HOUSE AMENDMENT
                                                   Bill No. HB 767   Barcode 053069
    Amendment No. 01 (for drafter's use only)
                            CHAMBER ACTION
              Senate                               House
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 5                                           ORIGINAL STAMP BELOW
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11  The Committee on Judicial Oversight offered the following:
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13         Amendment (with title amendment) 
14  Remove from the bill:  Everything after the enacting clause
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16  and insert in lieu thereof:  
17         Section 1.  Transfers of structured-settlement-payment
18  rights.--
19         (1)  PURPOSE.--The purpose of this section is to
20  protect recipients of structured settlements who are involved
21  in the process of transferring structured-settlement-payment
22  rights.
23         (2)  DEFINITIONS.--As used in this section, the term:
24         (a)  "Annuity issuer" means an insurer that has issued
25  an annuity contract to be used to fund periodic payments under
26  a structured settlement.
27         (b)  "Applicable law" means any of the following, as
28  applicable in interpreting the terms of a structured
29  settlement:
30         1.  The laws of the United States;
31         2.  The laws of this state, including principles of
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    File original & 9 copies    03/20/01                          
    hjo0006                     08:15 pm         00767-jo  -053069

HOUSE AMENDMENT Bill No. HB 767 Barcode 053069 Amendment No. 01 (for drafter's use only) 1 equity applied in the courts of this state; and 2 3. The laws of any other jurisdiction: 3 a. That is the domicile of the payee or any other 4 interested party; 5 b. Under whose laws a structured-settlement agreement 6 was approved by a court; or 7 c. In whose courts a settled claim was pending when 8 the parties entered into a structured-settlement agreement. 9 (c) "Applicable federal rate" means the most recently 10 published applicable rate for determining the present value of 11 an annuity, as issued by the United States Internal Revenue 12 Service pursuant to section 7520 of the United States Internal 13 Revenue Code, as amended. 14 (d) "Assignee" means any party that acquires 15 structured-settlement-payment rights directly or indirectly 16 from a transferee of such rights. 17 (e) "Dependents" means a payee's spouse and minor 18 children and all other family members and other persons for 19 whom the payee is legally obligated to provide support, 20 including spousal maintenance. 21 (f) "Discount and finance charge" means the sum of all 22 charges that are payable directly or indirectly from assigned 23 structured-settlement payments and imposed directly or 24 indirectly by the transferee and that are incident to a 25 transfer of structured-settlement-payment rights, including: 26 1. Interest charges, discounts, or other compensation 27 for the time value of money; 28 2. All application, origination, processing, 29 underwriting, closing, filing, and notary fees and all similar 30 charges, however denominated; and 31 3. All charges for commissions or brokerage, 2 File original & 9 copies 03/20/01 hjo0006 08:15 pm 00767-jo -053069
HOUSE AMENDMENT Bill No. HB 767 Barcode 053069 Amendment No. 01 (for drafter's use only) 1 regardless of the identity of the party to whom such charges 2 are paid or payable. 3 4 The term does not include any fee or other obligation incurred 5 by a payee in obtaining independent professional advice 6 concerning a transfer of structured-settlement-payment rights. 7 (g) "Discounted present value" means, with respect to 8 a proposed transfer of structured-settlement-payment rights, 9 the fair present value of future payments, as determined by 10 discounting the payments to the present using the most 11 recently published applicable federal rate as the discount 12 rate. 13 (h) "Independent professional advice" means advice of 14 an attorney, certified public accountant, actuary, or other 15 licensed professional adviser: 16 1. Who is engaged by a payee to render advice 17 concerning the legal, tax, and financial implications of a 18 transfer of structured-settlement-payment rights; 19 2. Who is not in any manner affiliated with or 20 compensated by the transferee of the transfer; and 21 3. Whose compensation for providing the advice is not 22 affected by whether a transfer occurs or does not occur. 23 (i) "Interested parties" means: 24 1. The payee; 25 2. Any beneficiary irrevocably designated under the 26 annuity contract to receive payments following the payee's 27 death or, if such designated beneficiary is a minor, the 28 designated beneficiary's parent or guardian; 29 3. The annuity issuer; 30 4. The structured-settlement obligor; or 31 5. Any other party who has continuing rights or 3 File original & 9 copies 03/20/01 hjo0006 08:15 pm 00767-jo -053069
