2005 Florida Code - STATUTE OF FRAUDS, FRAUDULENT TRANSFERS, AND GENERAL ASSIGNMENTS GENERAL ASSIGNMENTSChapter 727
727.101 Intent of chapter.
727.102 Jurisdiction of proceedings and venue.
727.104 Commencement of proceedings.
727.105 Proceedings against assignee.
727.107 Duties of assignor.
727.108 Duties of assignee.
727.109 Power of the court.
727.110 Actions by assignee and other parties in interest.
727.112 Proof of claim.
727.113 Objections to claims.
727.114 Priority of claims.
727.115 Resignation or removal of assignee.
727.116 Assignee's final report and discharge.
727.101 Intent of chapter.--The intent of this chapter is to provide a uniform procedure for the administration of insolvent estates, and to ensure full reporting to creditors and equal distribution of assets according to priorities as established under this chapter.
History.--s. 1, ch. 87-174.
727.102 Jurisdiction of proceedings and venue.--All proceedings under this chapter shall be subject to the order and supervision of the circuit court for the county where the petition is filed in accordance with s. 727.104(2).
History.--s. 2, ch. 87-174.
727.103 Definitions.--As used in this chapter, unless the context requires a different meaning, the term:
(1) "Asset" means a legal or equitable interest of the assignor in property, which shall include anything that may be the subject of ownership, whether real or personal, tangible or intangible, wherever located and by whomever held at the date of the assignment, except property exempt by law from forced sale.
(2) "Assignee" means an assignee for the benefit of creditors under the provisions of this chapter, which assignee shall not be a creditor or an equity security holder or have any interest adverse to the interest of the estate.
(3) "Assignor" means the person or entity which has executed and delivered the assignment to the assignee.
(4) "Assignment" means an assignment for the benefit of creditors made under this chapter.
(5) "Court" means the circuit court where the petition is filed in accordance with s. 727.104(2).
(6) "Creditor" means any person having a claim against the assignor, whether such claim is contingent, liquidated, unliquidated, or disputed.
(7) "Estate" means all of the assets of the assignor.
(8) "Filing date" means the date upon which the original petition is filed in accordance with s. 727.104(2).
(9) "Lien" means a charge against or an interest in property to secure payment of a debt or performance of an obligation, and includes a security interest created by agreement, a judicial lien obtained by legal or equitable process or proceedings, a common-law lien, or a statutory lien.
(10) "Liquidation value" means the value in cash obtainable upon a forced sale of assets after payment of valid liens encumbering said assets.
(11) "Petition" means the initial document filed with the court, as set forth in s. 727.104(2), establishing the court's jurisdiction under this chapter.
History.--s. 3, ch. 87-174; s. 1, ch. 89-54.
727.104 Commencement of proceedings.--
(1)(a) An irrevocable assignment and schedules shall be made in writing, containing the name and address of the assignor and assignee and providing for an equal distribution of the estate according to the priorities set forth in s. 727.114.
(b) The assignment shall be in substantially the following form:
ASSIGNMENT, made this _____ day of _____, (year) , between _____, with a principal place of business at _____, hereinafter "assignor," and _____, whose address is _____, hereinafter "assignee."
WHEREAS, the assignor has been engaged in the business of __________;
WHEREAS, the assignor is indebted to creditors, as set forth in Schedule A annexed hereto, is unable to pay its debts as they become due, and is desirous of providing for the payment of its debts, so far as it is possible by an assignment of all of its assets for that purpose.
NOW, THEREFORE, the assignor, in consideration of the assignee's acceptance of this assignment, and for other good and valuable consideration, hereby grants, assigns, conveys, transfers, and sets over, unto the assignee, her or his successors and assigns, all of its assets, except such assets as are exempt by law from levy and sale under an execution, including, but not limited to, all real property, fixtures, goods, stock, inventory, equipment, furniture, furnishings, accounts receivable, bank deposits, cash, promissory notes, cash value and proceeds of insurance policies, claims and demands belonging to the assignor, wherever such assets may be located, hereinafter the "estate," as which assets are, to the best knowledge and belief of the assignor, set forth on Schedule B annexed hereto.
The assignee shall take possession and administer the estate in accordance with the provisions of chapter 727, Florida Statutes, and shall liquidate the assets of the estate with reasonable dispatch and convert the estate into money, collect all claims and demands hereby assigned as may be collectible, and pay and discharge all reasonable expenses, costs, and disbursements in connection with the execution and administration of this assignment from the proceeds of such liquidations and collections.
