HOUSE AMENDMENT
                                     Bill No. CS for CS for SB 108
    Amendment No. ___ (for drafter's use only)
                            CHAMBER ACTION
              Senate                               House
                                   .                    
                                   .                    
 1                                 .                    
                                   .                    
 2                                 .                    
                                   .                    
 3                                 .                    
                                   .                    
 4  ______________________________________________________________
 5                                           ORIGINAL STAMP BELOW
 6  
 7  
 8  
 9  
10  ______________________________________________________________
11  Representative(s) Brown offered the following:
12  
13         Amendment (with title amendment) 
14         On page 5, line 1 through page 11, line 29
15  remove from the bill:  all of said lines
16  
17  and insert in lieu
18  thereof:  (p)  "Structured-settlement-payment rights" means
19  rights to receive periodic payments, including lump-sum
20  payments under a structured settlement, whether from the
21  structured-settlement obligor or the annuity issuer, if:
22         1.  The payee or any other interested party is
23  domiciled in this state;
24         2.  The structured settlement agreement was approved by
25  a court of this state; or
26         3.  The settled claim was pending before the courts of
27  this state when the parties entered into the
28  structured-settlement agreement.
29         (q)  "Terms of the structured settlement" means the
30  terms of the structured-settlement agreement; the annuity
31  contract; a qualified-assignment agreement; or an order or
                                  1
    File original & 9 copies    04/27/01                          
    hin0002                     11:18 am         00108-0005-983481

HOUSE AMENDMENT Bill No. CS for CS for SB 108 Amendment No. ___ (for drafter's use only) 1 approval of a court or other government authority authorizing 2 or approving the structured settlement. 3 (r) "Transfer" means a sale, assignment, pledge, 4 hypothecation, or other form of alienation or encumbrance made 5 by a payee for consideration. 6 (s) "Transfer agreement" means the agreement providing 7 for transfer of structured-settlement-payment rights from a 8 payee to a transferee. 9 (t) "Transferee" means a person who is receiving or 10 who will receive structured-settlement-payment rights 11 resulting from a transfer. 12 (3) CONDITIONS TO TRANSFERS OF 13 STRUCTURED-SETTLEMENT-PAYMENT RIGHTS AND STRUCTURED-SETTLEMENT 14 AGREEMENTS.-- 15 (a) A direct or indirect transfer of 16 structured-settlement-payment rights is not effective and a 17 structured-settlement obligor or annuity issuer is not 18 required to make a payment directly or indirectly to a 19 transferee of structured-settlement-payment rights unless the 20 transfer is authorized in advance in a final order by a court 21 of competent jurisdiction which is based on the written 22 express findings by the court that: 23 1. The transfer complies with this section and does 24 not contravene other applicable law; 25 2. At least 10 days before the date on which the payee 26 first incurred an obligation with respect to the transfer, the 27 transferee provided to the payee a disclosure statement in 28 bold type, no smaller than 14 points in size, which specifies: 29 a. The amounts and due dates of the 30 structured-settlement payments to be transferred; 31 b. The aggregate amount of the payments; 2 File original & 9 copies 04/27/01 hin0002 11:18 am 00108-0005-983481
HOUSE AMENDMENT Bill No. CS for CS for SB 108 Amendment No. ___ (for drafter's use only) 1 c. The discounted present value of the payments, 2 together with the discount rate used in determining the 3 discounted present value; 4 d. The gross amount payable to the payee in exchange 5 for the payments; 6 e. An itemized listing of all brokers' commissions, 7 service charges, application fees, processing fees, closing 8 costs, filing fees, referral fees, administrative fees, legal 9 fees, and notary fees and other commissions, fees, costs, 10 expenses, and charges payable by the payee or deductible from 11 the gross amount otherwise payable to the payee; 12 f. The net amount payable to the payee after deducting 13 all commissions, fees, costs, expenses, and charges described 14 in sub-subparagraph e.; 15 g. The quotient, expressed as a