LLC

By Kevin Davidson

After his job was threatened by the aftermath of 9/11, Steve Rozenberg, co-founder of Empire Industries, LLC realized that obtaining financial freedom through investing in property is a much surer way of building wealth than working for someone else.

“I’m an airline pilot by trade,” said Steve. “I fly for a commercial airline, and so after 9/11 hit, I was on the verge of being out of a job. That’s when I realized that I needed to do something else to earn money because that secure job didn’t look quite as secure as I’d thought.”

“So what I did is, I started learning everything I could about real estate. I started trying to understand it. I read a book a week on real estate and I devoured as much information as I could so I could figure out this new society…this new language that I was engulfed in.”

“Then I started buying some houses. I sold a few houses then ended up buying an apartment complex.  I sold the apartment complex and started buying a bunch of low income property, which is probably my biggest mistake.”

Steve met Pete in 2005 and the two began flipping houses together before switching to a buy and hold strategy. Then, after buying twenty low income houses within a year and a half, the two realized they’d made a mistake.

“We realized why we shouldn’t have done that. All of a sudden we had a huge waterfall of problems attacking us from all angles so we did what any normal male would do, we turned around and bought another 15 properties to try to fix the problem, which really just ended up being like gasoline on the fire for us. It just ended up making our problems ten times worse!”

The solution they created for their problem became Empire Industries, LLC.

“So to solve the problem we’d gotten ourselves into, we had to create a management company of our own, just to manage our own properties.”

“This is how the management company got started. We started it out of necessity, from the result of making our own mistakes of buying the wrong properties, but also figuring solutions out for that.”

Investor solution

Today, Empire Industries, LLC is the fastest growing single family management company in Texas. They manage about 750 properties in Houston and Dallas, and have a client base that spans the globe. Investors from California to Japan use Empire Industries for their property management needs.

“We’re the number one referred management company by realtors,” said Steve. “We give referral fees to our agents and we make them look good. At the end of the day, what an investor wants is a property that is going to make them money and not give them a headache.”

“Empire Industries is a full service property management company. Our services run the gamut, from helping people find properties to managing their investments, we do it all from an investor’s perspective. Because we’re active investors ourselves, we’re looking at the market from that mindset. We are in the business of helping investors find properties that match their goals.”

“Often, beginning investors fail to see results because they don’t have policies, procedures and structures in place…they run it off of emotions, not a business model.”

“What I always tell people is that when it comes to owning a rental property you own a business. Whether you have one or fifty properties, you run a business. Fair housing, discrimination…all of these laws that dictate what you do as a landlord say that you’re a business and the only one that does not realize they’re a business is the owner.”

Investors choose Empire Industries, LLC because they’re more than a property management company. As active investors, the founders are in “the heat of battle of owning properties.”

“We look at it from an investor’s perspective,” said Steve, “as a partner, not as just a customer/client relationship. This means our goal is to help them be successful and to reach their financial goals, whatever those goals may be.”

Investor education

From hundreds of free videos to free ebooks, investors have access to a huge resource of information…for free…from the team at Empire Industries, LLC.

Ask any savvy investor and they’ll tell you…learning as much as possible about investing in property is key to achieving success.

“Most importantly, have a plan,” said Steve. “If you don’t have a plan and you don’t have goals you need to talk to someone like myself and figure out what your goals are so that when you’re trying to find a deal you can know what that deal is, based on your goals.”

By Garrett Sutton

Holding LLC Certificates in Wyoming for Superior Asset Protection

You want the best protection possible for your assets. You want to use the strongest LLC entity available. But if you live in a weak asset protection state (like California) and set up your LLCs in a strong state (such as Wyoming) which state law applies? In an outside attack where a car wreck victim has won in court and is seeking to collect, the old standard lawyer answer is: It depends.

If you live in California and hold your Wyoming LLC membership interest (your certificate representing ownership) in California, that certificate is your personal property in California. Your Wyoming LLC can then be subject to the jurisdiction of a California court. In such a case California’s weaker laws will apply.

However, with some careful planning and by actually holding the physical Wyoming LLC certificates in Wyoming, the stronger asset protection of Wyoming law can apply. (Please note that we will use California and Wyoming in our discussion but any weak state/strong state scenario will apply.)