The assignee shall then pay and discharge in full, to the extent that funds are available in the estate after payment of administrative expenses, costs, and disbursements, all of the debts and liabilities now due from the assignor, including interest on such debts and liabilities. If funds of the estate shall not be sufficient to pay such debts and liabilities in full, then the assignee shall pay from funds of the estate such debts and liabilities, on a pro rata basis and in proportion to their priority as set forth in s. 727.114, Florida Statutes.
In the event that all debts and liabilities are paid in full, any funds of the estate remaining shall be returned to the assignor.
To accomplish the purposes of this assignment, the assignor hereby appoints the assignee its true and lawful attorney, irrevocable, with full power and authority to do all acts and things which may be necessary to execute the assignment hereby created; to demand and recover from all persons all assets of the estate; to sue for the recovery of such assets; to execute, acknowledge, and deliver all necessary deeds, instruments, and conveyances; and to appoint one or more attorneys under her or him to assist the assignee in carrying out her or his duties hereunder.
The assignor hereby authorizes the assignee to sign the name of the assignor to any check, draft, promissory note, or other instrument in writing which is payable to the order of the assignor, or to sign the name of the assignor to any instrument in writing, whenever it shall be necessary to do so, to carry out the purpose of this assignment.
The assignee hereby accepts the trust created by the assignment, and agrees with the assignor that the assignee will faithfully and without delay carry out her or his duties under the assignment.
|STATE OF FLORIDA|
COUNTY OF __________
The foregoing assignment was acknowledged before me this _____ day of _____, (year) , by _____, as assignor, and by _____, as assignee, for the purposes therein expressed.
(Signature of Notary Public - State of Florida)
(Print, Type, or Stamp Commissioned Name of Notary Public)
Personally Known _____ OR Produced Identification _____
Type of Identification Produced_______________
(c) The assignment shall have annexed thereto as Schedule A a true list of all of the assignor's known creditors, their mailing addresses, the amount and nature of their claims, and whether their claims are disputed; and as Schedule B a true list of all assets of the estate, including the estimated liquidation value of the assets, their location, and, if real property, a legal description thereof, as of the date of the assignment.
(d) The schedules shall be in substantially the following forms:
List each category of assets and for each give approximate value obtainable for the asset on the date of assignment, and address where asset is located.
I. Nonexempt Property
|Description and Location||Liquidation Value at Date of Assignment|
1. Legal description and street address of real estate, including leasehold interests:
3. Cash and bank accounts:
5. Accounts receivable:
7. Prepaid expenses, including deposits, insurance, rents, and utilities:
8. Other, including loans to third parties, claims, and choses in action:
II. Exempt Property
|Description and Location||Liquidation Value at Date of Assignment|
(e) The assignment and schedules shall be duly verified upon oath by the assignor, and accepted by the assignee under oath.
(2) Within 10 days after delivery of the assignment to the assignee, the assignee shall:
(a) Record the original assignment in the public records of the county in which the assignor had its principal place of business and shall thereafter promptly record a certified copy of the assignment in each county where assets of the estate are located;
(b) File, in the office of the clerk of the court in the county of the assignor's place of business if it has one, in the county of its chief executive office if it has more than one place of business, or in the county of the assignor's residence if the assignor is an individual not engaged in business, in accordance with the procedures for filing a complaint as set forth in the Florida Rules of Civil Procedure, a petition setting forth the name and address of the assignor and the name and address of the assignee; a copy of the assignment, together with Schedules A and B; and a request that the court fix the amount of the assignee's bond to be filed with the clerk of the court. This bond shall be subject to reconsideration upon the motion of any party in interest after notice and hearing. The bond shall be payable to the clerk of the court, in an amount not less than double the liquidation value of the assets of the estate as set forth in Schedule B, conditioned upon the assignee's faithful discharge of her or his duties. Within 30 days after the court enters an order setting the amount of such bond, the assignee shall file the bond with the clerk of the court, who shall approve the bond.
History.--s. 4, ch. 87-174; s. 2, ch. 89-54; s. 29, ch. 91-110; s. 939, ch. 97-102; s. 17, ch. 98-246.
727.105 Proceedings against assignee.--No proceeding may be commenced against the assignee except as provided in this chapter, but nothing contained herein shall affect any action or proceeding by a governmental unit to enforce such governmental unit's police or regulatory power. Except in the case of a secured creditor enforcing its rights in collateral under chapter 679, there shall be no levy, execution, attachment, or the like in respect of any judgment against assets of the estate, other than real property, in the possession, custody, or control of the assignee.
