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Brian Edward Walters

Brian Walters’s Answers

11 total

  • What kind of attorney do I need? It is an issue regarding the purchase of real property but involves fraud.

    I purchased a house in July of 2009 that was sold with .226 acre of land. County laws specifically state that any property or subdivision should be no less than 1/2 acre. I spoke with a real estate attorney last Friday only to find out that what t...

    Brian’s Answer

    I believe you have taken the correct first step by speaking with a real estate attorney. It sounds from your question as though you may be wondering if you have any recourse against the seller of the property. In that case, you will need to consult with a litigator experienced in land transaction disputes and potentially DTPA/consumer law. If there is something else you are specifically curious about, please explain further as this will help the attorneys on this page fully answer your question.

    Best of luck with resolving this matter and very sorry to hear about your difficult situation.

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  • Bankruptcy Series LLC

    Series LLCs. They are new in Texas and I use them for Real Estate and OIl/Gas wells, but for nothing else. QUESTION. I was told that there is Bankruptcy Precident that the Bankruptcy court respeceted the cells of the series if the cells otherwise ...

    Brian’s Answer

    Excellent question and, unfortunately, one that is currently without an answer. Your question asks if the liability shield between series will be respected by a bankruptcy court such that the assets of the non-bankrupt series will not be dragged into the estate of a bankrupt series. The inability to answer this question lies within the definitions in the bankruptcy code.

    The real issue here is whether a bankruptcy court would consider a series within the SLLC to be a "person" as that term is defined in the bankruptcy code, thus enabling that series to file for bankruptcy relief. To date, that question has not been decided in Texas. Thus, the bankruptcy courts in Texas have not had the opportunity to respect (or disregard) the liability shield between series where one is in bankruptcy.

    Your question here is somewhat concerning because this issue should have been addressed by your attorney at the time you first discussed filing as a Texas Series LLC.

    Best of luck!

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  • Can a business sue a former president of a defunct SCorp in Texas?

    My husband got a phone call on his personal cell from a police officer in another city today. He was calling on behalf of a customer who bought advertising for a local sports event in their city. The customer wants a refund. Our corporation is sti...

    Brian’s Answer

    In Texas, there is a fundamental assumption that the owners of a limited liability entity such as a corporation or an LLC are not personally liable for the debts and obligations of the business entity itself. There are certain exceptions to this rule which can lead to personal liability for the owners, but typically those involve some degree of fraud. The Texas legislature in 2011 amended the Business Organizations Code to apply the same personal liability test (called veil-piercing) to both LLCs and Corporations. I bring this up because, based on your question, it is not entirely clear which one your husband operates. "S-Corp" is a classification for federal income taxation of the business entity and does not affect the personal liability of the owners.

    To address the issue you raise more specifically, a "defunct" corporation or LLC can still be sued. In fact, they can be sued for a certain period of time even after they are formally terminated. Thus, if a party has a claim against the entity, he or she will be able to file a lawsuit to pursue that claim. As stated above, though, the individual owners of that Corporation or LLC should not be personally responsible for the business's obligations absent some degree of fraud. If the lawsuit is successful, the plaintiff can attempt to enforce its judgment against business assets. However, the rewards for suing a defunct corporation/LLC, particularly for such a low amount of money, are few.

    If you are interested in addressing issues like these, I recommend that you consult with a business transactional attorney in conjunction with shutting down your business. While sites like AVVO are a great resource, they are certainly not a substitute for legal advice, which can only be delivered based on your specific circumstances by your attorney.

    Best of luck!

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  • Im in a dispute with my business partner i might have to sue him? would a lawyer work on my case on a contingency?

    we have been in business for 15 years. It turned sour the past 7 months he told me not to come back to work that he was going to buy me out.He has turned all are employees against me. I had the business appraised and the warehouse we own 50-50.Im...

    Brian’s Answer

    Mr. Caldwell is correct in stating that contingency fee arrangements under the circumstances you describe are very uncommon.

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  • I am trying to find the real owners of a Texas LLC. The SOS will only give a member's name.

    The current member listed is dead and it seems the real owners of the company have hidden there names due to some type of other legal issues. How do I find the real owners names?

