Idaho Department of Finance

Frequently Asked Questions

Banking | Credit Union | Consumer Finance | Escrow | Mortgage | Securities

Banking FAQ:

  1. How do I form a new bank in Idaho?

    Banks can be either state or national-chartered. If a state charter is desired, contact the Idaho Department of Finance at (208) 332-8000 or e-mail us at We will be happy to discuss the application process for starting a new bank in Idaho. If a national bank charter is desired, contact the Office of the Comptroller of the Currency at (415) 545-5900.

  2. What is the maximum amount in my bank account that is insured?

    Up to $250,000 per depositor is federally insured. Multiple accounts at a single bank are aggregated for deposit insurance purposes. For additional information about insurance of bank deposits, contact the Federal Deposit Insurance Corporation at (800) 934-3342.

  3. When I tried to cash a check, the teller asked for my thumbprint. Can they do this? Is this required by law?

    Several banks have started requiring thumbprints from non-customers who wish to cash checks. Banks may do this, but it is not mandated by law. The purpose of the thumbprint identification is to reduce check fraud, which can be very costly to both the bank and its customers. Test studies in other states have indicated that this practice can reduce check fraud by up to 50%. You can avoid thumb printing by depositing checks directly into your personal bank account.

  4. Are shares of mutual funds or annuities purchased from my bank or a bank affiliate insured by the FDIC or in any way guaranteed by the bank?

    No, mutual fund shares purchased at a bank carry the same risk as any other mutual fund shares, including the possible loss of principal. Annuities are only as safe as the insurance company underwriting them. Your bank should be able to provide you with information concerning the insurance company's financial condition.

  5. Does the Department of Finance regulate the amount of interest banks charge on loans?

    No, the rate of interest is not limited by law. Interest rates generally reflect market rates and may be whatever interest rate the bank and customer agree to.

Credit Union FAQ

  1. What is the difference between a state and a federally chartered credit union?

    State chartered credit unions are regulated by the State of Idaho, Department of Finance, and federally chartered credit unions are regulated by the National Credit Union Administration (NCUA). Each regulator has its own credit union law, rules and regulations although there are many similarities.

  2. How do I organize a credit union?

    There are two authorities which charter credit unions in Idaho. They are the Department of Finance, State of Idaho, and the NCUA, 1230 W.Washington Street, Suite 301, Tempe, AZ 85281. The Idaho Credit Union League, in Boise, ID can also assist with the organization.

  3. Is a credit union a "Corporation"?

    A credit union is a cooperative, nonprofit financial corporation owned by its members and chartered by the Department of Finance, State of Idaho, or the NCUA. Organized to serve, democratically-controlled credit unions provide their members with a safe place to save and borrow at reasonable rates. Members pool their funds to make loans to one another. The members elect the volunteer board that runs each credit union. The credit union motto is: "Not for profit, not for charity, but for service."

  4. How do I file a complaint against a credit union?

    A written complaint is sent to the Director, Department of Finance, State of Idaho, P.O. Box 83720, Boise, ID, 83720-0031, or via the Internet In the case of a federal credit union, complaints should be filed with the NCUA.

  5. Who is the agent for "Service of Process"?

    The Board Chairman or the Chief Executive Officer of the named credit union is the agent for "Service of Process".

  6. Can I join any credit union?

    Each credit union is made up of a common bond "Field of Membership" (FOM). If you are within that FOM, you are eligible to join. You would not be limited to membership in one credit union but could, in fact, join several credit unions if you fall within their FOM.

  7. What happened to "XYZ" credit union?

    If a credit union is no longer in business, it usually merged with another and, generally, a larger credit union to provide additional services and products to the members. To find a credit union that is no longer in business, you can contact the Idaho Department of Finance (if the credit union was chartered by the state) or the NCUA (if federally chartered).

Consumer Finance FAQ:

  1. How much interest can a company legally charge me?

    The Idaho usury laws were repealed by the legislature in 1983, so there is no cap on the interest you can be charged. The binding rate is whatever is agreed upon by both parties.

