Taghipour v. Jerez

52 P.3d 1252 (2002)


Taghipour, Rahemi, and Jerez formed a limited liability company known as Jerez, Taghipour and Associates, LLC to purchase and develop a particular parcel of real estate pursuant to a joint venture agreement. The articles designated Jerez as the LLC's manager. The operating agreement between the members of the LLC provided: 'No loans may be contracted on behalf of the [LLC] ... unless authorized by a resolution of the members.' Jerez, unbeknownst to the LLC's other members or managers, entered into a loan agreement on behalf of the LLC with D. D lent the LLC $25,000 and, as security for the loan, Jerez executed and delivered a trust deed that conveyed the LLC's real estate property to a trustee with the power to sell the property in the event of default. D then dispensed $20,000 to Jerez and retained the $5,000 balance to cover various fees. D did not investigate Jerez's authority to effectuate the loan agreement beyond determining that D was the manager of the LLC. Jerez misappropriated and absconded with the $20,000. Because the other members of the LLC were unaware of the loan, no loan payments were ever made by anyone, and consequently, the LLC defaulted. D foreclosed on the LLC's property. The members of the LLC, other than Jerez, were never notified of the default or pending foreclosure sale. Ps filed suit against D and Jerez claiming Jerez lacked the authority to bind the LLC under the operating agreement. D moved to dismiss all three claims, asserting that pursuant to Utah Code section 48-2b-127(2), the loan agreement documents are valid and binding on the LLC since they were signed by the LLC's manager. The trial court granted D's motion and dismissed P's claims against D, ruling that under the above section, 'instruments and documents providing for the mortgage of property of a limited liability company are valid and binding on the limited liability company if they are executed by the manager,' that the complaint alleges that Jerez is the manager of the LLC and that therefore the loan documents Jerez executed are valid and binding on the LLC. P appealed. The Utah Court of Appeals affirmed. P appealed. P argues that sections 48-2b-125(2)(b) and 48-2b-127(2) should be read in harmony to require that managers 'be properly authorized to bind the limited liability company in all situations,' and a commercial lender has a due diligence obligation to determine the authority of a manager of a limited liability company before that manager can encumber the assets of the company.