powers and duties; providing for
   32         duties of an owner; authorizing a court to take
   33         certain actions if a person knowingly fails to perform
   34         a duty; authorizing a court to take certain actions
   35         relating to stays and injunctions; authorizing certain
   36         persons to apply for relief from a stay or injunction;
   37         specifying when an order does not operate as a stay or
   38         injunction; authorizing receivers to engage and
   39         compensate certain professionals under certain
   40         circumstances; requiring certain persons to file an
   41         itemized statement with the court; requiring a
   42         receiver to pay an amount approved by the court;
   43         defining the term “good faith”; authorizing a receiver
   44         to use or transfer receivership property other than in
   45         the ordinary course of business under certain
   46         circumstances; providing for the service of notice to
   47         lien holders who are not parties to the action;
   48         defining the term “timeshare interest”; authorizing a
   49         receiver to adopt or reject an executory contract of
   50         the owner relating to receivership property under
   51         certain circumstances; requiring that a claim of
   52         damages for rejection of a contract be submitted
   53         within a specified timeframe; authorizing a purchaser
   54         to take certain actions if a receiver rejects an
   55         executory contract under certain circumstances;
   56         prohibiting a receiver from rejecting unexpired leases
   57         of certain property under certain circumstances;
   58         providing for defenses and immunities of a receiver;
   59         providing requirements for interim reports filed by a
   60         receiver; providing requirements relating to notices
   61         of appointment; authorizing the court to enter certain
   62         orders if the court concludes that receivership
   63         property is likely to be insufficient to satisfy
   64         certain claims; providing requirements for certain
   65         distributions of receivership property; authorizing a
   66         court to award fees and expenses; authorizing a court
   67         to order certain persons to pay fees and expenses;
   68         providing for the removal and replacement of a
   69         receiver and the termination of a court’s
   70         administration of the receivership property under
   71         certain circumstances; requiring a receiver to file a
   72         final report containing certain information upon
   73         completion of the receiver’s duties; specifying that a
   74         receiver is discharged if certain requirements are
   75         met; authorizing a court to appoint ancillary
   76         receivers under certain circumstances; providing for
   77         rights, powers, and duties of an ancillary receiver;
   78         specifying that certain requests, appointments, and
   79         applications by a mortgagee do not have certain
   80         effects; providing construction and applicability;
   81         providing an effective date.
   83  Be It Enacted by the Legislature of the State of Florida:
   85         Section 1. Chapter 714, Florida Statutes, consisting of
   86  sections 714.01-714.28, is created to read:
   87                             CHAPTER 714                           
   89         714.01Short title.—This chapter may be cited as the
   90  Uniform Commercial Real Estate Receivership Act.
   91         714.02Definitions.—For the purposes of this chapter, the
   92  term:
   93         (1)“Affiliate” means:
   94         (a)With respect to an individual:
   95         1.A companion of the individual;
   96         2.A lineal ancestor or descendent, whether by blood or
   97  adoption, of:
   98         a.The individual; or
   99         b.A companion of the individual;
  100         3.A companion of an ancestor or descendent as described in
  101  subparagraph 2.;
  102         4.A sibling, aunt, uncle, great aunt, great uncle, first
  103  cousin, niece, nephew, grandniece, or grandnephew of the
  104  individual, whether related by the whole or the half blood or
  105  adoption, or a companion of any of them; or
  106         5.Any other person occupying the residence of the
  107  individual; and
  108         (b)With respect to a person other than an individual:
  109         1.Another person who directly or indirectly controls, is
  110  controlled by, or is under common control with the person;
  111         2.An officer, director, manager, member, partner,
  112  employee, or trustee or other fiduciary of the person; or
  113         3.A companion of an individual or an individual occupying
  114  the residence of an individual.
  115         (2)“Companion” means:
  116         (a)The spouse of an individual;
  117         (b)The registered domestic partner of an individual; or
  118         (c)Another individual in a civil union with an individual.
  119         (3)“Court” means the court of general equity jurisdiction
  120  in this state.
  121         (4)“Executory contract” means a contract, including a
  122  lease, under which each party has an unperformed obligation and
  123  the failure of a party to complete performance would constitute
  124  a material breach.
  125         (5)“Governmental unit” means an office, department,
  126  division, bureau, board, commission, or other agency of this
  127  state or a subdivision of this state.
  128         (6)“Lien” means an interest in property which secures
  129  payment or performance of an obligation.
  130         (7)“Mortgage” means a record, however denominated, that
  131  creates or provides for a consensual lien on real property or
  132  rents, even if the record also creates or provides for a lien on
  133  personal property.
  134         (8)“Mortgagee” means a person entitled to enforce an
  135  obligation secured by a mortgage.
  136         (9)“Mortgagor” means a person who grants a mortgage or a
  137  successor in ownership of the real property described in the
  138  mortgage.
  139         (10)“Owner” means the person for whose property a receiver
  140  is appointed.
  141         (11)“Person” means an individual, estate, business or
  142  nonprofit entity, public corporation, government or governmental
  143  subdivision, agency, or instrumentality or other legal entity.
  144         (12)“Proceeds” means any of the following property:
  145         (a)Whatever is acquired on the sale, lease, license,
  146  exchange, or other disposition of receivership property.
  147         (b)Whatever is collected on, or distributed on account of,
  148  receivership property.
