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.
This case arises from a thwarted effort by appellant, Moffatt & Nichol, Inc., etc. (Moffatt), to obtain a writ of execution
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 Moffatt,
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 Lejeune Road"), Ahern-Plummer, Inc. ("Ahern-Plummer"), Addition Acquisitions, LLC ("Addition Acquisitions"), Bruno Ramos and his wife, Maritz Ramos, as additional third-party defendants.
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 assignee" 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 "[e]xcept in the case of a consensual lienholder
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,
§ 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).
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
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 "choses in action" has resided solely in a duly appointed assignee for the benefit of
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 assignor 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
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 "choses in action" for the benefit of all creditors.
Affirmed.