Senate Bill sb0108c2
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    Florida Senate - 2001                     CS for CS for SB 108
    By the Committees on Judiciary; Banking and Insurance; and
    Senators Geller and Dawson
    308-1568-01
  1                      A bill to be entitled
  2         An act relating to the transfer of structured
  3         settlements; specifying the purpose of the act;
  4         providing definitions; providing requirements
  5         for the direct or indirect transfer of
  6         structured-settlement-payment rights; requiring
  7         that any such transfer be approved by a court;
  8         requiring that the court make certain findings
  9         with respect to the transfer; authorizing an
10         interested party to file an objection to a
11         proposed transfer; providing requirements for
12         an order approving a transfer; requiring that
13         an obligor make certain disclosures to a
14         claimant in negotiating a settlement of claims;
15         requiring a transferee to provide certain
16         notice with respect to a proposed transfer of
17         structured-settlement-payment rights; providing
18         for penalties to be imposed for certain
19         violations of the act; authorizing the state
20         attorney to bring an action for injunctive
21         relief; providing an effective date.
22
23  Be It Enacted by the Legislature of the State of Florida:
24
25         Section 1.  Transfers of structured-settlement-payment
26  rights.--
27         (1)  PURPOSE.--The purpose of this section is to
28  protect recipients of structured settlements who are involved
29  in the process of transferring structured-settlement-payment
30  rights.
31         (2)  DEFINITIONS.--As used in this section, the term:
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  1         (a)  "Annuity issuer" means an insurer that has issued
  2  an annuity contract to be used to fund periodic payments under
  3  a structured settlement.
  4         (b)  "Applicable law" means any of the following, as
  5  applicable in interpreting the terms of a structured
  6  settlement:
  7         1.  The laws of the United States;
  8         2.  The laws of this state, including principles of
  9  equity applied in the courts of this state; and
10         3.  The laws of any other jurisdiction:
11         a.  That is the domicile of the payee or any other
12  interested party;
13         b.  Under whose laws a structured-settlement agreement
14  was approved by a court; or
15         c.  In whose courts a settled claim was pending when
16  the parties entered into a structured-settlement agreement.
17         (c)  "Applicable federal rate" means the most recently
18  published applicable rate for determining the present value of
19  an annuity, as issued by the United States Internal Revenue
20  Service pursuant to section 7520 of the United States Internal
21  Revenue Code, as amended.
22         (d)  "Assignee" means any party that acquires
23  structured-settlement-payment rights directly or indirectly
24  from a transferee of such rights.
25         (e)  "Dependents" means a payee's spouse and minor
26  children and all other family members and other persons for
27  whom the payee is legally obligated to provide support,
28  including spousal maintenance.
29         (f)  "Discount and finance charge" means the sum of all
30  charges that are payable directly or indirectly from assigned
31  structured-settlement payments and imposed directly or
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  1  indirectly by the transferee and that are incident to a
  2  transfer of structured-settlement-payment rights, including:
  3         1.  Interest charges, discounts, or other compensation
  4  for the time value of money;
  5         2.  All application, origination, processing,
  6  underwriting, closing, filing, and notary fees and all similar
  7  charges, however denominated; and
  8         3.  All charges for commissions or brokerage,
  9  regardless of the identity of the party to whom such charges
10  are paid or payable.
11
12  The term does not include any fee or other obligation incurred
13  by a payee in obtaining independent professional advice
14  concerning a transfer of structured-settlement-payment rights.
15         (g)  "Discounted present value" means, with respect to
16  a proposed transfer of structured-settlement-payment rights,
17  the fair present value of future payments, as determined by
18  discounting the payments to the present using the most
19  recently published applicable federal rate as the discount
20  rate.
