In a 5-2 decision, the majority argues that because Florida general limited
partnership charging order statutes expressly provide the remedy is exclusive
and the LLC provision does not, the LLC provision is not exclusive and thus levy
and execution is available. Obviously this is not what the Florida legislature
intended and cuts against the common law of charging orders. RUPA first provided
the charging order was exclusive because common law so provided. Below is a link
to a table I maintain on charging order statutes nationally. The right hand
column provides when the statutes expressly reference exclusive. You will be
surprised how many states do not expressly reference exclusivity. If followed,
this case could mean havoc for the many states where the charging order remedy
is not stated to be exclusive. Enjoy.
Professor Carter G. Bishop
Suffolk University Law School
Visiting Professor of Law
Columbus School of Law
The Catholic University of America
Washington, DC 20064
Cell: 202-641-8456 cgbishopesq@...
[Non-text portions of this message have been removed]
In a 5-2 decision, the majority argues that because Florida general limited partnership charging order statutes expressly provide the remedy is exclusive and...
Carter: Carter: Wow. Thanks very much for letting us know about this decision. In case it's useful to others in this group, here's a link to the text of the...
When one statute say "exclusive" and another statute on same topic does not say "exclusive" it should be no great surprise that judges would say one remedy is...
Callison, J. William
wcallison@...
Jun 25, 2010 3:53 pm
Does someone have a citation? If it was sent earlier, I can't find it. Michael ________________________________ Michael A....
2010 wl 2518106 From: lnet-llc@yahoogroups.com [mailto:lnet-llc@yahoogroups.com] On Behalf Of Bamberger, Michael A. Sent: Friday, June 25, 2010 9:57 AM To:...
Callison, J. William
wcallison@...
Jun 25, 2010 4:07 pm
What needs to be fixed in the LLC context is unwarranted asset protection for sole members of an LLC. The charging order provision, and the built-in,...
If the LLC statute does not say "exclusive" isn't the first question whether there should be exclusivity in general? If yes, then that is the first fix for...
Callison, J. William
wcallison@...
Jun 25, 2010 4:27 pm
I will say that exclusivity was built into the common law and when RUPA first added the concept in 1994, the comments reflect it was merely codifying the...
Agree re all points. The dangers of what Guido Calabresi calls "statutorification." Callison ... From: lnet-llc@yahoogroups.com...
Callison, J. William
wcallison@...
Jun 25, 2010 4:40 pm
I any event, the effect of the decision simply permits foreclosure even though the statute itself is silent on the matter. Given Florida's changes to its...
Not to be picky but when I researched Florida law on charging orders, I only discovered the 1998 Givens case discussed in my charging order case table. The...
I strongly concur with Dan's reasoning and conclusion. Otherwise, a single member LLC becomes effectively an "exempt bucket" where assets that otherwise not...
The truth is no state statute adequately contemplates the status of a creditor of a SMLLC. We can all dream, guess or suggest how it should be resolved but...
Perhaps the simplest and best fix is to provide that the charging order is the exclusive remedy (with or without foreclosure as possibility, a separated albeit...
I don't think that does does the job. You still have to provide that on the judicial sale of all the interests the purchaser becomes a member, as in...
Actually, if you listen to the oral argument, you'll see that the amicus position was central to the discussion. My hunch is that the decision took so long...
Early in the morning, poor proofreading. ... From: lnet-llc@yahoogroups.com [mailto:lnet-llc@yahoogroups.com] On Behalf Of Kleinberger, Daniel Sent: Sunday,...
Makes sense to me. Walter ________________________________ From: lnet-llc@yahoogroups.com on behalf of Kleinberger, Daniel Sent: Sun 6/27/2010 4:54 AM To:...
Some of the confusion is that planners think of the charging order as the exclusive "outcome", when the statutes by contrast speak in terms of exclusive...
Agreed. The way to "right result, right path" is via the legislatures, not the courts. The majority opinion is like the proverbial sausage - the end result in...
Dan: I agree and have taken the position with many of my Florida colleagues for many years that an SMLLC should not be considered an asset protection vehicle...
In the FWIW category, a Colo BK court extended Albright to a husband and wife LLC (2 separate members) in an unpublished decision. Leaving one to wonder where...
Callison, J. William
wcallison@...
Jun 28, 2010 1:57 pm
Scott, In my opinion, all LLC statutes are "broken" on this point, including the otherwise perfect Re-ULLCA. As I've stated on this list before, neither the...
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