    Brian’s Answer

    I assume that because you stated that the Secretary of State provided you with the member's name only, you are phoning into the TX SOS's office for information rather than searching for the information through the SOS's online system. If you search for the LLC online using the Texas Secretary of State's "SOS Direct" system (small fee applies and account required), you would likely have access to a great deal more information than is provided by phoning the SOS. For example, SOS Direct can provide officer names, previous member/manager names (depending on the type of LLC - member-run v. manager-run), and annual information filings required by the TX Comptroller.

    Another option is to search for the LLC using the Texas State Comptroller's Taxable Entity Search. This is a less well-known Texas business entity search engine and is free to use. I actually wrote a blog post on this recently that contains further information on the subject. Please click the link below for more discussion on that topic and a link to the search engine:

    As all Texas filing entities are required to update information on the officers and governing authority of the LLC each year along with their annual franchise tax filing, you will likely have the information you are looking for at some point - it just might not be right away. Once these documents are filed with the Comptroller and processed, the updated information will appear online in both the SOS system and the Comptroller's search engine.

    Finally, you could try searching the assumed name certificate filings (often referred to as "DBA filings") in your county. If the LLC ever operated under any assumed names, you may be able to find information on who registered the assumed name at your local county clerk's office.

    The list above is certainly not exhaustive, but it should give you a few pointers on other places where you might be able to locate the information you seek. If you have a dispute or other legal issue related to the LLC, please sit down with an attorney to discuss your situation before taking any action on your own.

    Best of luck!

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  • Is it too late to adopt by-laws and have meeting of directors?

    Dear experts, In May, 2010, I retained a lawyer to set up a corporation in NJ. On the filing notification, we have three directors for the first board. We only receive blank by-laws from the lawyer. We never have any by-laws, minutes, and reso...

    Brian’s Answer

    Mr. Smith's recommended course of action in the answer above is very sensible. At the same time, there may be other issues at play here. You mentioned that you did not receive completed documents for the corporation. Of particular concern with a corporation would be whether it has elected to be an "S" Corporation for federal income tax purposes or whether you intended to keep your default "C" Corp classification. The "S" election is a time-sensitive filing and, while it may be possible to apply late, it is a much more time consuming process than making the election on time.

    I strongly suggest you sit down with a good business attorney in NJ and make sure both your company books and your tax classification are correct and current.

    Best of luck in getting these issues resolved!

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  • When filling out Articles of Organization for a home based business is it ok to use a po box or does it have to show the home ad

    We are trying to avoid someone coming to the house, or simply knowing our home address. And because this is a legal document any one essentially has access to our info?

    Brian’s Answer

    As Mr. Duffy mentioned above, most states require an actual physical address rather than a PO Box when filing articles for a new business entity. If you are interested in protecting your personal address information, one option could be to use a registered agent service company. These companies act as registered agents for the business entity and place their information rather than yours in the formation documents. We typically employ them when filing out-of-state entities for our clients.

    That said, some states also ask for the names and addresses of the governing persons of the entity on the organizational documents (e.g. members of the board of directors for a corp. or managers/members for an LLC). If that is the case in MI, the suggestion above may not entirely resolve the issue you raise. You should sit down with a MI business attorney to make sure you know all your options prior to filing if protecting this information is truly important to you.

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  • I am buying a 50% interist a LLC in tx i will be 50% member, will i have the same control and benifits as the other owner?

    50 % intrest , 50% member

    Brian’s Answer

    Due to the inherently flexible nature of limited liability companies in Texas, your question is very difficult to answer without a great deal more information and a review of the LLC's company books. This is certainly a situation where you want to be fully aware of your rights and obligations, so please consult with a business attorney prior to entering into this business relationship.

    There are, however, several things to know about LLCs in Texas that could affect one member's relationship to another. First, you did not mention whether the LLC is member-managed or manager-managed. In the event that this is a manager-managed LLC, operation and control of the LLC is typically vested in the managers and not the members of the LLC. Obviously, if an owner was just a member of the LLC rather than a manager, he or she would have very limited involvement in the operation and control of the LLC's business decisions. Sometimes there are certain decisions made by the managers that require approval of the members (e.g. major business transactions and termination of the LLC), but these rights are spelled out in the LLC's company agreement (previously called "regulations" and sometimes improperly referred to as an "operating agreement" or "bylaws").

    Second, Texas LLCs can have different classes of membership and these classes can have different rights under the terms of the company agreement. For example, while two members may have equal equity interests (50/50), one interest may hold voting rights while the other is non-voting. Clearly, this would remove the control of one of the members.