  149         (c)Rights arising out of receivership property.
  150         (d)To the extent of the value of receivership property,
  151  claims arising out of the loss, nonconformity, or interference
  152  with the use of, defects or infringement of rights in, or damage
  153  to the property.
  154         (e)To the extent of the value of receivership property and
  155  to the extent payable to the owner or mortgagee, insurance
  156  payable by reason of the loss or nonconformity of, defects or
  157  infringement of rights in, or damage to the property.
  158         (13)“Property” means all of a person’s right, title, and
  159  interest, both legal and equitable, in real and personal
  160  property, tangible and intangible, wherever located and however
  161  acquired. The term includes proceeds, products, offspring,
  162  rents, or profits of or from the property.
  163         (14)“Receiver” means a person appointed by the court as
  164  the court’s agent, and subject to the court’s direction, to take
  165  possession of, manage, and, if authorized by this chapter or
  166  court order, transfer, sell, lease, license, exchange, collect,
  167  or otherwise dispose of receivership property.
  168         (15)“Receivership” means a proceeding in which a receiver
  169  is appointed.
  170         (16)“Receivership property” means the property of an owner
  171  which is described in the order appointing a receiver or a
  172  subsequent order. The term includes any proceeds, products,
  173  offspring, rents, or profits of or from the property.
  174         (17)“Record,” if used as a noun, means information that is
  175  inscribed on a tangible medium or that is stored on an
  176  electronic or other medium and is retrievable in perceivable
  177  form.
  178         (18)“Rents” means:
  179         (a)Sums payable for the right to possess or occupy, or for
  180  the actual possession or occupation of, real property of another
  181  person;
  182         (b)Sums payable to a mortgagor under a policy of rental
  183  interruption insurance covering real property;
  184         (c)Claims arising out of a default in the payment of sums
  185  payable for the right to possess or occupy real property of
  186  another person;
  187         (d)Sums payable to terminate an agreement to possess or
  188  occupy real property of another person;
  189         (e)Sums payable to a mortgagor for payment or
  190  reimbursement of expenses incurred in owning, operating, and
  191  maintaining real property or constructing or installing
  192  improvements on real property; or
  193         (f)Other sums payable under an agreement relating to the
  194  real property of another person which constitute rents under the
  195  laws of this state other than this act.
  196         (19)“Secured obligation” means an obligation the payment
  197  or performance of which is secured by a security agreement.
  198         (20)“Security agreement” means an agreement that creates
  199  or provides for a lien.
  200         (21)“Sign” means, with present intent to authenticate or
  201  adopt a record:
  202         (a)To execute or adopt a tangible symbol; or
  203         (b)To attach to or logically associate with the record an
  204  electronic sound, symbol, or process.
  205         (22)“State” means a state of the United States, the
  206  District of Columbia, Puerto Rico, the United States Virgin
  207  Islands, or any territory or insular possession subject to the
  208  jurisdiction of the United States.
  209         714.03Notice and opportunity for hearing.—
  210         (1)Except as otherwise provided in subsection (2), the
  211  court may issue an order under this chapter only after notice
  212  and opportunity for a hearing appropriate under the
  213  circumstances.
  214         (2)The court may issue an order under this chapter without
  215  written or oral notice to the adverse party only if:
  216         (a)It appears from the specific facts shown by affidavit
  217  or verified pleading or motion that immediate and irreparable
  218  injury, loss, or damage will result to the movant or that waste,
  219  dissipation, impairment, or substantial diminution in value will
  220  result to the subject real estate before any adverse party can
  221  be heard in opposition; and
  222         (b)The movant’s attorney certifies in writing all efforts
  223  that have been made to give notice to all known adverse parties,
  224  or the reasons why such notice should not be required.
  225         (3)Only an affidavit, a declaration or a verified
  226  pleading, or a motion may be used to support the application for
  227  the appointment of a receiver, unless the adverse party appears
  228  at the hearing or has received reasonable prior notice of the
  229  hearing. Every order appointing a receiver without notice must
  230  be endorsed with the date and hour of entry, must be filed
  231  forthwith in the clerk’s office, must define the injury, must
  232  state findings by the court as to why the injury may be
  233  irreparable, and must give the reasons why the order was granted
  234  without notice if notice was not given. The order appointing a
  235  receiver shall remain in effect until the further order of the
  236  court.
  237         (4)An order appointing a receiver or providing for
  238  injunctive relief may not be entered unless a bond is given by
  239  the movant in an amount the court deems proper, conditioned for
  240  the payment of costs and damages sustained by the adverse party
  241  if the order is improperly entered. When any order appointing a
  242  receiver or providing for injunctive relief is issued on the
  243  pleading of a municipality or the state, or any officer, agency,
  244  or political subdivision thereof, the court may require or
  245  dispense with a bond, with or without surety, and conditioned in
  246  the same manner, having due regard for the public interest.
  247         (5)If the court grants injunctive relief, the injunction
  248  must specify the reasons for entry, must describe in reasonable
  249  detail the act or acts restrained without reference to a
  250  pleading or another document, and must be binding on the parties
  251  to the action; on the parties’ officers, agents, servants,
  252  employees, and attorneys; and on any person in active concert or
  253  participation with the parties who receives actual notice of the
  254  injunction.
