CopyCited 24 times | Published | Court of Appeals for the Eleventh Circuit | 2015 WL 9241140
...“specific,” “special” authorization to do so.
Mr. Welt drew his powers as ABC assignee from the ABC agreement
executed on July 12, 2007. This agreement tracks almost exactly the language of
Florida’s ABC statute.13 Compare Doc. 20-2, with Fla. Stat. § 727.104(b)....
...In the fifth paragraph, the ABC agreement
omits “and protect and preserve” from the sentence beginning: “The assignee shall take
possession of, and protect and preserve, all such assets and administer the estate in accordance
with the provisions of chapter 727 . . .” Fla. Stat. § 727.104(b)....
...However, this argument overlooks the full import of those clauses, which all
come back to giving only the authority “necessary to execute the assignment
hereby created” and “necessary . . . to carry out the purpose of this assignment.”
Fla. Stat. § 727.104(b) (emphasis added); Doc....
...purpose.” Just the opposite—it terminated the assignment. We cannot say that
Florida’s ABC statute carries within it the seeds of its own destruction. Its form
language, which “shall be” adopted “in substantially the [listed] form” in all ABCs,
Fla. Stat. 727.104(b), does not grant an assignee the authority to unilaterally
override the assignor’s original choice of a legal regime....
...Nica deliberately selected an ABC as its preferred mode of liquidation and
executed an agreement manifesting that intent, consistent with Florida law. It
trusted Mr. Welt to “faithfully and without delay carry out her or his duties under
the assignment.” Fla. Stat. § 727.104(b); Doc....
0 red0 yellow28 green0 procedural
Cited as authorityWright (2025)phrase: "rule_authority"
Cited as authorityFranzone (2025)phrase: "rule_authority"
CopyCited 15 times | Published | Supreme Court of Florida | 30 Fla. L. Weekly Supp. 155, 2005 Fla. LEXIS 490, 2005 WL 610162
...ies of the assignees. Moreover, the statute clearly contemplates that a debtor's estate should include legal claims. According to the statute, the assets of the assignor include "claims and demands belonging to the assignor" without *763 limitation. § 727.104(1)(b), Fla. Stat. (2000). In commencing a proceeding under the statute, the debtor must list items enumerated in the statute, including "claims, and choses in action." § 727.104(1)(d), Fla....
...Weiser, Stapler & Spivak, 517 Pa. 522, 539 A.2d 357 (Pa.1988); and Rhode Island, see Cerberus Partners, L.P. v. Gadsby & Hannah, 728 A.2d 1057 (R.I.1999). [4] We also approve the district court's holding that the claim in this case is not exempt from forced sale under section 727.104, Florida Statutes (2000), because, as discussed above, the claims in this case do not involve personal services or implicate the confidentiality concerns normally associated with the assignment of legal malpractice claims.
4 red0 yellow11 green0 procedural
Receded fromToomey (2008)phrase: "receded from"
CopyCited 9 times | Published | United States Bankruptcy Court, M.D. Florida | 9 Fla. L. Weekly Fed. B 56, 1995 Bankr. LEXIS 921, 1995 WL 407816
...Even a cursory reading of this statute reveals that the relief set forth in § 303(i) is available only to the debtor. However, in a situation such as the one presently before the Court, there must be available some remedy for the improper filing of an involuntary petition. The Florida Statutes define "estate" in § 727.104(1)(b) for the purpose of assignment of benefit of creditors as all nonexempt assets of the debtor....
0 red0 yellow6 green0 procedural
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 18387, 2015 WL 8345357
...Delancy; Kula &
Associates and Elliot B. Kula and W. Aaron Daniel, for appellee.
Before SUAREZ, C.J., and SHEPHERD and LOGUE, JJ.
SHEPHERD, J.
The issue in this non-final appeal is whether an assignee for the benefit of
creditors, appointed pursuant to section 727.104 of the Florida Statutes (2012), is
bound by a mediation and arbitration clause in an assignor’s agreement with a
third-party.1 We answer the question in the affirmative and reverse the contrary
ruling of the trial court....
...Group International Corp., JTN Holdings, Inc., Eurogroup Canada, Inc., Design
District Holdings of Miami, LLC, and EK Holdings LLC (collectively “Assignors”
or “Italkitchen”) executed assignments for the benefit of creditors pursuant to
Chapter
727.104 in favor of Philip J. Von Kahle as assignee. Pursuant to the
assignment, Von Kahle took possession of all the assets of the assignors, including
all claims and demands which may exist against third parties. See §§
727.104,
727.108, Fla....
