All About Charging Orders – When the Judgment Debtor Is an LLC Member

ChargeGetting a judgment against an LLC member can trigger a high-anxiety response.  That’s because the normal post-judgment collection rules set out in Code Section 2-1402 and Supreme Court Rule 277  don’t cleanly apply.  

Section 30-20 of the LLC Act (805 ILCS 180/30-20) states that a creditor’s exclusive remedy is to obtain a “charging order” against the LLC member’s “distributional interest.”  Illinois cases describe  Section 30-20 as a special remedy designed to allow a creditor of an LLC member to realize the value of the debtor’s distributional interest in the LLC and also protect both the LLC’s ability to function and the other members’ LLC interests.

The LLC Act defines “distributional interest” as a “member’s interest in distributions by the limited liability company.”  A distributional interest is not salary, wages, draws or reimbursement. To reach an LLC member’s wages, for example, a creditor should still utilize a third-party citation on the LLC and seek a turnover of any wages to be paid to the debtor.

To obtain a charging order, the creditor files an application or motion with the Court (“Motion for Charging Order”) and requests a charging order on the LLC member’s interest in the LLC.  The Motion is served on the debtor by regular mail and the creditor does not have to name the LLC as a party defendant. 

The court also isn’t required to have jurisdiction over the LLC for a charging order to issue against the member-debtor.  See, Bank of America, N.A. v. Freed, 1-11-0749 et al., 2012 WL 6725894 (Ill. App. Ct. Dec. 28, 2012) (LLC is not a necessary party to creditor’s charging order application).

The charging order impresses a lien (a hold) on the debtor’s LLC interest and any distributions coming due to the debtor can be paid to the creditor.  The lien on the distribution can also be foreclosed by the creditor filing a petition to foreclose the lien.  The debtor’s LLC interest can then be sold by the Sheriff or a private property – much like with any other asset sale.  Any sale proceeds the debtor’s distributional interest garners can be applied to the judgment amount.

To summarize, then, an LLC member’s judgment creditor should follow this four-step enforcement process: (1) file a motion for a charging order against the LLC member’s distributional interest; (2) serve the charging order on the LLC’s manager and registered agent (so they know to forward the distribution to the creditor), (3) (if the debtor doesn’t redeem and the judgment isn’t satisfied after turnover of the distribution) file a motion to foreclose the charging order (appoint someone to evaluate and sell the distributional interest); and (4) schedule either a public or private sale of the debtor’s distributional interest.  I also serve a third-party citation directly on the LLC and ask for a turnover order on any wages, draws or other payments (that aren’t distributions) to the debtor.

Post-Judgment Statutory Changes

Effective January 1, 2012, several statutes that govern Illinois judgment enforcement practice took effect.  The key statutory change as it relates to enforcing judgments against LLC members is Code Section 12-112.5.  This Section speaks directly to the charging order remedy and provides:

Sec. 12-112.5. Charging orders. If a statute or case requires or permits a judgment creditor to use the remedy of a charging order, said remedy may be brought and obtained by serving any of the various enforcement procedures set forth within this Article XII or by serving a citation pursuant to Section 2-1402. If the court does not otherwise have jurisdiction of the parties, the law relating to the type of enforcement served shall be used to determine issues ancillary to the entry of a charging order such as jurisdiction, liens, and priority of liens.

The comments to revised Section 5-112.5 make it clear that while a charging order is still the exclusive remedy for a creditor to impress a lien on an LLC member’s distributional interest, the creditor can use citation/supplementary proceedings under Code Section 2-1402 and Rule 277 to obtain that charging order in the first place.

Going forward, and in light of Section 112.5 and until there are more published cases that more thoroughly examine the interplay between Section 112.5 with LLC Section 30/20, judgment creditors of an LLC member should (1) serve a citation on the debtor, (2) serve a third-party citation on the LLC (via its registered agent or manager); and (3) file a motion for a charging order against the debtor’s LLC interest.

Once the charging order enters, the creditor can either receive distributions until the judgment is satisfied or try to more quickly monetize the debtor’s LLC distribution by filing a petition to foreclose the charging order lien.  A foreclosure sale buyer of the distributional interest will have rights to future distributions but does not get to exercise voting rights or make LLC business decisions.

 

Illinois Court: LLC Member Can File Mechanics’ Lien Against Property Owned by That LLC

How meta is this fact pattern? Peabody-Waterside v. Islands of Waterside, LLC, 2013 IL App (5th) 120490, examines the distinction between LLC entity liability and an LLC member’s personal liability through the lens of a mechanics lien claim filed against an LLC by one of its own members.

Recall that Illinois law recognizes a clear line of demarcation between the LLC entity and its constituent members.

A judgment against a limited liability company (LLC) doesn’t equate to a judgment against an LLC member.  805 ILCS 180/10-10.  Similarly, a judgment against an LLC member isn’t binding on the LLC.  805 ILCS 180/30-20(a), (b).

A judgment creditor of an LLC member cannot look to LLC assets to satisfy the judgment.  Instead, the creditor must seek a “charging order” against the LLC’s distribution to the member – the member’s “distributional interest.”

In Peabody, the defendant LLC owned real estate that had a $7.5M mortgage on it.  That LLC was itself comprised of two separate LLCs, each holding a 50% interest in the defendant.  The plaintiff was one of the LLC members.

Plaintiff recorded a contractor’s lien against the LLC’s property for about $4.5M after the plaintiff did site preparation and grading work on the site under a written cost-plus construction contract with the LLC owner.  Plaintiff sued naming the owner LLC and the lender as defendants.

The prior lender moved for summary judgment on the plaintiff’s lien claim.  It (the lender) argued that since the plaintiff – as 50% member of the owner entity – was in effect a “joint owner” of the property, it couldn’t lien its own property.  The trial court agreed and entered judgment for the lender. The plaintiff appealed.

Result: Reversed.

Q: Why?

A: The general rule is that a contractor can’t lien its own property. ¶ 8.  For example, a joint venturer can’t lien property owned by the joint venture.  That’s because joint venturers are each viewed as co-owners of the joint venture’s property and the law doesn’t allow a co-owner to lien his own property.

Not so with an LLC.  Where property is titled in an LLC, the members do not have ownership interests in the property.  An LLC has an independent legal existence from its members and managers.  Any real or personal property that an LLC owns is owned by the LLC; not its members.

Membership in an LLC does not confer an ownership interest in the LLC’s real or personal property.  An LLC member is not a co-owner of LLC property and has no transferable interest in it.  805 ILCS 180/30-1.

Here, since the liened property was owned by the LLC, plaintiff – a member – wasn’t a joint owner of the property.  In addition, contrary to the lender’s argument, there was no evidence of fraud or collusion between the plaintiff, the other LLC’s other member and the LLC property owner.  ¶¶ 10-11.  As a result, plaintiff’s mechanics lien was valid.

Take-aways: Peabody-Waterside provides solid example of a court recognizing the separate, independent existence of an LLC from its members.

The Court also shows a willingness to look at “policy” reasons or equitable concerns in reaching its holding: it discussed how the plaintiff had a standard cost-plus contract with the owner, that it performed over $4.5M worth of services that enhanced the land and wasn’t paid.

Taken together, these factors weighed in favor of allowing the plaintiff’s lien.