Bill Text: NJ S2440 | 2018-2019 | Regular Session | Introduced
Bill Title: Revises partnership trade name certification process.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-04-05 - Introduced in the Senate, Referred to Senate Commerce Committee [S2440 Detail]
Download: New_Jersey-2018-S2440-Introduced.html
Sponsored by:
Senator PATRICK J. DIEGNAN, JR.
District 18 (Middlesex)
SYNOPSIS
Revises partnership trade name certification process.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning partnership trade name certification and revising various parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. R.S.56:1-1 is amended to read as follows:
56:1-1. a. Any person conducting or transacting business and using the designation "and company," or "& Co.," as a part of a firm or partnership name, shall file a statement in the office of the [clerk of the county within which such business is conducted or transacted, and a duplicate thereof for filing in the office of the Secretary of State, as provided in section 56:1-3 of this Title] Division of Commercial Recording in the Department of Treasury.
b. Such statement shall be duly executed and sworn to before some person authorized by the laws of this State to administer oaths, and shall state the nature of the business and the full names and residences of all persons who are members of such firm or partnership [and if, the members of said firm or partnership or any of them are or is not resident in this State, such statement shall contain a power of attorney constituting the county clerk of the county, his successors in office, the true and lawful attorney of said nonresident partner or partners upon whom all original process in an action or legal proceeding against said firm or partnership may be served and therein he or they shall agree that such original process, which may be served on the county clerk, shall be of the same force and validity as if served upon said nonresident partner or partners and that the authority thereof shall continue in force so long as the firm or partnership does business in this State under said name].
c. The agent of a firm or partnership for service of process shall be an individual who is a resident of this State or other person authorized to do business in this State.
(cf: P.L.1951, c.255, s.1)
2. R.S.56:1-2 is amended to read as follows:
R.S.56:1-2. a. No person shall conduct or transact business under any assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business, unless such person shall file a certificate in the office of the [clerk of the county or counties in which such person conducts or transacts, or intends to conduct or transact, such business, together with a duplicate thereof for filing in the office of the Secretary of State, as provided in section 56:1-3 of this Title] Division of Commercial Recording in the Department of Treasury.
b. Such certificate shall set forth the name under which such business is conducted or transacted, or is to be conducted or transacted, and the true name or names of the person or persons conducting or transacting the same, with his or their post-office address or addresses, and shall be duly executed and sworn to by the person or persons conducting or transacting, or intending to conduct or transact, such business, before some person authorized by the laws of this State to administer oaths [and if any person or persons conducting or transacting business as aforesaid is or are not resident in this State, such statement shall contain a power of attorney constituting the county clerk of the county, his successors in office, the true and lawful attorney of said nonresident person or persons, upon whom all original process in an action or legal proceeding against said person or persons for any debt, damages or liability, contracted or incurred by them in, or growing out of, the conduct or transaction of said business, may be served and therein he or they shall agree that such original process which may be served on the county clerk shall be of the same force and validity as if served upon said nonresident person or persons and that the authority thereof shall continue in force so long as the person or persons conduct or transact said business in this State].
c. For service of process, an individual or entity set forth in subsection a. of this section shall be an individual who is a resident of this State or other person authorized to do business in this State.
(cf: P.L.1951, c.255, s.2)
3. R.S.56:1-3 is amended to read as follows:
R.S.56:1-3. The [several county clerks and the Secretary of State] Division of Commercial Recording in the Department of Treasury shall [each] keep an alphabetical [indexes] index of all persons filing the statements or certificates provided for by [sections 56:1-1 and 56:1-2 of this Title] R.S.56:1-1 and R.S.56:1-2, and for the indexing and filing of such statements or certificates [they] it shall [each] receive a fee of $5.00 from the person who presents the same for filing. [Every person who presents for filing any such statement or certificate in the office of the county clerk shall present therewith a duplicate of such statement or certificate for filing with and indexing by the Secretary of State. The county clerk shall, at the time of the filing such statement or certificate with him, collect from the person presenting the same, in addition to the fee payable to him, the fee payable to the Secretary of State for filing and indexing such duplicate statement or certificate, and shall forward to the Secretary of State such duplicate statement or certificate together with the fee collected for the Secretary of State as aforesaid.]
A copy of any such statement or certificate, duly [certified by the county clerk in whose office the same shall have been filed or by the Secretary of State] executed and sworn to before a person authorized by the laws of this State to administer oaths, shall be presumptive evidence in all courts of law in this State of the facts therein contained.