...3
private sale, including but not limited to, prosecuting any tort claims or causes of
action which were previously held by the assignor.” §
727.108(1).2
The assignee stands in the shoes of the assignor for this purpose. See
§
727.104; Naples Awning & Glass, Inc....
0 red0 yellow3 green0 procedural
Cited as authorityLuzinski (2025)phrase: "rule_authority"
Cited as authorityKahle (2023)phrase: "rule_authority"
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2005 WL 544208
...In January 2001, while the criminal action was pending, A & E assigned its assets to Lanier pursuant to chapter 727, Florida Statutes (2000), which provides for the administration of insolvent estates. [2] Lanier then filed a petition in the circuit court as required by section 727.104(2)(b)....
...An assignment for the benefit of creditors is an alternative to bankruptcy and allows a debtor to voluntarily assign its assets to a third party in order to liquidate the assets to fully or partially satisfy creditors' claims against the debtor. Moecker v. Antoine,
845 So.2d 904, 910 (Fla. 1st DCA 2003). Section
727.104 describes the required contents of an assignment for the benefit of creditors, including a description of the efforts to be undertaken by the assignee to administer the insolvent estate....
...To the extent that funds are available in the estate after payment of administrative expenses, costs, and disbursements, Lanier is required to pay and discharge the debts and liabilities due from A & E. If all of A & E's debts and liabilities are paid in full, Lanier must return to A & E any remaining estate funds. §
727.104(1)(b). Once an assignment is made under section
727.104, all creditors except for lien holders are required to file proofs of claim pursuant to section
727.112....
...A & E's legal and equitable interests in its nonexempt assets, which constituted the estate. Lanier's duties included taking possession of and administering the estate, and liquidating the assets and converting the estate into money. Consistent with section 727.104(1)(b), the assignment provided that to the extent funds are available after payment of administrative expenses, costs, and appropriate disbursements, Lanier was required to pay and discharge "all of the debts and liabilities now due f...
0 red0 yellow4 green0 procedural
Cited as authorityLuzinski (2025)phrase: "rule_authority"
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2003 WL 1086514
...of chapter 727 in 1987. See Ch. 87-174, Laws of Florida. Chapter 727 is intended "to provide a uniform procedure for the administration of insolvent estates," section
727.101, Florida Statutes (1997), subject to the supervision of the circuit court. Section
727.104 provides a form of assignment, and requires the assignee to record the assignment in the public records as well as to file *911 a petition and bond in the circuit court....
...Section
727.114 sets the priority for the claims against the insolvent estate. In the event there are insufficient assets to satisfy all proper claims made against the estate, claims are to be paid on a pro rata basis and in proportion to the scheme of priority provided in section
727.114. See §
727.104(1)(b)....
0 red0 yellow3 green0 procedural
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 15828, 2010 WL 4103149
...tors. See §
727.101, Fla. Stat. (2008). Two days later, Michael Phelan timely filed a separate Petition Commencing Assignment for The Benefit of Creditors in the circuit court to facilitate the performance of his duties ("the Assignment Case"). See §
727.104, Fla....
...sing by contract or in tort, wherever located, and by whomever held at the date of the assignment, except property exempt by law from forced sale. §
727.103(1), Fla. Stat. (2008) (emphasis added). In addition, the standard assignment form, found in section
727.104(b), corresponds to the statute by specifically including "claims and choses in action." See §
727.104(b), Fla....
...on. Collectively, these assets create an "estate." See §
727.103(9), Fla. Stat. (2008). The assignee, in turn, is required to take possession of, protect and preserve, and liquidate the assets of the estate and to convert the estate to money. See §§
727.104(1)(b), .108, Fla....
...s not automatically stay the enforcement by a consensual lienholder of its legal rights in the security. See §
727.105, Fla. Stat. However, Moffatt is not a consensual lienholder within this section. [4] This language also appears in the version of section
727.104(b) prior to the 2007 revisions. See §
727.104(b), Fla....
0 red0 yellow1 green0 procedural
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2002 WL 31398779
...Kaplan has standing to bring the claims for malpractice against the Attorneys. For the same reasons as set forth above, we further hold that the trial court incorrectly determined that such claims are exempt by law from levy and sale under an execution of assignment, pursuant to section 727.104, Florida Statutes (2000), the Assignment for Benefit of Creditors statute....