HOUSE AMENDMENT Bill No. HB 767 Barcode 053069 Amendment No. 01 (for drafter's use only) 1 obligations under the structured settlement. 2 (j) "Payee" means an individual who is receiving 3 tax-free damage payments under a structured settlement and 4 proposes to make a transfer of payment rights under the 5 structured settlement. 6 (k) "Qualified-assignment agreement" means an 7 agreement providing for a qualified assignment, as authorized 8 by Title 26, section 130 of the United States Internal Revenue 9 Code, as amended. 10 (l) "Settled claim" means the original tort claim 11 resolved by a structured settlement. 12 (m) "Structured settlement" means an arrangement for 13 periodic payment of damages for personal injuries established 14 by settlement or judgment in resolution of a tort claim. 15 (n) "Structured-settlement agreement" means the 16 agreement, judgment, stipulation, or release embodying the 17 terms of a structured settlement, including the rights of the 18 payee to receive periodic payments. 19 (o) "Structured-settlement obligor" means the party 20 who is obligated to make continuing periodic payments to the 21 payee under a structured-settlement agreement or a 22 qualified-assignment agreement. 23 (p) "Structured-settlement-payment rights" means 24 rights to receive periodic payments, including lump-sum 25 payments under a structured settlement, whether from the 26 structured-settlement obligor or the annuity issuer, if: 27 1. The payee or any other interested party is 28 domiciled in this state; 29 2. The structured settlement agreement was approved by 30 a court; or 31 3. The settled claim was pending before the courts of 4 File original & 9 copies 03/20/01 hjo0006 08:15 pm 00767-jo -053069
HOUSE AMENDMENT Bill No. HB 767 Barcode 053069 Amendment No. 01 (for drafter's use only) 1 this state when the parties entered into the 2 structured-settlement agreement. 3 (q) "Terms of the structured settlement" means the 4 terms of the structured-settlement agreement; the annuity 5 contract; a qualified-assignment agreement; or an order or 6 approval of a court or other government authority authorizing 7 or approving the structured settlement. 8 (r) "Transfer" means a sale, assignment, pledge, 9 hypothecation, or other form of alienation or encumbrance made 10 by a payee for consideration. 11 (s) "Transfer agreement" means the agreement providing 12 for transfer of structured-settlement-payment rights from a 13 payee to a transferee. 14 (t) "Transferee" means a person who is receiving or 15 who will receive structured-settlement-payment rights 16 resulting from a transfer. 17 (3) CONDITIONS TO TRANSFERS OF 18 STRUCTURED-SETTLEMENT-PAYMENT RIGHTS AND STRUCTURED-SETTLEMENT 19 AGREEMENTS.-- 20 (a) A direct or indirect transfer of 21 structured-settlement-payment rights is not effective and a 22 structured-settlement obligor or annuity issuer is not 23 required to make a payment directly or indirectly to a 24 transferee of structured-settlement-payment rights unless the 25 transfer is authorized in advance in a final order by a court 26 of competent jurisdiction which is based on the written 27 express findings by the court that: 28 1. The transfer complies with this section and does 29 not contravene other applicable law; 30 2. At least 10 days before the date on which the payee 31 first incurred an obligation with respect to the transfer, the 5 File original & 9 copies 03/20/01 hjo0006 08:15 pm 00767-jo -053069
HOUSE AMENDMENT Bill No. HB 767 Barcode 053069 Amendment No. 01 (for drafter's use only) 1 transferee provided to the payee a disclosure statement in 2 bold type, no smaller than 14 points in size, which specifies: 3 a. The amounts and due dates of the 4 structured-settlement payments to be transferred; 5 b. The aggregate amount of the payments; 6 c. The discounted present value of the payments, 7 together with the discount rate used in determining the 8 discounted present value; 9 d. The gross amount payable to the payee in exchange 10 for the payments; 11 e. An itemized listing of all brokers' commissions, 12 service charges, application fees, processing fees, closing 13 costs, filing fees, referral fees, administrative fees, legal 14 fees, and notary fees and other commissions, fees, costs, 15 expenses, and charges payable by the payee or deductible from 16 the gross amount otherwise payable to the payee; 17 f. The net amount payable to the payee after deducting 18 all commissions, fees, costs, expenses, and charges described 19 in sub-subparagraph e.; 20 g. The quotient, expressed as a percentage, obtained 21 by dividing the net payment amount by the discounted present 22 value of the payments, which must be disclosed in the 23 following statement: "The net amount that you will receive 24 from us in exchange for your future structured-settlement 25 payments represent __ percent of the estimated current value 26 of the payments"; 27 h. The effective annual interest rate, which must be 28 disclosed in the following statement: "Based on the net amount 29 that you will receive from us and the amounts and timing of 30 the structured-settlement payments that you are turning over 31 to us, you will, in effect, be paying interest to us at a rate 6 File original & 9 copies 03/20/01 hjo0006 08:15 pm 00767-jo -053069
