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My family has an Limited Liability Company, we own and manage our real estate. The managing manager is filing bankruptcy, Chap 7

San Francisco, CA |

and I am worried that his personal bankruptcy might somehow affect our LLC, whether a creditor calls into question his involvement and possible ownership. She, the manager, bought into the LLC for a 10% membership interest, which we offered years ago for her loyalty. So when she files BK, will her filing affect our LLC structure? Should be liquidate her interest to her ahead of time, in cash or property? If she files I assume she will have to list her 10% interest on her filing papers, and then place a value on her interest? I just want to get her out of the picture and told her to hold off filing until we figure out the possible pitfalls.

Attorney Answers 6

Posted

You need advice from a competent CA bankruptcy attorney, not from an Internet lawyer who doesn't have (and can't possibly obtain) full information about your situation. I tend to think that a pre-petition, arms-length sale or redemption of a member's interest for fair market value would not lead to complications in the member's subsequent bankruptcy, but an aggressive trustee can make everyone's life miserable if the redemption or sale isn't done exactly right.

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Posted

If she sells her share and receives reasonably equivalent value for it, then your LLC would not be involved. It would then be her problem to exempt the proceeds of that sale. If, on the other hand, her interest is less than, say, $20,000, it is probably exemptable in her BK and the Trustee would have no interest in going after it.

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Posted

You've received two excellent answers. I'll add that yes, she would have to list her 10% interest on her filing papers. Is her interest in the LLC transferable by her? Could she sell it to someone else (not you) if she wanted to? If not, the trustee would have no more right to sell it that she has. If she could sell her interest, then the trustee would have that right. Of course, if she can exempt the full value of her share, then the trustee would have no interest in it. If she sells it before filing her bankruptcy, then the transaction needs to be clearly "at arms length" (not discounted to an "insider" buyer) for fair market value and there should be good documentation of that.

This reply does not constitute legal advice or establish an attorney-client relationship.

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Posted

My colleagues give sound advice. From an asset protection perspective, I would recommend you strongly to add a layer of protection to your existing LLC. An LLC is an excellent legal tool to hold and manage investment real estate but it will not protect you as a member neither your personal assets. A plaintiff may always try to pierce the corporate veil using theories such as negligence or gross negligence.
Depending on the net worth held by the LLC, the revenue it generates and your personal net worth (primary residence, bank and brokerage, other investments) you may consider combining (your stake in) the LLC with a legal that was specifically designed for asset protection purposes such as a Family Limited Partnership filed in state with strong charging order rules such as AZ.
You should schedule a consultation with an attorney with proven expertise in the area of asset protection planning, and for this particular issue, a bankruptcy attorney.

Douglass Lodmell is the nations #1 Asset Protection attorney and has clients in all 50 states, protecting over $4 Billion in client assets. Answers given by him in this forum do not establish an attorney-client relation. He advises to seek a specialized attorney in the area of your interest for legal representation.

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Posted

The first documents you should look at and consult are the LLC’s operating and membership agreements. Those documents govern the nature and extent of her interest in the LLC and, perhaps, even how it is to be valuated. They may also contain non-default provisions in the event of her bankruptcy. You say she is "managing manager." I am not certain what that means. If she is the "mananging member" the LLC records certainly will be required viewing by the trustee. Hopefully, the LLC's records are up-to-snuff. I defer to my colleagues answers regarding the effect of her bankruptcy on her interest.

I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for general information only. They are not legal advice. Answers must not be relied upon. Legal advice must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for legal advice. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference

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Posted

Her 10% "value" will be 10% the net Value of the real estate in the LLC, at the moment she files bk, so if she can not exempt that amount under applicable bankruptcy exemptions, then the other 90% partners (member owners of the LLC) need to find an unrelated person to buy that 10% in an arms length transaction to keep the LLC out of the bk, assuming the Operating Agreement allows for such a transfer. The Operating Agreement can be amended in this regard. What she does with proceeds don't have to be your concern. Just whether the value can be exempted in her bk...This requires a bk attorney analysis.

The foregoing is for informational purposes only and may not be relied on as attorney-client advice.

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