CopyCited 8 times | Published | Florida 1st District Court of Appeal | 2008 WL 5220645
...the liquidation of the insurer is filed in the office of the clerk of the court which made the order, and a claim of offset shall not create a secured claim to any funds or property in the possession of the person claiming offset. (emphasis added). Section 631.281, Florida Statutes (2004), addresses offsets and provides: (1) In all cases of mutual debts or mutual credits between the insurer and another person in connection with any action or proceeding under this chapter, such credits and debts...
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1992 Fla. App. LEXIS 9768, 1992 WL 221534
...to an order of ... liquidation under this chapter shall deliver the funds or other property to the receiver on demand. Should the person allege any right to retain the funds pursuant to s.
631.155, s.
631.191, s.
631.261, s.
631.262, s.
631.263, or s.
631.281, a pleading setting out the right shall be filed with the court within 20 days of the receipt of the receiver's demand that the funds or property be delivered to the receiver....
...The *433 remainder of subsection (1) addresses situations where the person in possession of the insurer's property seeks to retain possession because he has some claim to the property of his own. Section
631.154(1)'s reference to the offset provisions of section
631.281 provides an example of just such a situation. See also, Sunset Commercial Bank v. Florida Dept. of Ins.,
509 So.2d 366 (Fla. 1st DCA 1987); and Barnett Bank of Jacksonville, N.A. v. State ex rel. Dept. of Ins.,
507 So.2d 142 (Fla. 1st DCA 1987), construing section
631.281....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 1146
...of Rehabilitation and Liquidation, Tallahassee, for appellee. ZEHMER, Judge. Barnett Bank filed a petition in the ancillary receivership proceedings against Midland Insurance Company (Midland), an insolvent insurer, seeking court approval of a setoff under section 631.281, Florida Statutes (1985). The trial court denied the petition and Barnett appeals. We reverse because Barnett demonstrated the mutuality *143 of obligation necessary to establish the right to an offset under section 631.281....
...oted that Barnett had apparently not accepted the indemnification agreement. The court also reasoned that allowing the offset would create an unlawful preference for Barnett over Midland's other creditors, and stated that neither section
631.271 nor section
631.281, Florida Statutes (1985), permits the creation of a preference for a creditor who claims an offset. Section
631.281(1) provides that "[i]n all cases of mutual debts or mutual credits between the insurer and another person in connection with any action or proceeding under this chapter, such credits and debts shall be set off and the balance only sha...
...r the receiver was appointed. We disagree with this position for the following reasons. Section
631.251, Florida Statutes (1985), provides that the rights and liabilities of all parties become fixed as of the date of the order directing liquidation. Section
631.281(2)(a) provides that no offset will be allowed where "[t]he obligation of the insurer to such person would not at the date of the entry of any liquidation order or otherwise, as provided in s....
...Because Midland's obligation to pay Barnett arose, but was suspended when Barnett accepted the checks and became a holder, both Midland's debt to Barnett and the bank's obligation on the account existed before the liquidation order was entered on April 8. Thus, Barnett has demonstrated the mutuality required under section 631.281....
...Here, by way of contrast, the funds in the Barnett account belonged to Midland and were subject to withdrawal on demand. Thus, the $10,000 account was subject to a setoff by Barnett on April 3, the day it accepted the checks. The Department also argues that, even if Barnett is entitled to an offset within the meaning of section
631.281, that section has been impliedly limited by the 1983 enactment of section
631.271....
...before the claims of creditors who would normally be given priority under section
631.271. The Department argues that this result was not intended by the legislature and that section
631.271 should be read to limit the amount of offset allowed under section
631.281. We find, however, that section
631.281 was amended at the same time section
631.271 was enacted and can be applied in this case without violating the intent of section
631.271. The offset permitted by
631.281 is, by its very nature, a specie of preference....
...Its purpose is to provide a preference to this limited extent. This is consistent with
631.271 because that section, by creating priorities of claims, also prefers some creditors over others. We decline to limit the clear and unambiguous language of section
631.281. Accordingly, we disapprove the ruling of the circuit court that the application of section
631.281 in this case gives Barnett an unlawful preference....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 1494
...Sunset Commercial Bank appeals an order denying its motion for a refund of withdrawn funds, and directing it to transfer the balance of certain deposit accounts to the Department of Insurance. We find that Sunset Commercial Bank's offset claim under section 631.281, Florida Statutes, should have been allowed, and we reverse the order appealed....
...The court denied this motion and directed payment of any funds remaining in the obligor's accounts to the Department of Insurance as receiver. Sunset Commercial Bank predicates its challenge to this order upon the contention that it has a self-executing right to offset by application of section 631.281, Florida Statutes....
...Sunset Commercial Bank did not assert such a claim until after the order of liquidation, at which time section
631.181, Florida Statutes, requires the filing of claims in the receivership court. While the act contains a statutory offset provision for mutual debts or credits, see section
631.281, Florida Statutes, neither this enactment nor section
631.281 contains any exemption from filing requirements for offset claims....
...Although Sunset Commercial Bank was thus not entitled to a self-executing offset, upon presentment of its claim to the receivership court the offset should have been allowed as a specie of preference before the general distribution of claims classified under section
631.271, Florida Statutes. The application of section
631.281 in this manner was recently approved by this court in Barnett Bank of Jacksonville v....
...Department of Insurance,
507 So.2d 142 (Fla. 1st DCA 1987), and we adhere to this construction of the statute. We therefore conclude that the court below erred by declining to give effect to the claimed offset which Sunset Commercial Bank asserted pursuant to section
631.281, Florida Statutes....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 10147, 2010 WL 2732606
...The Department of Financial Services ("DFS"), as the receiver of First Commercial Insurance Company ("FCI") and First Commercial Transportation and Property Insurance Company ("FCT"), seeks review of two non-final orders holding that Branch Banking and Trust Company ("the bank") was entitled to offsets pursuant to section 631.281, Florida Statutes (2009)....
...These appeals were initially consolidated for the purpose of oral argument only; we now sua sponte consolidate them for the purpose of this opinion. DFS argues that the trial court erred in both cases by granting offsets where there was no mutuality of debts, as required by section 631.281....
...FCI, rather than to its affiliates and principals. Those loans, however, were not subject to the pledges at issue. In the case concerning FCI, the bank requested enforcement of its rights as a secured creditor and, alternatively, offsets pursuant to section 631.281....
...r this chapter shall deliver the funds, assets, or other property to the receiver on demand. Should the person allege any right to retain the funds, assets, or other property pursuant to s.
631.155, s.
631.191, s.
631.261, s.
631.262, s.
631.263, or s.
631.281, a pleading setting out the right shall be filed with the court within 20 days after the receipt of the receiver's demand that the funds, assets, or property be delivered to the receiver.......
...ment. §
631.154(3). Entitlement to the funds maintained in the CDs was in dispute based on the bank's claims for enforcement of its rights as a secured creditor in both cases and for offsets in the case concerning FCI. The offset claim was based on section
631.281, which provides, in pertinent part, as follows: (1) In all cases of mutual debts or mutual credits between the insurer and another person in connection with any action or proceeding under this chapter, such credits and debts shall be set off and the balance only shall be allowed or paid.... As the statute indicates, an offset can be granted only where there is mutuality. §
631.281....
