Allstate Industrial Loan Plan, Inc. v. Mihalek

555 S.W.2d 585, 1977 Ky. LEXIS 512
CourtKentucky Supreme Court
DecidedSeptember 16, 1977
StatusPublished
Cited by1 cases

This text of 555 S.W.2d 585 (Allstate Industrial Loan Plan, Inc. v. Mihalek) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allstate Industrial Loan Plan, Inc. v. Mihalek, 555 S.W.2d 585, 1977 Ky. LEXIS 512 (Ky. 1977).

Opinion

STERNBERG, Justice.

The appellant is organized under and by the authority of KRS 291.410 through 291.-990, which pertain to industrial loan corporations. From the time of its organization, June 1970, until its right to do so was challenged by appellees, March 1973, it sold certificates of investment without registering them with the Kentucky Division of Securities. The appellees now challenge appellant’s authority to issue such certificates without first registering them with the office of the Division of Securities of the Department of Banking and Securities of the Commonwealth of Kentucky. After negotiations failed to resolve the controversy, a preliminary cease and desist order dated January 21, 1974, was entered by the Director of the Division of Securities of the Department of Banking and Securities. The preliminary order was made permanent on August 23, 1974. The reasoning of the Director for such an order is made manifest in the findings of fact dated August 23, 1974, in which he stated:

“* * * The language and intent of the Act is clear and I find no way to make industrial loan corporations into industrial loan associations unless the Legislature does it at some time in the future.”

In due time a petition for appeal was filed in the Franklin Circuit Court. Appellant contended it was exempt from the requirement of registration. The trial judge found:

“Being neither banks, trust companies nor loan associations, Industrial Loan Corporations are recognized by the Act as being distinctive entities, otherwise organized and operating than that character of institutions, or any of the ‘mutual’type institutions mentioned in the exemption.”

On October 16, 1974, a final judgment was entered affirming the action of the appel-lees. Thus, this appeal.

The single and only issue presented is whether appellant is exempt from the registration of its certificates of investment.

KRS 291.460, which defines the powers of the corporation, provides:

“An industrial loan company organized under KRS 291.410 to 291.60Ó may:
[586]*586(2) Sell or negotiate bonds, notes and certificates of investment for the payment of money at any time, either fixed or uncertain, and receive payments therefor in installments or otherwise; provided that nothing herein contained shall be construed to create any liability on demand. No corporation making loans under this section or KRS 291.470 to 291.510 shall directly or indirectly advertise for or accept deposits, demand or otherwise, except an industrial loan company organized under KRS 291.410 to 291.600 may advertise the sale of certificates of investment as authorized under KRS 291.-410 to 291.600.”

We glean from KRS 291.410 through 291.990 that a certificate of investment is a writing evidencing an obligation on the part of the company to repay a sum of money to an investor at any time, either fixed or uncertain, and to receive payments therefor in installments or otherwise, other than an obligation to repay on demand. There is no requirement in KRS, Chapter 291 for industrial loan companies to register certificates of investment with the appel-lees. There is, however, ample supervisory authority in the Commissioner of Banking and Securities. KRS 291.530 and 291.550.

The Commissioner of Banking argues that registration of certificates of investment is required under the Kentucky Securities Act (KRS, Ch. 292). He calls our attention to KRS 292.340, which provides:

“It is unlawful for any person to offer or sell any security in this state, except securities exempt under KRS 292.400 or when sold in transactions exempt under KRS 292.410, unless such security is registered by notification under KRS 292.350 or by coordination under KRS 292.360 or by qualification under KRS 292.370.”

In other words, it is contended that all securities must be registered unless exempt. The exemption from registration referred to in KRS 292.400 is as follows:

“KRS 292.340 to 292.390 shall not apply to any of the following securities:
* * * * * *
(6) Any security issued or guaranteed by any federal credit union or any credit union, industrial loan association, or similar association organized and supervised under the laws of this state.”

Counsel for appellees makes much ado about appellant having the burden of proof. A stipulation was filed at the administrative level which portrays the factual situation.

At the very beginning, we are faced with the question of whether a certificate of investment is a “security document.” The definition of a security, as set out in KRS 292.310(11), is broad enough to include certificates of investment. Thus, since certificates of investments are securities, they must be registered, unless they come within the exemption in KRS 292.400(6).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Paul Bennett v. Hunter Durham
683 F.3d 734 (Sixth Circuit, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
555 S.W.2d 585, 1977 Ky. LEXIS 512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allstate-industrial-loan-plan-inc-v-mihalek-ky-1977.