Colorado § 7-80-702 - Interest in limited liability company - transferability of interest.

§ 7-80-702. Interest in limited liability company - transferability of interest.

(1) The interest of each member in a limited liability company constitutes the personal property of the member and may be assigned or transferred. Unless the assignee or transferee is admitted as a member, the assignee or transferee shall only be entitled to receive the share of profits or other compensation by way of income and the return of contributions to which that member would otherwise be entitled and shall have no right to participate in the management of the business and activities of the limited liability company or to become a member.

(2) A member ceases to be a member upon assignment or transfer of all the member's membership interest. A person to whom all of a member's membership interest has been assigned or transferred and who has been admitted as a member has all the rights and powers and is subject to all the restrictions and liabilities of the assignor or transferor with respect to the portion of the membership interest assigned or transferred. The admission of the assignee or transferee releases the assignor or transferor from liability to the limited liability company other than for liabilities under section 7-80-502 or 7-80-606.

(3) A person to whom a portion of a member's membership interest has been assigned or transferred and who has been admitted as a member has all the rights and powers and is subject to all the restrictions and liabilities of the assignor or transferor with respect to the portion of the membership interest assigned or transferred. The admission of the assignee or transferee terminates the assignor's or transferor's rights and powers as a member with respect to the portion of the membership interest assigned or transferred and releases the assignor or transferor from liability to the limited liability company with respect to the portion of the membership interest assigned or transferred other than for liabilities under section 7-80-502 or 7-80-606.

Source: L. 90: Entire article added, p. 433, § 1, effective April 18. L. 94: (1) amended, p. 718, § 25, effective July 1. L. 2004: Entire section amended, p. 943, § 14, effective July 1. L. 2006: Entire section amended, p. 861, § 30, effective July 1. L. 2007: (2) amended, p. 227, § 19, effective May 29.

ANNOTATION

An LLC member's interest in the LLC is an intangible personal property interest, and, for purposes of enforcing a charging order, that interest is located in the state where the LLC was formed. JP Morgan Chase Bank, N.A. v. McClure, 2017 CO 22, 393 P.3d 955.

Where there are no other members in the limited liability company (LLC), the debtor's bankruptcy filing effectively assigned her entire membership interest in the LLC to the bankruptcy estate, and the trustee obtained all of the debtor's rights, including the right to control the management of the LLC. In re Albright, 291 B.R. 538 (Bankr. D. Colo. 2003).

Because the trustee became the sole member of the LLC upon the debtor's bankruptcy filing, the trustee controls, directly or indirectly, all governance of that entity, including any decision regarding liquidation of the entity's assets. Therefore, the trustee may cause the LLC to sell its property and distribute net proceeds to the bankruptcy estate. Alternatively, the trustee may elect to distribute the LLC's property to the bankruptcy estate, and, in turn, liquidate the property himself. In re Albright, 291 B.R. 538 (Bankr. D. Colo. 2003).

Agreement that required prior written approval of any assignment of a member's interest prevailed in conflict with this section. Condo v. Conners, 271 P.3d 524 (Colo. App. 2010), aff'd, 266 P.3d 1110 (Colo. 2011).

Membership interest may be a "security". The presumption that a general partnership interest is not a security is not applicable to a limited liability partnership interest in Colorado. Instead, the structure of the entity and the terms of the agreement will control. Toothman v. Freeborn & Peters, 80 P.3d 804 (Colo. App. 2002).

Colorado law requires a secured creditor to enforce the security agreement and become admitted as a member before voting rights associated with membership interests pledged as collateral can be exercised. Thus, neither the pledging of the membership rights as security nor the declaration of a breach by the secured party is sufficient to divest the pledging member of the right to vote. To hold otherwise would permit someone who is not a member or manager to control a limited liability company. In re Crossover Fin. I, LLC, 477 B.R. 196 (Bankr. D. Colo. 2012).