Senate Bill 1690

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    Florida Senate - 1999                                  SB 1690

    By Senator Geller





    29-1069-99

  1                      A bill to be entitled

  2         An act relating to transfers of structured

  3         settlement agreements; providing definitions;

  4         providing that the transfer of structured

  5         settlement payment rights is not effective

  6         unless the transfer is authorized by a final

  7         court order; requiring that the court order be

  8         based on specified findings; providing

  9         disclosure requirements; requiring that the

10         payee establish that the transfer is necessary

11         to avoid imminent financial hardship; requiring

12         that the payee receive independent professional

13         advice; providing requirements for a transfer

14         that contravenes the terms of the structured

15         settlement; providing that the circuit courts

16         have nonexclusive jurisdiction for authorizing

17         such transfers; providing requirements for

18         filing an application for authorization of a

19         transfer; requiring that notice be served on

20         all interested parties; providing that the

21         requirements of the act may not be waived;

22         providing that the act does not authorize

23         transfers in contravention of applicable law;

24         providing an effective date.

25

26  Be It Enacted by the Legislature of the State of Florida:

27

28         Section 1.  Definitions.--As used in this act, the

29  term:

30

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  1         (1)  "Annuity issuer" means an insurer that has issued

  2  an insurance contract used to fund periodic payments under a

  3  structured settlement.

  4         (2)  "Applicable law" means:

  5         (a)  Federal law;

  6         (b)  The laws of this state, including principles of

  7  equity applied by the courts of this state; and

  8         (c)  The laws of any other jurisdiction:

  9         1.  That is the domicile of the payee or any other

10  interested party;

11         2.  Under whose laws a structured settlement agreement

12  was approved by a court or administrative authority; or

13         3.  In which a settled claim was pending in the court

14  when the parties entered into a structured settlement

15  agreement.

16         (3)  "Dependents" include a payee's spouse and minor

17  children and all other family members and other persons for

18  whom the payee is legally obligated to provide support,

19  including alimony.

20         (4)  "Discounted present value" means the fair present

21  value of future payments, as determined by discounting such

22  payments to the present, using the most recently published

23  applicable federal rate for determining the present value of

24  an annuity, as issued by the United States Internal Revenue

25  Service.

26         (5)  "Favorable tax determination" means, with respect

27  to a proposed transfer of structured settlement payment

28  rights, any of the following authorities that definitively

29  establishes that the federal income tax treatment of the

30  structured settlement for the parties to the structured

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    Florida Senate - 1999                                  SB 1690
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  1  settlement agreement and any qualified assignment agreement,

  2  other than the payee, will not be affected by such transfer:

  3         (a)  A provision of the United States Internal Revenue

  4  Code, Title 26 of the United States Code, as amended, or a

  5  rule of the United States Treasury adopted pursuant thereto;

  6         (b)  A revenue ruling or revenue procedure issued by

  7  the United States Internal Revenue Service;

  8         (c)  A private-letter ruling by the United States

  9  Internal Revenue Service with respect to such transfer; or

10         (d)  A decision of the United States Supreme Court or

11  of a lower federal court to which the United States Internal

12  Revenue Service has acquiesced.

13         (6)  "Federal hardship standard" means a federal

14  standard applicable to transfers of structured settlement

15  payment rights based on findings of a court regarding the

16  payees' needs, as contained in the United States Internal

17  Revenue Code, Title 26 of the United States Code, as amended,

18  or in a rule of the United States Treasury adopted pursuant

19  thereto.

20         (7)  "Independent professional advice" means the advice

21  of an attorney, a certified public accountant, an actuary, or

22  another licensed professional adviser:

23         (a)  Who is engaged by a payee to render advice

24  concerning the legal, tax, and financial implications of a

25  transfer of structured settlement payment rights;

26         (b)  Who is not in any manner affiliated with or

27  compensated by the transferee of such transfer; and

28         (c)  Whose compensation for rendering such advice is

29  not affected by whether a transfer occurs or does not occur.