  255         (6)A party adversely affected by an order appointing
  256  receiver or for injunctive relief may move to dissolve or modify
  257  the order at any time. If a party moves to dissolve or modify,
  258  the motion shall be heard within 5 days after the movant applies
  259  for a hearing on the motion.
  260         (7)This chapter does not displace any existing rule of
  261  procedural or judicial administration of this state governing
  262  service or notice, including, without limitation, Rule 1.070,
  263  Florida Rules of Civil Procedure and Rule 2.525, Florida Rules
  264  of Judicial Administration, which shall remain in full force and
  265  effect.
  266         714.04Scope; exclusions.—
  267         (1)This chapter applies to a receivership initiated in a
  268  court of this state for an interest in real property and any
  269  personal property related to or used in operating the real
  270  property.
  271         (2)This chapter does not apply to:
  272         (a)Actions in which a state agency or officer is expressly
  273  authorized by statute to seek or obtain the appointment of a
  274  receiver;
  275         (b)Actions authorized by or commenced under federal law;
  276         (c)Residential real property of an individual owner which
  277  is occupied by the owner, the spouse of the owner, or a child or
  278  other dependent of the owner;
  279         (d)Property of an individual exempt from forced sale,
  280  execution, or seizure under the laws of this state; or
  281         (e)Personal property of an individual which is used
  282  primarily for personal, family, or household purposes.
  283         (3)This chapter does not limit the authority of a court to
  284  appoint a receiver under the laws of this state other than this
  285  chapter.
  286         (4)This chapter does not limit an individual’s homestead
  287  and exemption rights under the laws of this state or federal
  288  law.
  289         (5)Unless displaced by a particular provision of this
  290  chapter, the principles of law and equity, including the law
  291  relative to capacity to contract, principal and agent, estoppel,
  292  laches, fraud, misrepresentation, duress, coercion, mistake,
  293  bankruptcy, or other validating or invalidating cause,
  294  supplement this chapter.
  295         714.05Power of the court.—The court that appoints a
  296  receiver under this chapter has exclusive jurisdiction to direct
  297  the receiver and determine any controversy related to the
  298  receivership or receivership property.
  299         714.06Appointment of receiver.—
  300         (1)The court may appoint a receiver:
  301         (a)Before judgment, to protect a party that demonstrates
  302  an apparent right, title, or interest in real property that is
  303  the subject of the action, if the property or its revenue
  304  producing potential:
  305         1.Is being subjected to or is in danger of waste, loss,
  306  substantial diminution in value, dissipation, or impairment; or
  307         2.Has been or is about to be the subject of a voidable
  308  transaction;
  309         (b)After judgment:
  310         1.To carry the judgment into effect; or
  311         2.To preserve nonexempt real property pending appeal or
  312  when an execution has been returned unsatisfied and the owner
  313  refuses to apply the property in satisfaction of the judgment;
  314         (c)In an action in which a receiver for real property may
  315  be appointed on equitable grounds, subject to the requirements
  316  of paragraphs (a) and (b); or
  317         (d)During the time allowed for redemption, to preserve
  318  real property sold in an execution or foreclosure sale and
  319  secure its rents to the person entitled to the rents.
  320         (2)In connection with the foreclosure or other enforcement
  321  of a mortgage, the court shall consider the following facts and
  322  circumstances, together with any other relevant facts, in
  323  deciding whether to appoint a receiver for the mortgaged
  324  property:
  325         (a)Appointment is necessary to protect the property from
  326  waste, loss, substantial diminution in value, transfer,
  327  dissipation, or impairment;
  328         (b) The mortgagor agreed in a signed record to the
  329  appointment of a receiver on default;
  330         (c) The owner agreed, after default and in a signed record,
  331  to appointment of a receiver;
  332         (d) The property and any other collateral held by the
  333  mortgagee are not sufficient to satisfy the secured obligation;
  334         (e) The owner fails to turn over to the mortgagee proceeds
  335  or rents the mortgagee was entitled to collect; or
  336         (f) The holder of a subordinate lien obtains appointment of
  337  a receiver for the property.
  338         (3)The court may condition the appointment of a receiver
  339  without prior notice or hearing under s. 714.03 on the giving of
  340  security by the person seeking the appointment for the payment
  341  of damages, reasonable attorney fees, and costs incurred or
  342  suffered by any person if the court later concludes that the
  343  appointment was not justified. If the court later concludes that
  344  the appointment was justified and the order of appointment of
  345  the receiver becomes final and no longer subject to appeal, the
  346  court shall release the security.
  347         714.07Disqualification from appointment as receiver;
  348  disclosure of interest.—
  349         (1)The court may not appoint a person as receiver unless
  350  the person submits to the court a statement under penalty of
  351  perjury that the person is not disqualified.
  352         (2)Except as otherwise provided in subsection (3), a
  353  person is disqualified from appointment as receiver if the
  354  person:
  355         (a)Is an affiliate of a party;
  356         (b)Has an interest materially adverse to an interest of a
  357  party;
  358         (c)Has a material financial interest in the outcome of the
  359  action, other than compensation the court may allow the
  360  receiver;
  361         (d)Has a debtor-creditor relationship with a party; or
  362         (e)Holds an equity interest in a party, other than a
  363  noncontrolling interest in a publicly traded company.