  2. Can I be charged a fee for a loan before I get the loan?

    Businesses that arrange for loans (*"loan brokers") cannot receive a fee until the loan, or written commitment to loan, is made. Legitimate lenders never "guarantee" or say that you are likely to get a loan or a credit card before you apply, especially if you have bad credit, no credit, or a bankruptcy. If you apply for a real estate loan, it is an acceptable and common practice for lenders to request payment for a credit report or appraisal. If you have been victimized by an advance-fee loan scam, file a complaint with the Federal Trade Commission (FTC). You may contact the Consumer Response Center by phone, toll-free at 1-877-FTC-HELP (382-4357), TDD: 202-326-2502, by mail at Consumer Response Center, Federal Trade Commission, 600 Pennsylvania Ave, NW, Washington, DC 20580, or through the Internet at www.ftc.govExternal Link.

  3. What are my rights regarding vehicle repossession?

    Your creditor or lessor has legal authority to seize your vehicle as soon as you default on your loan, as defined by your contract. They can do this without warning you in advance so long as they do not breach the peace. They usually may not keep or sell any personal property found inside. If the car is sold, the creditor must pay you any amount received in excess of the debt and reasonable repossession and storage fees. Even if you return the car voluntarily, you are responsible for paying any deficiency on your sale or lease contract.

  4. How do I find out if a collection agency, lender, or consumer credit seller is licensed in Idaho?

    Contact the Consumer Finance Bureau at (208) 332-8002, or toll free in Idaho at 1-888-346-3378, or check our website at

  5. How do I file a complaint against a collection agency or lender?

    Contact the Consumer Finance Bureau at (208) 332-8002, or toll free in Idaho at 1-888-346-3378, or check our website at

  6. How do I file a complaint against a bank?

    The Department regulates Idaho state chartered banks. Complaints against those banks can be directed to the Consumer Finance Bureau at (208) 332-8002, or toll free in Idaho at 1-888-346-3378, or check our website at

    If the complaint involves a national bank, federal thrift, or state charted bank from another state, while we may not have direct jurisdiction over the subject of the complaint, we are willing to assist you by either providing the name of a person you may contact at the financial institution, or contact information for the appropriate regulator. Following is information for filing complaints with referral regulators against national banks or federal thrifts.

    For national banks or those with "N.A." after their name, contact the Office of the Comptroller of the Currency (OCC):

    • By telephone: 1-800-613-6743
    • By e-mail:
    • By facsimile: 1-713-336-4301
    • By mail: Customer Assistance Group,
      1301 McKinney St. #3710
      Houston TX 77013

    For federal savings banks and thrifts, contact the Office of Thrift Supervision (OTS):

  7. How do I file a complaint against a credit card company?

    Where to file a complaint depends on what institution issued the credit card. We are willing to assist you in determining the identity of the issuing institution. Please call us at (208) 332-8002, or toll free in Idaho 1-888-346-3378.

  8. How do I contact a credit bureau?

    Following is contact information for the three credit bureaus:

    • Equifax: (800) 685-1111, P O Box 105783, Atlanta GA 30348
    • Experian (formerly TRW): (800) 682-7654, P O Box 2104, Allen TX 73013-2104
    • TransUnion: (800) 916-8800, P O Box 390, Springfield PA 19064-0390

Escrow Agency FAQ

If I don’t find the answer to my question here, what number may I call? (208) 332-8004 or toll free within Idaho at 1-888-346-3378.

  1. In what instance is the Surety bond statutory requirement waived?

    If the agency’s Errors and Omissions (aka “E&O” or “professional liability”) coverage is $250,000 and the Fidelity (aka “commercial crime”) coverage is $1,000,000. For the Policy Statement, Escrow Act Policy Statement.

  2. Is a supervisor required to be located in the branch office he or she is supervising?

    No. A supervising escrow officer can be in charge of multiple locations.

  3. Which banks can be used to maintain the required trust account?

    Any bank authorized to do business in Idaho.

  4. What happens when the bank listed in the Authorization to Examine Trust Account form is no longer doing business in the location listed on the form?

    An updated Authorization to Examine Trust Account form must be submitted to the Department with the new location and the bank’s verification.

Mortgage Loan Originator and Mortgage Broker/Lender FAQs

The questions and answers provided here are for informational purposes only and should not be construed to address any specific situation or to constitute legal advice. This information pertains only to Idaho mortgage loan originator licensees, license applicants, and mortgage company “control persons.” Information from, and requirements of, other states may be different. Please refer to the Department’s Financial Responsibility/Fitness Policy Statement 2011-01 (the Policy) for details on the documentation (or alternative information when documentation is not available) that must be provided to the Department for review.

