My statutory agent was to be more through in the response and will cost more to do so. My argument is can't we keep it simple and in the event the judge denies the MTD just based on the limitations claim, we still have time to and options regarding proceeding in more detail to the actual claims them self?
State/Country relating to question: Arizona
have not responded yet to complaint served a week ago.
Good evening! I can help you out with your legal question tonight. Can you please add a little more information? I understand you have not yet filed an answer and will file a Motion to Dismiss, but I'm unsure exactly what you are asking me. Thanks!
Sorry, this had been intended as a continued conversation with the last atty I chatted with. I do have a question for you though. I have a company that has been closed now since late 2007. It was a mortgage company with a large call center of 125 cubicles making over 10,000 call per night 5 days a week. Just last week I received a summons and complaint to file a judgement from the FCC on 3 phones calls apparently made to people on the DNC national registry. They are now seeking $30,000 against the closed company with was a C corp which in itself would not be an issue since it has been closed since Sept of 2007. The problem/concern is they filed not only against the corporation, but myself and one other officer of the company at the time. I was the chairman and did not run the day to day operations, the other person ran the lending division full time as the President of the company. We had a Sr. VP that ran the origination side of the business and a VP of Marketing in charge of the call center along with 5 other TM managers solely responsible for the call center. We did scrub our list, maintain a DNC list adhering to the safe harbor rule, but all that proof is gone given the company has been closed since 2007. How can we remove our personal names from the company suit?
Good evening! Let me read what you just typed. One moment.
Yes, the standard filing names the company and its owners. In order to pierce the corporate veil, they would have to show that you used the company as your own personal piggy bank or did not have sufficient insurance to cover your business.
First and foremost, you should file a Motion to Dismiss the two individual defendants. Let me see if I can find some case law to add into your motion.
so at this point, they are just seeing if they slide this by without a response and file a default judgement. Given the company has been shut down for 5 yrs. how could they prove that?
Yes, if noone defends it, then they will get a default against you personally and can come after your individual assets.
Here is a good article regarding what is needed to pierce the corporate veil. If you kept your books correctly and followed the company procedures, it is hard to pierce.
In Arizona, as in many other jurisdictions, the limited liability afforded by a corporation may sometimes be removed through a legal doctrine known as “piercing the corporate veil.” Since limited liability is one of the primary reasons people incorporate, to have the corporate veil pierced and liability attach to the officers, directors or shareholders is a substantial detriment. People who own or operate corporations should know how to avoid being the target of a piercing the corporate veil claim.
Piercing the corporate veil is not easy, but in some situations it is not difficult because the owners of the corporation do such a bad job of forming ormaintaining the corporation. Just because you file papers with the Arizona Corporation Commission to form a corporation does not mean that you are in the clear. If your corporation was not formed by a reputable lawyer, you are likely at some risk.
Accountants who incorporate corporations are generally more familiar with tax issues than with arcane legal concepts such as "piercing the corporate veil." Paralegals may know how to fill out forms, but it is doubtful any paralegal is knowledgeable about the intricacies of piercing the corporate veil doctrine. Do-it-yourselfers lack the legal skill, training and experience that is necessary to prevent a piercing the corporate veil claim from having merit.
The Arizona law regarding a corporate entity and piercing the corporate veil is more easily stated than it is applied. As a general rule, a corporation will be treated as a separate legal entity until sufficient reason appears to disregard the corporate form. In Arizona, there are two (2) legal grounds for disregarding the corporate form: 1)alter ego status or 2) undercapitalization at inception.
The corporate fiction will be disregarded when the corporation is the alter ego or business conduit of a person, and when to observe the corporate form would work an injustice. The alter ego status is said to exist when there is such unity of interest and ownership that the separate personalities of the corporation and owners cease to exist.
How do you know whether alter ego status exists? That is not always an easy question to answer, but the more wrong things the corporation and its principals do, the more likely it is that alter ego status will be found to exist. Here are some of the things to look for:
1. Were Bylaws properly prepared and adopted?
2. Were stock certificates actually issued to all of the stockholders?
3. Are minutes of company meetings prepared and kept in the company record book?
4. Is there a corporate record book containing the Articles of Incorporation, Bylaws, Minutes of meetings and Stock Register?