  364         (3)A person is not disqualified from appointment as
  365  receiver solely because the person:
  366         (a)Was appointed receiver or is owed compensation in an
  367  unrelated matter involving a party or was engaged by a party in
  368  a matter unrelated to the receivership;
  369         (b)Is an individual obligated to a party on a debt that is
  370  not in default and was incurred primarily for personal, family,
  371  or household purposes; or
  372         (c)Maintains with a party a deposit account, as defined in
  373  s. 679.1021.
  374         (4)A person seeking appointment of a receiver may nominate
  375  a person to serve as receiver, but the court is not bound by the
  376  nomination.
  377         714.08Receiver’s bond; alternative security.—
  378         (1)Except as otherwise provided in subsection (2), a
  379  receiver shall post with the court a bond that:
  380         (a)Is conditioned on the faithful discharge of the
  381  receiver’s duties;
  382         (b)Has one or more sureties approved by the court;
  383         (c)Is in an amount the court specifies; and
  384         (d)Is effective as of the date of the receiver’s
  385  appointment.
  386         (2)The court may approve the receiver posting an
  387  alternative security with the court, such as a letter of credit
  388  or deposit of funds. The receiver may not use receivership
  389  property as alternative security. Interest that accrues on
  390  deposited funds must be paid to the receiver upon the receiver’s
  391  discharge.
  392         (3)The court may authorize a receiver to act before the
  393  receiver posts the bond or alternative security required by this
  394  section if the action is necessary to prevent or mitigate
  395  immediate injury, loss, or damage to the party who sought the
  396  appointment of the receiver, or immediate waste, dissipation,
  397  impairment, or substantial diminution in value to the
  398  receivership property.
  399         (4)A claim against a receiver’s bond or alternative
  400  security must be made not later than 1 year after the date the
  401  receiver is discharged.
  402         714.09Status of receiver as lien creditor.—Upon
  403  appointment of a receiver, the receiver has the status of a lien
  404  creditor under:
  405         (1)Chapter 679 as to receivership property or fixtures;
  406  and
  407         (2)Chapter 695 as to receivership property that is real
  408  property.
  409         714.10Security agreement covering after-acquired
  410  property.—Except as otherwise provided by law other than this
  411  chapter, property that a receiver or an owner acquires after
  412  appointment of the receiver is subject to a security agreement
  413  entered into before the appointment to the same extent as if the
  414  court had not appointed the receiver.
  415         714.11Collection and turnover of receivership property.—
  416         (1)Unless the court orders otherwise, on demand by a
  417  receiver:
  418         (a)A person that owes a debt that is receivership property
  419  and is matured or payable on demand or on order shall pay the
  420  debt to or on the order of the receiver, except to the extent
  421  the debt is subject to setoff or recoupment; and
  422         (b)Subject to subsection (3), a person that has
  423  possession, custody, or control of receivership property shall
  424  turn the property over to the receiver.
  425         (2)A person that has notice of the appointment of a
  426  receiver and owes a debt that is receivership property may not
  427  satisfy the debt by payment to the owner.
  428         (3)If a creditor has possession, custody, or control of
  429  receivership property and the validity, perfection, or priority
  430  of the creditor’s lien on the property depends on the creditor’s
  431  possession, custody, or control, the creditor may retain
  432  possession, custody, or control until the court orders adequate
  433  protection of the creditor’s lien.
  434         (4)Unless a bona fide dispute exists about a receiver’s
  435  right to possession, custody, or control of receivership
  436  property, the court may sanction as civil contempt a person’s
  437  failure to turn the property over when required by this section.
  438         714.12Powers and duties of receiver.—
  439         (1)Except as limited by court order or the laws of this
  440  state other than this chapter, a receiver may:
  441         (a)Collect, control, manage, conserve, and protect
  442  receivership property;
  443         (b)Operate a business constituting receivership property,
  444  including preservation, use, sale, lease, license, exchange,
  445  collection, or disposition of the property in the ordinary
  446  course of business;
  447         (c)In the ordinary course of business, incur unsecured
  448  debt and pay expenses incidental to the receiver’s preservation,
  449  use, sale, lease, license, exchange, collection, or disposition
  450  of receivership property;
  451         (d)Assert a right, claim, cause of action, or defense of
  452  the owner which relates to receivership property;
  453         (e)Seek and obtain instruction from the court concerning
  454  receivership property, exercise of the receiver’s powers, and
  455  performance of the receiver’s duties;
  456         (f)Upon subpoena, compel a person to submit to examination
  457  under oath, or to produce and permit inspection and copying of
  458  designated records or tangible things, with respect to
  459  receivership property or any other matter that may affect
  460  administration of the receivership;
  461         (g)Engage a professional pursuant to s. 714.15;
  462         (h)Apply to a court of another state for appointment as
  463  ancillary receiver with respect to receivership property located
  464  in that state; and
  465         (i)Exercise any power conferred by court order, this
  466  chapter, or the laws of this state other than this chapter.
  467         (2)With court approval, a receiver may:
  468         (a)Incur debt for the use or benefit of receivership
  469  property other than in the ordinary course of business;
  470         (b)Make improvements to receivership property;
  471         (c)Use or transfer receivership property other than in the
  472  ordinary course of business pursuant to s. 714.16;
  473         (d)Adopt or reject an executory contract of the owner
  474  pursuant to s. 714.17;
  475         (e)Pay compensation to the receiver pursuant to s. 714.21,
  476  and to each professional engaged by the receiver under s.
