As someone who has actually sought to enforce judgments in complicated situations over the years, here is my perspective:
Successful asset protection planning is a process that must be tailored to an individual or family’s specific circumstances and personality. Asset protection planning is best implemented as an adjunct to a larger financial, retirement, and tax plan. Not as a substitute. In and of itself, putting a residence in a LLC without considering the big picture can be a mistake.
In California there are many powerful legal theories available to creditors including piercing the legal protection of undercapitalized LLCs under “alter ego” theories, and use of the Uniform Fraudulent Conveyance act. “One man show” individuals who think LLCs offer them protection from being sued are unpleasantly surprised when they find out that it is no protection for the individual’s negligence. If you personally leave a mess at a property, and a visitor slips and falls and then sues you, the fact that the property is in the name of your LLC will not give you any legal protection. Both the LLC and the individual will be on the hook for the claim.
Properly used and implemented, vehicles such as LLCs can provide important layers of protection for an individual. In connection with trying to use it to protect a personal residence, you also need to consider using debt. If the residence is free and clear within the LLC, it is questionable if you are really protecting anything. Insurance is appropriate of course, but it does not cover everything.
A debtor can make it very difficult for a creditor to collect, even to the point where it is not worth it for the creditor to pursue from a cost benefit perspective. From my experience in chasing down debtors who try to hide and thwart creditors by using undercapitalized entities and/or transferring and hiding assets, they can be generalized (maybe over generalized) into three different types:
1) “The debtor with a conscience.” This is the guy who thought he could hide, but once the legal pressure is put on him, decides to just fold, pay the debt, and move on. Litigation can be a very stressful experience. Sometimes guys like this hired an asset protection guru to advise him who had never seen the inside of a courtroom, and was therefore not prepared for the litigation process when it came. If you are this type of debtor, you should realize this ahead of time, because it should be incorporated into your asset planning.
2) “The debtor who cannot remember or understand his story.” This is the guy who thinks he is smart, but it is not to long before you catch him in lies and inconsistencies, and then you show the judge that he lied. Definitely the most fun for the collection attorney. When you put a microscope on him, he cannot stay consistent in his story. Debt collection litigation can be a microscope into one’s financial affairs.
3) “The pathological liar debtor.” This guy is the toughest to collect from because he remembers and often believes his own lies. Fighting a guy like this is like fighting the mythical seven headed hydra. As a collection attorney, you chop off the head, sear the stump, but then another head pops out that you need to fight. Sometimes the pathological liar wins, but who really wants to live their life like the pathological liar?
This is not intended to be legal advice for anyone to rely on.