30         (8)  "Interested parties" means, with respect to any

31  structured settlement, the payee, any beneficiary designated

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  1  under the annuity contract to receive payments following the

  2  payee's death, the annuity issuer, the structured settlement

  3  obligor, and any other party that has continuing rights or

  4  obligations under such structured settlement.

  5         (9)  "Payee" means an individual who is receiving

  6  tax-free damage payments under a structured settlement and

  7  proposes to make a transfer of payment rights under the

  8  settlement.

  9         (10)  "Qualified assignment agreement" means an

10  agreement that provides for a qualified assignment within the

11  meaning of section 130 of the United States Internal Revenue

12  Code, Title 26 of the United States Code, as amended.

13         (11)  "Settled claim" means the original tort claim or

14  workers' compensation claim resolved by a structured

15  settlement.

16         (12)  "Structured settlement" means an arrangement for

17  periodic payment of damages for personal injuries established

18  by settlement or judgment in resolution of a tort claim or for

19  periodic payments in settlement of a workers' compensation

20  claim.

21         (13)  "Structured settlement agreement" means the

22  agreement, judgment, stipulation, or release that embodies the

23  terms of a structured settlement, including the rights of the

24  payee to receive periodic payments.

25         (14)  "Structured settlement obligor" means, with

26  respect to any structured settlement, the party that has the

27  obligation for making continuing periodic payments to the

28  payee under a structured settlement agreement or a qualified

29  assignment agreement.

30         (15)  "Structured settlement payment rights" means

31  rights to receive periodic payments, including lump-sum

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  1  payments, under a structured settlement, whether from the

  2  settlement obligor or the annuity issuer, where:

  3         (a)  The payee is domiciled in this state;

  4         (b)  The structured settlement agreement was approved

  5  by a court in this state; or

  6         (c)  The settled claim was pending before the court of

  7  this state when the parties entered into the structured

  8  settlement agreement.

  9         (16)  "Terms of the structured settlement" include,

10  with respect to any structured settlement, the terms of the

11  structured settlement agreement, the annuity contract, any

12  qualified assignment agreement, and any order or approval of

13  any court authorizing or approving such structured settlement.

14         (17)  "Transfer" means any sale, assignment, pledge,

15  hypothecation, or other form of alienation or encumbrance made

16  by a payee for consideration.

17         (18)  "Transfer agreement" means the agreement that

18  provides for transfer of structured settlement payment rights

19  from a payee to a transferee.

20         Section 2.  Conditions to transfers of structured

21  settlement payment rights.--Any direct or indirect transfer of

22  structured settlement payment rights is not effective and the

23  structured settlement obligor or annuity issuer is not

24  required to make any payment directly or indirectly to any

25  transferee of structured settlement payment rights unless the

26  transfer has been authorized in advance in a final court

27  order. The court order must be based on express findings that:

28         (1)  The transfer complies with this act and does not

29  contravene other applicable law.

30         (2)  The transferee has provided to the payee a

31  disclosure statement in bold type, of at least 14 point in

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  1  size, at least 10 days before the date on which the payee

  2  first incurred any obligation with respect to the transfer.

  3  The disclosure statement must include all of the following:

  4         (a)  The amounts and due dates of the structured

  5  settlement payments to be transferred.

  6         (b)  The aggregate amount of such payments.

  7         (c)  The discounted present value of such payments,

  8  together with the discount rate used in determining the

  9  discounted present value.

10         (d)  The gross amount payable to the payee in exchange

11  for such payments.

12         (e)  An itemized listing of all brokers' commissions;

13  service charges; application fees; processing fees; closing

14  costs; filing fees; administrative fees; legal fees; notary

15  fees; and other commissions, fees, costs, expenses, and

16  charges payable by the payee or deductible from the gross

17  amount otherwise payable to the payee.

18         (f)  The net amount payable to the payee after

19  deducting all commissions, fees, costs, expenses, and charges

20  described in paragraph (e).

21         (g)  The quotient, expressed as a percentage, obtained

22  by dividing the net payment amount by the discounted present

23  value of the payments.