  477  714.15;
  478         (f)Recommend allowance or disallowance of a claim of a
  479  creditor pursuant to s. 714.20; and
  480         (g)Make a distribution of receivership property pursuant
  481  to s. 714.20.
  482         (3)A receiver shall:
  483         (a)Prepare and retain appropriate business records,
  484  including a record of each receipt, disbursement, and
  485  disposition of receivership property;
  486         (b)Account for receivership property, including the
  487  proceeds of a sale, lease, license, exchange, collection, or
  488  other disposition of the property;
  489         (c)File with the recording office of the county in which
  490  the real property is located a copy of the order appointing the
  491  receiver and, if a legal description of the real property is not
  492  included in the order, the legal description;
  493         (d)Disclose to the court any fact arising during the
  494  receivership which would disqualify the receiver under s.
  495  714.07; and
  496         (e)Perform any duty imposed by court order, this chapter,
  497  or the laws of this state other than this chapter.
  498         (4)The powers and duties of a receiver may be expanded,
  499  modified, or limited by court order.
  500         714.13Duties of owner.—
  501         (1)An owner shall:
  502         (a)Assist and cooperate with the receiver in the
  503  administration of the receivership and the discharge of the
  504  receiver’s duties;
  505         (b)Preserve and turn over to the receiver all receivership
  506  property in the owner’s possession, custody, or control;
  507         (c)Identify all records and other information relating to
  508  the receivership property, including a password, authorization,
  509  or other information needed to obtain or maintain access to or
  510  control of the receivership property, and make available to the
  511  receiver the records and information in the owner’s possession,
  512  custody, or control;
  513         (d)Upon subpoena, submit to examination under oath by the
  514  receiver concerning the acts, conduct, property, liabilities,
  515  and financial condition of the owner or any matter relating to
  516  the receivership property or the receivership; and
  517         (e)Perform any duty imposed by court order, this chapter,
  518  or the laws of this state other than this chapter.
  519         (2)If an owner is a person other than an individual, this
  520  section applies to each officer, director, manager, member,
  521  partner, trustee, or other person exercising or having the power
  522  to exercise control over the affairs of the owner.
  523         (3)If a person knowingly fails to perform a duty imposed
  524  by this section, the court may:
  525         (a)Award the receiver actual damages caused by the
  526  person’s failure, reasonable attorney fees, and costs; and
  527         (b)Sanction the failure as civil contempt.
  528         714.14Stay; injunction.—
  529         (1) Except as otherwise provided in subsection (4), after
  530  notice and a hearing, the court may enter an order providing for
  531  a stay, applicable to all persons, of any act, action, or
  532  proceeding:
  533         (a)To obtain possession of, exercise control over, or
  534  enforce a judgment against all or a portion of the receivership
  535  property as defined in the order creating the stay; and
  536         (b)To enforce a lien against all or a portion of the
  537  receivership property to the extent the lien secures a claim
  538  against the owner which arose before entry of the order. The
  539  court shall include in its order a specific description of the
  540  receivership property subject to the stay, and shall include the
  541  following language in the title of the order: “Order Staying
  542  Certain Actions to Enforce Claims against Receivership
  543  Property.
  544         (2)Except as otherwise provided in subsection (4), the
  545  court may enjoin an act, action, or proceeding against or
  546  relating to receivership property if the injunction is necessary
  547  to protect against misappropriation of, or waste relating
  548  directly to, the receivership property.
  549         (3)A person whose act, action, or proceeding is stayed or
  550  enjoined under this section may apply to the court for relief
  551  from the stay or injunction. The court, after a hearing on
  552  notice, may grant relief for cause shown.
  553         (4)An order under subsection (1) or subsection (2) does
  554  not operate as a stay or injunction of:
  555         (a)Any act, action, or proceeding to foreclose or
  556  otherwise enforce a mortgage by the person seeking appointment
  557  of the receiver;
  558         (b)Any act, action, or proceeding to perfect, or maintain
  559  or continue the perfection of, an interest in receivership
  560  property;
  561         (c)Commencement or continuation of a criminal proceeding;
  562         (d)Commencement or continuation of an action or
  563  proceeding, or enforcement of a judgment other than a money
  564  judgment, in an action or proceeding by a governmental unit to
  565  enforce its police or regulatory power; or
  566         (e)Establishment by a governmental unit of a tax liability
  567  against the receivership property or the owner of such
  568  receivership property, or an appeal of any such liability.
  569         (5)The court may void an act that violates a stay or
  570  injunction under this section.
  571         (6)The scope of the receivership property subject to the
  572  stay under subsection (1) may be modified upon request of the
  573  receiver or other person, after a hearing on notice.
  574         (7)In connection with the entry of an order under
  575  subsection (1) or subsection (2), the court shall determine
  576  whether an additional bond or alternative security will be
  577  required as a condition to entry of the stay or injunction and,
  578  if required, direct the party requesting the stay or injunction
  579  to post a bond or alternative security as a condition for the
  580  stay or injunction to become effective.
