I have a bank account for a restaurant which is owned by an LLC which I and my partner own 50% each. I opened an LLC bank account for the company and I was the only one who was authorized on the account. I was also the sole Manager of the company in the Articles of Incorporation with the State. The bank did not ask for any operating agreement when I opened the account. A few months after I had opened the account my business partner went into the bank with the operating agreement and had his name added to the LLC account while I was not present and did not authorize him to be added. He withdrew $30,000 for personal use and I was not aware until days later. In the operating agreement is says he is a manager and can sign checks from accounts. Can the bank add him without me?Is the bank liable
I would be talking to a lawyer who deals in partnership disputes immediately. You may have bigger problems than you see.
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To answer your question you'll need to review the depository contracts you signed with the Bank. Does it authorize the Bank to add / delete signatories based on a reasonable belief of authorization? Did you put any stop-loss controls in place with the Bank, to limit withdrawals to $_____ per month?
Sounds like you'll be suing the Bank and co-manager, if the funds aren't returned pronto.
AVVO is a general forum for discussion purposes only. My answers, comments, ideas, approvals and endorsements do not constitute legal advice, opinions or even suggestions, as I do not have enough facts and you are not my client. As well, my response is with respect to only the laws of the State of Texas. Hire an attorney in your location if you want assistance upon which you may rely.
For a definitive answer, you need to have a business attorney review the certificate of formation and the operating agreement. Based on the facts that you presented, if you're operating agreement names the other owner as a manager, the bank may rely on that document to transact business. The bigger issues relate to operational problems between you and the other co-owner and whether you to can operate the business together. Hopefully, you have a well-crafted operating agreement done by an experienced attorney. Please note that in Texas the documents that you are referring to as an operating agreement is called a company agreement under the Texas business organizations code and that the initial filing is a certificate of formation rather than articles of incorporation since articles of incorporation for her to the formation of a Corporation and were the term for an organizational document prior to the Texas business organizations code. You need to hire an experienced business attorney promptly to determine your options and do not be surprised if action needs to be taken in court promptly to protect your interests.
How long was the partner on the account (with your knowledge) before he withdrew $30k? You may have a claim against the bank, depending on the terms of your banking agreement. You - whether on behalf of yourself or the corporation - certainly have claims against your partner.
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