Golfwood Square, LLC v. O’Malley, 2018 IL App(1st) 172220-U, examines the interplay between a charging order and a third party citation to discover assets turnover order against an LLC member debtor. The plaintiff in Golfwood engaged in a years’ long effort to unspool a judgment debtor’s multi-tiered business entity arrangement in the hopes of collecting a sizeable (about $1M) money judgment.
Through post-judgment proceedings, the plaintiff learned that the debtor owned a 90% interest in an LLC (Subsidiary or Sub-LLC) that was itself the sole member of another LLC (Parent LLC) that received about $225K from the sale of a Chicago condominium.
Plaintiff also discovered the defendant had unfettered access to Parent LLC’s bank account and had siphoned over $80K from it since the judgment date.
In 2013 and 2017, plaintiff respectively obtained a charging order against Sub-LLC and a turnover order against Parent LLC in which the plaintiff sought to attach the remaining condominium sale proceeds. The issue confronting the court was whether a judgment creditor could get a turnover order against a parent company to enforce a prior charging order against a subsidiary entity. In deciding for the creditor, the Court examined the content and purpose of citations to discover assets turnover orders and LLC charging orders.
Code Section 2-1402 empowers a judgment creditor can issue supplementary proceedings to discover whether a debtor is in possession of assets or whether a third party is holding assets of a debtor that can be applied to satisfy a judgment.
Section 30-20 of the Limited Liability Company Act allows that same judgment creditor to apply for a charging order against an LLC member’s distributional interest in a limited liability company. Once a charging order issues from the court, it becomes a lien (or “hold”) on the debtor’s distributional interest and requires the LLC to pay over to the charging order recipient all distributions that would otherwise be paid to the judgment debtor. 735 ILCS 5/2-1402; 805 ILCS 180/30-20. Importantly, a charging order applicant does not have to name the LLC(s) as a party defendant(s) since the holder of the charging order doesn’t gain membership or management rights in the LLC. [⁋⁋ 22, 35]
Under Parent LLC’s operating agreement, once the condominium was sold, Parent LLC was to dissolve and distribute all assets directly to Sub-LLC – Parent’s lone member. From there, any distributions from Sub-LLC should have gone to defendant (who held a 90% ownership interest in Sub-LLC) and then turned over to the plaintiff.
However, defendant circumvented the charging order by accessing the sale proceeds (held in Parent LLC’s account) and distributing them to himself. The Court noted that documents produced during post-judgment discovery showed that the defendant spent nearly $80,000 of the sale proceeds on his personal debts and to pay off his other business obligations.
Based on the debtor’s conduct in accessing and dissipating Parent LLC’s bank account with impunity, and preventing Parent LLC from distributing the assets to Sub-LLC, where they could be reached by plaintiff, the trial court ordered the debtor to turn all Parent LLC’s remaining account funds over to the plaintiff to enforce the earlier charging order against Sub-LLC.
The court rejected the defendant’s argument that Parent LLC was in serious debt and that the condo sale proceeds were needed to pay off its debts. The Court found this argument clashed with defendant’s deposition testimony where he stated under oath that Parent LLC “had no direct liabilities.” This judicial admission – a clear, unequivocal statement concerning a fact within a litigant’s knowledge – was binding on the defendant and prevented him from trying to contradict this testimony. The argument also fell short in light of defendant’s repeatedly raiding Parent LLC’s account to pay his personal debts and those of his other business ventures all to the exclusion of plaintiff.
The court then summarily dispensed with defendant’s claim that the plaintiff improperly pierced the corporate veils of Parent LLC and Sub-LLC in post-judgment proceedings. In Illinois, a judgment creditor typically cannot pierce a corporate veil in supplementary proceedings. Instead, it must file a new action in which it seeks piercing as a remedy for an underlying cause of action.
The Court found that the trial court’s turnover order did not hold defendant personally liable for either LLC’s debt. Instead, the turnover order required Parent LLC to turnover assets belonging to the judgment debtor – the remaining condominium sale proceeds – to the plaintiff creditor.
This case presents in sharp relief the difficulty of collecting a judgment from a debtor who operates under a protective shield of several layers of corporate entities.
Where a debtor uses an LLC’s assets as his “personal piggy bank,” Golfwood and cases like it show that a court won’t hesitate to vindicate a creditor’s recovery right through use of a turnover and charging order.
The case is also noteworthy as it illustrates a court looking to an LLC operating agreement for textual support for its turnover order.