  581         714.15Engagement and compensation of professional.—
  582         (1)With court approval, a receiver may engage an attorney,
  583  an accountant, an appraiser, an auctioneer, a broker, or another
  584  professional to assist the receiver in performing a duty or
  585  exercising a power of the receiver. The receiver shall disclose
  586  to the court:
  587         (a)The identity and qualifications of the professional;
  588         (b)The scope and nature of the proposed engagement;
  589         (c)Any potential conflict of interest; and
  590         (d)The proposed compensation.
  591         (2)A person is not disqualified from engagement under this
  592  section solely because of the person’s engagement by,
  593  representation of, or other relationship with the receiver, a
  594  creditor, or a party. This chapter does not prevent the receiver
  595  from serving in the receivership as an attorney, an accountant,
  596  an auctioneer, or a broker when authorized by law.
  597         (3)A receiver or professional engaged under subsection (1)
  598  shall file with the court an itemized statement of the time
  599  spent, work performed, and billing rate of each person that
  600  performed the work and an itemized list of expenses. The
  601  receiver shall pay the amount approved by the court.
  602         714.16Use or transfer of receivership property not in
  603  ordinary course of business.—
  604         (1)For the purposes of this section, the term “good faith”
  605  means honesty in fact and the observance of reasonable
  606  commercial standards of fair dealing.
  607         (2)Before judgment is entered with respect to the
  608  receivership property, with court approval after notice to all
  609  parties with an interest in the property, including all lien
  610  holders, and a hearing, a receiver may use or transfer by sale,
  611  lease, license, exchange, or other disposition receivership
  612  property other than in the ordinary course of business only if
  613  the owner of the property:
  614         (a)After the commencement of the action in which the
  615  receiver is appointed, expressly consents to the receiver’s
  616  proposed use or transfer of the receivership property, and the
  617  receiver notes the property owner’s express consent in the
  618  motion to approve the proposed use or transfer; or
  619         (b)Before or at the hearing on the receiver’s motion to
  620  approve the use or transfer of the receivership property, fails
  621  to object thereto after the receiver in good faith has provided
  622  reasonable advance written notice to the property owner of the
  623  proposed use or transfer, and the receiver demonstrates in the
  624  motion that the proposed use or transfer is necessary to prevent
  625  waste, loss, substantial diminution in value, dissipation, or
  626  impairment of the property or its revenue-producing potential or
  627  to prevent a voidable transaction involving the property.
  629  Service of notice to lien holders who are not parties to the
  630  action must be made as provided in chapter 48 for service of
  631  original process. If service cannot be carried out in such
  632  manner, upon authorization by court order, the receiver may
  633  effect service of notice on the nonparty lien holder pursuant to
  634  chapter 49 or as otherwise ordered by the court.
  635         (3)After judgment is entered against the property owner
  636  and with court approval, a receiver may use or transfer
  637  receivership property other than in the ordinary course of
  638  business to carry the judgment into effect or to preserve
  639  nonexempt real property pending appeal or when an execution has
  640  been returned unsatisfied and the owner refuses to apply the
  641  property in satisfaction of the judgment.
  642         (4)The court may order that a transfer of receivership
  643  property under this section is free and clear of any liens on
  644  the property at the time of the transfer. In such case, any
  645  liens on the property, which were valid at the time of the
  646  transfer but extinguished by the transfer, attach to the
  647  proceeds of the transfer with the same validity, perfection, and
  648  priority the liens had on the property immediately before the
  649  transfer, even if the proceeds are not sufficient to satisfy all
  650  obligations secured by the liens.
  651         (5)A transfer under subsection (3) may occur by means
  652  other than a public auction sale. A creditor holding a valid
  653  lien on the property to be transferred may purchase the property
  654  and offset against the purchase price part or all of the allowed
  655  amount secured by the lien if the creditor tenders funds
  656  sufficient to satisfy in full the reasonable expenses of
  657  transfer and the obligation secured by any senior lien
  658  extinguished by the transfer.
  659         (6)A reversal or modification of an order approving a
  660  transfer under subsection (3) does not affect the validity of
  661  the transfer to a person that acquired the property in good
  662  faith or revive against the person any lien extinguished by the
  663  transfer, whether the person knew before the transfer of the
  664  request for reversal or modification, unless the court stayed
  665  the order before the transfer.
  666         714.17Executory contract.—
  667         (1)For the purposes of this section, the term “timeshare
  668  interest” has the same meaning as in s. 721.05(36).
  669         (2)Except as otherwise provided in subsection (8), with
  670  court approval, a receiver may adopt or reject an executory
  671  contract of the owner relating to receivership property. The
  672  court may condition the receiver’s adoption and continued
  673  performance of the contract on terms appropriate under the
  674  circumstances. If the receiver does not request court approval
  675  to adopt or reject the contract within a reasonable time after
  676  the receiver’s appointment, the receiver is deemed to have
  677  rejected the contract.
  678         (3)A receiver’s performance of an executory contract
  679  before court approval under subsection (2) of its adoption or
  680  rejection is not an adoption of the contract and does not
  681  preclude the receiver from seeking approval to reject the
  682  contract.
  683         (4)A provision in an executory contract which requires or
  684  permits a forfeiture, modification, or termination of the
  685  contract because of the appointment of a receiver or the
  686  financial condition of the owner does not affect a receiver’s
  687  power under subsection (2) to adopt the contract.
