A lawyer has limited remedies to collect on a judgment from a defendant who is unwilling to pay. If the defendant holds stock in a corporation, you can execute on the shares, take possession of them, and sell them. N.C. Gen. Stat. §1-324.3. But if that ownership interest is in an LLC, a "charging order" is your only recourse (per G.S. §57D-5-03(d)).
If you don't know what a charging order is, it is a court order against an owner of an LLC interest which gives a creditor the right to receive any distributions that the owner of the interest would have received until the judgment is paid.
The Old LLC Act
Former Section 57C-5-03 of the General Statutes (which was repealed and replaced in January 2014 by the new North Carolina Limited Liability Act in Chapter 57D) said that:
On application to a court of competent jurisdiction by any judgment creditor of a member, the court may charge the membership interest of the member with payment of the unsatisfied amount of the judgment with interest.
But what exactly did the holder of the charging order receive under the Old LLC Act, and what did the LLC owner lose upon the issuance of a charging order? Last week, the NC Court of Appeals wrestled with the question whether a charging order operates as an assignment of an LLC interest, in First Bank v. S&R Grandview, LLC [an enhanced version of this opinion is available to lexis.com subscribers].
First Bank had obtained a charging order against Donald Rhine, a member of S&R Grandview, an LLC. The charging order said that the Plaintiff "shall hereafter have the rights of an assignee" of Mr. Rhine's interest of the LLC, and that Mr. Rhine then had no remaining membership interest in the LLC. The charging order said that his membership right would "lie fallow" until the judgment against him was satisfied.
Mr. Rhine appealed, arguing that the charging order did not operate to assign his LLC interest. First Bank rejoined that the effect of the charging order under Section 57C-5-03 was that Mr. Rhine was no longer a member of the LLC to which the order applied.
There was some plausibility to First Bank's argument. Section 57C-5-03 said that "[t]o the extent so charged, the judgment creditor has . . . the rights of an assignee of the membership interest." And Section 57C-5-02 said that "a member ceases to be a member upon assignment of all of his membership interest."
Read this article in its entirety on North Carolina Business Litigation Report, a blog for lawyers focusing on issues of North Carolina business law and the day-to-day practice of business litigation in North Carolina courts.
For more information about LexisNexis products and solutions connect with us through our corporate site.