History.--s. 5, ch. 87-174.
727.106 Turnover.--Any person or entity, other than a creditor, in possession, custody, or control of assets of the estate shall, upon notice by the assignee of the assignment proceeding, promptly turn such assets over to the assignee or the assignee's duly authorized representative.
History.--s. 6, ch. 87-174; s. 940, ch. 97-102.
727.107 Duties of assignor.--The assignor shall:
(1) Assist the assignee in the administration of the estate and comply with all orders of the court;
(2) Upon delivery of the assignment to the assignee, deliver to the assignee all of the assets of the estate in the assignor's possession, custody, or control, including, but not limited to, all accounts, books, papers, records, and other documents; and
(3) Within 30 days after the filing date, submit to examination by the assignee, under oath, concerning the acts, conduct, assets, liabilities, and financial condition of the assignor or any matter related to the assignee's administration of the estate.
History.--s. 7, ch. 87-174.
727.108 Duties of assignee.--The assignee shall:
(1) Collect and reduce to money the assets of the estate, whether by suit in any court of competent jurisdiction or by public or private sale;
(2) Within 30 days after the filing date, examine the assignor, under oath, concerning the acts, conduct, assets, liabilities, and financial condition of the assignor or any matter related to the assignee's administration of the estate, unless excused by the court for good cause shown;
(3) Give notice to creditors of all matters concerning the administration of the estate, pursuant to the provisions of s. 727.111;
(4) Conduct the business of the assignor for limited periods, if in the best interest of the estate, upon authorization of the court;
(5) To the extent reasonable and necessary, pay administrative expenses of the estate, subject, however, to s. 727.114(1);
(6) To the extent necessary, employ at the expense of the estate one or more appraisers, auctioneers, accountants, attorneys, or other professional persons, to assist the assignee in carrying out his or her duties under this chapter;
(7) Keep regular accounts and furnish such information concerning the estate as may be reasonably requested by creditors or other parties in interest;
(8) File with the court an interim report of receipts and disbursements within 6 months after the filing date unless excused by the court or unless the estate has been sooner distributed in full;
(9) Examine the validity and priority of all claims against the estate;
(10) Abandon assets to duly perfected secured or lien creditors, where, after due investigation, he or she determines that the estate has no equity in such assets or such assets are burdensome to the estate or are of inconsequential value and benefit to the estate;
(11) Pay dividends and secured or priority claims as often as is compatible with the best interests of the estate and close the estate as expeditiously as possible; and
(12) File with the court a final report of all receipts and disbursements and file an application for his or her discharge pursuant to the provisions of s. 727.116.
History.--s. 8, ch. 87-174; s. 941, ch. 97-102.
727.109 Power of the court.--The court shall have power to:
(1) Enforce all provisions of this chapter;
(2) Set, approve, or reconsider the amount of the assignee's bond;
(3) Authorize the business of the assignor to be conducted for limited periods by the assignee, if in the best interest of the estate;
(4) Allow or disallow claims against the estate and determine their priority;
(5) Determine any claims of exemption by the assignor, if disputed;
(6) Hear and determine any of the following actions brought by the assignee, which she or he is hereby empowered to maintain:
(a) Enforce the turnover of assets of the estate pursuant to s. 727.106;
(b) Determine the validity, priority, and extent of a lien or other interests in assets of the estate, or to subordinate or avoid an unperfected security interest pursuant to the assignee's rights as a lien creditor under s. 679.301;
(c) Avoid any conveyance or transfer void or voidable by law;
(7) Approve the assignee's final report and interim and final distributions to creditors;
(8) Approve reasonable fees and the reimbursement of expenses for the assignee and all professional persons retained by the assignee, upon objection of a party in interest or upon the court's own motion;
(9) Hear and determine any motion brought by a party in interest or by the court to close the estate after the passage of 1 year from the date of filing of the petition;
(10) Discharge the assignee and the assignee's surety from liability upon matters included in the assignee's final report;
(11) Reopen estates for cause shown;
(12) Punish by contempt any failure to comply with the provisions of this chapter or any order of the court made pursuant to this chapter; and
(13) Exercise such other and further powers as are necessary to enforce or carry out the provisions of this chapter.
History.--s. 9, ch. 87-174; s. 942, ch. 97-102.