21         (h)  "Independent professional advice" means advice of
22  an attorney, certified public accountant, actuary, or other
23  licensed professional adviser:
24         1.  Who is engaged by a payee to render advice
25  concerning the legal, tax, and financial implications of a
26  transfer of structured-settlement-payment rights;
27         2.  Who is not in any manner affiliated with or
28  compensated by the transferee of the transfer; and
29         3.  Whose compensation for providing the advice is not
30  affected by whether a transfer occurs or does not occur.
31         (i)  "Interested parties" means:
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  1         1.  The payee;
  2         2.  Any beneficiary irrevocably designated under the
  3  annuity contract to receive payments following the payee's
  4  death or, if such designated beneficiary is a minor, the
  5  designated beneficiary's parent or guardian;
  6         3.  The annuity issuer;
  7         4.  The structured-settlement obligor; or
  8         5.  Any other party who has continuing rights or
  9  obligations under the structured settlement.
10         (j)  "Payee" means an individual who is receiving
11  tax-free damage payments under a structured settlement and
12  proposes to make a transfer of payment rights under the
13  structured settlement.
14         (k)  "Qualified-assignment agreement" means an
15  agreement providing for a qualified assignment, as authorized
16  by Title 26, section 130 of the United States Internal Revenue
17  Code, as amended.
18         (l)  "Settled claim" means the original tort claim
19  resolved by a structured settlement.
20         (m)  "Structured settlement" means an arrangement for
21  periodic payment of damages for personal injuries established
22  by settlement or judgment in resolution of a tort claim.
23         (n)  "Structured-settlement agreement" means the
24  agreement, judgment, stipulation, or release embodying the
25  terms of a structured settlement, including the rights of the
26  payee to receive periodic payments.
27         (o)  "Structured-settlement obligor" means the party
28  who is obligated to make continuing periodic payments to the
29  payee under a structured-settlement agreement or a
30  qualified-assignment agreement.
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  1         (p)  "Structured-settlement-payment rights" means
  2  rights to receive periodic payments, including lump-sum
  3  payments under a structured settlement, whether from the
  4  structured-settlement obligor or the annuity issuer, if:
  5         1.  The payee or any other interested party is
  6  domiciled in this state;
  7         2.  The structured settlement agreement was approved by
  8  a court; or
  9         3.  The settled claim was pending before the courts of
10  this state when the parties entered into the
11  structured-settlement agreement.
12         (q)  "Terms of the structured settlement" means the
13  terms of the structured-settlement agreement; the annuity
14  contract; a qualified-assignment agreement; or an order or
15  approval of a court or other government authority authorizing
16  or approving the structured settlement.
17         (r)  "Transfer" means a sale, assignment, pledge,
18  hypothecation, or other form of alienation or encumbrance made
19  by a payee for consideration.
20         (s)  "Transfer agreement" means the agreement providing
21  for transfer of structured-settlement-payment rights from a
22  payee to a transferee.
23         (t)  "Transferee" means a person who is receiving or
24  who will receive structured-settlement-payment rights
25  resulting from a transfer.
