One of the primary reasons that small business owners choose to form a limited liability company (LLC) or corporation is to avoid being held personally liable for debts should the business become unable to pay its creditors. However, even if you take out a mortgage in the name of the LLC or corporation, you could be liable for a deficiency following a foreclosure depending on the circumstances, such as if you gave a personal guarantee. Read on to learn more about personal liability for mortgages held by an LLC or corporation.
Using an LLC or Corporation to Avoid Personal Liability for Business Mortgages
Individuals who create an LLC or corporation generally do it to shield themselves from personal liability. By forming an LLC or corporation, you and your business will be considered separate legal entities. In theory, this means that creditors will not be able to go after your personal assets to pay the business debts even if the business can’t pay them.
Example. Let’s say you want to start a property management business that will own and manage a rental property. You want to protect yourself from liability for any debts of the business, particularly the mortgage loan used to purchase the property. So, you form an LLC and obtain a mortgage in the name of the LLC, pledging the assets of the LLC (the rental property) as security for the debt. This will be the only asset at risk in a foreclosure action so long as you are able to obtain a commercial non-recourse mortgage loan. (Learn more about recourse and non-recourse loans.)
However, there are several ways for an LLC member or shareholder of a corporation to be held personally liable for the debt when it comes to mortgage loans.
If you are facing foreclosure or struggling to pay your mortgage, learn about your options in Nolo's The Foreclosure Survival Guide.
When You May Be Personally Liable for LLC or Corporation Mortgages
Depending on a few factors, the mortgage lender may be able to place the financial liability back into the hands of the business owner personally, even if the mortgage is taken out in the name of a LLC or corporation.
Signing a Personal Guarantee for the Mortgage Loan
Often, lenders will not finance an LLC or corporation mortgage loan based only on business credit unless that business has an excellent and long-established credit history. Banks are well aware that LLC members and shareholders cannot be held personally liable for the LLC or corporation’s debts. As a result, many lenders will only extend a mortgage loan to a small LLC or corporation if the business owner gives a personal guarantee.
By signing a personal guarantee, you are volunteering your personal assets as security for the debt if the business cannot repay the loan. In the event that the mortgage is foreclosed, you can be held personally liable for the loan. This means the lender can then come after you for a deficiency judgment, as long as state law does not prohibit it.
What is a deficiency judgment? When a lender forecloses on a mortgage, the total debt owed by the borrower to the lender frequently exceeds the foreclosure sale price. The difference between the sale price (or fair market value) and the total debt is called a “deficiency.”
Example. Say the total debt owed is $200,000, but the property only sells for $150,000 at the foreclosure sale. The deficiency is $50,000.
A deficiency judgment is a personal judgment that the lender obtains against the borrower to recover the deficiency. Generally, once the lender gets a deficiency judgment, it may collect this amount (in our example, $50,000) from the borrower by doing such things as garnishing wages or levying a bank account. (Learn about methods that creditors can use to collect judgments.)
Whether your lender can go to court and get a judgment for the deficiency, and then collect it, depends on state law. Certain states prohibit deficiency judgments under particular circumstances.
(To learn more about deficiency judgments, see our Deficiency Judgments After Foreclosure area.)
Signing the Loan Documents in Your Own Name
Another way that you may potentially open yourself up to personal liability is by signing the mortgage documents, such as the promissory note, in your own name instead of the name of the LLC or corporation. By signing your own name, rather than on behalf of the LLC or corporation in your capacity as an owner or officer, you could be held personally liable for the debt.W
When You Should Consult With an Attorney
When signing any mortgage loan documents, be sure to carefully read the contract to determine if it obligates you personally in addition to the LLC or corporation. If you have any questions about personal liability regarding a mortgage transaction or if you are facing foreclosure of a property mortgaged by an LLC or corporation, you should speak to a qualified attorney who can advise you about what to do in your particular situation.
For More Information
You might also benefit from reading Nolo's book, LLC or Corporation? How to Choose the Right Form for Your Business, by Anthony Mancuso, and by visiting our Business area.