Legal Question in Business Law in Illinois

I am looking to form an Internet start-up company that would act as an intermediary between real estate investors looking to sell debt to finance their projects and investors who want to buy that debt for capital gain. The debt would be secured by the real estate the debt would finance much like a traditional mortgage, however the interest rate on the debt would be set by market forces on the site much like prosper.com. The site itself would charge a few percentage points to the sellers of debt once they receive funding for their projects.

I have been reading security act of 1933 and have not been able to come to any conclusion as to whether these transactions are legal or not, and if they are if they need to be limited to just accredited and sophisticated investors, or if I can open it up to everyone that is willing to participate.

Thank you very much for helping me think through my idea.


Asked on 10/11/10, 9:57 am

1 Answer from Attorneys

In addition to federal law, there are various state laws to consider, including but not limited to State securities laws, licensing as a mortgage banker and/or broker, probably registration with the Illinois Department if Financial Institutions, etc.

This sounds like a really potentially good idea, where you effectively have on-line auctions between owners and prospective lenders who "bid" for the debt, something like an investment grade "lending tree" type of site.

Since it could be worth more than $1,000, don't you think it's worth hring an attorney to do a complete review of this kind of arrangement? There's potentially a lot of research needs to go into not only the concept but properly structuring the company, and not only from a legal standpoint but potentially tax liability (improper structuring could have the result of casting the debt as ordinary income and NOT capital gain...). I hate to say it, but don't be pennywise and poundfoolish -- the worst case is that you set up a system that's not protected and the next thing you know is that three major players do the same thing and shut you out of the market..... If this were me and I thought it could be worth $1MM, I think I'd invest several thousand to make sure......

What do you think?

The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is currently licensed to practice law actively only in the State of Illinois, inactively in Florida. Responses are based solely on Illinois law unless stated otherwise.

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Answered on 10/18/10, 12:30 pm


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