(cf: P.L.1965, c.123, s.8)
4. R.S.56:1-4 is amended to read as follows:
R.S.56:1-4. a. Any person or partnership conducting or transacting business contrary to the provisions of either [section 56:1-1 or 56:1-2 of this title] R.S.56:1-1 or R.S.56:1-2 shall be [guilty of a misdemeanor] ineligible to become a limited liability partnership as set forth in section 47 of P.L.2000, c.161 (C.42:1A-47).
b. The State Treasurer may reject the statement of qualification submitted by a partnership that has failed to file a certificate required by either R.S.56:1-1 or R.S.56:1-2.
c. A rejection pursuant to subsection b. of this section is not an event of dissolution of the partnership.
d. A partnership whose statement of qualification has been rejected may immediately apply to the Division of Commercial Recording in the Department of the Treasury for qualification. The application shall state:
(1) the name of the partnership and the effective date of the rejection; and
(2) that the ground for rejection either did not exist or has been corrected.
e. Acceptance of the statement of qualification under subsection d. of this section relates back to and takes effect as of the effective date of the rejection, and the partnership's status as a limited liability partnership continues as if the rejection never occurred.
(cf: R.S.56:1-4)
5. R.S.56:1-6 is amended to read as follows:
R.S.56:1-6. a. When any partnership which has filed the statement or certificate provided for by [sections 56:1-1 and 56:1-2 of this Title] R.S.56:1-1 and R.S.56:1-2 shall be dissolved [and a certificate setting forth] it shall file a certificate of dissolution with the Division of Commercial Recording in the Department of the Treasury who shall file that certificate and record the dissolution.
b. A certification of dissolution shall contain the following information:
(1) the name under which the trade-name has been carried on,
(2) the business which has been conducted or transacted,
(3) the true or full name of the person or persons who have conducted or transacted the same, with the post-office addresses of such person or persons, and
(4) a statement setting forth the facts showing such dissolution[,].
c. A certificate shall be duly executed and sworn to by the person or persons who have conducted or transacted business as such trade-name [, is filed in the office of the clerk of the county wherein the statement or certificate above referred to shall have been filed, together with a duplicate for filing in the office of the Secretary of State, the county clerk shall file such certificate and record the dissolution].
(cf: P.L.1965, c.123, s.9)
6. R.S.56:1-7 is amended to read as follows:
R.S.56:1-7. a. The record of dissolution provided for by [section 56:1-6 of this Title] R.S.56:1-6 shall be made by the [county clerk and by the Secretary of State] Division of Commercial Recording in the Department of the Treasury by writing the word "dissolved," together with the date of the certificate of dissolution, in the margin of the book or books used for filing trade-name certificates, at or near the place where such trade-name certificate shall have been indexed.
b. For the filing of such certificates and recording the dissolution of the trade-name the [county clerk and the Secretary of State] Division of Commercial Recording in the Department of the Treasury shall [each] receive a fee of $1.00. [The county clerk, at the time of filing such certificate, shall collect from the person presenting the same, in addition to the fee payable to him, the fee payable to the Secretary of State for filing and recording the same, and shall immediately forward to the Secretary of State the duplicate of such certificate together with such fee collected for the Secretary of State as aforesaid.]
(cf: P.L.1965, c.123, s.10)
7. Sections 3 and 4 of P.L.1951, c.255 (C.56:1-2.1 and 56:1-2.2) are repealed.
8. This act shall take effect immediately.
STATEMENT
This bill revises the trade name certification process for partnerships.
Current law requires partnerships to file trade name certificates with the clerks of the counties where the partnerships do business as well as with the Secretary of State. This requirement is inconsistent with New Jersey's current approach to business entity regulation, which requires registration with the Division of Commercial Recording in the Department of the Treasury. This bill revises the trade name certification process for partnerships so that they file statements, certificates, and records of dissolution with the Division of Commercial Recording.
This bill also revises the penalties for partnerships that fail to properly file a trade name certificate. Under current law, a person who conducts or transacts business in violation of the trade name certification requirements is guilty of a misdemeanor. This penalty is anachronistic, and does not comport with New Jersey's current approach to business entity regulation. The bill instead provides that individuals or partnerships that fail to meet with the requirements of the bill become ineligible to become limited liability partnerships.