727.110 Actions by assignee and other parties in interest.--
(1) All matters requiring court authorization under this chapter shall be brought by motion, except for the following matters, which shall be brought by supplemental proceeding, as provided in subsection (2):
(a) An action by the assignee to recover money or other assets of the estate;
(b) An action by the assignee to determine the validity, priority, or extent of a lien or other interest in property or to subordinate or avoid an unperfected security interest under s. 727.109(6)(b); and
(c) An action by the assignee to avoid any conveyance or transfer void or voidable by law under s. 727.109(6)(c).
(2) A supplemental proceeding is an action of the type designated in paragraphs (1)(a), (b), and (c) and shall be brought as follows:
(a) The Florida Rules of Civil Procedure shall apply to supplemental proceedings, except where inconsistent with the provisions of this chapter.
(b) The clerk of the court shall docket a supplemental proceeding under both the same case number assigned to the original petition filed by the assignee pursuant to s. 727.104 and a separate supplemental proceeding number, and shall assign such supplemental proceeding to the same division and judge assigned to the main case.
(c) All pleadings and other papers filed in a supplemental proceeding shall contain a separate subcaption and the supplemental proceeding number in addition to the caption and case number applicable to the main case.
History.--s. 10, ch. 87-174.
(1) The assignee shall give notice of the assignment by publication in a newspaper of general circulation published in the county where the petition is filed and in any other county or counties where the assignment is required to be recorded pursuant to s. 727.104(2), once a week for 4 consecutive weeks, the first notice to be published within 10 days after filing of the petition; and by mailing notice to all known creditors within 20 days after filing of the petition. The notice of the assignment shall include the date of filing of the petition; the name of the court where the petition is filed and the case number assigned to the petition; the last day on which a proof of claim may be served upon the assignee, to be determined in accordance with s. 727.112(2); and the name and address of the assignor, the assignee, and the assignee's attorney, if any.
(2) The notice of assignment shall be in substantially the following form:
IN THE CIRCUIT COURT
CIRCUIT, IN AND FOR
IN RE: ____________________,
TO CREDITORS AND OTHER INTERESTED PARTIES:
PLEASE TAKE NOTICE that on __________, a petition commencing an assignment for the benefit of creditors pursuant to chapter 727, Florida Statutes, made by __________, assignor, with principal place of business at __________, to __________, assignee, whose address is __________, was filed on _____, (year) .
YOU ARE HEREBY further notified that in order to receive any dividend in this proceeding you must file a proof of claim with the assignee or the assignee's attorney on or before_____(120 days from the date of the filing of the petition).
Attorney for assignee (if any):_____
(3) The assignee shall give the assignor and all creditors not less than 10 days' notice by mail of an examination of the assignor pursuant to s. 727.108(2).
(4) The assignee shall give the assignor and all creditors not less than 20 days' notice by mail of a proposed sale of assets of the estate other than in the ordinary course of business, the compromise or settlement of a controversy, and the payment of fees and expenses to the assignee and to professional persons employed by the assignee pursuant to s. 727.108(6). Any and all objections to the proposed action must be filed and served upon the assignee and the assignee's attorney, if any, not less than 3 days before the date of the proposed action. The notice shall include a description of the proposed action to be taken and the date of the proposed action, and shall set forth the date and place for the hearing at which any objections shall be heard. If no objections are timely filed and served, the assignee may take such action as described in the notice without further order of the court.
(5) The assignee shall give the assignor and all creditors not less than 20 days' notice by mail of the filing of his or her petition for discharge and the final report of receipts and disbursements pursuant to s. 727.116. The notice shall include a summary of all receipts and disbursements of the estate and shall set forth the date and place of the final hearing.
(6) For good cause shown and without notice of hearing, the court may shorten the notice period or limit the parties to whom notice need be given, pursuant to subsection (3) or subsection (4).
(7) Wherever notice is required to be given under this chapter and the period of such notice is not specified, the court shall fix such period of notice as is appropriate in the particular circumstances.
(8) Wherever notice is required to be given under this chapter, a certificate of service of such notice shall be filed with the court.
(9) Wherever notice is not specifically required to be given under this chapter, the court in its discretion may consider motions and grant or deny relief without notice or hearing.
History.--s. 11, ch. 87-174; s. 943, ch. 97-102; s. 34, ch. 99-6.