    Third, the distribution rights in an LLC can be modified through the company agreement as well, which can result in one 50% member having a right to receive more than 50% of the distributions.

    The list of rights that can be modified are certainly too lengthy to address in a short post such as this, but I hope that after reviewing the points above, you are able to see that 50% in an LLC might not be as straightforward as it initially sounds. I highly recommend that you sit down with an attorney and have him/her review the documents and advise you of exactly what you are getting into by purchasing that interest.

    Best of luck!

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  • Kansas llc expired b/c we forgot to file an annual report. can we just form a new one in delaware?

    we can reinstate in kansas easily... except we no longer have representation in kansas. our third (former) founder moved from there. can i simply just create a new LLC in delaware? or is there anything else that i need to think about?

    Brian’s Answer

    You pose a excellent question that comes up a lot in practice. Many states have laws in place that forfeit a business entity's existence, list it as expired, or consider it in bad standing when that entity fails to keep up with required state filings or franchise taxes. When this occurs, the laws differ in each state as to the consequences to the particular entity. Some states may consider the entity "involuntarily terminated" whereby the owners must complete a filing to reinstate the entity and pay fees to the state, other states simply require payment of the back taxes or completion of the missing filings. If it appears to be easy enough to reinstate the entity in Kansas, you should probably revive that entity for purposes of continuity and unity of the existing business. This is explained further below.

    If you simply file a new LLC in Delaware without reviving the old KS LLC, the new DE LLC will not be the same LLC you operated in Kansas. They will instead be two separate LLCs, and you will have to reconcile ownership of business assets and business contracts with the new LLC. This will be the case regardless of whether you name the DE LLC the same name as the KS LLC, operate the same business through it, or so on. You'll simply end up with all the members of the KS LLC becoming members in a new DE LLC that is a shell company.

    What it really sounds like you want to do is to "move" the KS LLC to DE and continue to do business as a Delaware entity. If that is the case, a more effective course of action could be to convert the existing KS LLC into a DE entity ("moving" the entity is sometimes referred to as a "redomestication" of a business, although "conversion" is more technically correct). This process, while not particularly complex, does involve multiple filings in both states and will certainly involve you bringing your KS entity back into good standing. I recommend speaking to an attorney with experience in this business law and who has completed several of these sorts of transactions.

    Other things to keep in mind include the fact that: (1) your conversion to a DE entity may affect your existing contracts - have an attorney review any contracts before making the conversion; (2) business entities in DE are subject to a different state-level taxation system than KS, and (3) you will need a registered agent in DE before you can file your DE documents.

    Best of luck in your future endeavors!

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  • Can my husband's partner kick him out of the LLC partnership ?

    All licenses are in my husband's name except the city one, NO agreement was signed though. And partner is illegal applied for E2 visa, now that he thinks he's safe with USICS he flipped and want to kick us out of the business. That been said he ha...

    Brian’s Answer

    LLCs are unique business entities and the statutes governing their operation differ from state to state. This means that you're going to need an attorney licensed in MO and well versed in the Missouri Limited Liability Company Act and related case law in order to make a recommendation based on your specific circumstances.

    That said, one member of an LLC typically cannot unilaterally terminate another member's ownership interest in the LLC unless they each signed a document (referred to as an "Operating Agreement," a "Company Agreement," or sometimes "Regulations" depending on your jurisdiction) that gave one member the ability to do so. Since you mentioned that no agreement was signed, in most states the gentleman you described in your fact pattern would probably have a difficult time successfully arguing that he had the authority to unilaterally terminate your husband's ownership in the LLC. That's the good news.

    Now, from a practical standpoint - two member LLCs have a difficult time operating successfully under these circumstances. When there are only two owners, the LLC will have a difficult time making business decisions because there's no third party there to break the tie (assuming a 50/50 ownership). If the business has value (assets or a book of business), it is probably time to discuss splitting up the business and going your separate ways as amicably as possible. LLC member disputes often lead to litigation which can be expensive, time consuming, and sometimes destroy any value that might be left in the business.

    Some other options include (1) offering to buy out the ownership interest of the other member and have your husband own the business by himself, (2) trying to sell the business to a third party, or (3) offering to sell your husband's interest in the LLC back to the LLC or the other member.

    The main thing to remember in this situation is to remain cool-headed and get the right advice from a good business attorney in MO. He/she will be able to point you in the right direction. I wish you luck in resolving your difficult situation and recommend that you talk to an attorney ASAP.

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