A membership interest in an LLC may be held in two ways: (1) as a certificated security; or (2) as an uncertificated security. A certificated certificated security is a declared ownership interest (like a corporation’s stock certificate) represented by a properly prepared and held certificate. An uncertificated security is an ownership that is not represented by a properly prepared certificate. See, UCC 8-102(4), (18).

1. Uncertificated Security.

Most membership interests in LLCs are held as uncertificated securities. Indeed, a membership interest in an LLC is not a security, unless its terms expressly so provide. See, UCC 8-103(c).

One downside to holding an LLC as an uncertificated security is that it usually is considered by the courts to be a “general intangible.” The courts see the LLC ownership as accompanying the owner of the uncertificated security. A court has jurisdiction over an individual if they live in the court’s district. Personal jurisdiction means the court has the ability to assert orders against the individual. Thus, if a court in California has personal jurisdiction over a judgement debtor (someone who lost in court and for purposes of example we will call “Bob”), then the court in California also may have in rem (property) jurisdiction over Bob’s Wyoming LLC. This is true even though his LLC was formed in Wyoming. Bob’s LLC membership interest is deemed to be “intangible personal property” that accompanies him in California. In this way, an uncertificated security representing a Wyoming LLC membership interest can be subject to California’s weak laws. When Bob is served in a California collection case, a California court not only acquires personal jurisdiction over Bob but all of his California holdings as well, including uncertificated securities even if his LLCs were formed in Wyoming.

Neither Bob nor you wants this result. Let’s consider a better alternative.

2. Certificated Security

There are distinct advantages to holding a membership interest in an LLC as a certificated security.

One definite advantage is that Bob’s interest in a certificated security may be reached by a judgment creditor only by actual seizure of the security certificate by the officer making the attachment or levy. See, UCC 8-112 (a). Thus, in dealing with certificated securities, possession of the securities is the vital matter. Placing them in a Wyoming safety deposit box, a service we provide, puts the certificates out of the easy reach of a California (or other state) court.

Furthermore, the local law of the jurisdiction in which a security certificate is located at the time of delivery governs whether an adverse claim can be asserted against a person to whom the security certificate is delivered. See, UCC 8-110 (c). Delivery of a certificated security occurs when the purchaser acquires possession of the security certificate. See, 8-301 (a)(1).

Therefore, if Bob acquires possession of a security certificate in Wyoming, then delivery of the security certificate occurs in Wyoming. As such, the law of Wyoming (the jurisdiction in which the security certificate was located at the time of delivery) governs whether an adverse claim can be asserted against Bob. In this way, even if Bob is served with process in California, the California court may apply only those stronger remedies against Bob’s Wyoming LLC membership interest that exist in Wyoming, and not those weaker remedies that exist in California.

Thus, if a charging order against Bob’s LLC membership interest is the exclusive remedy in Wyoming, a California court must apply Wyoming’s superior law to the case.

Our firm has developed a method for certificating LLC securities in Wyoming to be governed by article 8 of the UCC so that Wyoming law applies. We call it “Armor 8”. We add specific jurisdictional Article 8 language to the Operating Agreement and the membership certificates. We hold the membership certificates in a safe deposit box at a Wyoming bank. Your certificates are physically located in Wyoming and governed by Wyoming law. We have not had a case challenging this procedure and can make no guarantees as to how any one court would rule. But by taking the extra steps here you are in a much better position to argue the applicability of Wyoming law, to your greater protection.

The cost of our Armor 8 service is very affordable. The setup fee is $95 and annual holding fee for 1 to 7 certificates is $75. To get your certificate out of the Wyoming safe deposit box and returned to you (for reissue or any other reason) the fee is $50. To place the certificates back in the safe deposit box the fee is also $50.

If you start a new Wyoming LLC and want our special ‘Article 8’ language included in your Operating Agreement and on your membership certificate there is no extra cost if you are using our certificate service.

If you want to amend your Operating Agreement and LLC membership certificates to include the Article 8 language so you can start using our service the minimum fee is $295. Prices may be higher due to the complexity of the Operating Agreement and the number of certificates to be reissued.

Now you can better protect your LLC by keeping ownership certificates in Wyoming. Call Corporate Direct at 1-800-600-1760 to get started with your Armor8TM protection.

