Legal Question in Business Law in New Jersey

I am one of three partners in an LLC in NJ. The LLC was initially funded by the three partners and then the LLC took out an SBA loan and an SBA backed credit line, with a local bank, which together totaled 150k. Both the SBA loan and line of credit were backed by collateral that was pledged by all three partners (one pledged cash, one pledged securities, and I pledged equity in my home as a third mortgage) and all three of us unconditionally guaranteed the loans. The LLC is now going bankrupt due to a major distributor of it's products going bankrupt and being unable to repay a large outstanding invoice. The LLC sued the distributor before it went bankrupt but is now mired in the mediation process as the distributor filed for bankruptcy, in it's home state, two weeks before the court hearing date. Now, the LLC has very limited assets, lots of bills, and began to default on the loan payments, and the bank, which issued the SBA loan and line of credit, used the cash that was pledged by one partner to begin to satisfy the debt. Before the rest of the collateral that was pledged by myself and the remaining partner was called in, the remaining partner bought the debt from the bank,and is now an assignee of the bank. because after a meeting, with the bank, the bank stated that they had no interest in the equity in my home that was pledged and would use the securities that were pledged by the third partner to satisfy the debt. He has now brought a suit against the LLC, myself, my soon to be ex-wife(who also guaranteed the loan for her share of the home's equity that was pledged and we are in the final stages of divorce), and my other partner who already lost his pledged collateral.The suit has 5 counts, the First of which states that he is seeking to enforce the unconditional personal guarantees, the second count is against the LLC which he is a member of for repayment of the loans,the third count is Breach of Implied Covenant of Good Faith and Fair Dealing, the Fourth Count is a Claim for Unjust Enrichment, and the Fifth Count is a Claim for Equitable Subrogation. The short of it is the only action that is stated as contemplated in the suit is to foreclose on my home to satisfy the first and second mortgages and collect the remaining equity that was pledged as collateral to the bank. Thus, my question is how do I, my soon-to-be-ex, and my other partner defend against this suit when it was previously believed that the bank would revoke the third partners collateral to satisfy the loan and either put a lien on my home in the remaining amount or go after the SBA for the remaining amount? I should also note that the suing partner was the CFO and had been negliegent in his duties as CFO for well over the last two years and had thrust the bulk of his duties upon us to take care of for him. The LLC has an Operating agreement and a Partnership Agreement and neither of them states that losses are to equally shared but does state that profits are to be equally shared. Our accountant has raised the question of why the tax returns were done on a 1/3 basis, from year to year, but they were began in this way before we took out the SBA loans as we all had the same amount of cash equity in the LLC before the LLC took out the SBA loans. I have read about "Assumption of Risk" as a defense and would like to know if it is applicable in this case and if, or even if not, what would be the best approach to defending against the suit?


Asked on 3/02/10, 10:25 am

3 Answers from Attorneys

Ronald Cappuccio Ronald J. Cappuccio, J.D., LL.M.(Tax)

Your question his way too long and complex for an online answer. When you signed a personal guarantee with the SBA you are personally liable for the full amount of the obligation. Since this matter is already in litigation you need to quickly obtain a good business attorney to defend this matter for you. This is going to be a long and expensive proposition so just plan on it.

I hope this helps!

Ron Cappuccio

www.BusinessEsq,com

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Answered on 3/07/10, 1:36 pm
John Corbett Corbett Law Firm LLC

Your best approach to defending the suit is to hire a lawyer. You have counterclaims and crossclaims that should be made. You also are entitled to setoffs against this plaintiff in spite of the unconditional nature of the guarantees. Ultimately, you should come out with owing only your share of the loss. However, if you do not do this correctly, you could end up owing much more and have no further recourse against your former partner. A good rule-of-thumb is that you should not represent yourself in any court proceeding that you can't easily afford to lose. A lawyer cannot guarantee winning the case for you, but your chances are better if you are represented by someone who understands the legal effect of the issues that you describe and knows what to do about it. � See also: http://info.corbettlaw.net/lawguru.htm

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Answered on 3/07/10, 3:19 pm
Robert Davies The Davies Law Firm, P.A.

You have a huge and expensive problem. I agree with the other lawyer, there is no way to give you any answer over the internet. You absolutely need a good lawyer.

You talk about 'assumption of the risk' defense. Please, you would never try to cure your own very serious illness, you would go to a doctor.

Please do not try to do this without a lawyer.

Call me if you would like me to assist; I am not too far away from you.

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Answered on 3/08/10, 7:34 am


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