It is not the Department’s goal to deny licensure or ban participation in the mortgage industry. However, due to personal financial circumstances it is possible that not all individuals will qualify for a mortgage loan originator license under the requirements of the SAFE Act. However, individuals who do not currently qualify may qualify for licensure in the future when corrective measures are in place demonstrating financial responsibility and fitness and a history of responsible management of business and personal financial affairs. It is important to remember that according to the Policy, decisions will be made based on an individual’s overall credit history with emphasis on the most recent three (3) years, the responses and documentation provided by an applicant or a licensee, and the individual’s licensing and enforcement history with the Department.

  1. What is Idaho’s financial responsibility/fitness policy?

    The Idaho Department of Finance adopted Policy Statement 2011-01 to describe the evaluation process used to determine if an applicant or licensee meets financial responsibility and fitness requirements. The Policy describes what information the Department will review as well as what the Department will require from a licensee or license applicant to address any items of concern.

  2. Who does the Policy affect?

    The Policy directly affects (i) Idaho mortgage loan originator licensees; (ii) Idaho mortgage loan originator license applicants; and (iii) independent contractor mortgage loan processors and underwriters who are required to submit a Form MU4 filing in the Nationwide Mortgage Licensing System (NMLS). The Policy will also affect any person required to submit a Form MU2 to the NMLS as a control person once the functionality becomes available, which is expected in the summer of 2011.

  3. Why does my credit record and history matter to the Department?

    The Department has been charged with the responsibility to enforce specific licensing requirements of the federal SAFE Act, the minimum requirements of which have been incorporated into Idaho law. Some of those requirements involve determining the financial fitness and responsibility of mortgage loan originators by an assessment of how the individual manages his or her financial affairs. This information is primarily collected and reported through personal credit report histories. Additionally, it is the Department’s view that the same standards applied to mortgage loan originators should also be applied to control personnel who are responsible for the training, education, and policies and procedures of a mortgage broker or lender.

  4. How will the Department decide if my credit meets or doesn’t meet the requirements to have a license?

    Each individual’s credit report will be reviewed, with specific attention given to those with lower-end credit scores and those with specifically “flagged” items such as judgments, liens, foreclosures, delinquent accounts over 90 days, and accounts with multiple delinquencies. If there are items of concern, the individual will be notified that additional information is needed by the Department to complete the full review process. Once that information is received and reviewed, a decision will be made whether a license can be issued to the applicant or whether an existing licensee is qualified by law to maintain such license. Each individual with “flagged” items will be provided with an opportunity to provide the Department with a complete picture of his or her credit history – beyond what the Department may receive from a credit reporting agency. For example, an individual with “flagged” items on his or her credit report will need to supplement that information with written explanations of the circumstances surrounding noted areas of concern. This could also include providing documentation to dispute credit report information.

  5. Is there a minimum credit score that will cause me to be denied?

    No. Idaho has not adopted a minimum credit score requirement that would cause denial or removal of a license.

  6. How will I know if the Department thinks I have a credit problem?

    Individuals will be notified by certified mail and a deficiency notice will be placed on the individual’s NMLS record under the license item type of credit report clarification when the certified mail is sent. The certified letter will be sent to the individual’s residential address. Privacy issues and restrictions contained within NMLS’s contract with TransUnion limit the type of information that can be placed on the individual’s NMLS record as well as how the information is communicated.

  7. My employer takes care of all my licensing issues. Why won’t the Department talk with my employer about what is needed on my credit if I say it is ok?

    Privacy issues and restrictions contained within NMLS’s contract with TransUnion limit the type of information that can be placed on the NMLS record as well as how the information is communicated and to whom. Communication with anyone other than the individual who is the subject of the credit report is prohibited.

  8. Why won’t the Department give me a copy of my credit report?

    NMLS’s contract with TransUnion prohibits state agencies from providing copies of the credit report to anyone outside of the agency. If an individual wants to see a copy of the report that was provided to a particular state agency, he or she may request a copy directly from TransUnion at: TransUnion, 2 Baldwin Place, P.O. Box 1000, Chester, PA 19022 ((800) 888-4213 –

  9. How often will credit reports be pulled?

    Credit reports will be pulled at the time of initial license application and at each license renewal. This is because the license renewal section of the Idaho SAFE Act requires that individual mortgage loan originators (MLOs) must continue to meet the financial responsibility/fitness requirements that are imposed at time of application or transition. Credit reports obtained at license renewal will be reviewed for any significant negative changes and to verify that actions to address negative information, such as participating in payment plans, are being completed as agreed.

