In Uncategorized on 08/03/2016 at 22:25

They were signed by the right person in the wrong capacity. Did the agreements extend the SOL?

Let’s ask The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Indefatigable, Illustrious, Incontrovertible, Irrefragable, Ineluctable, Ineffable Foe of the Partitive Genitive, and Old China Hand, Judge Mark V. Holmes.

His answer is found in a designated hitter, Continuing Life Communities Thousand Oaks LLC, Spieker CLC, LLC, Tax Matters Partner, Docket No. 4805-15, filed 8/3/16.

The FPAA would be time-barred, save for the extensions signed by Warren Speiker. But the Continuing Lifers claim Warren signed as TMP of Speiker CLC, LLC. Except he wasn’t. The TMP of Speiker CLC, LLC was The Speiker Living Trust. Now Warren was a co-trustee who could bind the trust. Except he never signed as co-trustee.

In other words, “When Mr. Spieker signed each extension he did so with this signature line: ‘Warren E. Spieker, Jr., Tax Matters Partner of Spieker CLC, LLC, Tax Matters Partner of Continuing Life Communities Thousand Oaks, LLC.’ Continuing Life correctly notes–and there’s no dispute about this fact either — that the Trust, not Warren Spieker, is the TMP of Spieker LLC. Continuing Life therefore believes the correct signature line should’ve been: ‘Warren E. Spieker, Jr., Trustee of the Spieker Living Trust as Manager of Spieker CLC, LLC, Tax Matters Partner of Continuing Life Communities Thousand Oaks, LLC.’ It argues the wrong party signed the extensions and they are invalid.” Order, at pp. 2-3.

“We now need to decide that age-old question: What’s in a name?” Order, at p. 3.

Partnerships and limited liability companies can be complex structures, and there may be entities within entities. But ultimately there must be a human being to sign something.

So the issue is “who,” not “how.”

“Here, it was ‘Warren Spieker’ who signed the forms, and ‘Warren Spieker’ who had the actual authority to sign those forms. Continuing Life has failed to identify a single fact in dispute, material or otherwise, regarding Mr. Spieker’s authority to bind the Trust as its trustee, the Trust’s authority to bind SCLC as its manager, or SCLC’s authority as Continuing Life’s TMP to execute Forms 872-P to extend the statute of limitations. That the signature line misstated the source of that authority is, under our precedents, no reason to hold them ineffective.” Order, at p. 5.

Takeaway: It is more important to be a “personage,” than to be “of noble rank and title, a dignified and potent officer, whose functions are particularly vital!”






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