Bill Text: NC S124 | 2015-2016 | Regular Session | Amended
Bill Title: Assumed Bus. Name/IC Contempt/Parks
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2016-07-18 - Ch. SL 2016-100 [S124 Detail]
Download: North_Carolina-2015-S124-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2015
S 3
SENATE BILL 124*
Judiciary I
Committee Substitute Adopted 4/28/15
Third Edition Engrossed 4/29/15
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Short Title: Modernize Assumed Business Name Statutes. |
(Public) |
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Sponsors: |
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Referred to: |
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February 27, 2015
A BILL TO BE ENTITLED
AN ACT TO MODERNIZE THE LAW GOVERNING THE USE OF ASSUMED BUSINESS NAMES AND TO MAKE RELATED CONFORMING AND TECHNICAL AMENDMENTS, As recommended by the General STatutes Commission.
The General Assembly of North Carolina enacts:
PART I. ASSUMED BUSINESS NAME ACT
SECTION 1. Article 14 of Chapter 66 of the General Statutes is repealed.
SECTION 2. Chapter 66 of the General Statutes is amended by adding a new Article to read:
"Article 14A.
"Assumed Business Name Act."
"§ 66‑71.1. Short title.
This Article may be cited as the "Assumed Business Name Act."
"§ 66‑71.2. Statement of purpose.
The purpose of this Article is to afford the public a means of ascertaining the real names of persons engaging in business in this State under an assumed business name by requiring those persons to register the assumed business name as provided in this Article.
"§ 66‑71.3. Definitions.
The following definitions apply in this Article:
(1) Assumed business name. –
a. In the case of an individual, any name other than the real name of the individual.
b. In the case of a partnership other than a limited liability partnership or limited partnership, any name other than the real names of all the general partners of the partnership.
c. In the case of a limited liability partnership, any name other than the name registered with the Secretary of State.
d. In the case of a limited partnership, any name other than the name stated in its certificate of limited partnership filed with the Secretary of State.
e. In the case of a limited liability company, any name other than the name stated in its articles of organization filed with the Secretary of State.
f. In the case of a corporation, any name other than the corporate name stated in its articles of incorporation filed with the Secretary of State.
g. In the case of a trust, any name other than the name specified in the trust instrument or, if the trust instrument does not specify a name for the trust, any name other than the name of the trustee and a designation of the trust for which the trustee is acting.
h. In the case of any other person, any name other than the real name of the person.
(2) Person. – Includes an individual, partnership, limited partnership, limited liability partnership, limited liability company, corporation, association, society, organization, joint venture, business trust, trust, governmental entity, or any other legal or commercial entity.
"§ 66‑71.4. Filing of certificate; exception.
(a) Before any person engages in business in this State under an assumed business name, the person must file an assumed business name certificate in the office of the register of deeds of the county in which the person is or will be engaged in business. If the person is or will be engaged in business in multiple counties, filing is required in only one of those counties.
(b) A separate assumed business name certificate must be filed for each assumed business name under which a person engages in business in this State.
"§ 66‑71.5. Contents of certificate.
An assumed business name certificate must include:
(1) The assumed business name.
(2) The real name of the person engaging in business under the assumed business name. If the business is a partnership other than a limited liability partnership or limited partnership, the assumed business name certificate must include the real names of five general partners or of all the general partners, whichever is fewer.
(3) The type of business.
(4) The street address of the principal place of business.
(5) Each county where the person uses or will be using the assumed business name to engage in business.
"§ 66‑71.6. Execution of certificate.
An assumed business name certificate must be executed as follows:
(1) In the case of an individual, the certificate must be signed by the individual.
(2) In the case of a partnership or limited partnership, the certificate must be signed by a general partner.
(3) In the case of a corporation or limited liability company, the certificate must be signed in the name of the corporation or limited liability company by an individual authorized to act for the corporation or limited liability company.
(4) In the case of any other person, the certificate must be signed in the name of the person by an individual authorized to act for the person.
"§ 66‑71.7. Amendment of certificate.
Any person that has filed an assumed business name certificate must, within 60 days after a change in any of the information required in the assumed business name certificate, file a certificate of amendment in the office of the register of deeds of the county in which the assumed business name certificate was filed. The certificate must be executed in the same manner as required under G.S. 66‑71.6 for the execution of an assumed business name certificate and must set forth:
(1) The assumed business name and the real name of the person engaging in business under the assumed business name as stated in the original, or most recently amended, assumed business name certificate.
(2) The book and page number of the original filing.