  688         (5)A receiver’s right to possess or use receivership
  689  property pursuant to an executory contract terminates on
  690  rejection of the contract under subsection (2). Rejection is a
  691  breach of the contract effective immediately before appointment
  692  of the receiver. A claim for damages for rejection of the
  693  contract must be submitted by the later of:
  694         (a)The time set for submitting a claim in the
  695  receivership; or
  696         (b)Thirty days after the court approves the rejection.
  697         (6)If at the time a receiver is appointed, the owner has
  698  the right to assign an executory contract relating to
  699  receivership property under the laws of this state other than
  700  this chapter, the receiver may assign the contract with court
  701  approval.
  702         (7)If a receiver rejects an executory contract for the
  703  sale of receivership property that is real property in
  704  possession of the purchaser or a real-property timeshare
  705  interest pursuant to subsection (2), the purchaser may:
  706         (a)Treat the rejection as a termination of the contract,
  707  and in that case the purchaser has a lien on the property for
  708  the recovery of any part of the purchase price the purchaser
  709  paid; or
  710         (b)Retain the purchaser’s right to possession under the
  711  contract. If the purchaser retains his or her right to
  712  possession pursuant to this paragraph, the purchaser must
  713  continue to perform all obligations arising under the contract
  714  and may offset any damages caused by nonperformance of an
  715  obligation of the owner after the date of the rejection, but the
  716  purchaser does not have a right or claim against other
  717  receivership property or the receiver on account of the damages.
  718         (8)A receiver may not reject an unexpired lease of real
  719  property under which the owner is the landlord if:
  720         (a)The tenant occupies the leased premises as the tenant’s
  721  primary residence;
  722         (b)The receiver was appointed at the request of a person
  723  other than a mortgagee; or
  724         (c)The receiver was appointed at the request of a
  725  mortgagee and:
  726         1.The lease is superior to the lien of the mortgage;
  727         2.The tenant has an enforceable agreement with the
  728  mortgagee or the holder of a senior lien under which the
  729  tenant’s occupancy will not be disturbed as long as the tenant
  730  performs its obligations under the lease;
  731         3.The mortgagee has consented to the lease, either in a
  732  signed record or by its failure to timely object that the lease
  733  violated the mortgage; or
  734         4.The terms of the lease were commercially reasonable at
  735  the time the lease was agreed to and the tenant did not know or
  736  have reason to know that the lease violated the mortgage.
  737         714.18Defenses and immunities of receiver.—
  738         (1)A receiver is entitled to all defenses and immunities
  739  provided by the laws of this state other than this chapter for
  740  an act or omission within the scope of the receiver’s
  741  appointment.
  742         (2)A receiver may be sued personally for an act or
  743  omission in administering receivership property only with
  744  approval of the court that appointed the receiver.
  745         714.19Interim report of receiver.—A receiver may file or,
  746  if ordered by the court, shall file an interim report that
  747  includes:
  748         (1)The activities of the receiver since appointment or a
  749  previous report;
  750         (2)Receipts and disbursements, including a payment made or
  751  proposed to be made to a professional engaged by the receiver;
  752         (3)Receipts and dispositions of receivership property;
  753         (4)Fees and expenses of the receiver and, if not filed
  754  separately, a request for approval of payment of the fees and
  755  expenses; and
  756         (5)Any other information required by the court.
  757         714.20Notice of appointment; claim against receivership;
  758  distribution to creditors.—
  759         (1)Except as otherwise provided in subsection (6), a
  760  receiver shall give notice of appointment of the receiver to
  761  creditors of the owner by:
  762         (a)Deposit for delivery through first-class mail or other
  763  commercially reasonable delivery method to the last known
  764  address of each creditor; and
  765         (b)Publication as directed by the court.
  766         (2)Except as otherwise provided in subsection (6), the
  767  notice required under subsection (1) must specify the date by
  768  which each creditor holding a claim against the owner which
  769  arose before appointment of the receiver must submit the claim
  770  to the receiver. The date specified must be at least 90 days
  771  after the later of notice under paragraph (1)(a) or last
  772  publication under paragraph (1)(b). The court may extend the
  773  period for submitting the claim. Unless the court orders
  774  otherwise, a claim that is not timely submitted is not entitled
  775  to a distribution from the receivership.
  776         (3)A claim submitted by a creditor under this section
  777  must:
  778         (a)State the name and address of the creditor;
  779         (b)State the amount and basis of the claim;
  780         (c)Identify any property securing the claim;
  781         (d)Be signed by the creditor under penalty of perjury; and
  782         (e)Include a copy of any record on which the claim is
  783  based.
  784         (4)An assignment by a creditor of a claim against the
  785  owner is effective against the receiver only if the assignee
  786  gives timely notice of the assignment to the receiver in a
  787  signed record.
  788         (5)At any time before entry of an order approving a
  789  receiver’s final report, the receiver may file with the court an
  790  objection to a claim of a creditor, stating the basis for the
  791  objection. The court shall allow or disallow the claim according
  792  to the laws of this state other than this chapter.
  793         (6)If the court concludes that receivership property is
  794  likely to be insufficient to satisfy claims of each creditor
  795  holding a perfected lien on the property, the court may order
  796  that:
  797         (a)The receiver need not give notice under subsection (1)
  798  of the appointment to all creditors of the owner, but only such
  799  creditors as the court directs; and
  800         (b)Unsecured creditors need not submit claims under this
  801  section.
