In South Carolina, like in most states, the general rule is that the money or property of a South Carolina limited liability company (“LLC”) cannot be taken by creditors to pay off the personal debts or liabilities of the LLC’s owners.
Example: John, Lucy, and Me. form a South Carolina LLC to operate their website design 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 South Carolina.
South Carolina, like all states, permits personal creditors of an owner of a South Carolina 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 South Carolina 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 South Carolina court ordering the website design 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.
Unlike many states, in South Carolina a creditor who obtains a charging order, but is not paid by the LLC, can have the court order that the debtor-owner’s LLC membership interest be foreclosed upon. If this 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. Thus it can’t force the LLC to pay money to it or anyone else.
It’s likely, however, that before any such foreclosure occurred, the LLC and its members would settle the debt with the creditor. 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.
Example: The collection agency obtains a $38,000 judgment against John, co-owner of the South Carolina LLC, for his unpaid credit card debts. The agency obtains a charging order from a South Carolina 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.
Like most states, South Carolina 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.
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 SMLLC owners to a charging order remedy even if that is the sole remedy provided by law for multi-member LLCs. To date, South Carolina has not made a distinction in how it handles cases involving single and multi-member LLCs. Thus it appears that creditors of SMLLC owners in South Carolina are limited to the same remedies as creditors of multi-member LLC owners. 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 South Carolina would do the same; this is an unsettled and evolving area of law.
Should You Consider Forming Your LLC in Another State?
You do not have to form your LLC in South Carolina 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 South Carolina, you could form an LLC in Nevada because it has a more favorable LLC law. Doing so will not save you South Carolina state taxes because your LLC will have to qualify to do business in South Carolina and pay the same taxes as a South Carolina LLC. However, forming an LLC in a state with a more 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 form 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 South Carolina courts will always 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.