Truly Agreed, 2016

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SS HCS HB 1765, 2016    (New Section - Proposed Language)

515.545. 1. A receiver has the following powers and authority:
     (1) To incur or pay expenses incidental to the receiver's preservation and use of estate property, and otherwise in the performance of the receiver's duties, including the power to pay obligations incurred prior to the receiver's appointment if and to the extent that payment is determined by the receiver to be prudent in order to preserve the value of estate property and the funds used for this purpose are not subject to any lien or right of setoff in favor of a creditor who has not consented to the payment and whose interest is not otherwise adequately protected;
     (2) If the appointment applies to all or substantially all of the property of an operating business or any revenue-producing property of the debtor, to do all the things which the owner of the business or property may do in the exercise of ordinary business judgment, or in the ordinary course of the operation of the business as a going concern or use of the property including, but not limited to, the purchase and sale of goods or services in the ordinary course of such business, and the incurring and payment of expenses of the business or property in the ordinary course;
     (3) To assert any rights, claims, or choses in action of the debtor, if and to the extent that the rights, claims, or choses in action are themselves property within the scope of the appointment or relate to any estate property, to maintain in the receiver's name or in the name of the debtor any action to enforce any right, claim, or chose in action, and to intervene in actions in which the debtor is a party for the purpose of exercising the powers under this subsection;
     (4) To intervene in any action in which a claim is asserted against the debtor, for the purpose of prosecuting or defending the claim and requesting the transfer of venue of the action to the court appointing the receiver. However, the court shall not transfer actions in which a state agency is a party and as to which a statute expressly vests jurisdiction or venue elsewhere. This power is exercisable with court approval by a limited receiver, and with or without court approval by a general receiver;
     (5) To assert rights, claims, or choses in action of the receiver arising out of transactions in which the receiver is a participant;
     (6) To pursue in the name of the receiver any claim under sections 428.005 to 428.059 assertable by any creditor of the debtor, if pursuit of the claim is determined by the receiver to be appropriate in the exercise of the receiver's business judgment;
     (7) To seek and obtain advice or instruction from the court with respect to any course of action with respect to which the receiver is uncertain in the exercise of the receiver's powers or the discharge of the receiver's duties;
     (8) To obtain appraisals with respect to estate property;
     (9) To compel by subpoena any person to submit to an examination under oath, in the manner of a deposition in accordance with rule 57.03 of the Missouri rules of civil procedure, with respect to estate property or any other matter that may affect the administration of the receivership;
     (10) To use, sell, or lease property other than in the ordinary course of business pursuant to section 515.645, and to execute in the debtor's stead such documents, conveyances, and borrower consents as may be required in connection therewith; and
     (11) All other powers as may be conferred upon the receiver specifically by sections 515.500 to 515.665, by statute, court rule, or by the court.
     2. A receiver has the following duties:
     (1) The duty to notify all federal and state taxing and applicable regulatory agencies of the receiver's appointment in accordance with any applicable laws imposing this duty, including but not limited to, 26 U.S.C. Section 6036;
     (2) The duty to comply with state law;
     (3) If a receiver is appointed with respect to any real property, the duty to record as soon as practicable within the land records in any county in which such real property may be situated a notice of lis pendens as provided in section 527.260, together with a certified copy of the order of appointment, together with a legal description of the real property if one is not included in that order; and
     (4) Other duties as may be required specifically by sections 515.500 to 515.665, by statute, court rule, or by the court.
     3. The various powers, authorities, and duties of a receiver provided by sections 515.500 to 515.665 may be expanded, modified, or limited by order of the court.


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