percentage, obtained 16 by dividing the net payment amount by the discounted present 17 value of the payments, which must be disclosed in the 18 following statement: "The net amount that you will receive 19 from us in exchange for your future structured-settlement 20 payments represent __ percent of the estimated current value 21 of the payments based upon the discounted value using the 22 applicable federal rate"; 23 h. The effective annual interest rate, which must be 24 disclosed in the following statement: "Based on the net amount 25 that you will receive from us and the amounts and timing of 26 the structured-settlement payments that you are turning over 27 to us, you will, in effect, be paying interest to us at a rate 28 of __ percent per year"; and 29 i. The amount of any penalty and the aggregate amount 30 of any liquidated damages, including penalties, payable by the 31 payee in the event of a breach of the transfer agreement by 3 File original & 9 copies 04/27/01 hin0002 11:18 am 00108-0005-983481
HOUSE AMENDMENT Bill No. CS for CS for SB 108 Amendment No. ___ (for drafter's use only) 1 the payee; 2 3. The payee has established that the transfer is in 3 the best interests of the payee, taking into account the 4 welfare and support of the payee's dependents; 5 4. The payee has received, or waived his or her right 6 to receive, independent professional advice regarding the 7 legal, tax, and financial implications of the transfer; 8 5. The transferee has given written notice of the 9 transferee's name, address, and taxpayer identification number 10 to the annuity issuer and the structured-settlement obligor 11 and has filed a copy of the notice with the court; 12 6. The transfer agreement provides that if the payee 13 is domiciled in this state, any disputes between the parties 14 will be governed in accordance with the laws of this state and 15 that the domicile state of the payee is the proper venue to 16 bring any cause of action arising out of a breach of the 17 agreement; and 18 7. The court has determined that the net amount 19 payable to the payee is fair, just, and reasonable under the 20 circumstances then existing. 21 (b) If a proposed transfer would contravene the terms 22 of the structured settlement, upon the filing of a written 23 objection by any interested party and after considering the 24 objection and any response to it, the court may grant, deny, 25 or impose conditions upon the proposed transfer which the 26 court deems just and proper given the facts and circumstances 27 and in accordance with established principles of law. Any 28 order approving a transfer must require that the transferee 29 indemnify the annuity issuer and the structured-settlement 30 obligor for any liability, including reasonable costs and 31 attorney's fees, which arises from compliance by the issuer or 4 File original & 9 copies 04/27/01 hin0002 11:18 am 00108-0005-983481
HOUSE AMENDMENT Bill No. CS for CS for SB 108 Amendment No. ___ (for drafter's use only) 1 obligor with the order of the court. 2 (c) Any provision in a transfer agreement which gives 3 a transferee power to confess judgment against a payee is 4 unenforceable to the extent that the amount of the judgment 5 would exceed the amount paid by the transferee to the payee, 6 less any payments received from the structured-settlement 7 obligor or payee. 8 (d) In negotiating a structured settlement of claims 9 brought by or on behalf of a claimant who is domiciled in this 10 state, the structured-settlement obligor must disclose in 11 writing to the claimant or the claimant's legal representative 12 all of the following information that is not otherwise 13 specified in the structured-settlement agreement: 14 1. The amounts and due dates of the periodic payments 15 to be made under the structured-settlement agreement. In the 16 case of payments that will be subject to periodic percentage 17 increases, the amounts of future payments may be disclosed by 18 identifying the base payment amount, the amount and timing of 19 scheduled increases, and the manner in which increases will be 20 compounded; 21 2. The amount of the premium payable to the annuity 22 issuer; 23 3. The discounted present value of all periodic 24 payments that are not life-contingent, together with the 25 discount rate used in determining the discounted present 26 value; 27 4. The nature and amount of any costs that may be 28 deducted from any of the periodic payments; 29 5. Where applicable, that any transfer of the periodic 30 payments is prohibited by the terms of the structured 31 settlement and may otherwise be prohibited or restricted under 5 File original & 9 copies 04/27/01 hin0002 11:18 am 00108-0005-983481