(3) The identification number assigned to the assumed business name by the Secretary of State (SOS ID).
(4) How the assumed business name certificate is to be amended.
"§ 66‑71.8. Withdrawal of assumed business name.
Any person filing an assumed business name certificate as required by this Article may, upon ceasing to engage in business in this State under the assumed business name, withdraw the assumed business name by filing a certificate of withdrawal in the office of the register of deeds of the county in which the assumed business name certificate was filed. The certificate must be executed in the same manner as required under G.S. 66‑71.6 for the execution of an assumed business name certificate and must set forth:
(1) The assumed business name being withdrawn.
(2) The book and page number of the original filing.
(3) The identification number assigned to the assumed business name by the Secretary of State (SOS ID).
(4) The real name of the person engaging in business under the assumed business name and that person's current address.
(5) A statement that the person has ceased engaging in business under the assumed business name.
(6) The effective date of the withdrawal if it is not to be effective upon the filing of the certificate of withdrawal.
"§ 66‑71.9. Secretary of State to maintain a centralized, statewide database of assumed business name information.
(a) The Secretary of State shall develop, implement, and maintain a searchable online database of assumed business name information reported under G.S. 66‑71.10. The system must allow information to be entered and retrieved from the system by the registers of deeds and must be available for searches by the public.
(b) The Secretary of State may adopt rules to implement the statewide online database.
"§ 66‑71.10. Register of deeds to index certificates; transmission of data to central database.
(a) The register of deeds of each county must index in accordance with Article 2 of Chapter 161 of the General Statutes every assumed business name with respect to which an assumed business name certificate, a certificate of amendment, or a certificate of withdrawal has been filed in that county.
(b) Not later than 30 days after the date a certificate under this Article is filed, the register of deeds must transmit a scanned image of the certificate to the Secretary of State and enter into the central database maintained by the Secretary of State under G.S. 66‑71.9 the assumed business name, the real name of each person engaging in business under that name, the type of certificate, the county in which the certificate was filed, and, in the case of a certificate of amendment or certificate of withdrawal, the identification number assigned to the assumed business name by the Secretary of State (SOS ID).
"§ 66‑71.11. Forms.
(a) The Land Records Management Advisory Committee established under G.S. 147‑54.3 may develop forms for the documents required or permitted to be filed by this Article, but their use is not mandatory.
(b) Any person, including the registers of deeds, may make available the forms developed under subsection (a) of this section.
"§ 66‑71.12. Effect of filing certificate.
(a) An assumed business name certificate filed under this Article is effective upon filing and remains in effect until withdrawn under G.S. 66‑71.8.
(b) Compliance with this Article does not confer any exclusive rights to the use of an assumed business name in this State.
"§ 66‑71.13. Copy of certificate prima facie evidence.
A copy of a certificate filed under this Article, duly certified by the register of deeds of the office in which it was filed, is prima facie evidence of the facts required to be stated in the certificate.
"§ 66‑71.14. Consequences of signing false certificate or violating Article.
(a) A person signing a certificate under this Article that the person knows is false in any material respect with intent that the certificate be delivered to the register of deeds for filing is guilty of a Class 1 misdemeanor.
(b) A person failing to file an assumed business name certificate or a certificate of amendment as required by this Article is liable to any person injured by the failure for the reasonable expenses, including attorneys' fees, incurred by the person in ascertaining, for a reasonable purpose, the information required to be stated in the assumed business name certificate or certificate of amendment. The expenses may be awarded in a civil action.
"§ 66‑71.15. Expiration of certificates filed under Article 14; transition provisions.
(a) All certificates of assumed name filed under former Article 14 of this Chapter expire July 1, 2021, and the provisions of that former Article continue to apply to them until that date except as provided in this section. On or after that date, any person that (i) is listed as an owner of the business in a certificate of assumed name filed under that former Article and (ii) desires to continue engaging in business in this State under the assumed business name after that date must file an assumed business name certificate under this Article.
(b) At least one person listed as an owner of the business in a certificate of assumed name under former Article 14 of this Chapter must file an assumed business name certificate before the certificate of assumed name expires under subsection (a) of this section if any of the following occur:
(1) A general partnership would have been required to file a new certificate of assumed name under former G.S. 66‑68(c) due to the withdrawal or addition of a partner.
(2) Any of the information in the certificate of assumed name required under former G.S. 66‑68(a) has changed and the person desires to continue engaging in business in this State.
