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Our new loan origination system creates a new resolution for each note. Because each note has its own resolution, the LOS told us that a Members’ Certificate of Incumbency is unnecessary for loans made to LLCs. Is that correct? – IBA Compliance Connection

IBA Compliance Connection

Your go to source for compliance!

Our new loan origination system creates a new resolution for each note. Because each note has its own resolution, the LOS told us that a Members’ Certificate of Incumbency is unnecessary for loans made to LLCs. Is that correct?

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Yes, we believe that an appropriate corporate resolution could serve to protect your bank in the same manner as a Certificate of Incumbency, provided that the resolution is drafted to include all of the same protections as the form previously used by your bank.

Generally, a corporate resolution used in connection with a loan should certify the incumbency and authority of the individual signing the note and that the LLC has adopted the necessary resolutions to enter into the loan. (Your bank also likely requires additional documentation from the LLC, such as a copy of its Operating Agreement with a certification that the copy is accurate and up-to-date.)

We should note that in Illinois, the default rule is that members of an LLC are not agents of the LLC solely due to their status as members — in other words, members of an LLC should not be treated as having the authority to sign on behalf of an LLC until your bank obtains an appropriate resolution or equivalent documentation showing their authority to sign and enter into a loan agreement with your bank.

For resources related to our guidance, please see:

  • Limited Liability Company Act, 805 ILCS 180/13-5(a)(1) (“A member is not an agent of a limited liability company solely by reason of being a member.”)
  • Limited Liability Company Act, 805 ILCS 180/13-15(d) (“A grant of authority not pertaining to transfers of real property and contained in a statement of authority is conclusive in favor of a person that is not a member and that gives value in reliance on the grant, except to the extent that when the person gives value, the person has knowledge to the contrary.”)