  10. How do the credit report pulls affect my credit score?

    The credit report pulls from the NMLS are considered “soft” pulls and do not affect an individual’s credit score.

  11. What will I need to provide to the Department?

    It will depend on the type of information reported in the credit report. The Policy contains a comprehensive list of documents the Department may require. Generally, an explanation of the circumstances that caused the negative information to be reported will be required as well as a description of the steps the individual has taken to rectify the situation. This may include negotiating a payment plan and making regular agreed-upon payments; paying off an overdue account, collection, lien or judgment; successfully disputing information on the report or getting incorrect information removed; or bringing a delinquent account current. For each representation made by an individual regarding a negative credit item, supporting documents will be required. This also applies to accounts included in bankruptcy filings, satisfied judgments, and released liens. Please refer to the Policy for more information on required documentation. If the Policy does not address your specific question, direct your inquiries to the person listed as the contact on correspondence sent to you from the Department.

  12. Will filing for bankruptcy cause me to lose my license?

    The Department will not make a determination of financial responsibility/fitness based solely on the fact that an individual has been a debtor in bankruptcy or has been the control person of an organization that filed a bankruptcy petition.

  13. We have several outstanding collections for unpaid medical bills. How will this affect my license?

    The Department will not make a determination of financial responsibility/fitness based on delinquent accounts that are solely due to medical expenses.

  14. My spouse is unemployed and my income has been reduced due to the collapse of the housing market and the economy. We have been late on our credit cards, and not all of them are current. Will I lose my loan originator license because of this?

    Several factors, such as the severity of the delinquencies, the number of accounts involved, how recent the occurrences of delinquency are, and what remedies the individual has pursued will be evaluated to determine whether an individual’s license will be impacted. Be prepared to document any representations made to the Department regarding derogatory information. General statements about a difficult economy will not be satisfactory.

  15. I have an outstanding tax lien. Will this be a problem?

    If a tax lien is the only derogatory account appearing on a credit report and an individual can document that a payment arrangement has been made and there is a history of timely payments under that agreement, such information will weigh in favor of the individual. Be prepared to provide documentation of the payment agreement as well as proof of payments and current status.

  16. I left my last apartment but my roommate stayed. He didn’t pay the final utility bills when he left and the utility accounts were in my name. I was sued, and civil judgments were entered against me. The judgments are still unpaid. Do I have to do something with them?

    If the judgment account is in the name of an individual, and the judgment creditor has not released that person from responsibility to pay on the judgment, then the Department may require that the account is either satisfied or that the individual has entered into a repayment plan. Be prepared to provide documentation of payment agreements as well as proof of payments and current status.

  17. I have a delinquent student loan and my husband owes back child support. All of our other credit is current. How will this affect my license?

    Individuals will need to provide a written explanation as to the circumstances that caused them to be delinquent on a student loan. They will need to address what they have done to rectify the delinquency, such as entering into a repayment plan with the creditor or negotiating a settlement. Be prepared to document any representations made in a response to the Department regarding derogatory information. If a spouse is NOT an MLO, delinquent child support should not have any effect, assuming nothing is reflected on a credit report. If a spouse IS an MLO, then the same requirements for a delinquent student loan would apply to his or her child support situation.

  18. Will I lose my license because we had a foreclosure last year?

    Idaho does not have an automatic bar to licensure just because a foreclosure occurred within the last three (3) years. The Department will review the circumstances causing a foreclosure, what steps were taken to avoid a foreclosure, the individual’s overall credit history, and what has happened since the foreclosure. Be prepared to document any representations made in a response to the Department regarding derogatory credit information.

  19. I had a car repossessed and I haven’t been notified by the finance company that I owe anything. What do I do?

    This depends on what appears on an individual’s credit report. If an account reflects any amount past due or a balance remaining or owing at the time of repossession, the individual will need to account for that in his or her explanation and remedies. That may involve contacting the creditor for more information. If the account only reflects the repossession, but no amounts past due, delinquent or charged off, an explanation of the circumstances leading to the repossession and the steps taken by the individual may be sufficient.