(c) No person shall file a new certificate of assumed name under former Article 14 of this Chapter on or after July 1, 2016. Any document or other record filed on or after that date to register an assumed business name is deemed to be filed under this Article, even if it is described as a certificate of assumed name rather than an assumed business name certificate or if it expressly refers to former Article 14 of this Chapter.
(d) A person that filed a certificate of assumed name that has not expired may withdraw the assumed name under the provisions of former G.S. 66‑68(f). Any such withdrawal is deemed to be a withdrawal under former G.S. 66‑68(f), even if it is described as a withdrawal under this Article.
(e) No person shall file a certificate of amendment under this Article to a certificate of assumed name filed under former Article 14 of this Chapter. If any such amendment is nevertheless filed, it is not effective as a certificate of amendment or as an assumed business name certificate under this Article.
(f) The register of deeds shall not transmit a scanned image to the Secretary of State, or enter any of the information required by G.S. 66‑71.10 into the central database maintained by the Secretary of State, of any withdrawal or transfer of an assumed name or any amendment to a certificate of assumed name when the certificate of assumed name to which the withdrawal, transfer, or amendment relates was filed before July 1, 2016.
(g) Other than this section, this Article does not apply to a certificate of assumed name or a withdrawal of an assumed name under former Article 14 of this Chapter."
PART II. RELATED CONFORMING AND TECHNICAL AMENDMENTS TO OTHER SECTIONS OF THE GENERAL STATUTES
SECTION 3.(a) G.S. 1‑69.1 reads as rewritten:
"§ 1‑69.1. Unincorporated associations and partnerships; suit by or against.
(a) Except as provided in subsection (b) of this section:
(1) All unincorporated associations, organizations or
societies, or general or limited partnerships, foreign or domestic, whether
organized for profit or not, may hereafter sue or be sued under the name
by which they are commonly known and called, or under which they are doing engaging
in business, to the same extent as any other legal entity established by
law and without naming any of the individual members composing it.
(2) Any judgments and executions against any such association, organization or society shall bind its real and personal property in like manner as if it were incorporated.
(3) Any unincorporated association, organization,
society, or general partnership bringing a suit in the name by which it is
commonly known and called must allege the specific location of the
recordation required by G.S. 66‑68. that it has filed a
certificate of assumed name under former Article 14 of Chapter 66 of the
General Statutes or an assumed business name certificate under Article 14A of
Chapter 66 of the General Statutes.
(b) Unincorporated nonprofit associations are subject to Chapter 59B of the General Statutes and not this section."
SECTION 3.(b) Effective July 1, 2021, G.S. 1‑69.1(a)(3), as amended by this section, reads as rewritten:
"(3) Any unincorporated association, organization,
society, or general partnership bringing a suit in the name by which it is
commonly known and called must allege that it has filed a certificate of
assumed name under former Article 14 of Chapter 66 of the General Statutes or an
assumed business name certificate under Article 14A of Chapter 66 of the
General Statutes."
SECTION 4. G.S. 53‑208.7(a) reads as rewritten:
"(a) Each application for a license under this Article shall be made in writing, under oath, and in a form prescribed by the Commissioner. For all applicants, each application shall contain:
(1) The exact name of the applicant, the applicant's
principal address, any assumed or trade business name used by the
applicant in the conduct of its business, and the location of the applicant's
business records.
…."
SECTION 5. G.S. 55D‑20(d) reads as rewritten:
"(d) The use of assumed business names or
fictitious names, as provided for in Chapter 66, Chapter 66 of the
General Statutes, is not affected by this Chapter or by Chapter 55, 55A,
57D, or 59 of the General Statutes."
SECTION 6. G.S. 58‑70‑5 reads as rewritten:
"§ 58‑70‑5. Application to Commissioner for permit.
(a) Any person, firm, corporation or
association desiring to secure a permit as provided by G.S. 58‑70‑1,
shall make application to the Commissioner of Insurance for each location at
which such the person, firm, corporation or association desires
to carry on the collection agency business as hereinafter defined. Suchdefined
in this Article. The applicant shall be entitled to a permit upon
submission to the Commissioner of Insurance of the following:
(a)(1) The name, trade name if any, street
address, and telephone number of the applicant, including any home office
address and telephone number, if different;different.
(b)(2) If the applicant is a corporation,
(1)a. A certified copy of the board of
director's resolution authorizing the submission of the application;
(2)b. An authenticated copy of the Articles
of Incorporation and all amendments thereto;
(3)c. An authenticated copy of the bylaws or
other governing instruments;
(4)d. If the applicant is a foreign
corporation, a copy of the certificate of authority to transact business in
this State issued by the North Carolina Secretary of State;State.
