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DONALD C. LYLE ("Respondent") * * * * * * * * * * * * * * * * |
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ORDER TO CEASE AND DESIST NOTICE OF INTENT TO FINE AND NOTICE OF RIGHT TO HEARING DOCKET NO. CF-2010-7556-S |
I. PRELIMINARY STATEMENT
| 1. | The Banking Commissioner (“Commissioner”) is charged with the administration of Chapter 672a of the General Statutes of Connecticut, the Connecticut Uniform Securities Act (“Act”), and the regulations promulgated thereunder (Sections 36b-31-2 to 36b-31-33, inclusive, of the Regulations of Connecticut State Agencies) (“Regulations”). |
| 2. |
Pursuant to Section 36b-26(a) of the Act, the Commissioner, through the Securities and Business Investments Division of the Department of Banking, has conducted an investigation into the activities of Respondent to determine if Respondent has violated, is violating or is about to violate provisions of the Act or Regulations (“Investigation”). |
| 3. | As a result of the Investigation, the Commissioner has reason to believe that Respondent has violated certain provisions of the Act. |
| 4. |
As a result of the Investigation, the Commissioner has the authority to issue an order to cease and desist against Respondent pursuant to Section 36b-27(a) of the 2010 Supplement to the General Statutes (“2010 Supplement”).
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| 5. |
As a result of the Investigation, the Commissioner has the authority to impose a fine on Respondent pursuant to Section 36b-27(d) of the 2010 Supplement. |
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II. RESPONDENT | |
| 6. |
Lyle is an individual whose address last known to the Commissioner is 2346 Eutaw Place, Unit 2, Baltimore, Maryland 21217. |
| 7. | Lyle does or has done business under various names, including Noirstar Financial Services (“NFS”). Lyle has held NFS out as having a business address located at 1337 Dixwell Avenue, Hamden, Connecticut 06514. |
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III. STATEMENT OF FACTS | |
| 8. | From at least November 29, 2007, to the present, Lyle has been an issuer of securities in the form of NFS investments taking the form of an investment contract, note and/or evidence of indebtedness (“NFS Investments”). |
| 9. | From at least November 29, 2007, to the present, Lyle effected the sale of NFS Investments to at least three Connecticut investors. |
| 10. |
The NFS Investments that were offered and sold by Respondent were never registered in Connecticut, nor were they exempt from registration, nor were they covered securities. |
| 11. | In connection with the offer and sale of the NFS Investments, Respondent failed to disclose, inter alia, any risk factors related to the investment; any financial information on Respondent or his businesses; the income sources from which the NFS Investments would be repaid; or Respondent’s ability to meet his obligations under the NFS Investments. Moreover, in connection with the offer and sale of the NFS Investments, Respondent failed to disclose that he had been the subject of three Chapter 13 bankruptcy proceedings filed in Connecticut Bankruptcy Court on March 16, 2007 (Case No. 07-30585; closed February 19, 2008); October 16, 2006 (Case No. 06-31762; closed February 27, 2007); and May 16, 2006 (Case No. 06-30691; closed December 1, 2006). Each of these omitted items was material to investors and prospective investors of the NFS Investments, and the Respondent’s failure to disclose such items made Respondent’s limited explanation of the NFS Investments misleading. |
| 12. | To date, no Connecticut investor has received any payment that Respondent represented they would receive in conjunction with the NFS Investments. |
IV. STATUTORY BASIS FOR ORDER TO CEASE AND DESIST AND
ORDER IMPOSING FINE AGAINST RESPONDENT
a. Violation of Section 36b-16 of the Act –
Offer and Sale of Unregistered Securities
| 13. | Paragraphs 1 through 12, inclusive, are incorporated and made a part hereof as if more fully set forth herein. |
| 14. |
Respondent offered and sold unregistered securities to at least three Connecticut investors, as more fully described in paragraphs 8 and 9, which securities were not registered in Connecticut under the Act, as more fully described in paragraph 10. The offer and sale of such securities absent registration constitutes violations of Section 36b-16 of the Act, which forms a basis for an order to cease and desist to be issued against Respondent under Section 36b-27(a) of the 2010 Supplement, and for the imposition of a fine against Respondent under Section 36b-27(d) of the 2010 Supplement. |