  20. I couldn’t pay my credit card and the balance on the account was charged off. There was no collection. What do I need to provide?

    Individuals will need to document the current status of the charged off amount. A creditor may have charged off an account as an internal loss but may have sold it to another creditor or debt buyer, or may be investigating other options to collect. The Department will review an explanation of circumstances that caused the charge off, to include any remedies an individual has taken or is in the process of taking to remedy the charge off, as well as the current status of the account.

  21. Why can’t the Department see that my charged off Wells Fargo credit card balance was bought by Citibank and I paid it off last year? It’s the same account.

    The credit reports that the Department receives do not contain any identifying account information, such as account numbers. The Department also does not receive specific information about account transfers or by whom an account has been purchased. Additionally, the Department cannot identify duplicate account postings. Therefore, in order for the Department to identify and track this type of information, it must rely on the subject of the report to provide that documentation.

  22. The delinquent accounts the Department wants information on were listed in my bankruptcy. How am I supposed to get more information on them?

    To demonstrate that an account was included in a bankruptcy, an individual should provide a copy of the schedule of debts, as well as confirmation that the account was discharged in the bankruptcy, or included in a restructuring.

  23. When the market was better I bought several rental properties. When the economy went bad I couldn’t keep renters and I couldn’t afford to keep the rentals on my reduced income so I let the lender take them. How will this affect me?

    Multiple foreclosures, especially within the past three (3) years, will most likely be problematic. However, the Department will consider explanations of circumstances, remedies taken or attempted, as well as the individual’s overall credit history to determine if there were extenuating circumstances. The Department will also consider an individual’s credit history, both prior to and after any foreclosures.

  24. If my credit isn’t good enough and I already have a license, what will happen? Will my license be revoked?

    Recognizing that credit histories can be improved with effort, and that a revocation of an individual license is a permanent bar to future licensure, the Department will make every effort not to revoke a license during this process. This is why the Department has included an extended initial time period for licensees and applicants to comply with the Policy. The Department strongly encourages individuals to get their explanations and documentation into the Department for its review as soon as possible. If satisfactory information is NOT received by October 31, 2011, license applications will be denied and existing licensees will not be allowed to renew their licenses for calendar year 2012. Individuals may also voluntarily surrender a license at any time. Credit reports will be pulled as part of the renewal process to verify that no significant negative changes have occurred since the initial pull or at the time of license application.

  25. I have been originating loans for years. Can I lose my license now because of my credit history?

    Yes. It is possible that an individual’s license may be revoked or not renewed depending upon his or her credit history and the management of his or her financial affairs. Laws have been enacted to address Congress’s mandates for mortgage industry regulation under the SAFE Act. No one is “grandfathered” under that Act.

  26. What will happen if I don’t provide any information to the Department or miss the deadlines noted in the Policy?

    If an applicant fails to provide required documentation, his or her application will be administratively denied or deemed withdrawn and all previously paid fees will be forfeited. If an existing licensee fails to provide required documentation, his or her license will either be administratively revoked or the license will not be renewed for calendar year 2012. If an individual is an MU2/control person of a licensee, then an action may ensue by the Department against the mortgage broker/lender licensee.

  27. What are the deadlines?

    For issues solely related to financial responsibility/fitness the final deadline for receipt of satisfactory and complete information is October 31, 2011. Keep in mind that if an individual waits until October 2011 to provide his or her explanations and documentation, and those are not sufficient or complete, he or she may jeopardize the status of an existing license and the ability to renew it for calendar year 2012. The Department will strive to review all information received by it in a timely manner. Once a review is complete and the Department determines the licensee has demonstrated financial responsibility, the license status will be changed from “Approved-Conditional” to “Approved.”

Securities FAQ

If I don’t find the answer to my question here, what number may I call? (208) 332-8004 or toll free within Idaho at 1-888-346-3378.

Broker Dealer Firms:

  1. Are broker-dealer firms required to send annual financials?

    Only if the firm is not a FINRA member.

  2. Is there a de minimus exemption from broker-dealer firm registration?

    Yes. If the firm has no place of business in Idaho, and has had 3 or less Idaho customers in the previous 12 months, it is exempt from registration. In addition, the firm must be registered with the SEC as a broker-dealer or exempt from SEC registration.