727.112 Proof of claim.--
(1) All claims other than claims of creditors with liens on assets of the estate, whether contingent, liquidated, unliquidated, or disputed, which arose prior to the filing date, must be filed in accordance with the provisions of this chapter, and any such claim not so filed is barred from any further recovery against the estate.
(2) Claims shall be filed by delivering the claim to the assignee within 120 days from the filing date unless for cause shown.
(3) Claims shall be in written form entitled "proof of claim," setting forth the name and address of the creditor and the nature and amount of the claim, and executed by the creditor or the creditor's authorized agent.
(4) When a claim or an interest in property of the assignor securing the claim is based on a writing, the original or a copy of such writing shall be filed with the proof of claim, together with evidence of perfection of any security interest, if applicable.
(5) A proof of claim, executed and delivered in accordance with this section, shall constitute prima facie evidence of the validity and amount of the claim.
History.--s. 12, ch. 87-174.
727.113 Objections to claims.--At any time prior to the entry of an order approving the assignee's final report, the assignee or any party in interest may file with the court an objection to a claim, which objection shall be in writing and shall set forth the nature of the objection. A copy of the objection, together with notice of hearing thereon, shall be mailed to the creditor at least 20 days prior to the hearing. All claims properly filed with the assignee and not disallowed by the court shall constitute all claims entitled to distribution from the estate.
History.--s. 13, ch. 87-174.
727.114 Priority of claims.--Allowed claims shall receive distribution under this chapter in the following order of priority and, with the exception of subsection (1), on a pro rata basis:
(1) Creditors with liens on assets of the estate, which liens are duly perfected pursuant to applicable law, shall receive the proceeds from the disposition of their collateral, less the reasonable, necessary expenses of preserving or disposing of such collateral to the extent of any benefit to such creditors. If and to the extent that such proceeds are less than the amount of a creditor's claim or a creditor's lien is avoided pursuant to s. 727.109(6)(c), such a creditor shall be deemed to be an unsecured creditor pursuant to subsection (6) of this section.
(2) Expenses incurred during the administration of the estate, other than those expenses allowable under subsection (1), including allowed fees and reimbursements of all expenses of the assignee and professional persons employed by the assignee pursuant to s. 727.108(6).
(3) Unsecured claims of governmental units for taxes which accrued prior to the filing date.
(4) Claims for wages, salaries, or commissions, including vacation, severance, and sick leave pay, or contributions to an employee benefit plan earned by the individual within 90 days of the filing date or the cessation of the assignor's business, whichever occurs first, but only to the extent of $2,000.
(5) Allowed unsecured claims, to the extent of $900 for each individual, arising from the deposit with the assignor before the filing date of money in connection with the purchase, lease, or rental of property or the purchase of services for personal, family, or household use by such individuals that were not delivered or provided.
(6) Unsecured claims.
If all of the above classes have been paid in full, any residue shall be paid to the assignor.
History.--s. 14, ch. 87-174.
727.115 Resignation or removal of assignee.--
(1) The court shall remove or replace the assignee on application of the assignor, of the assignee, or of any creditor, or on its own motion, if the assignee has not executed and filed the bond required by s. 727.104(2); if the assignee resigns, refuses, or fails to serve for any reason; or for good cause.
(2) Upon removal, resignation, or death of the assignee, the court shall appoint a replacement assignee if the court deems in its discretion that further administration of the estate is required. Upon executing and filing a bond pursuant to s. 727.104(2), the replacement assignee shall forthwith take possession of the estate and assume her or his duties as assignee.
(3) Whenever the court shall be satisfied that the assignee so removed or replaced has fully accounted for and turned over to the replacement assignee appointed by the court all of the property of the estate and has filed a report of all receipts and disbursements during her or his tenure as assignee, the court shall enter an order discharging the assignee from all further duties, liabilities, and responsibilities as assignee after notice and a hearing.
History.--s. 15, ch. 87-174; s. 944, ch. 97-102.
727.116 Assignee's final report and discharge.--
(1) Upon distribution of all assets of the estate, the assignee shall petition the court for his or her discharge upon notice and a hearing in accordance with s. 727.111(5).
(2) The assignee's final report setting forth all receipts and disbursements of the estate shall be annexed to the petition for discharge and filed with the court.
(3) Upon approval of the final report, the court shall discharge the assignee and release his or her bond.
(4) The assignee's discharge shall have the effect of releasing him or her from any duties, liabilities, and responsibilities as assignee pursuant to the provisions of the assignment and this chapter.
History.--s. 16, ch. 87-174; s. 945, ch. 97-102.
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