MOFFATT & NICHOL, INC., ETC., APPELLANT,
v.
B.E.A. INTERNATIONAL CORP., INC., ETC., APPELLEE

Fla. 3d DCA | 2010-10-20
No. 3D08-2089
Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
48 So. 3d 896 Florida District Court of Appeal, Third District (2010) Positive Treatment
Cited by 8 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Moffatt & Nichol, a judgment creditor, appealed the denial of its motion for proceedings supplementary against B.E.A. International Corporation after BEAI made a statutory assignment for the benefit of creditors. The court held that under Florida's 2007 amendments to Chapter 727, only the court-appointed assignee, not individual creditors, has standing to pursue derivative claims and fraudulent transfer actions against assets of the debtor estate.


Holding

The court held that a judgment creditor does not have standing to pursue derivative claims or fraudulent transfer actions. Under Florida's 2007 amendments to Chapter 727, which expanded the definition of 'assets' to include 'claims and causes of action,' only the court-appointed assignee has exclusive authority to pursue such claims for the benefit of all creditors.


Headnotes

[1] Following a statutory assignment for the benefit of creditors, only the assignee has standing to pursue derivative claims, such as fraudulent transfers or alter ego claim…

[2] Florida law defines "asset" in the context of an assignment for the benefit of creditors to include claims and causes of action, whether arising by contract or tort.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“Under the statutory scheme as it now exists, only an assignee has standing to pursue fraudulent transfers, preferential transfers or other derivative claims.”

This quote establishes the central holding that the assignee, not individual creditors, has exclusive authority to pursue derivative and fraudulent transfer claims.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Moffatt obtained a $179,926.46 judgment against BEAI for breach of an architectural services agreement on March 25, 2008, and recorded a judgment lien…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
SHEPHERD, J.

SHEPHERD, J.

This is an appeal of a non-final order denying a judgment creditor’s Amended Motion for Proceedings Supplementary and Motion for Issuance of Writ of Execution, pursuant to Florida Rule of Appellate Procedure 9.130(a)(4). We have jurisdiction. The question presented is whether one particular creditor has standing to pursue derivative claims, alleging loss or damage to a person or entity, against a debtor company, which has made a statutory assignment for the benefit of creditors pursuant to Chapter 727 of the Florida Statutes after the assignment has been made. For the reasons set forth below, we answer the question in the negative.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises from a thwarted effort by appellant, Moffatt & Nichol, Inc., etc. (Moffatt), to obtain a writ of execution 1 and conduct proceedings supplementary in furtherance of recovering $179,926.46 due it under the terms of an Amended Final Judgment rendered in its favor and against appellee, B.E.A. International Corporation, Inc., etc. (BEAI), on March 25, 2008, as a result of BEAI’s breach of the payment terms of an architectural services agreement between the two entities (“the Contract Case”). On April 29, 2008, Moffatt executed a judgment lien certificate and sent it to the Secretary of State for recording. On that same date, BEAI made an Assignment for the Benefit of Creditors, pursuant to Chapter 727 of the Florida Statutes, to Michael Phelan, a fiduciary appointed by BEAI for the purpose of liquidating BEAI’s assets for the benefit of all creditors. 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. Stat. (2008).

Two weeks after that, on May 17, 2008, Moffatt filed a Motion for Proceedings Supplementary in the Contract Case against the assignor, BEAI, and a related third party, BEA Architects, Inc. (“BEAA”), which Moffatt alleges miraculously appeared to continue the business of BEAI in all respects — same location, employees, office equipment, telephone numbers, website, and President (Bruno Ramos) with the same $250,000 salary. On June 25, 2008, over Moffatt’s objection, the trial court in the Assignment Case granted Assignee Michael Phelan’s request for approval of a contract for the sale of certain specified assets of BEAI to BEAA, free and clear of all liens and encumbrances, including the judgment lien held by Mof-*898fatt, for the sum of $25,000. The order acknowledged Moffatt’s position that the filing of the petition did not compromise Moffatt’s right to engage in proceedings supplementary in the Contract Case.