26         (3)  CONDITIONS TO TRANSFERS OF
27  STRUCTURED-SETTLEMENT-PAYMENT RIGHTS AND STRUCTURED-SETTLEMENT
28  AGREEMENTS.--
29         (a)  A direct or indirect transfer of
30  structured-settlement-payment rights is not effective and a
31  structured-settlement obligor or annuity issuer is not
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  1  required to make a payment directly or indirectly to a
  2  transferee of structured-settlement-payment rights unless the
  3  transfer is authorized in advance in a final order by a court
  4  of competent jurisdiction which is based on the written
  5  express findings by the court that:
  6         1.  The transfer complies with this section and does
  7  not contravene other applicable law;
  8         2.  At least 10 days before the date on which the payee
  9  first incurred an obligation with respect to the transfer, the
10  transferee provided to the payee a disclosure statement in
11  bold type, no smaller than 14 points in size, which specifies:
12         a.  The amounts and due dates of the
13  structured-settlement payments to be transferred;
14         b.  The aggregate amount of the payments;
15         c.  The discounted present value of the payments,
16  together with the discount rate used in determining the
17  discounted present value;
18         d.  The gross amount payable to the payee in exchange
19  for the payments;
20         e.  An itemized listing of all brokers' commissions,
21  service charges, application fees, processing fees, closing
22  costs, filing fees, referral fees, administrative fees, legal
23  fees, and notary fees and other commissions, fees, costs,
24  expenses, and charges payable by the payee or deductible from
25  the gross amount otherwise payable to the payee;
26         f.  The net amount payable to the payee after deducting
27  all commissions, fees, costs, expenses, and charges described
28  in sub-subparagraph e.;
29         g.  The quotient, expressed as a percentage, obtained
30  by dividing the net payment amount by the discounted present
31  value of the payments, which must be disclosed in the
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  1  following statement: "The net amount that you will receive
  2  from us in exchange for your future structured-settlement
  3  payments represent __ percent of the estimated current value
  4  of the payments";
  5         h.  The effective annual interest rate, which must be
  6  disclosed in the following statement: "Based on the net amount
  7  that you will receive from us and the amounts and timing of
  8  the structured-settlement payments that you are turning over
  9  to us, you will, in effect, be paying interest to us at a rate
10  of __ percent per year"; and
11         i.  The amount of any penalty and the aggregate amount
12  of any liquidated damages, including penalties, payable by the
13  payee in the event of a breach of the transfer agreement by
14  the payee;
15         3.  The payee has established that the transfer is in
16  the best interests of the payee and the payee's dependents;
17         4.  The payee has received, or waived his or her right
18  to receive, independent professional advice regarding the
19  legal, tax, and financial implications of the transfer;
20         5.  The transferee has given written notice of the
21  transferee's name, address, and taxpayer identification number
22  to the annuity issuer and the structured-settlement obligor
23  and has filed a copy of the notice with the court;
24         6.  The transfer agreement provides that if the payee
25  is domiciled in this state, any disputes between the parties
26  will be governed in accordance with the laws of this state and
27  that the domicile state of the payee is the proper venue to
28  bring any cause of action arising out of a breach of the
29  agreement; and
30
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  1         7.  The court has determined that the net amount
  2  payable to the payee is fair, just, and reasonable under the
  3  circumstances then existing.
  4         (b)  If a proposed transfer would contravene the terms
  5  of the structured settlement, upon the filing of a written
  6  objection by any interested party and after considering the
  7  objection and any response to it, the court may grant, deny,
  8  or impose conditions upon the proposed transfer which the
  9  court deems just and proper given the facts and circumstances
10  and in accordance with established principles of law. Any
11  order approving a transfer must require that the transferee
12  indemnify the annuity issuer and the structured-settlement
13  obligor for any liability, including reasonable costs and
14  attorney's fees, which arises from compliance by the issuer or
15  obligor with the order of the court.
16         (c)  Any provision in a transfer agreement which gives
17  a transferee power to confess judgment against a payee is
18  unenforceable to the extent that the amount of the judgment
19  would exceed the amount paid by the transferee to the payee,
20  less any payments received from the structured-settlement
21  obligor or payee.
22         (d)  In negotiating a structured settlement of claims
23  brought by or on behalf of a claimant who is domiciled in this
24  state, the structured-settlement obligor must disclose in
25  writing to the claimant or the claimant's legal representative
26  all of the following information that is not otherwise
27  specified in the structured-settlement agreement:
28         1.  The amounts and due dates of the periodic payments
29  to be made under the structured-settlement agreement. In the
30  case of payments that will be subject to periodic percentage
31  increases, the amounts of future payments may be disclosed by
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  1  identifying the base payment amount, the amount and timing of
  2  scheduled increases, and the manner in which increases will be
  3  compounded;
  4         2.  The amount of the premium payable to the annuity
  5  issuer;
  6         3.  The discounted present value of all periodic
  7  payments that are not life-contingent, together with the
  8  discount rate used in determining the discounted present
  9  value;
10         4.  The nature and amount of any costs that may be
11  deducted from any of the periodic payments;
12         5.  Where applicable, that any transfer of the periodic
13  payments is prohibited by the terms of the structured
14  settlement and may otherwise be prohibited or restricted under
15  applicable law; and
16         6.  That any transfer of the periodic payments by the
17  claimant may subject the claimant to serious adverse tax
18  consequences.
