A lawyer has limited remedies to collect on a judgment from a defendant who is unwilling to pay. If the defendant holds stock in a corporation, you can execute on the shares, take possession of them, and sell them. N.C. Gen. Stat. §1-324.3. But if that ownership interest is in an LLC, a "charging order" is your only recourse (per G.S. §57D-5-03(d)).
If you don’t know what a charging order is, it is a court order against an owner of an LLC interest which gives a creditor the right to receive any distributions that the owner of the interest would have received until the judgment is paid.
The Old LLC Act
Former Section 57C-5-03 of the General Statutes (which was repealed and replaced in January 2014 by the new North Carolina Limited Liability Act in Chapter 57D) said that:
On application to a court of competent jurisdiction by any judgment creditor of a member, the court may charge the membership interest of the member with payment of the unsatisfied amount of the judgment with interest.
But what exactly did the holder of the charging order receive under the Old LLC Act, and what did the LLC owner lose upon the issuance of a charging order? Last week, the NC Court of Appeals wrestled with the question whether a charging order operates as an assignment of an LLC interest, in First Bank v. S&R Grandview, LLC.
First Bank had obtained a charging order against Donald Rhine, a member of S&R Grandview, an LLC. The charging order said that the Plaintiff "shall hereafter have the rights of an assignee" of Mr. Rhine’s interest of the LLC, and that Mr. Rhine then had no remaining membership interest in the LLC. The charging order said that his membership right would "lie fallow" until the judgment against him was satisfied.
Mr. Rhine appealed, arguing that the charging order did not operate to assign his LLC interest. First Bank rejoined that the effect of the charging order under Section 57C-5-03 was that Mr. Rhine was no longer a member of the LLC to which the order applied.
There was some plausibility to First Bank’s argument. Section 57C-5-03 said that "[t]o the extent so charged, the judgment creditor has . . . the rights of an assignee of the membership interest." And Section 57C-5-02 said that "a member ceases to be a member upon assignment of all of his membership interest."
A Charging Order Does Not Work An Assignment Of An LLC Interest
The Court of Appeals disagreed with First Bank’s position, holding that "[n]owhere in these provisions does the General Assembly mandate an assignment of membership interests from a debtor to a judgment creditor through a charging order." Op. 8. It added that "[h]ad the General Assembly intended a charging order to assign all membership interests and terminate a debtor’s membership in an LLC, as plaintiff contends, it could have easily included language to that effect." Op. 8-9.
The changes in the LLC Act through Chapter 57D bolstered the Court’s conclusion. The new provision dealing with charging orders states that "this Chapter does not deprive any interest owner of a right." N.C. Gen. Stat. §57D-5-03(c). I’m not sure whether statutory interpretation lets a court look at the subsequent actions of a Legislature to determine what the Legislature meant the first time around.
But anyway, why did this Defendant care whether his LLC interest was assigned and whether he had lost his membership rights? Remember that an LLC member has an ownership interest that includes both an economic interest and a right to participate in the management of the LLC. N.C. Gen. Stat. §57D-1-03(25).
A charging order can affect only the economic interest. The charging order in First Bank went too far. It took away Mr. Rhine’s management rights.
What happens if those with management rights in the LLC decide to defer distributions from the LLC because of a dislike for the judgment creditor? That’s undoubtedly a risk, and it will probably be the subject of a yet to be decided court decision.
Why Should You Care About The Old LLC Act?
The NC General Assembly repealed the Old LLC Act, in Chapter 57C and replaced it with the New LLC Act through Chapter 57D. That change became effective three months ago, on January 1, 2014.
Do you need to worry about the repealed Act?
Maybe. In the "Savings Provisions" in the New Act, the General Assembly said that "[a]ny proceeding commenced before January 1, 2014, may be completed in accordance with the law then in effect." N.C. Gen. Stat. §57D-11-03(d)