In Michigan, like in most states, the general rule is that the money or property of a Michigan limited liability company (“LLC”) cannot be taken by creditors to pay off the personal debts or liabilities of the LLC’s owners.
Example: John, Francis, and Kim form a Michigan LLC to operate their carwashing 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 all the 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 Michigan.
Charging Order - Exclusive Remedy
Michigan, like all states, permits personal creditors of an owner of a Michigan 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 Michigan only obtain the owner-debtor’s “financial rights” and cannot participate in the management of the LLC (unless otherwise authorized in the LLC's operating agreement). 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. As a result, often they are not a very effective collection tool for creditors.
Example: The collection agency obtains a charging order from a Michigan court ordering the Michigan 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.
Foreclosure and Dissolution - Not Allowed
Michigan’s LLC law says that the charging order is the only legal procedure that personal creditors of Michigan LLC members can use to get at an owner’s LLC interest. Thus, unlike some other states, Michigan does not permit an LLC owner’s personal creditors to foreclose on the owner’s LLC financial interest or get a court to order the LLC dissolved and its assets sold. This makes Michigan a more friendly state for people who want to form LLCs to protect their assets from personal creditors.
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.
To date, Michigan has not made a distinction in how it handles cases involving single and multi-member LLCs. Thus it appears that creditors of SMLLCs in Michigan are limited to the charging order remedy as described above. However, even when the LLC law states that charging orders are the exclusive remedy, courts in some states have applied a different rule for SMLLCs, particularly in cases where the SMLLC owner has filed for personal bankruptcy. It's possible that a court in Michigan would do the same; this is an unsettled and evolving area of law. It is also possible that in some cases the laws of another state would be applied to a Michigan LLC--for example, where a Delaware LLC does business or owns property in another state.
To obtain the fullest limited liability possible in all states and in the event of bankruptcy, a Michigan LLC should have at least two members. The second member can be a spouse or relative if that person is treated as 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.
For more information on LLCs and the limited liability protections they offer, see Limited Liability Protection and LLCs: A 50-State Guide.