0 red0 yellow3 green0 procedural
Cited as authorityMaxfield (2006)phrase: "rule_authority"
Cited as authorityKaplan (2005)phrase: "rule_authority"
CopyCited 3 times | Published | United States Bankruptcy Court, S.D. Florida. | 1989 Bankr. LEXIS 917
...[6] The Receiver did not contend that it was a custodian under 11 U.S.C. § 101(10)(B), presumably because the Receiver was not an "assignee under a general assignment for the benefit of the [D]ebtor's creditors," since there was no such action commenced by or against the Debtor at any time pursuant to section 727.104 of the Florida Statutes....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2014 WL 51686, 2014 Fla. App. LEXIS 144
...btor to voluntarily assign its assets to a third party [assignee] in order to liquidate the assets to fully or partially satisfy creditors’ claims against the debtor.” Hillsborough Cnty. v. Lanier,
898 So.2d 141, 143 (Fla. 2d DCA 2005); see also §
727.104(l)(b), Fla....
...(2010). The mechanics of Chapter 727 are that the assignor assigns to the assignee “all of its assets, except such assets as are exempt by law from levy and sale under an execution”; the assets so assigned become the “estate” of the assignor. § 727.104(b), *1051 Fla....
...wherever located, and by whomever held at the date of the assignment.” Because the impleader complaint alleged a fraudulent transfer of assets, Effective retained equitable ownership of the property transferred to Etech Texas, so that the equitable interest was an asset of the estate under sections
727.104(l)(b),
727.103(9), and
727.103(1)....
0 red0 yellow1 green0 procedural
CopyPublished | United States Bankruptcy Court, S.D. Florida. | 23 Fla. L. Weekly Fed. B 267, 2012 WL 423326, 2012 Bankr. LEXIS 454
...es the actual amount claimed, such as the accounts application or contract or most recent statement provided to Debtor prior to the filing date. The document does not attach any documents and/or evidence of lawful assignment of note as provided on F.S. 727.104. The assignment of the negotiable instrument and/or note does not substantially confirm and/or comply with the strict language of 727.104....
...es the actual amount claimed, such as the accounts application or contract or most recent statement provided to Debtor prior to the filing date. The document does not attach any documents and/or evidence of lawful assignment of note as provided on F.S. 727.104. The assignment of the negotiable instrument and/or note does not substantially confirm and/or comply with the strict language of 727.104....
...es the actual amount claimed, such as the accounts application or contract or most recent statement provided to Debtor prior to the filing date. The document does not attach any documents and/or evidence of lawful assignment of note as provided on F.S. 727.104. The assignment of the negotiable instrument and/or note does not substantially confirm and/or comply with the strict language of 727.104....
...e actual amount claimed, such as the accounts application or contract or most recent statement provided to Debtor prior to the filing date. The document does not attach any documents and/or evidence of lawful assignment of note as provided on *916 F.S. 727.104. The assignment of the negotiable instrument and/or note does not substantially confirm and/or comply with the strict language of 727.104....
...es the actual amount claimed, such as the accounts application or contract or most recent statement provided to Debtor prior to the filing date. The document does not attach any documents and/or evidence of lawful assignment of note as provided on F.S. 727.104. The assignment of the negotiable instrument and/or note does not substantially confirm and/or comply with the strict language of 727.104....
...es the actual amount claimed, such as the accounts application or contract or most recent statement provided to Debtor prior to the filing date. The document does not attach any documents and/or evidence of lavTul assignment of note as provided on F.S. 727.104. The assignment of the negotiable instrument and/or note does not substantially confirm and/or comply with the strict language of 727.104....
...es the actual amount claimed, such as the accounts application or contract or most recent statement provided to Debtor prior to the filing date. The document does not attach any documents and/or evidence of lawful assignment of note as provided on F.S. 727.104. The assignment of the negotiable instrument and/or note does not substantially confirm and/or comply with the strict language of 727.104....
...es the actual amount claimed, such as the accounts application or contract or most recent statement provided to Debtor prior to the filing date. The document does not attach any documents and/or evidence of lawful assignment of note as provided on F.S. 727.104. The assignment of the negotiable instrument and/or note does not substantially confirm and/or comply with the strict language of 727.104....
...Hernandez submits proposed eOrder #275958 after hearing striking & disallowing the claim ... court modifies and enters proposed order sustaining objection to Claim # 12 on 11/04/2011 There is no such thing as “Local Rule 3000-l(A)(3),” and § 727.104 of the Florida Statutes has nothing to do with the validity of assignments for any of these claims....
...There is nothing in the record to indicate that a state court ABC was commenced before this voluntary bankruptcy filing. Accordingly, there was no requirement of a written “irrevocable assignment and schedules” conforming to the form contained within §
727.104 and “providing for an equal distribution of the estate according to the priorities set forth in s.
727.114” Fla. Stat. §
727.104 (l)(a)....
...perjury in their schedules to owing. 1 A common law assignment or delegation of a contractual right or obligation which does not relate to a Florida state court “ABC” (“assignment for the benefit of creditors”) proceeding is not governed by § 727.104....
0 red0 yellow1 green0 procedural
CopyPublished | Florida 3rd District Court of Appeal | 2012 WL 4795669, 2012 Fla. App. LEXIS 17346
...from bona fide dealers in precious metals. The companies were vehicles for a fraudulent scheme, and they failed. The companies designated Mr. Stermer, a specialist in liquidating failed companies, as “assignee for the benefit of creditors” under section 727.104, Florida Statutes (2010) to marshal and sell the companies’ assets so that the net proceeds could be paid to creditors....
CopyPublished | Florida 3rd District Court of Appeal | 2008 Fla. App. LEXIS 7531, 2008 WL 2185225
...Raltron Electronics Corporation (“Ral-tron”) executed a statutory general assignment for the benefit of creditors, assigning all of its assets, except those “exempt by law from levy and sale under an execution,” to Michael Phelan (“the Assignee”). See § 727.104, Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Petitioners additionally and expressly assigned to Assignee “all
books, records, and electronic data pertaining to all such assets,” and irrevocably
appointed Assignee their true and lawful attorney with “full power and authority to
do all acts and things which may be necessary to execute the assignment.” §
727.104(b), Fla....
...action that were previously held by the assignor, regardless of any
generally applicable law concerning the nonassignability of tort claims
or causes of action..”
§
727.108(1), Fla. Stat. (2020).
In furtherance of these duties, section
727.104(b) requires that the assignment
be in substantially the form as set forth in that subsection, and requires not merely
3
the assignment of all assets (including causes of action) of the ins...
CopyPublished | Florida 3rd District Court of Appeal
...Petitioners additionally and expressly assigned to Assignee “all
books, records, and electronic data pertaining to all such assets,” and irrevocably
appointed Assignee their true and lawful attorney with “full power and authority to
do all acts and things which may be necessary to execute the assignment.” §
727.104(b), Fla....
...action that were previously held by the assignor, regardless of any
generally applicable law concerning the nonassignability of tort claims
or causes of action..”
§
727.108(1), Fla. Stat. (2020).
In furtherance of these duties, section
727.104(b) requires that the assignment
be in substantially the form as set forth in that subsection, and requires not merely
3
the assignment of all assets (including causes of action) of the ins...
CopyPublished | Court of Appeals for the Eleventh Circuit
...with the month of onset of total disability due to pneumoconiosis or January 1, 1974, whichever is later. Where the evidence does not establish the month of onset, benefits shall be payable from the month during which the miner elected review under § 727.104....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 11731
...on November 26, 2013, the creditor filed a judgment lien certificate with the Florida Secretary of State, Division of Corporations (“November 26, 2013 Lien”), on the debtor’s assets. At 5:36 p.m. on November 26, 2013, the debtor’s assignee petitioned the trial court for assignment for the benefit of creditors under section 727.104, Florida Statutes (“ABC Proceeding”)....
...Chapter 727 “provide[s] a uniform procedure for the administration of insolvent estates, and ... ensure[s] full reporting to creditors and equal distribution of assets according to priorities as established under [chapter 727].” §
727.101, Fla. Stat. (2013). Section
727.104(1), Florida Statutes, pro *507 vides the form of the assignment and requires compliance with it. §
727.104(1), Fla. Stat. (2013); see Smith v. Effective Teleservices, Inc.,
133 So.3d 1048, 1050-51 (Fla. 4th DCA 2014). The June 11, 2013 Assignment did substantially follow the required form. “Section
727.104 ......
...[also] requires the assignee to record the assignment in the public records as well as to file a, petition and bond in the circuit court.” Moecker v. Antoine,
845 So.2d 904, 910-11 (Fla. 1st DCA 2003). Subsection (2) requires that this be done within ten days after delivery of the assignment to the assignee. §
727.104(2), Fla....
...The only record evidence of the June 11, 2013 Assignment' is a copy attached to the ABC Proceeding petition. It does not indicate whether or when it was recorded. But, the creditor also argues the assignee failed to file the ABC Proceeding petition within the section 727.104(2) time limits....
...Here, the assignee failed to file the petition in the circuit court within ten days of delivery of the assignment. The assignee petitioned for the ABC Proceeding on November 26, 2013, and signed the acceptance of the June 11, 2013 Assignment on July 15, 2013. Although the June 11, 2013 Assignment met the section 727.104(1) form requirements, the untimely filing invalidated the ABC Proceeding under section 727.104(2)....
...the assignment invalid and void. The trial court erred in overruling the creditor’s objections, approving the-sale, and in its final order approving the distribution of assets. We reverse based' upon the debtor’s failure to comply with sections
727.104 and
727.111, Florida Statutes....
