631.262
Transfers prior to petition.
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631.262 Transfers prior to petition.—
(1) Every transfer made or suffered and every obligation incurred by an insurer or affiliate within 1 year prior to the filing of a successful petition in any delinquency proceeding under this chapter, upon a showing by the receiver that the same was incurred without fair consideration, or with actual intent to hinder, delay, or defraud either then-existing or future creditors of the insurer, shall be fraudulent and voidable. However, every such transfer or obligation incurred or suffered within 6 months prior to the filing of the above petition shall be presumed void and fraudulent, with the burden of proof upon the obligee or transferee to show otherwise. This subsection shall not apply to a person who in good faith is a purchaser, lienor, or obligee, for a present fair equivalent value, but any purchaser, lienor, or obligee who in good faith has given a valuable consideration less than fair for such transfer, lien, or obligation may retain the property, lien, or obligation as a security for repayment. The court may, on due notice, order any such transfer or obligation to be preserved for the benefit of the estate, and in that event the receiver shall succeed to and may enforce the rights of the purchaser, lienor, or obligee.
(2) Transfers shall be deemed to have been made or suffered, or obligations incurred, when perfected according to the following criteria:
(a) A transfer of property other than real property shall be deemed to be made or suffered when it becomes so far perfected that no subsequent lien obtainable by legal or equitable proceedings on a simple contract could become superior to the rights of the transferee.
(b) A transfer of real property shall be deemed to be made or suffered when it becomes so far perfected that no subsequent bona fide purchaser from the insurer could obtain rights superior to the rights of the transferee.
(c) A transfer which creates an equitable lien shall not be deemed to be perfected if there are available means by which a legal lien could be created.
(d) Any transfer not perfected prior to the filing of a petition in a delinquency proceeding shall be deemed to be made immediately before the filing of a successful petition.
(e) For the purposes of this section, a transfer is not made until the insurer or affiliate has acquired rights in the property transferred.
(f) Paragraphs (a)-(e) apply whether or not there are or were creditors who might have obtained any liens or persons who might have become bona fide purchasers.
(3) The transferor or obligor insurer shall record and preserve adequate official memoranda by corporate minutes which shall fully reflect all transactions involving transfers as contemplated by this section of real property or securities of any type and, in the case of all other property or assets, any transfer out of the insurer’s ordinary course of business. Any person, firm, or corporation, or any officer, director, or employee thereof, who shall violate this provision shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000. Each instance of such violation shall be considered a separate offense.
(4) The personal liability of the officers or directors of an insolvent insurer is subject to part I of chapter 607 and the penalties provided therein.
(5) Every transaction of the insurer with a reinsurer within 1 year prior to the filing of the petition shall be voidable upon a showing that such transaction was made without fair consideration or with intent to hinder, delay, or defraud either then-existing or future creditors, notwithstanding the provisions of subsection (1).
History.—s. 11, ch. 70-27; s. 654, ch. 71-136; s. 13, ch. 79-9; s. 809(1st), ch. 82-243; s. 12, ch. 89-360; ss. 187, 188, ch. 91-108; s. 4, ch. 91-429; s. 35, ch. 2004-374; s. 56, ch. 2014-209.
Notes of Decisions
Cited in 2
cases, 1977–1983 · leading case: Clark and Co., Inc. v. Dept. of Ins.
Clark and Co., Inc. v. Dept. of Ins. (1983)
“) The Department of Insurance urges that we reject this theory, first, because the issue was never raised below and, second, because if the letter of September 30, 1981 is interpreted as an assignment, it would be necessarily void by operation of section 631.262, Florida…”
Florida National Bank at Lakeland v. State ex rel. Department of Insurance (1977)
“Appellee contends that the “drague*’ clause did not encompass Financial Fire’s obligation under the performance bonds and that under § 631.262(1), Florida Statutes (1975) —a part of the insurance code relating to insurer insolvency — the transaction, insofar as it relates to the…”
— 631.262(1) — 1 case
Florida National Bank at Lakeland v. State ex rel. Department of Insurance (1977)
“Appellee contends that the “drague*’ clause did not encompass Financial Fire’s obligation under the performance bonds and that under § 631.262(1), Florida Statutes (1975) —a part of the insurance code relating to insurer insolvency — the transaction, insofar as it relates to the…”
— 631.262(2) — 1 case
Florida National Bank at Lakeland v. State ex rel. Department of Insurance (1977)
“Appellee contends that the “drague*’ clause did not encompass Financial Fire’s obligation under the performance bonds and that under § 631.262(1), Florida Statutes (1975) —a part of the insurance code relating to insurer insolvency — the transaction, insofar as it relates to the…”
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