5. Are personal debts paid from a corporate checking account?
6. Are there formal corporate resolutions for such things as land transactions, leases and loans?
7. Are loans to insiders properly documented and adequately secured by collateral?
8. Are corporate funds and personal funds commingled?
9. Are there records showing that the corporation was properly capitalized?
10. Is the President of the corporation the same person as the Secretary of the corporation?
In addition, would observing the corporate form sanction a Fraud or promote injustice in the particular circumstances? The more evidence you have to show a fraud or injustice, the more likely it is that a court will disregard the corporate form.
The doctrine of "piercing the corporate veil" based on alter ego and fraud does not apply to claims asserted by corporate shareholders. This doctrine is only available to third parties, such as creditors, who deal with the corporation.
All Arizona corporations must be established on an adequate financial basis. At the time of formation, the corporation must be properly capitalized. This means that the assets used to fund the corporation must bear a reasonable relation to the anticipated liabilities of the corporation. For example, a corporation formed to engage in a hazardous activity, such as transporting corrosive chemicals, must have sufficient assets to respond to claims arising out of the corporation’s business. A corporation that was formed for the purpose of selling greeting cards is likely to need less capital than a hazardous chemical transporter.
There is no bright line to establish how much capital is enough and how much is not enough. The more capital the corporation has, however, the merrier. Depending upon the nature of the business, ten thousand dollars ($10,000.00) or even fifty thousand dollars ($50,000.00) may not be enough.
The test of capitalization is at inception, not some time later. Thus, a corporation that was properly capitalized but later runs out of money and assets cannot have its veil pierced on an undercapitalization basis. A corporation that was undercapitalized at its inception is always subject to attack, no matter how well it does financially later.
For a good explanation of the undercapitalization theory, see Norris Chemical Company v. Ingram, 139 Ariz. 544, 679 P.2d 567 (App. 1984).
All good info, but the Burden of Proof is on them and the company has been closed for 5 yrs so I do not even have most of that info besides tax returns handy anymore. Will filing the MTD for the individuals be enough, or would we have to give proof we did not pierce the corporate vail? I would think not given that would be guilty until proven innocent?
Exactly, the burden is on them ultimately, but in a Motion to Dismiss, the burden is on you as the movant. The only thing you need to show is that you followed the corporate formalities. Show that you had bank accounts with the company's name, held corporate meetings, had insurance, etc.
We had annual audited financials as well given we had a mortgage banking division, so this was set up by our statutory agent, RSM McGladry did our taxes so everything you are mentioning we had in place. So in addition to claiming the corporate vail on the individual suits, we would have to show proof via your last sentence in the MTD?
Perfect, the financials will be a great help. Anything you can show to the court will then shift the burden onto the Plaintiffs to show why they think they can pierce the corporate veil (which can be difficult to do).
This all would then be determined by a judge who would review the MTD and the FCC would have a certain amount of time to respond.... all this taking place prior to a trail? I am just trying to avoid lots of atty fees in a court battle and then god for bid end up having to pay part or all of the $30K plus their atty fees.
Correct, usually after a Motion to Dismiss they have 10 days to file an Opposition and then you would get to file a Reply to address anything they bring up in the Opposition. Yes, this is all before trial and is considered "motion practice."
Lastly.... they filed the complaint prior to the end of the 5 yr statue of limitations, but they did not file the summons until after the 5yrs... we did not receive the summons or complaint until 2 1/2 months after the SOL. Are they past the time given title 28 2462 states they have to find and serve within that same 5 yrs?
They have 120 days, so as long as they served the complaint within that time frame, they will be allowed to continue.
The 5 year rule only applies to the filing of the complaint.
I was afraid you were going to say that, just thought I'd double check... looks like the MTD on the individual suits based on the corporate vail is going to be my best bet.
I would agree.
Worst case... if the corporate vail argument fails or denied by judge... we could just settle the $30K without having to worry about the atty fees?
Their atty fees
Yes, usually when you settle, you agree that each side will pay its own attorney fees.
ok, thanks a lot, this is a great site, glad I found it. Have a great night.
Thank you and have a great night! Please accept so that I can continue to help others.
Come back again in the future!
Over 12 years of business and legal experience.
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