HOUSE AMENDMENT Bill No. CS for CS for SB 108 Amendment No. ___ (for drafter's use only) 1 applicable law; and 2 6. That any transfer of the periodic payments by the 3 claimant may subject the claimant to serious adverse tax 4 consequences. 5 (4) JURISDICTION; PROCEDURE FOR APPROVAL OF 6 TRANSFERS.--At least 20 days before the scheduled hearing on 7 an application for authorizing a transfer of 8 structured-settlement-payment rights under this section, the 9 transferee must file with the court and all interested parties 10 a notice of the proposed transfer and the application for its 11 authorization. The notice must include: 12 (a) A copy of the transferee's application to the 13 court; 14 (b) A copy of the transfer agreement; 15 (c) A copy of the disclosure statement required under 16 subsection (3); 17 (d) Notification that an interested party may support, 18 oppose, or otherwise respond to the transferee's application, 19 in person or by counsel, by submitting written comments to the 20 court or by participating in the hearing; and 21 (e) Notification of the time and place of the hearing 22 and notification of the manner in which and the time by which 23 any written response to the application must be filed in order 24 to be considered by the court. A written response to an 25 application must be filed within 15 days after service of the 26 transferee's notice. 27 (5) WAIVER PROHIBITED; NO PENALTIES INCURRED.-- 28 (a) The provisions of this section may not be waived. 29 (b) If a transfer of structured-settlement-payment 30 rights fails to satisfy the conditions of subsection (3), the 31 payee who proposed the transfer does not incur any penalty, 6 File original & 9 copies 04/27/01 hin0002 11:18 am 00108-0005-983481
HOUSE AMENDMENT Bill No. CS for CS for SB 108 Amendment No. ___ (for drafter's use only) 1 forfeit any application fee or other payment, or otherwise 2 incur any liability to the proposed transferee. 3 (6) NONCOMPLIANCE.-- 4 (a) If a transferee violates the requirements for 5 stipulating the discount and finance charge provided for in 6 subsection (3), neither the transferee nor any assignee may 7 collect from the transferred payments, or from the payee, any 8 amount in excess of the net advance amount, and the payee may 9 recover from the transferee or any assignee: 10 1. A refund of any excess amounts previously received 11 by the transferee or any assignee; 12 2. A penalty in an amount determined by the court, but 13 not in excess of three times the aggregate amount of the 14 discount and finance charge; and 15 3. Reasonable costs and attorney's fees. 16 (b) If the transferee violates the disclosure 17 requirements in subsection (3), the transferee and any 18 assignee are liable to the payee for: 19 1. A penalty in an amount determined by the court, but 20 not in excess of three times the amount of the discount and 21 finance charge; and 22 2. Reasonable costs and attorney's fees. 23 (c) A transferee or assignee is not liable for any 24 penalty in any action brought under this section if the 25 transferee or assignee establishes by a preponderance of 26 evidence that the violation was not intentional and resulted 27 from a bona fide error, notwithstanding the transferee's 28 maintenance of procedures reasonably designed to avoid such 29 errors. 30 (d) Notwithstanding any other law, an action may not 31 be brought under this section more than 1 year after the due 7 File original & 9 copies 04/27/01 hin0002 11:18 am 00108-0005-983481
HOUSE AMENDMENT Bill No. CS for CS for SB 108 Amendment No. ___ (for drafter's use only) 1 date of: 2 1. The last transferred structured-settlement payment, 3 in the case of a violation of the requirements for stipulating 4 the discount and finance charge provided for in subsection 5 (3). 6 2. The first transferred structured-settlement 7 payment, in the case of a violation of the disclosure 8 requirements of subsection (3). 9 (e) When any interested party has reason to believe 10 that any transferee has violated this section, any interested 11 party may bring a civil action for injunctive relief, 12 penalties, and any other relief that is appropriate to secure 13 compliance with this section. 14 15 16 ================ T I T L E A M E N D M E N T =============== 17 And the title is amended as follows: 18 On page 1, lines 19-20 19 remove from the title of the bill: all of said lines 20 21 and insert in lieu thereof: 22 violations of the act; authorizing an 23 interested party to bring an action for 24 injunctive 25 26 27 28 29 30 31 8 File original & 9 copies 04/27/01 hin0002 11:18 am 00108-0005-983481