  3. When applying for broker-dealer registration through the Central Registration Depository (CRD) system, is my firm required to send anything directly to Idaho?


  4. What are Idaho’s fees to register as a broker-dealer?

    $200 for the firm and $50 per agent paid through the CRD system.

  5. Is a Designated Principal required for a broker-dealer firm?


  6. Do you require notification of branch offices located in Idaho? If so, is there a fee required?

    Yes, we require notification of opening, closing and amending branch offices. This may be done through the CRD system by completing the Form BR. There is no state fee required.

Broker Dealer Agents:

  1. How do I get licensed to sell securities?

    You must be affiliated with a broker-dealer firm that is licensed in Idaho. A compliance officer within the firm should guide you through the application process.

  2. How much does it cost to get licensed?

    Idaho’s fee is $50. Please note there may be other costs involved that are not for our Department.

  3. What examinations are required for broker-dealer agents to become licensed?

    TThe Series 63 or 66, the Securities Industry Essentials exam (SIE), plus at least one other general securities exam. The other exam(s) depend on what type of securities you are selling. Your firm and FINRA will help you determine what exam(s) you need.

  4. How do I get scheduled to take an exam?

    You must have a sponsor (i.e. a broker-dealer firm) in order to take almost all exams. Your broker-dealer firm will get you scheduled for any needed exams. Please note that if you wish to take the Series 63, 65, 66, or the Securities Essentials exam (SIE), you do not need a sponsor (Form U-10). The U-10 is the application to get scheduled to take an exam if you are not affiliated with a sponsoring firm. Information on how to get scheduled for those exams may be found at www.finra.orgExternal Link

  5. What is the cost to take a FINRA examination?

    A registration and exam fee schedule may be found at www.finra.orgExternal Link

  6. Where are the testing centers located?

    The locations and other related information may be found at www.finra.orgExternal Link

  7. Where may I obtain study material for a test?

    A list of study material vendors may be found at www.nasaa.orgExternal Link.

  8. If I have further questions regarding the exam process, what number may I call?

    You may call the FINRA help desk in Rockville, MD at 301-590-6500.

Investment Adviser Firms:

  1. Are investment adviser firms required to send annual financials?

    Only if the firm is Idaho based and state regulated.

  2. Is there a de minimus exemption from investment adviser firm registration?

    Yes. If the firm has no place of business in Idaho and has had 5 or less Idaho clients during the previous 12 months it is exempt from licensing or from having to notice file.

  3. When doing a notice filing through the Investment Adviser Registration Depository (IARD) system, is my firm required to send anything directly to Idaho?


  4. What are Idaho’s fees to register or notice file an investment adviser firm?

    State Regulated firm-$150; Federally Regulated firm-$30 paid through the IARD system.

  5. How does a State Regulated firm become registered?

    Please refer to “Investment Adviser Application Procedures and Information” at Securities Forms. Refer to #2A or #2B” depending on where your firm is based.

  6. How do I add or delete agents to my firm?

    Go to Link; Click on Web CRD Quick Reference Guides/ Form U-4

Investment Adviser Agents:

  1. What examinations are required for Investment adviser agents to become licensed?

    Either the Series 65 or the Series 66, the Securities Industry Essentials exam (SIE), and Series 7. For more detailed information including waivers and exemptions, please refer to “Investment Adviser Representative Registration and Exemption” at Securities Forms

    Note: For additional exam questions you may have, please refer to the answers given above under “Broker-Dealer Agents.”
  2. How much does it cost to get licensed?

    Idaho’s fee is $30. Please note there may be other costs involved that are not for our Department.

Regulation D Offerings:

  1. Where can one find information as to the events that disqualify a person from being able to rely on Rule 506, and the persons to whom these rules apply?

    The events that disqualify a person from being able to rely on Rule 506, and the persons to whom these rules apply are set forth in new Rule 506(d) of Regulation D.

  2. Can Broker-Dealers use 506(c) to generally solicit the sale of securities?

    Yes. Broker-Dealers may generally solicit under new Rule 506(c), provided that the following conditions are satisfied:

    1. all terms and conditions of Rule 501 and Rules 502(a), which relates to integration of offerings, and 502(d), which relates to resale restrictions, must be satisfied;
    2. all purchasers of securities must be accredited investors; and
    3. the issuer must take reasonable steps to verify that the purchasers of the securities are accredited investors.

