Contract w/ LLC that didn't exist - Valid? NC

This is a discussion on Contract w/ LLC that didn't exist - Valid? NC within the Other Labor Law Matters forum, part of the LABOR & EMPLOYMENT LAW category; I entered into a contract with an LLC as a 1099 employee in NC. I have since discovered that there ...

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Old Jan 10th, 2013, 10:09 AM   #1
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Confused Contract w/ LLC that didn't exist - Valid? NC

I entered into a contract with an LLC as a 1099 employee in NC. I have since discovered that there was a destruction filing on the LLC for failure to submit annual report a year PRIOR to signing the contract. It has never been reinstated. Since my contract is with an LLC that in effect did not exist at the time of signing, would the contract be considered invalid?

I am considering leaving and want to know if the non-compete clause has any validity due to this.
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Old Jan 10th, 2013, 10:12 AM   #2
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Default Re: Contract w/ LLC that didn't exist - Valid? NC

You need to consult an attorney. A forum cannot advise you as to the validity of your agreement.
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Old Jan 10th, 2013, 11:54 AM   #3
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Default Re: Contract w/ LLC that didn't exist - Valid? NC

I wish to inform you that you may serve a written notice to the LLC management stating that there has been a breach of contract as they did not have the capacity to contract due to the LLC being under dissolution. If they do not resolve the matter then you may file a lawsuit. You may request the court to lift the corporate veil. You may place all the facts before the court. The court will consider all the facts and decide the matter. If the management obtains a certificate of continuation, the certificate of dissolution shall be of no effect from the time of the filing of the certificate of dissolution.

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Old Jan 10th, 2013, 12:02 PM   #4
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Default Re: Contract w/ LLC that didn't exist - Valid? NC

AFFA, you missed the point on this. OP is arguing they lacked the capacity to make the non compete initially. There are other factors involved, that state law will affect. Only an attorney with state specific and contract specific knowledge can answer his question.
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Old Jan 10th, 2013, 03:12 PM   #5
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Default Re: Contract w/ LLC that didn't exist - Valid? NC

A agree with Disagreeable this time.

When it comes to interpreting agreements and in situations where the company/partnership/entity may not have been a legal one in the first place, only an attorney who is privy to all the facts, has the contract before him or her, and has knowledge of that state's laws and rulings is the one who can give a competent answer.
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Old Jan 10th, 2013, 05:30 PM   #6
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Default Re: Contract w/ LLC that didn't exist - Valid? NC

Yes, the basic question has nothing to do with the non-compete, at the core. Can someone just write a contract stating "Their Name, LLC" and it be a binding contract if in fact they do not HAVE the LLC? That's what I was getting at. And of course I am consulting an attorney, but the wait is a bit.
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Old Jan 11th, 2013, 11:09 AM   #7
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Default Re: Contract w/ LLC that didn't exist - Valid? NC

In order to be a Limited Liability Corporation they must be so registered with the state.

If the name is not legitimate, my best guess is that the contact itself may have a raft of legal flaws in it, too. That is why one needs to have an attorney take a look at it and advise whether ANY portion of the contract is enforceable.
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Old Jan 11th, 2013, 11:20 AM   #8
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Default Re: Contract w/ LLC that didn't exist - Valid? NC

These are some of the steps the party missed:

filing Articles of Organization with the North Carolina Secretary of State. The articles must include: the LLC's name and address; the name of the LLC’s registered agent; the LLC's dissolution date, if any; whether the LLC will be run by managers or members;and the name and address of each person signing the articles. The articles must be filed by postal mail. The filing fee is $120.

They have to appoint a registered Agent for service of process in the state. The registered agent may be a North Carolina resident or a business entity authorized to do business in North Carolina. The registered agent must have a physical street address in North Carolina.

If the LLC has more than one member it must obtain its own IRS Employer Identification number, EIN: If your LLC has more than one member, it must obtain its own IRS Employer. It is to be taxed as a corporation instead of sole proprietorship.

Depending on its type of business and where it is located, an LLC may need to obtain other local and state business licenses.

Domestic and Foreign North Carolina LLCs must file an Annual Report with the North Carolina Secretary of State. LLC annual reports are due for the year in which they are filed. In other words, any LLC in existence on or before April 15th of any given year owes an annual report for that year. LLCs that form after April 15th will not owe an annual report until the next calendar year. The annual report must be filed with the Secretary of State, filing fee is $200.

Deposing this person may prove very entertaining.

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