In Idaho, like in most states, the general rule is that the money or property of a Idaho limited liability company (“LLC”) cannot be taken by creditors to pay off the personal debts or liabilities of the LLC’s owners.
Example: John, Dirk, and Alicia form a Idaho LLC to operate their real estate development business. John, a big spender, owes $38,000 on his personal credit cards. When he doesn’t pay, the accounts are turned over to a collection agency which obtains a $38,000 court judgment against him. While the collection agency can attempt to collect on the debt from John’s personal assets, it cannot take money or property owned by the LLC. For example, it cannot get any of the money held in the LLC’s bank account.
Even though creditors can’t collect directly from an LLC for an owner’s personal debts, there are other ways creditors might try to go after the LLC for the owner’s personal debt. These include:
1) obtaining a charging order requiring that the LLC pay the creditor money distributed to the debtor-owner
2) foreclosing on the debtor-owner’s LLC ownership interest, or
3) getting a court to order the LLC to be dissolved and all its assets sold.
The laws on what creditors are allowed to do varies state by state. This article will look at what type of actions creditors of LLC owners are allowed to take against an LLC in Idaho.
Idaho, like all states, permits personal creditors of an owner of a Idaho LLC to obtain a charging order against the debtor-owner’s membership interest. A charging order is an order issued by a court directing an LLC’s manager to pay to the debtor-owner’s personal creditor any distributions of income or profits that would otherwise be distributed to the debtor-member. Like most states, creditors with a charging order in Idaho only obtain the owner-debtor’s “financial rights” and cannot participate in the management of the LLC. Thus, the creditor cannot order the LLC to make a distribution subject to its charging order. Very frequently, creditors who obtain charging orders end up with nothing because they can’t order any distributions. Thus, they are not a very effective collection tool for creditors.
Example: The collection agency obtains a charging order from a Idaho court ordering the Idaho LLC to pay to it any distributions of money or property the LLC would ordinarily make to John until the entire $38,000 judgment is paid. However, if there are no distributions, there will be no payments.
The charging order remedy without any right to order distributions is so weak many creditors don’t even try to use it.
In Idaho, a creditor who obtains a charging order can have the court order that the debtor-owner’s LLC membership interest be foreclosed upon. To get a court to order such a foreclosure, the creditor must show that the debtor-owner will not be able to pay the debt within a reasonable time--for example, because the LLC's earnings have continually been withheld for reinvestment instead of distributed to its members. If foreclosure occurs, the creditor becomes the permanent owner of all the debtor-member’s financial rights, including the right to receive money from the LLC. However, the creditor cannot participate in the management of the LLC or force the LLC to make distributions.
A creditor’s ability to foreclose upon an LLC membership interest puts LLC owners’ personal creditors in a stronger bargaining position than they have under the LLC laws of many other states where creditors are limited to a charging order. Often, to avoid a foreclosure on the debtor/member's interest, the LLC and its members settle the debt with the creditor.
Example: The collection agency obtains a $38,000 judgment against John, co-owner of the Idaho LLC, for his unpaid credit card debts. The agency obtains a charging order from a Idaho court ordering the LLC to pay over to it any profits it distributes to John up to $38,000. However, the LLC need not, and does not, make any distributions, so the agency gets nothing. The agency then obtains a court order for the foreclosure on John’s interest in the LLC. To avoid this, the LLC settles John’s personal debt with the agency for $30,000.
Dissolution Not Allowed
Like most states, Idaho does not permit personal creditors of an LLC member to have a court order that the LLC be dissolved and its assets sold to pay off the creditor.
What About Single-Member LLCs?
The reason personal creditors of individual LLC owners are limited to a charging order is to protect the other members (owners) of the LLC. It doesn’t seem fair that they should suffer because a member incurred personal debts that had nothing to do with their LLC. Thus, personal creditors are not permitted to take over the debtor-member’s LLC interest and join in the management of the LLC, or have the LLC dissolved and its assets sold without the other members’ consent. This rationale disappears when the LLC has only one member (owner). As a result, the LLC laws and court decisions in some states make a distinction between multi-member and single-member LLCs ("SMLLCs") and don't limit personal creditors of owners of SMLLCs to the same remedies as multi-member LLCs.
Idaho is one of the states that has caselaw distinguishing single member and multi-member LLC liability protection. In a bankruptcy case, the court stated that when a SMLLC owner files for bankrupcty, the LLC charging order protection does not apply as it would in a multi-member LLC case. Instead, with SMLLC debtors, the court stated that the bankrutpcy trustee steps into the shoes of the debtor/owner and has full management powers with respect to the LLC. (In re A-Z Electronics, LLC, 350 B.R. 886., Bankr. D. Idaho 2006). Thus it appears that creditors of SMLLCs in Idaho are not limited to the charging order and foreclosure remedies described above, at least in SMLLC bankruptcy cases.
If you are concerned about liability protection from personal creditors, your LLC should have at least two members. The second member must be a legitimate co-owner of the LLC. If the second owner is added merely on paper as a sham, the courts will likely treat the LLC as a single-member LLC. To avoid this, the co-owner must pay fair market value for the interest acquired and otherwise be treated as a "real" LLC member--that is, receive financial statements, participate in decision making, and receive a share of the LLC profits equal to the membership percentage owned.
Should You Consider Forming Your LLC in Another State?
You do not have to form your LLC in Idaho even if it is the state where you live or do business. You can form an LLC in any state--for example, even though your business is in Idaho, you could form an LLC in Nevada because it has a more favorable LLC law. Doing so will not save you Idaho state taxes because your LLC will have to qualify to do business in Idaho and pay the same taxes as an Idaho LLC. However, forming an LLC in a state with a favorable LLC law could provide you with more limited liability than forming it in your home state.
So, should you shop around for the state that provides the most limited liability to LLC owners? If limiting liability is extremely important to you and your state has an unfavorable law, you may want to consider forming your LLC in another state. However, there are other factors you should consider as well, such as how much it costs to form an LLC in the other state. Moreover, there is no guarantee that Idaho courts will apply the law of the state where you formed your LLC. This is a complex legal issue with no definitive answer. Consult an experienced business lawyer for more information.
For more information on LLCs and the limited liability protections they offer, see Limited Liability Protection and LLCs: A 50-State Guide.