    Broker-dealers participating in offerings in conjunction with issuers relying on Rule 506(c) continue to be subject to FINRA rules regarding communications with the public, which, among other things, (1) generally require all member communications to be based on principles of fair dealing and good faith, to be fair and balanced, and to provide a sound basis for evaluating the facts in regard to any particular security or type of security, industry or service; and (2) prohibit broker-dealers from making false, exaggerated, unwarranted, promissory or misleading statements or claims in any communications. See FINRA Rule 2210.

  3. Are there any special implications for a broker-dealer and its salespersons that participate in an offering exempt under Rule 506(c)?

    FINRA members that sell securities in an offering exempt from registration under Rule 506(c) must “(i) submit to FINRA a copy of any private placement memorandum, term sheet or other offering document, including any materially amended versions thereof, used in connection with such sale within 15 calendar days of the date of first sale; or (ii) notify FINRA that no such offering documents were used.” FINRA Rule 5123. Further, salespersons of broker-dealer firms must ensure their firm has authorized their participation in the offering.

  4. Are securities sold under new Rule 506(c) considered covered securities?

    Yes. New Rule 506(c) offerings are considered covered securities under the National Securities Markets Improvement Act (“NSMIA”). However, issuers must look to each state where they offer or sell their securities to determine any applicable notice filing requirement(s). Issuers should also be aware that fraudulent representations would still make them subject to state law.

  5. Can Issuers relying on Rule 506(c) allow investors to “check the box” indicating that they are an accredited investor?

    No. New Rule 506(c) permits issuers and broker-dealers to use general solicitation and general advertising to offer their securities provided that (1) the issuer takes reasonable steps to verify that the investors are accredited investors and (2) all purchasers of the securities fall within one of the categories of persons who are accredited investors under an existing rule (Rule 501 of Regulation D) or the issuer reasonably believes that the investors fall within one of the categories at the time of the sale of the securities. The determination of the reasonableness of the steps taken to verify an accredited investor is an objective assessment by an issuer. An issuer is required to consider the facts and circumstances of each purchaser and the nature of the offering.

  6. Are there any approved methods of verifying an investor’s status as an accredited investor?

    The SEC has specified four specific non-exclusive methods of verifying accredited investor status for natural persons that, if used, are deemed to satisfy the verification requirement in Rule 506(c). These methods will not be deemed to satisfy the verification requirement, however, if the issuer or its agent has knowledge that the purchaser is not an accredited investor. These methods of verification are set forth in Rule 506(c)(2)(ii).

  7. Can an Investment Adviser offer the same fund via new Rule 506(c) and traditional Rule 506(b) so long as they ensure that any investor contacted through general solicitation is an accredited investor?

    No. An issuer must either check the box for a Rule 506(b) offering or a Rule 506(c) offering, but not both. Under new Rule 506(c) all purchasers of the securities must fall within one of the categories of persons who are accredited investors under an existing rule (Rule 501 of Regulation D) or the issuer must reasonably believe that the investors fall within one of the categories at the time of the sale of the securities. Once a general solicitation has been made to the purchasers in an offering, an issuer is not able to rely on Rule 506(b). Accordingly, a fund must either be sold in compliance with 506(b) or new Rule 506(c).

  8. Will investment advisers to private funds be allowed to generally solicit their new funds under new Rule 506(c)?

    Yes. Section 201(b) of the JOBS Act permits offers and sales of securities under Rule 506(c) by private funds relying on the exclusions from the definition of “investment company” under Section 3(c)(1) or Section 3(c)(7) of the Investment Company Act. Accordingly, starting September 23, 2013, private fund advisers may generally solicit the sale of interests in their newly formed funds.

  9. How does the lifting of the ban on general solicitation apply with respect to Rule 144A offerings?

    Pursuant to amendments to Rule 144A, securities offered pursuant to Rule 144A are permitted to be offered to persons other than qualified institutional buyers, provided that the securities are sold only to persons that the seller and any person acting on behalf of the seller reasonably believe are qualified institutional buyers.

  10. Can an issuer rely on a third party to verify a person’s status as an accredited investor?

    Yes, an issuer will be entitled to rely on a third party that has verified a person’s status as an accredited investor, provided that the issuer has a reasonable basis to rely on such third-party verification.