Two days later, Moffatt filed an Amended Motion for Proceedings Supplementary and to Implead Third Parties in the Contract Case. The motion sought to add Art, Design & Construction, Inc. (“ADC”), River Property, a joint venture (“River Property”), 4111 Lejeune Road, Inc. (“4111 Le-jeune Road”), Ahern-Plummer, Inc. (“Ahern-Plummer”), Addition Acquisitions, LLC (“Addition Acquisitions”), Bruno Ramos and his wife, Maritz Ramos, as additional third-party defendants.2 Mof-fatt alleged that BEAA and the proposed additional corporate defendants were all majority owned by the Ramoses, and the Assignment for the Benefit of Creditors was nothing more than an elaborately planned fraudulent transfer scheme, orchestrated and executed by BEAI’s handpicked statutory assignee for the purpose of shielding BEAA from any successor liability claims the order approving the sale might offer. Moffatt further argued, based on but brief discovery, that it appeared BEAI failed to schedule significant assets on the Assignment, which were held by certain of the additional defendants as alter egos of BEAI, and BEAI had transferred hundreds of thousands of dollars in cash to ADC the day after the Assignment was executed, in contravention of section 726.106 of Florida’s Uniform Fraudulent Transfers Act. Finally, Moffatt argued it was entitled to pursue all of these claims in its own name and capacity, separate and distinct from Michael Phelan, the Assign-ee. It is on this point the trial court disagreed and on which we affirm.

ANALYSIS

Moffatt’s principal argument on appeal is that the trial court in the Contract Case erred by failing to appreciate that Moffatt does not seek to reach any assets in the “possession, custody or control of the as-signee” in the Assignment Case within the meaning of Chapter 727 of the Florida Statutes, but only property in the hands of entities not parties to that case — i.e., the proposed additional third-party defendants named in the Amended Motion for Proceedings Supplementary. In support of its argument, Moffatt directs our attention to section 727.105 of the Florida Statutes (2008), which states, in relevant part, that “[ejxcept in the case of a consensual lien-holder3 enforcing its rights in personal property or real property collateral, there shall be no levy, execution, attachment or the like in respect of any judgment against assets of the estate in the possession, custody, or control of the assignee.”

In former times, Moffatt’s argument might have had merit. However, one year before the execution of the Assignment for the Benefit of Creditors in this case, Florida’s legislature adopted its most extensive revision of Chapter 727, *899Florida Statutes, in a decade. See Ch. 2007-185, Laws of Fla. (eff. July 1, 2007). In this revision, the definition of “asset” in section 727.103(1), was expanded to include, for the first time, the phrase, “claims and causes of action, whether arising by contract or tort.” As amended, the definition now reads:

“Asset” means a legal or equitable interest of the assignor in property, which includes anything that may be the subject of ownership, whether real or personal, tangible or intangible, including claims and causes of action, whether arising 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. Stat. (2008).4 Thus, under the terms of Florida’s Assignment for the Benefit of Creditors law as it presently exists, the assignor conveys to the assignee all of its assets as defined in section 727.103(1), except such assets as are exempt by law from levy and sale under an execution. 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(l)(b), -108, Fla. Stat. (2008). Under the statutory scheme as it now exists, only an assignee has standing to pursue fraudulent transfers, preferential transfers or other derivative claims.5

Moffatt places primary reliance for its position that it has an independent right to pursue derivative claims against the proposed additional third-party defendants on Seminole Boatyard, Inc. v. Christoph, 715 So.2d 987 (Fla. 4th DCA 1998). Seminole Boatyard is inapposite. In Seminole Boatyard, Seminole obtained a $746,998 judgment for unpaid rent against its commercial tenant, Florida Atlantic Marine (“FAM”), after which FAM filed for bankruptcy. Id. at 988. Seminole then filed a separate action against Robert Christophe, the president of FAM, alleging he had diverted funds from FAM before the bankruptcy filing, and also had “intentionally used FAM to ‘break’ George Whitten, the president of Seminole, and force Seminole to lose its property through foreclosure.” Id. In the meanwhile, Christophe purchased the bankruptcy estate’s claims against himself, obtaining a general release from the trustee in bankruptcy that *900included all rights, claims and causes of action against him that accreted to the bankruptcy trustee by virtue of the filing. Id. Christophe then successfully deployed the release as a complete bar on summary judgment in the separate action brought by Seminole on the theory that Seminole’s claim was among those accreted. Id. at 989. In its order approving Christophe’s claims purchase, the bankruptcy court expressly declined to opine concerning whether Seminole’s claim had, in fact, been released. Id. at 988.