(3) If the applicant is a partnership, an authenticated copy of the then current partnership agreement.
(4) If an assumed business name is used, certificates showing that the assumed business name has been filed as required by Article 14A of Chapter 66 of the General Statutes.
(5) A surety bond as required by G.S. 58‑70‑20. In the case of an alien corporation, the surety bond requirements shall be double the amount set by G.S. 58‑70‑20.
(6) A completed statement by each stockholder owning ten percent (10%) or more of the applicant's outstanding voting stock and each partner, director, and officer actively engaged in the collection agency business, containing: the name of the collection agency, the name and address of the individual completing the form, the positions held by the individual, each conviction of any criminal offense and any criminal charges pending other than minor traffic violations of the individual, and the name and address of three people not related to the individual who can attest to the individual's reputation for honesty and fair dealings.
(7) A statement sworn to by an appropriate corporate officer, partner, or individual proprietor giving a description of the collection method to be employed in this State.
(8) A statement certifying that there are no unsatisfied judgments against the applicant.
(9) A list of all telephone numbers assigned to or to be used by the applicant in the operation of the collection agency.
(10) The appropriate permit fee as required by G.S. 58‑70‑35.
(11) A balance sheet as of the last day of the month prior to the date of submission of the application, certified true and correct by a corporate officer, partner, or proprietor, setting forth the current assets, fixed assets, current liabilities, and positive net worth of the applicant.
(12) The address of the location at which the applicant will make those records of its collection agency business described in G.S. 58‑70‑25 available for inspection by the Commissioner of Insurance.
(13) A statement certifying that no officer, individual proprietor, or partner of the applicant has been convicted of a felony involving moral turpitude or any violation of any State or federal debt collection law.
(14) If the collection agency's office or records, as described in G.S. 58‑70‑25, are located outside of North Carolina, a statement sworn to by an appropriate corporate officer, partner, or individual proprietor consenting to and authorizing the reimbursement, to the Commissioner by the collection agency, of expenses incurred by the Commissioner in conducting routine examinations, audits, and in investigating written complaints against the collection agency or its employees. All reimbursements shall be paid to the Commissioner no more than 30 days after the date of billing. In the case of an alien corporation, the sworn statement must provide that the corporation will make available to the Commissioner for his inspection, in North Carolina, those records described in G.S. 58‑70‑25, at the expense of the corporation.
(15) If the applicant is a foreign corporation, a statement authorizing the Commissioner to be its agent for service of process, which shall be administered pursuant to the provisions of G.S. 58‑16‑30.
(b1) In addition to the information required by subsection
(b) subdivision (a)(2) of this section, if the applicant is an alien
corporation, the corporation must be owned or majority controlled ultimately by
a parent entity incorporated or organized under the laws of the United States
or any jurisdiction within the United States, and the alien corporation may
only service accounts held by an affiliate or subsidiary of the same parent
entity. For purposes of this subsection, "control" is defined by G.S. 58‑19‑5(2).
Should the alien corporation be sold to an entity unrelated to the parent
entity, notice shall be provided to the Department of the pending sale 30 days
in advance of the sale. Provision of Form 8‑K, properly filed with the
Securities and Exchange Commission, shall be deemed compliance with the notice
requirement of this subsection. In the event of a sale, the new parent entity
shall provide evidence to the Department within 30 days of the sale of its and
the alien corporation's compliance with the requirements of this section. In
the event that the new parent entity does not provide the evidence within 30
days after the sale, the alien corporation's permit shall be automatically
suspended until the Department is provided the evidence of compliance which is
satisfactory to the Commissioner;Commissioner.
(c) If the applicant is a partnership, an
authenticated copy of the then current partnership agreement;
(d) If the trade name is used, certificates
showing that the trade name has been filed as required by G.S. 66‑68;
(e) A surety bond as required by G.S. 58‑70‑20.