24         (h)  The amount of any penalty and the aggregate amount

25  of any liquidated damages, inclusive of penalties, payable by

26  the payee upon any breach of the transfer agreement by the

27  payee.

28         (3)  The payee has established that the transfer is

29  necessary to enable the payee, the payee's dependents, or

30  both, to avoid imminent financial hardship, and the transfer

31  is not expected to subject the payee, the payee's dependents,

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  1  or both, to undue financial hardship in the future. However,

  2  if, at the time the payee and the transferee entered into the

  3  transfer agreement, a federal hardship standard was in effect,

  4  then, in lieu of this finding, the court must make an express

  5  finding that the transfer qualified under the federal hardship

  6  standard.

  7         (4)  The payee has received independent professional

  8  advice regarding the legal, tax, and financial implications of

  9  the transfer.

10         (5)  If the transfer would contravene the terms of the

11  structured settlement:

12         (a)  The transfer has been expressly approved in

13  writing by:

14         1.  Each interested party. However, if, at the time the

15  payee and the transferee entered into the transfer agreement,

16  a favorable tax determination was in effect, the approval of

17  the annuity issuer and the structured settlement obligor is

18  not required if all other interested parties approve the

19  transfer and waive any and all rights to require that the

20  transferred payments be made to the payee in accordance with

21  the terms of the structured settlement; and

22         2.  The court, other than the court from which

23  authorization of the transfer is sought under this act, which

24  previously approved the structured settlement.

25         (b)  Signed originals of all approvals required under

26  paragraph (a) have been filed with the court from which

27  authorization of the transfer is sought, and originals or

28  copies have been furnished to all interested parties.

29         (6)  The transferee has given written notice of the

30  transferee's name, address, and taxpayer identification number

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  1  to the annuity issuer and the structured settlement obligor,

  2  and has filed a copy of such notice with the court.

  3         Section 3.  Jurisdiction; procedure for approval of

  4  transfers; construction.--

  5         (1)  The circuit courts of this state have nonexclusive

  6  jurisdiction over any application for authorization of a

  7  transfer of structured settlement payment rights.

  8         (2)  Not less than 20 days before the scheduled hearing

  9  on any application for authorization of a transfer of

10  structured settlement payment rights, the transferee shall

11  file with the court, and serve on all interested parties, a

12  notice of the proposed transfer and the application for its

13  authorization, including:

14         (a)  A copy of the transferee's application;

15         (b)  A copy of the transfer agreement;

16         (c)  A copy of the disclosure statement required under

17  subsection (2) of section 2;

18         (d)  Notification that any interested party is entitled

19  to support, oppose, or otherwise respond to the transferee's

20  application, either in person or by counsel, by submitting

21  written comments to the court or by participating in the

22  hearing; and

23         (e)  Notification of the time and place of the hearing

24  and notification that a response to the application must be

25  filed within 15 days after service of the transferee's notice.

26         (3)(a)  The provisions of this act may not be waived.

27         (b)  A payee who proposes to transfer structured

28  settlement payment rights does not incur any penalty, forfeit

29  any application for other payment, or otherwise incur any

30  liability to the proposed transferee based on any failure of

31  such transfer to satisfy the conditions of section 2.

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  1         (4)  This act does not authorize any transfer of

  2  structured settlement payment rights in contravention of

  3  applicable law and does not give effect to any transfer of

  4  structured settlement payment rights which is invalid under

  5  applicable law.

  6         Section 4.  This act shall take effect July 1, 1999.

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  9                          SENATE SUMMARY

10    Provides procedures under which a person may transfer the
      right to receive payments under a structured settlement
11    agreement. Requires that any such agreement be approved
      by the circuit court. Provides that the transferee make
12    certain disclosures to the payee. Requires that the court
      determine that the transfer is necessary to avoid
13    imminent financial hardship to the payee. Requires that
      the payee receive independent professional advice.
14    Provides requirements for filing an application with the
      court for the authorization of such a transfer. Requires
15    that notice be served on all interested parties. (See
      bill for details.)
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