On Seminole’s appeal from the trial court’s adverse summary decision, the Fourth District Court reversed, relying principally on E.F. Hutton & Co. v. Hadley, 901 F.2d 979 (11th Cir.1990), which involved a negligence claim against a broker, and which held that “nothing in the Bankruptcy Code authorizes a trustee to collect money owed to a creditor of the estate, but not to the estate.” Seminole Boatyard, 715 So.2d at 989 (citing E.F. Hutton, 901 F.2d at 986). Based upon E.F. Hutton, the court found that Seminole, not the bankrupt estate, was the real party in interest to seek to pierce FAM’s corporate veil and assert an alter ego claim or such other claims as existed for unpaid rent as against Christophe personally. Seminole Boatyard, 715 So.2d at 990. In short, the district court of appeal concluded that Seminole’s action was for money owed it as a distinct creditor and not to the estate as a whole.

The case before us is the obverse of Seminole Boatyard. Unlike Seminole in its case, Moffatt is not trying to collect money owed to it via an independent claim of misbehavior. Moffatt makes no allegation that any one of the proposed additional third-party defendants against whom it wishes to proceed has caused it a particularized harm separate and distinct from the detriment that may have befallen any other creditor of the assignment estate. Instead, Moffatt’s proposed supplemental proceeding is nothing more than a collection action for the purpose of assembling assets to satisfy its own judgment. Since at least 2007, the right to pursue such “claims[,] causes of action” and “dioses in action” has resided solely in a duly appointed assignee for the benefit of all creditors upon the appointment of the as-signee.6

We acknowledge Moffatt’s concern that the Assignment for Benefit of Creditors statute may offer a larger window for collusion than might appear to be the case in a bankruptcy proceeding since, under the assignment statute as it exists, the assign- or in an Assignment for the Benefit of Creditors action chooses the assignee. However, this concern is neither expressly included among Moffatt’s points on appeal in this case, nor the true thrust of the argument Moffatt makes to us. We do note, however, that the assignee, upon appointment, is a fiduciary that is required to post a bond, the sufficiency of which is *901challengeable by any interested party, who must be given notice of the proceeding.

In the final analysis, Moffatt’s stratagem is an impermissible end-run around the Assignment for the Benefit of Creditors statute, and an improper attempt to get to the head of the line, in front of all the other creditors of BEAI, in violation of the spirit, if not the letter, of the Assignment for the Benefit of Creditors statute. See In re Prime Motor Inns, Inc., 135 B.R. 917, 920 (Bankr.S.D.Fla.1992) (“To grant individual creditors ... the right to prosecute avoidance actions ... would unfairly enable individual creditors to pursue their own parochial or insular interests, to the detriment of all other creditors.”). We hold that, like a bankruptcy trustee, an assignee for the benefit of creditors has the exclusive authority to pursue fraudulent transfers and other “dioses in action” for the benefit of all creditors.

Affirmed.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Akin BAY Co., LLC v. VON Kahle, 180 So. 3d 1180 (Fla. 3d DCA 2015)
    ….130(a)(3)(C)(iv), which authorizes district courts of appeal to review non-final orders adjudicating "the entitlement of a party to arbitration or appraisal under an insurance policy." . See generally, Moffatt & Nichol, Inc. v. B.E.A. Int'l Corp., 48 So. 3d 896, 899 (Fla. 3d DCA 2010). . See, e.g., § 727.105 (prohibiting levy, execution, attachment, or the-like against assets of the assignment estate, except in the case of a consensual lienholder); § 727.108(1) (authorizing an assignee to prosecute tort c…
  • Ardura v. Moris Beracha (Fla. 3d DCA 2021)
    …8) (“For money to be the object of conversion there must be an obligation to keep intact or deliver the specific money in question, so that money can be identified”) (quotation omitted). See Moffatt & Nichol, Inc. v. B.E.A. Intern. Corp., Inc., 48 So. 3d 896 (Fla. 3d DCA 2010) (holding that judgment creditor 5 was not entitled to “get to the head of the line” and to pursue derivative claims against transferees).2 Affirmed. 2 The parties agree that counts 7, 8, and 9 (asserting claims for acco…
  • Allerd Charles Smith v. Effective Teleservices, Inc., 133 So. 3d 1048 (Fla. 4th DCA 2014)
    …assignment for the benefit of creditors, Etech Texas and Rocco filed motions to dismiss the impleader complaint, claiming that Smith lacked standing to pursue the causes of action; they relied on Moffatt & Nichol, Inc. v. B.E.A. International Corp., 48 So. 3d 896, 899 (Fla. 3d DCA 2010), to argue that “only an assignee has standing to pursue fraudulent transfers, preferential transfers or other derivative claims.” The circuit court granted the motions and dismissed the impleader complaint with prejudice. Re…

Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw