Q: Can A Court Stop An LLC That Pays the Monthly Mortgage of One of Its Members From Selling that Member’s Home Where A Charging Order Has Issued Against the LLC to Enforce a Money Judgment Against the LLC Member?
Q2: How So?
A2: By selling the member’s property and paying off the member’s mortgage with the sale proceeds, the LLC is effectively “paying the member” to the exclusion of the plaintiff judgment creditor.
Source: Earthgrains Baking Companies, Inc. v. Sycamore Family Bakery, Inc., et al, USDC Utah 2015 (https://casetext.com/case/earthgrains-baking-cos-v-sycamore-family-bakery-inc-3)
In this case, the plaintiff won a multi-million dollar money judgment against a corporate and individual defendant in a trademark dispute. The plaintiff then secured a charging order against a LLC of which the individual defendant was a 48% member. When the LLC failed to respond to the charging order, the plaintiff moved for an order of contempt against the LLC and sought to stop the LLC from selling the defendant’s home.
The court granted the contempt motion. First, the court found that it had jurisdiction over the LLC. The LLC argued that Utah lacked jurisdiction over it since the LLC was formed in Nevada. The LLC claimed that under the “internal affairs” doctrine, the state of the LLC’s formation – Nevada – governs legal matters concerning the LLC.
Disagreeing, the court noted that a LLC’s internal affairs are limited only to “matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders.” The internal affairs doctrine does not apply to claims of third party creditors. Here, since the plaintiff was a creditor of the LLC’s member, this was not a dispute between LLC and member. As a result, the internal affairs rule didn’t apply and the Utah court had jurisdiction over the LLC since a LLC member lived in Utah. (See Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998)).
The Charging Order required the LLC to pay any distribution that would normally go to the member directly to the plaintiff until the money judgment was satisfied. The Charging Order specifically mentions transfers characterized or designated as payment for defendant’s “loans,” among other things.
The LLC was making monthly mortgage payments on the member’s home and listed the home for sale in the amount of $4M. Plaintiff wanted to prevent the sale since there was a prior $2M mortgage on the home.
In blocking the sale, the court found that if the LLC sold the member’s home and paid off the member’s mortgage lender with the proceeds, this would violate the Charging Order since it would constitute an indirect payment to the member. The court deemed any payoff of the member’s mortgage a “distribution” (a direct or indirect transfer of money or property from LLC to member) under the Utah’s LLC Act. (Utah Code Ann. § 48-2c-102(5)(a)).
Since the Charging Order provided that any loan payments involving the member were to be paid to the plaintiff until the judgment is satisfied, the court found that to allow the LLC to sell the property and disburse the proceeds to a third party (the lender) would harm the plaintiff in its ability to satisfy the judgment.
An interesting case that discusses the intricacies of charging orders and the thorny questions that arise when trying to figure out where to sue an LLC that has contacts in several states. The case portrays a court willing to give an expansive interpretation of what constitutes an indirect distribution from an LLC to its member.
Earthgrains also reflects a court endeavoring to protect a creditor’s judgment rights where an LLC and its member appear to be engaging in misdirection (if not outright deception) in order to elude the creditor.
[A special thanks to attorney and Forbes contributor Jay Adkisson for alerting me to this case (http://www.forbes.com/sites/jayadkisson/)]