  802         (7)Subject to s. 714.21:
  803         (a)A distribution of receivership property to a creditor
  804  holding a perfected lien on the property must be made in
  805  accordance with the creditor’s priority under the laws of this
  806  state other than this chapter; and
  807         (b)A distribution of receivership property to a creditor
  808  with an allowed unsecured claim must be made as the court
  809  directs according to the laws of this state other than this
  810  chapter.
  811         714.21Fees and expenses.—
  812         (1)The court may award a receiver from receivership
  813  property the reasonable and necessary fees and expenses of
  814  performing the duties of the receiver and exercising the powers
  815  of the receiver.
  816         (2)The court may order one or more of the following to pay
  817  the reasonable and necessary fees and expenses of the
  818  receivership, including reasonable attorney fees and costs:
  819         (a)A person that requested the appointment of the
  820  receiver, if the receivership does not produce sufficient funds
  821  to pay the fees and expenses; or
  822         (b) A person whose conduct justified or would have
  823  justified the appointment of the receiver under s. 714.06(1)(a).
  824         714.22Removal of receiver; replacement; termination of
  825  receivership.—
  826         (1) The court may remove a receiver for cause.
  827         (2) The court shall replace a receiver that dies, resigns,
  828  or is removed.
  829         (3) If the court finds that a receiver that resigns or is
  830  removed, or the representative of a receiver that is deceased,
  831  has accounted fully for and turned over to the successor
  832  receiver all receivership property and has filed a report of all
  833  receipts and disbursements during the service of the replaced
  834  receiver, the replaced receiver is discharged.
  835         (4) The court may discharge a receiver and terminate the
  836  court’s administration of the receivership property if the court
  837  finds that appointment of the receiver was improvident or that
  838  the circumstances no longer warrant continuation of the
  839  receivership. If the court finds that the appointment was sought
  840  wrongfully or in bad faith, the court may assess against the
  841  person that sought the appointment:
  842         (a) The fees and expenses of the receivership, including
  843  reasonable attorney fees and costs; and
  844         (b) Actual damages caused by the appointment, including
  845  reasonable attorney fees and costs.
  846         714.23Final report of receiver; discharge.—
  847         (1)Upon completion of a receiver’s duties, the receiver
  848  shall file a final report including:
  849         (a)A description of the activities of the receiver in the
  850  conduct of the receivership;
  851         (b)A list of receivership property at the commencement of
  852  the receivership and any receivership property received during
  853  the receivership;
  854         (c)A list of disbursements, including payments to
  855  professionals engaged by the receiver;
  856         (d)A list of dispositions of receivership property;
  857         (e)A list of distributions made or proposed to be made
  858  from the receivership for creditor claims;
  859         (f)If not filed separately, a request for approval of the
  860  payment of fees and expenses of the receiver; and
  861         (g)Any other information required by the court.
  862         (2)If the court approves a final report filed under
  863  subsection (1) and the receiver distributes all receivership
  864  property, the receiver is discharged.
  865         714.24Receivership in another state; ancillary
  866  proceeding.—
  867         (1)The court may appoint a receiver appointed in another
  868  state, or that person’s nominee, as an ancillary receiver with
  869  respect to property located in this state or subject to the
  870  jurisdiction of the court for which a receiver could be
  871  appointed under this chapter, if:
  872         (a)The person or nominee would be eligible to serve as
  873  receiver under s. 714.07; and
  874         (b)The appointment furthers the person’s possession,
  875  custody, control, or disposition of property subject to the
  876  receivership in the other state.
  877         (2)The court may issue an order that gives effect to an
  878  order entered in another state appointing or directing a
  879  receiver.
  880         (3)Unless the court orders otherwise, an ancillary
  881  receiver appointed under subsection (1) has the rights, powers,
  882  and duties of a receiver appointed under this chapter.
  883         714.25Effect of enforcement by mortgagee.—A request by a
  884  mortgagee for the appointment of a receiver, the appointment of
  885  a receiver, or the application by a mortgagee of receivership
  886  property or proceeds to the secured obligation does not:
  887         (1)Make the mortgagee a mortgagee in possession of the
  888  real property;
  889         (2)Make the mortgagee an agent of the owner;
  890         (3)Constitute an election of remedies which precludes a
  891  later action to enforce the secured obligation;
  892         (4)Make the secured obligation unenforceable;
  893         (5)Limit any right available to the mortgagee with respect
  894  to the secured obligation; or
  895         (6)Constitute an action under chapter 702.
  896         714.26Uniformity of application and construction.—In
  897  applying and construing this chapter, consideration must be
  898  given to the need to promote uniformity of the law with respect
  899  to its subject matter among states that have enacted a similar
  900  law.
  901         714.27Relation to electronic signatures in global and
  902  national commerce act.—This act modifies, limits, or supersedes
  903  the Electronic Signatures in Global and National Commerce Act,
  904  15 U.S.C. ss. 7001 et seq., but does not modify, limit, or
  905  supersede s. 101(c) of that act, 15 U.S.C. s. 7001(c), or
  906  authorize electronic delivery of any of the notices described in
  907  s. 103(b) of that act, 15 U.S.C. s. 7003(b).
  908         714.28Transition.—This chapter does not apply to a
  909  receivership for which the receiver was appointed before July 1,
  910  2020.
  911         Section 2. This act shall take effect July 1, 2020.