19         (4)  JURISDICTION; PROCEDURE FOR APPROVAL OF
20  TRANSFERS.--At least 20 days before the scheduled hearing on
21  an application for authorizing a transfer of
22  structured-settlement-payment rights under this section, the
23  transferee must file with the court and all interested parties
24  a notice of the proposed transfer and the application for its
25  authorization. The notice must include:
26         (a)  A copy of the transferee's application to the
27  court;
28         (b)  A copy of the transfer agreement;
29         (c)  A copy of the disclosure statement required under
30  subsection (3);
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  1         (d)  Notification that an interested party may support,
  2  oppose, or otherwise respond to the transferee's application,
  3  in person or by counsel, by submitting written comments to the
  4  court or by participating in the hearing; and
  5         (e)  Notification of the time and place of the hearing
  6  and notification of the manner in which and the time by which
  7  any written response to the application must be filed in order
  8  to be considered by the court. A written response to an
  9  application must be filed within 15 days after service of the
10  transferee's notice.
11         (5)  WAIVER PROHIBITED; NO PENALTIES INCURRED.--
12         (a)  The provisions of this section may not be waived.
13         (b)  If a transfer of structured-settlement-payment
14  rights fails to satisfy the conditions of subsection (3), the
15  payee who proposed the transfer does not incur any penalty,
16  forfeit any application fee or other payment, or otherwise
17  incur any liability to the proposed transferee.
18         (6)  NONCOMPLIANCE.--
19         (a)  If a transferee violates the requirements for
20  stipulating the discount and finance charge provided for in
21  subsection (3), neither the transferee nor any assignee may
22  collect from the transferred payments, or from the payee, any
23  amount in excess of the net advance amount, and the payee may
24  recover from the transferee or any assignee:
25         1.  A refund of any excess amounts previously received
26  by the transferee or any assignee;
27         2.  A penalty in an amount determined by the court, but
28  not in excess of three times the aggregate amount of the
29  discount and finance charge; and
30         3.  Reasonable costs and attorney's fees.
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  1         (b)  If the transferee violates the disclosure
  2  requirements in subsection (3), the transferee and any
  3  assignee are liable to the payee for:
  4         1.  A penalty in an amount determined by the court, but
  5  not in excess of three times the amount of the discount and
  6  finance charge; and
  7         2.  Reasonable costs and attorney's fees.
  8         (c)  A transferee or assignee is not liable for any
  9  penalty in any action brought under this section if the
10  transferee or assignee establishes by a preponderance of
11  evidence that the violation was not intentional and resulted
12  from a bona fide error, notwithstanding the transferee's
13  maintenance of procedures reasonably designed to avoid such
14  errors.
15         (d)  Notwithstanding any other law, an action may not
16  be brought under this section more than 1 year after the due
17  date of:
18         1.  The last transferred structured-settlement payment,
19  in the case of a violation of the requirements for stipulating
20  the discount and finance charge provided for in subsection
21  (3).
22         2.  The first transferred structured-settlement
23  payment, in the case of a violation of the disclosure
24  requirements of subsection (3).
25         (e)  When the state attorney has reason to believe that
26  any transferee has violated this section, the state attorney
27  may bring a civil action for injunctive relief, penalties, and
28  any other relief that is appropriate to secure compliance with
29  this section.
30         Section 2.  This act shall take effect October 1, 2001.
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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                            CS/SB 108
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