Garrett Sutton

Garrett Sutton is an attorney, speaker and best selling author. As part of Robert Kiyosaki’s Rich Dad’s Advisor group he has written six books which have been translated into 11 languages. Garrett focuses on corporate and asset protection law and speaks to audiences on the importance of asset protection. His advice is pertinent, timely and valuable.

Garrett received his Juris Doctor Law Degree in 1978 from Hastings College of the Law, the University of California’s law school in San Francisco. He received a B.S. in Business Administration from the University of California, Berkeley, in 1975. He is licensed to practice in Nevada and California.

Website: http://www.corporatedirect.com/

By Garrett Sutton

The charging order is a key to LLC asset protection. If you are sued in a car wreck and the victim wants to get at your assets, the charging order (n many states, including Wyoming and Nevada) is the victim’s only relief. It provides for a lien on distributions, meaning the victim can only get what is distributed to you from the LLC.

But in some states (including California and Utah), if not enough money is forthcoming to pay off the claim, the victim can foreclose on your LLC interest. To do so, they go back to court and argue that the charging order is not enough. They aren’t satisfied with distributions. They want the LLC interest itself.

IS IT A GOOD IDEA TO FORECLOSE ON AN LLC INTEREST?

If a judgment creditor (the car wreck victim) successfully forecloses upon the LLC membership interest of a judgment debtor, then the judgment creditor acquires a permanent (as opposed to a temporary) right to receive all distributions made by the LLC to the judgment debtor, including any liquidating distributions when the LLC is dissolved. In other words, prior to foreclosure, the judgment creditor has only a temporary right to receive distributions until the judgment is satisfied. After a foreclosure, however, the judgment creditor has a permanent right to receive all distributions irrespective of whether the judgment is satisfied.

With a single member (one owner) LLC, this may be a suitable outcome. You get it all. But in a multiple owner LLC, you should definitely think twice about foreclosing. Consider that:

1. There are cogent tax reasons why a judgment creditor should not foreclose upon the membership interest of an LLC member. If a judgment creditor only has a charging order against the membership interest of an LLC member, then for tax purposes, the judgment creditor is merely the holder of a lien, and does not receive a K-1Form from the LLC. See, Revenue Ruling 77-137 and IRS General Counsel Memorandum 36960 (1977). On the other hand, if the judgment creditor elects to foreclose upon the membership interest of an LLC member, the judgment creditor becomes a transferee of a transferrable interest, and, as such, is potentially liable for the distributive share of the LLC member. Thus, as a transferee of a transferrable interest, the judgment creditor who forecloses upon the membership interest of an LLC member runs the risk that income from the LLC may be passed through to the judgment creditor on a Form K-1 from the LLC (on which taxes must be paid), irrespective of whether the LLC distributes any cash to the judgment creditor to pay the taxes.
2. A judgment creditor generally stands to gain very little by foreclosing. The judgment creditor already has a charging order against the interest of the LLC member. If the LLC is making distributions to the judgment creditor, then the judgment creditor will have little incentive to foreclose. On the other hand, if the LLC is not making distributions to the judgment creditor, then an auction of the interest of the LLC member will not draw much interest, and will incur attorney’s fees and costs.
3. If the underlying purpose of obtaining the charging order was to prevent the LLC member from obtaining distributions, then there is little need to foreclose upon the interest of the LLC member, because the charging order will already serve much the same purpose.

Even in the minority of states where a judgment creditor can ask the court to foreclose upon the LLC membership interest of a judgment debtor member of the LLC, the judgment creditor should think twice before doing so, at least with multiple member LLCs, because there is very little to gain, and much to lose, by doing so.

Garrett Sutton

Garrett Sutton is an attorney, speaker and best selling author. As part of Robert Kiyosaki’s Rich Dad’s Advisor group he has written six books which have been translated into 11 languages. Garrett focuses on corporate and asset protection law and speaks to audiences on the importance of asset protection. His advice is pertinent, timely and valuable.

Garrett received his Juris Doctor Law Degree in 1978 from Hastings College of the Law, the University of California’s law school in San Francisco. He received a B.S. in Business Administration from the University of California, Berkeley, in 1975. He is licensed to practice in Nevada and California.

Website: http://www.corporatedirect.com/