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March 28, 2018

Best Practices: Florida’s Fictitious Name Act: A discussion About Fictitious Names

by Kristen G. Dickey

While the following article is based upon the requirements of Florida’s Fictitious Name Act (see Florida Statutes §865.09), most states have their own fictitious name acts which have similar requirements. Therefore, this article is meant to be a general discussion as to what is a fictitious name, the reasons for filing a fictitious name, the requirements for filing and renewal of a fictitious name, and how this affects SBA guaranteed loans.

WHAT IS A FICTITIOUS NAME AND WHY SHOULD IT BE FILED?

  • A fictitious name is any name under which a person, including a business entity or individual, transacts business in the state, other than the person’s legal name. A fictitious name is commonly referred to as either a “trade name”, an “assumed name” or a “DBA,” which is an acronym for “doing business as.”
  • The sole purpose of registering a fictitious name is to inform the public which individual or business entity is transacting business under a particular name. In other words, the public has a right to know with whom it is doing business.
  • A business or individual who registers a fictitious name must also be sure that it has the right to operate under that fictitious name. Registration of a fictitious name does not reserve the name or prevent another party from registering the same name.
  • A person may not engage in business under a fictitious name unless the person first registers the name with the division.

WHAT ARE THE REQUIREMENTS FOR FILING AND RENEWAL OF A FICTITIOUS NAME?

  • The registrant shall complete the fictitious name filing form and pay the applicable processing fees and any other taxes or penalties owed to the state.
  • If the registrant is a business entity that was required to file incorporation or similar documents with its state of organization when it was organized, such entity must be registered and in active status with the division.
  • The registrant shall certify that the intention to register such fictitious name has been advertised at least once in a newspaper in the county in which the principal place of business of the registrant is or will be located.
  • The fictitious name may not contain a business entity suffix or indicator (i.e. Corporation, Incorporated, Limited Liability Partnership, Limited Partnership, Professional Association, Corp, L.L.C., L.P., P.A., etc.) unless at least one registrant is a business entity of the same type duly incorporated, organized, formed or otherwise authorized to transact business in the state.
  • Registered fictitious names are valid for five (5) years beginning on the date of registration and expiring on December 31st of the 5th calendar year. A fictitious name may be renewed during the expiration year by filing a renewal statement and paying the applicable renewal fee.

HOW DOES THIS APPLY TO SBA GUARANTEED LOANS?

  • As part of the due diligence process, lenders should search the secretary of state website where each borrower and guarantor is registered and ask each borrower and guarantor to advise if they are doing business under a fictitious name.
  • If the borrowing entity/operating company is currently operating under a fictitious name and has not registered it, then the lender should advise the borrower to do so prior to closing.
  • If the borrowing entity/operating company will be purchasing a business with fictitious name rights as part of the SBA loan, and the borrowing entity/operating company intends to operate under the same fictitious name, the fictitious name should be transferred from the seller of the business to the borrowing entity/operating company at closing as part of the purchase/sale transaction and the transfer form should be filed with the state.
  • The SBA requires the SBA Loan Name in the SBA Loan Authorization to be the fictitious name of the borrowing entity/operating company. This fictitious name will then flow onto the SBA loan documents to be executed at closing.
  • As there may be penalties that could be imposed on a person for failure to file a fictitious name (eg. restriction on access to court proceedings until the fictitious name is registered, attorneys fees/court costs, and non-criminal violations punishable by law), it is important that lenders notify the borrowing entity/operating company and require compliance, as applicable.

For more information regarding compliance with state fictitious name filings as part of an SBA loan, please contact Kristen at (407) 618-0698 or at kdickey@starfieldsmith.com.