Senate Bill 2219, effective April 11, 2024, amends the definitions of money and deposit account in Tennessee’s UCC law to provide that they do not include central bank digital currency.
Senate Bill 759, effective July 1, 2023, provides that before transacting business under an assumed name a domestic or foreign limited partnership must file an application with the Secretary of State. The right to use the assumed name is effective for 5 years and may be renewed.
Senate Bill 1174, effective July 1, 2023, amends the provisions regarding the types of entities that may act as registered agents.
Senate Bill 1931, effective July 1, 2022, permits a nonprofit corporation to hold a meeting of members or proxyholders by means of remote communication.
House Bill 2645, effective April 20, 2022, allows an LLC to be formed as a decentralized organization. The articles of organization must contain a statement that it is a decentralized organization and set forth a notice on restrictions on duties and transfers.
Senate Bill 1935, effective April 8, 2022, amends provisions relating to the certification of certain documents filed by certain nonprofits with the Department of State.
Senate Bill 1660, effective March 18, 2022, provides that directors, trustees or members of the governing bodies of nonprofit corporations, associations, and organizations that are exempt from federal income taxation under § 501(c)(19) of the Internal Revenue Code shall be immune from suits arising from the conduct of the nonprofit’s affairs as long as the conduct at issue does not amount to willful, wanton, or gross negligence.
House Bill 106, effective April 7, 2021, amends the corporation law to allow a corporation to permit proxyholders to participate in meetings by remote communication and makes the authorization for remote communication by shareholders and proxyholders contingent on the implementation of certain measures and record maintenance.
Senate Bill 1754, effective June 22, 2020, clarifies the requirements regarding the form and filing of documents with the Secretary of State.
Case summaries
UCC – Priority of Perfected Liens
Greenville Federal Bank, FSB v. First Farmers and Commercial Bank (In re K&L Trailer Leasing, Inc.), Case No. 3:20-bk-31620, decided November 4, 2024. The U.S. Bankruptcy Court, Eastern District of Tennessee, applying Article 9 of Tennessee’s UCC law held that where the plaintiff bank and defendant bank both had properly perfected liens in 10 trailers by filing UCC-1s, the plaintiff bank’s inventory lien had priority over the defendant bank’s lien. The plaintiff bank’s debtor transferred the trailers to the defendant bank’s debtor without the plaintiff bank’s consent. The court noted that the transferee knew the trailers violated the plaintiff bank’s rights and thereby was not a buyer in the ordinary course of business. Furthermore, the defendant bank was aware of the relationship between the plaintiff’s debtor and its debtor and could have inquired as to the source of the trailers or searched inventory liens and contacted the plaintiff bank to ask if it consented to the transfer.
UCC
State v. Lyons, No. M2019-01946, decided May 15, 2023. The Tennessee Supreme Court affirmed the forgery convictions of defendants who filed over 100 false financing statements regarding 40 Tennessee residents, all done for the apparent purpose of harassment. The court held that the defendants’ actions violated Tennessee’s forgery statute, which provides in part that “forge” means “making false entries in books and records”. The court rejected the defendants’ arguments that the UCC-1s weren’t false because they were in fact UCC-1s, that they were not entered into a record, and that they lacked intent. According to the court, the UCC-1s were false in every sense of the word, the state’s UCC registry was a record, and the evidence showed the defendants intended to harm the victims.
Personal Liability
Clarksville Towers, LLC v. Straussberger, No. M2020-00756, decided May 11, 2021. The Tennessee Court of Appeals affirmed summary judgment in favor of the president and sole owner of a corporation that contracted with the plaintiff to construct a building, and whose contractor’s license expired before completion of the project. The court stated that while the corporation could be liable for operating without a license, there was no evidence the president supervised, managed or was in charge of any part of the project and therefore he could not be considered a contractor. Nor was there evidence that he misrepresented the corporation’s licensing status.
Assignment of Rights
Hight v. Tramel, No. M2019-00 845, decided November 17, 2020. The Tennessee Court of Appeals affirmed the ruling that a former shareholder lacked standing to bring a lawsuit on the corporation’s behalf. The plaintiff claimed the corporation assigned its rights in a settlement agreement he entered into with the person who bought the corporation. However, the settlement agreement was clearly between the plaintiff and the buyer and the corporation was not a party. The corporation has a separate existence from its owner and has to assign its rights itself.
Residency Requirement Violates Commerce Clause
Tennessee Wine and Spirits Retailers, Assn. v. Thomas, No. 18-96, decided June 26, 2019. The U.S. Supreme Court held that a Tennessee law prohibiting companies from obtaining a license to operate retail liquor stores unless all of their directors, officers, and owners were Tennessee residents for the previous two years violates the Commerce Clause.
Charging Order
Peach Reo, LLC v. Rice, No. 2:12-cv-02752, decided 7/11/17. The U.S. District Court, Western District of Tennessee granted a motion for a charging order against the interests of the debtor member in six LLCs. The court rejected the member’s argument that a charging order was inappropriate because the operating agreements required consent before a member could assign its interests. The governing LLC statutes provide that a charging order is a lien – which is an interest in the property of another - and not an assignment of the interest.
Other notices
February 2024 — Tennessee’s Secretary of State has issued a warning to all Tennesseans about a scam involving Uniform Commercial Code (UCC) documents. The warning states “As part of the scam, citizens receive an official-looking mailer from TN UCC Statement Service, incorrectly implying businesses or individuals must obtain a copy of a UCC-1 financing statement filed against them.” The entire warning can be read on the Secretary of State’s website.
September 2022 — The Secretary of State’s office has issued a warning about what it refers to as “a new scam targeting businesses and individuals in Tennessee”. According to the warning, a company that is not affiliated with or authorized by the Secretary of State is sending an official-looking mailer titled "Tennessee UCC Statement Request Form," that incorrectly implies that businesses or individuals need a copy of a UCC-1 financing statement filed against them. You can read the warning, and see a copy of the mailer, by visiting the Secretary of State’s website.
June 16, 2022 — The Secretary of State’s office has issued an alert about what it refers to as a “new scam where individuals are being asked to provide personal information from a requestor who claims to be a celebrity or claims to be requesting information on behalf of a government official such as the Secretary of State.” For more information, see the alert on the Secretary of State’s website here.
November 8, 2021 — The Secretary of State's office has indicated that it has become aware of a scam in which individuals are being asked to provide personal information from a requestor who may be claiming to be requesting information on behalf of a government official such as the Secretary of State. These communications are typically made through unofficial channels such as social media or online video streaming platforms.
May 21, 2021 — The Secretary of State issued a warning statement to business owners about a “new Certificate of Existence filing scam”. The warning states that businesses in Tennessee are receiving a mailer that falsely implies that businesses must have a certificate of existence to complete its formation or to fully operate in the state. The warning also states that the mailer and organization sending it are not affiliated with or authorized by the Secretary of State’s Office in any way. The entire warning can be read from the Secretary of State’s website.
June 11, 2020 — Tennessee’s Secretary of State issued a press release warning businesses about what they call a “misleading” mailer titled “2020 Certificate of Existence Request Form,” that is being sent to businesses across the state.