In the case of an alien corporation, the surety bond requirements shall be
double the amount set by G.S. 58‑70‑20;
(f) A completed statement by each
stockholder owning ten percent (10%) or more of the applicant's outstanding
voting stock and each partner, director, and officer actively engaged in the
collection agency business, containing: the name of the collection agency, the
name and address of the individual completing the form, the positions held by
the individual, each conviction of any criminal offense and any criminal
charges pending other than minor traffic violations of the individual, and the
name and address of three people not related to the individual who can attest
to the individual's reputation for honesty and fair dealings;
(g) A statement sworn to by an appropriate
corporate officer, partner, or individual proprietor giving a description of
the collection method to be employed in North Carolina;
(h) A statement certifying that there are no
unsatisfied judgments against the applicant;
(i) A list of all telephone numbers assigned
to, or to be used by the applicant in the operation of the collection agency;
(j) The appropriate permit fee as required
by G.S. 58‑70‑35;
(k) A balance sheet as of the last day of
the month prior to the date of submission of the application, certified true
and correct by a corporate officer, partner, or proprietor, setting forth the
current assets, fixed assets, current liabilities and positive net worth of the
applicant;
(l) The address of the location at which
the applicant will make those records of its collection agency business
described in G.S. 58‑70‑25 available for inspection by the
Commissioner of Insurance.
(m) A statement certifying that no officer,
individual proprietor or partner of the applicant has been convicted of a
felony involving moral turpitude, or any violation of any State or federal debt
collection law.
(n) If the collection agency's office or
records, as described in G.S. 58‑70‑25, are located outside of
North Carolina, a statement sworn to by an appropriate corporate officer,
partner, or individual proprietor consenting to and authorizing the
reimbursement, to the Commissioner by the collection agency, of expenses
incurred by the Commissioner in conducting routine examinations, audits, and in
investigating written complaints against the collection agency or its
employees. All reimbursements shall be paid to the Commissioner no more than 30
days after the date of billing. In the case of an alien corporation, the sworn
statement must provide that the corporation will make available to the
Commissioner for his inspection, in North Carolina, those records described in G.S. 58‑70‑25,
at the expense of the corporation;
(o) If the applicant is a foreign
corporation, a statement authorizing the Commissioner to be its agent for
service of process, which shall be administered pursuant to the provisions of G.S. 58‑16‑30.
(p) In the case of an alien corporation, when the corporation is in violation of this Article, the parent entity must agree to cure the violation by the alien corporation.
(q) For purposes of this Article, the following definitions apply:
(1) "Alien corporation" means a company incorporated or organized under the laws of any jurisdiction outside of the United States.
(2) "Foreign corporation" means a company incorporated or organized under the laws of the United States or of any jurisdiction within the United States other than this State.
(r) If the applicant is a subsidiary in a holding
company system and if the applicant's ultimate parent regularly files financial
information with the U.S. Securities and Exchange Commission, in lieu of
complying with subsection (k) subdivision (a)(11) of this
section, the applicant may file the ultimate parent company's balance sheet as
of the most recent fiscal year‑end, as certified by the ultimate parent's
independent auditors, and accompanied by a guarantee of the applicant's
performance from the ultimate parent company for the benefit of the Department,
limited to those portions of this Article that are applicable to the applicant.
(s) After a permit is issued by the Commissioner, the
permittee's ultimate parent, as specified in subsection (r) of this section,
shall remain responsible for the guarantee of performance as provided in
subsection (r) of this section notwithstanding any change in the corporate
structure of the ultimate parent company. If the permittee is acquired by any
other person that has control over the permittee, the controlling person shall
provide its own guarantee of performance as provided in subsection (r) of this
section for the permittee to retain its permit. If the permittee does not have
an ultimate parent company, it shall file its own balance sheet as specified in
subsection (k)subdivision (a)(11) of this section."
SECTION 7. G.S. 59‑84.1 reads as rewritten:
"§ 59‑84.1.
Partnership to comply with "assumed name" statute;Assumed
Business Name Act; income taxation.
(a) Every partnership other than a limited partnership
shall comply with, and be subject to, the provisions of Articles 14 Articles
14A and 15 of Chapter 66 of the General Statutes in all cases in which the same
Articles are applicable.
…."
SECTION 8. G.S. 62‑115 reads as rewritten:
"§ 62‑115. Issuance of partnership franchises.
No franchise shall be issued under this Article to two or
more persons until such the persons have executed a partnership
agreement, filed a copy of said the agreement with the
Commission, and indicated to the Commission, in writing, that they have
complied with Article 14 Article 14A of Chapter 66 of the
General Statutes relating to doing engaging in business under
an assumed business name."
SECTION 9. G.S. 66‑262 reads as rewritten:
"§ 66‑262. Filing information.
(a) Each filing submitted to the Secretary shall contain all of the following information:
(1) The name or names, including any assumed business names, under which the telephonic seller is doing or intends to do business in this State.
…."
PART III. EFFECTIVE DATE AND APPLICABILITY PROVISIONS
SECTION 10. This act becomes effective July 1, 2016. This act does not affect a civil action or proceeding commenced or a right accrued before July 1, 2016.
