Senate Bill sb0108c2

CODING: Words stricken are deletions; words underlined are additions.
    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:

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                     CS for CS for SB 108
    308-1568-01




  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

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                     CS for CS for SB 108
    308-1568-01




  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:

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                     CS for CS for SB 108
    308-1568-01




  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.

31

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                     CS for CS for SB 108
    308-1568-01




  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

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                     CS for CS for SB 108
    308-1568-01




  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

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                     CS for CS for SB 108
    308-1568-01




  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

31

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                     CS for CS for SB 108
    308-1568-01




  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

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                     CS for CS for SB 108
    308-1568-01




  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);

31

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                     CS for CS for SB 108
    308-1568-01




  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.

31

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                     CS for CS for SB 108
    308-1568-01




  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.

31

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2001                     CS for CS for SB 108
    308-1568-01




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                            CS/SB 108

  3

  4  Deletes unnecessary references to judges of compensation
    claims.
  5

  6

  7

  8

  9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

                                  12

CODING: Words stricken are deletions; words underlined are additions.