Bill Text: FL H0253 | 2011 | Regular Session | Engrossed


Bill Title: Limited Liability Companies

Spectrum: Slight Partisan Bill (Republican 5-1-1)

Status: (Engrossed - Dead) 2011-05-02 - Ordered enrolled -HJ 1162 [H0253 Detail]

Download: Florida-2011-H0253-Engrossed.html
CS/HB 253

1
A bill to be entitled
2An act relating to limited liability companies; amending
3s. 608.433, F.S.; providing that a charging order against
4a member's limited liability company interest is the sole
5and exclusive remedy available to enforce a judgment
6creditor's unsatisfied judgment against a member or
7member's assignee; providing an exception for enforcing a
8judgment creditor's unsatisfied judgment against a
9judgment debtor or assignee of the judgment debtor of a
10single-member limited liability company under certain
11circumstances; providing that, in the case of a
12multimember limited liability company, certain remedies
13are unavailable to a judgment creditor attempting to
14satisfy a judgment; prohibiting a court from ordering such
15remedies; providing construction relating to secured
16creditor rights, specified principles of law and equity,
17and continuing enforcement jurisdiction of the court;
18providing legislative intent; providing for retroactive
19application; providing an effective date.
20
21     WHEREAS, on June 24, 2010, the Florida Supreme Court held
22in Olmstead v. Federal Trade Commission (No. SC08-1009),
23reported at 44 So.3d 76, 2010-1 Trade Cases P 77,079, 35 Fla. L.
24Weekly S357, that a charging order is not the exclusive remedy
25available to a creditor holding a judgment against the sole
26member of a Florida single-member limited liability company
27(LLC), and
28     WHEREAS, a charging order represents a lien entitling a
29judgment creditor to receive distributions from the LLC or the
30partnership that otherwise would be payable to the member or
31partner who is the judgment debtor, and
32     WHEREAS, the dissenting members of the Court in Olmstead
33expressed a concern that the majority's holding is not limited
34to a single-member LLC and a desire that the Legislature clarify
35the law in this area, and
36     WHEREAS, the Legislature finds that the uncertainty of the
37breadth of the Court's holding in Olmstead may persuade
38businesses and investors located in Florida to organize LLCs
39under the law in other jurisdictions where a charging order is
40the exclusive remedy available to a judgment creditor of a
41member of a multimember LLC, and
42     WHEREAS, the Legislature further finds it necessary to
43amend s. 608.433, Florida Statutes, to remediate the potential
44effect of the holding in Olmstead and to clarify that the
45current law does not extend to a member of a multimember LLC
46organized under Florida law and to provide procedures for
47application of the holding in Olmstead to a member of a single-
48member LLC organized under Florida law, NOW, THEREFORE,
49
50Be It Enacted by the Legislature of the State of Florida:
51
52     Section 1.  Section 608.433, Florida Statutes, is amended
53to read:
54     608.433  Right of assignee to become member.-
55     (1)  Unless otherwise provided in the articles of
56organization or operating agreement, an assignee of a limited
57liability company interest may become a member only if all
58members other than the member assigning the interest consent.
59     (2)  An assignee who has become a member has, to the extent
60assigned, the rights and powers, and is subject to the
61restrictions and liabilities, of the assigning member under the
62articles of organization, the operating agreement, and this
63chapter. An assignee who becomes a member also is liable for the
64obligations of the assignee's assignor to make and return
65contributions as provided in s. 608.4211 and wrongful
66distributions as provided in s. 608.428. However, the assignee
67is not obligated for liabilities which are unknown to the
68assignee at the time the assignee became a member and which
69could not be ascertained from the articles of organization or
70the operating agreement.
71     (3)  If an assignee of a limited liability company interest
72becomes a member, the assignor is not released from liability to
73the limited liability company under s. ss. 608.4211, s.
74608.4228, or s. and 608.426.
75     (4)(a)  On application to a court of competent jurisdiction
76by any judgment creditor of a member or a member's assignee, the
77court may enter a charging order against the limited liability
78company interest of the judgment debtor or assignee rights for
79charge the limited liability company membership interest of the
80member with payment of the unsatisfied amount of the judgment
81plus with interest.
82     (b)  A charging order constitutes a lien on the judgment
83debtor's limited liability company interest or assignee rights.  
84Under a charging order To the extent so charged, the judgment
85creditor has only the rights of an assignee of a limited
86liability company interest to receive any distribution or
87distributions to which the judgment debtor would otherwise have
88been entitled from the limited liability company, to the extent
89of the judgment, including such interest.
90     (c)  This chapter does not deprive any member or member's
91assignee of the benefit of any exemption law laws applicable to
92the member's limited liability company interest or the
93assignee's rights to distributions from the limited liability
94company.
95     (5)  Except as provided in subsections (6) and (7), a
96charging order is the sole and exclusive remedy by which a
97judgment creditor of a member or member's assignee may satisfy a
98judgment from the judgment debtor's interest in a limited
99liability company or rights to distributions from the limited
100liability company.
101     (6)  In the case of a limited liability company having only
102one member, if a judgment creditor of a member or member's
103assignee establishes to the satisfaction of a court of competent
104jurisdiction that distributions under a charging order will not
105satisfy the judgment within a reasonable time, a charging order
106is not the sole and exclusive remedy by which the judgment
107creditor may satisfy the judgment against a judgment debtor who
108is the sole member of a limited liability company or the
109assignee of the sole member, and upon such showing, the court
110may order the sale of that interest in the limited liability
111company pursuant to a foreclosure sale. A judgment creditor may
112make a showing to the court that distributions under a charging
113order will not satisfy the judgment within a reasonable time at
114any time after the entry of the judgment and may do so at the
115same time that the judgment creditor applies for the entry of a
116charging order.
117     (7)  In the case of a limited liability company having only
118one member, if the court orders foreclosure sale of a judgment
119debtor's interest in the limited liability company or of a
120charging order lien against the sole member of the limited
121liability company pursuant to subsection (6):
122     (a)  The purchaser at the court-ordered foreclosure sale
123obtains the member's entire limited liability company interest,
124not merely the rights of an assignee;
125     (b)  The purchaser at the sale becomes the member of the
126limited liability company; and
127     (c)  The person whose limited liability company interest is
128sold pursuant to the foreclosure sale or is the subject of the
129foreclosed charging order ceases to be a member of the limited
130liability company.
131     (8)  In the case of a limited liability company having more
132than one member, the remedy of foreclosure on a judgment
133debtor's interest in such limited liability company or against
134rights to distribution from such limited liability company is
135not available to a judgment creditor attempting to satisfy the
136judgment and may not be ordered by a court.
137     (9)  Nothing in this section shall limit:
138     (a)  The rights of a creditor that has been granted a
139consensual security interest in a limited liability company
140interest to pursue the remedies available to such secured
141creditor under other law applicable to secured creditors;
142     (b)  The principles of law and equity which affect
143fraudulent transfers;
144     (c)  The availability of the equitable principles of alter
145ego, equitable lien, or constructive trust, or other equitable
146principles not inconsistent with this section; or
147     (d)  The continuing jurisdiction of the court to enforce
148its charging order in a manner consistent with this section.
149     Section 2.  The amendment to s. 608.433, Florida Statutes,
150made by this act is intended by the Legislature to be clarifying
151and remedial in nature and shall apply retroactively.
152     Section 3.  This act shall take effect upon becoming a law.


CODING: Words stricken are deletions; words underlined are additions.
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