b. Violation of Section 36b-4(a) of the Act –
Fraud in Connection with the Offer and Sale of any Security
| 15. | Paragraphs 1 through 14, inclusive, are incorporated and made a part hereof as if more fully set forth herein. |
| 16. |
The conduct of Respondent, as more fully described in paragraphs 8 through 12, inclusive, constitutes, in connection with the offer, sale or purchase of any security, employing a device, scheme or artifice to defraud, making untrue statements of material facts or omitting to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or engaging in an act, practice or course of business which operates as a fraud or deceit upon any person. Such conduct constitutes a violation of Section 36b-4(a) of the 2010 Supplement, which forms a basis for an order to cease and desist to be issued against Respondent under Section 36b-27(a) of the 2010 Supplement, and for the imposition of a fine against Respondent under Section 36b-27(d) of the 2010 Supplement. |
WHEREAS, as a result of the Investigation, the Commissioner finds that, with respect to the activity described herein, Respondent has committed at least three violations of Section 36b-16 of the Act, and at least three violations of Section 36b-4(a) of the 2010 Supplement;
WHEREAS, the Commissioner further finds that the issuance of this Order to Cease and Desist and the imposition of a fine is necessary or appropriate in the public interest or for the protection of investors and consistent with the purposes fairly intended by the policies and provisions of the Act;
WHEREAS, notice is hereby given to Respondent that the Commissioner intends to impose a fine not to exceed One Hundred Thousand Dollars ($100,000) per violation, or a maximum fine against Respondent of Three Hundred Thousand Dollars ($300,000);
AND WHEREAS, pursuant to Section 36b-27 of the 2010 Supplement, Respondent will be afforded an opportunity for a hearing on the allegations set forth above.
THE COMMISSIONER THEREFORE ORDERS that Respondent CEASE AND DESIST from directly or indirectly violating the provisions of the Act, including without limitation, (1) offering and selling unregistered securities, and (2) committing fraud in connection with the offer and sale of any security.
THE COMMISSIONER FURTHER ORDERS that a hearing will be granted to Respondent if a written request for a hearing is received by the Department of Banking, 260 Constitution Plaza, Hartford, Connecticut 06103-1800, within fourteen (14) days following Respondent’s receipt of this Order to Cease and Desist, Notice of Intent to Fine and Notice of Right to Hearing. The enclosed Appearance and Request for Hearing Form must be completed and mailed to the above address. If Respondent will not be represented by an attorney at the hearing, please complete the Appearance and Request for Hearing Form as “pro se”. Once a written request for a hearing is received, the Commissioner may issue a notification of hearing and designation of hearing officer that acknowledges receipt of a request for a hearing, designates a presiding officer and sets the date of the hearing in accordance with Section 4-177 of the General Statutes of Connecticut and Section 36a-1-21 of the Regulations of Connecticut State Agencies.
If a hearing is requested, the hearing will be held on June 24, 2010, at 10 a.m., at the Department of Banking, 260 Constitution Plaza, Hartford, Connecticut. Any such hearing will be held in accordance with the provisions of Chapter 54 of the General Statutes of Connecticut. At any such hearing, Respondent will have the right to appear and present evidence, rebuttal evidence and argument on all issues of fact and law to be considered by the Commissioner.
This Order to Cease and Desist shall remain in effect and become permanent against Respondent if Respondent fails to request a hearing within the prescribed time period or fails to appear at any such hearing.
The Commissioner may order that the maximum fine be imposed upon Respondent if Respondent fails to request a hearing within the prescribed time period or fails to appear at any such hearing.
| Dated at Hartford, Connecticut, | _______/s/_________ | |
| this 7th day of May 2010. | Howard F. Pitkin | |
| Banking Commissioner |
CERTIFICATION
I hereby certify that on this 7th day of May 2010, the foregoing Order to Cease and Desist, Notice of Intent to Fine and Notice of Right to Hearing was sent by registered mail, return receipt requested, to Donald C. Lyle d/b/a Noirstar Financial Services, 2346 Eutaw Place, Unit 2, Baltimore, Maryland 21217, certified mail no. 7008 1140 0002 4974 3480.
| _______/s/_________ | ||
| Jesse B. Silverman | ||
| Prosecuting Attorney |