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David Weilbacher, Esq.
David Weilbacher, Esq., Attorney
Category: Business Law
Satisfied Customers: 335
Experience:  Criminal & Civil Litigation, Estate Planning, Probate, and Bankruptcy
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Back again with a new question. As stated in my first question

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Back again with a new question. As stated in my first question the LLC I am involved with has three partners. The controversy that I stated previously is between myself and the attorney member of the LLC. The third member has been the managing member (MM) and registered agent since December 28, 2008. Properly filed with the Florida Secretary of State Div. of Corp. office and the proper fees were paid and her name appeared correctly on the LLC's annual report as MM and Reg. Agent.

Last week I checked the annual report of the LLC and find that the attorney member has changed the MM and reg. agent (RA) to her name and has changed the LLC's address to her address. I emailed the Div. of Corp, Florida Secy. of State office and was told in a return email that the Secy. of State's office does have the time or personnel to check the validity of all filings. If the fee is paid and the site forms are filled out and the name is XXXXX XXXXX the typed name becomes the official signature and the filing is accepted. The representative did state that a false filing was a third degree felony.

There are forms that are required to be filed with the Div. of Corp. when there is a resignation of a MM and a separate form that needs to be filed when the RA resigns and the address is changed. The LLC’s Operating Agreement has specific processes to follow with the resignation of the MM and the RA; none were followed. One being that a new MM and RA is to be voted in at a meeting of the membership and a majority vote is necessary to appoint a new MM and RA. No meeting was held and no vote was cast. There was no resignation and NO resignation forms filed with the Div. because there was no resignation.

All the attorney member did was to fill out the internet forms at the Div. of Corp site, paid the fees with her charge card and "bingo" we now have a new MM and RA. Therefore the attorney member has filed false documents with the Div. and that is a fraudulent offense. She can not produce the resignation forms because there are no forms to produce.

How can we proceed to have her indicted and the MM and RA returned to the proper member's name? The Div. of Corp is not interested in cooperating. The false filing is a criminal offense and I want to go forward but don't know how.

Thank you for requesting me.

You have two options regarding prosecution: 1) you can take the matter to your local county prosecutor's office, or 2) you can take the matter to the state attorney general. In either case, you should speak to someone in the financial crimes department.

Taking the case to either prosecutor is no guarantee that they will pursue a prosecution. The prosecutor has discretion as to what cases he or she takes.

Another option, is to file a grievance with the state bar association. You should start with the local bar association, and they can give you direction as to how to proceed. The essence of the grievance is that she has committed a felony, and therefore impacts her fitness to be an attorney.

I hope this answers you question. If you have more questions, let me know.

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If your primary goal is to get the MM and RA restored as before, you could threaten the above actions, and see if that will prompt her to voluntarily resign the positions.
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