HOUSE AMENDMENT Bill No. HB 767 Barcode 053069 Amendment No. 01 (for drafter's use only) 1 of __ percent per year"; and 2 i. The amount of any penalty and the aggregate amount 3 of any liquidated damages, including penalties, payable by the 4 payee in the event of a breach of the transfer agreement by 5 the payee; 6 3. The payee has established that the transfer is in 7 the best interests of the payee and the payee's dependents; 8 4. The payee has received, or waived his or her right 9 to receive, independent professional advice regarding the 10 legal, tax, and financial implications of the transfer; 11 5. The transferee has given written notice of the 12 transferee's name, address, and taxpayer identification number 13 to the annuity issuer and the structured-settlement obligor 14 and has filed a copy of the notice with the court or judge of 15 compensation claims; 16 6. The transfer agreement provides that if the payee 17 is domiciled in this state, any disputes between the parties 18 will be governed in accordance with the laws of this state and 19 that the domicile state of the payee is the proper venue to 20 bring any cause of action arising out of a breach of the 21 agreement; and 22 7. The court has determined that the net amount 23 payable to the payee is fair, just, and reasonable under the 24 circumstances then existing. 25 (b) If a proposed transfer would contravene the terms 26 of the structured settlement, upon the filing of a written 27 objection by any interested party and after considering the 28 objection and any response to it, the court may grant, deny, 29 or impose conditions upon the proposed transfer which the 30 court deems just and proper given the facts and circumstances 31 and in accordance with established principles of law. Any 7 File original & 9 copies 03/20/01 hjo0006 08:15 pm 00767-jo -053069
HOUSE AMENDMENT Bill No. HB 767 Barcode 053069 Amendment No. 01 (for drafter's use only) 1 order approving a transfer must require that the transferee 2 indemnify the annuity issuer and the structured-settlement 3 obligor for any liability, including reasonable costs and 4 attorney's fees, which arises from compliance by the issuer or 5 obligor with the order of the court. 6 (c) Any provision in a transfer agreement which gives 7 a transferee power to confess judgment against a payee is 8 unenforceable to the extent that the amount of the judgment 9 would exceed the amount paid by the transferee to the payee, 10 less any payments received from the structured-settlement 11 obligor or payee. 12 (d) In negotiating a structured settlement of claims 13 brought by or on behalf of a claimant who is domiciled in this 14 state, the structured-settlement obligor must disclose in 15 writing to the claimant or the claimant's legal representative 16 all of the following information that is not otherwise 17 specified in the structured-settlement agreement: 18 1. The amounts and due dates of the periodic payments 19 to be made under the structured-settlement agreement. In the 20 case of payments that will be subject to periodic percentage 21 increases, the amounts of future payments may be disclosed by 22 identifying the base payment amount, the amount and timing of 23 scheduled increases, and the manner in which increases will be 24 compounded; 25 2. The amount of the premium payable to the annuity 26 issuer; 27 3. The discounted present value of all periodic 28 payments that are not life-contingent, together with the 29 discount rate used in determining the discounted present 30 value; 31 4. The nature and amount of any costs that may be 8 File original & 9 copies 03/20/01 hjo0006 08:15 pm 00767-jo -053069
HOUSE AMENDMENT Bill No. HB 767 Barcode 053069 Amendment No. 01 (for drafter's use only) 1 deducted from any of the periodic payments; 2 5. Where applicable, that any transfer of the periodic 3 payments is prohibited by the terms of the structured 4 settlement and may otherwise be prohibited or restricted under 5 applicable law; and 6 6. That any transfer of the periodic payments by the 7 claimant may subject the claimant to serious adverse tax 8 consequences. 9 (4) JURISDICTION; PROCEDURE FOR APPROVAL OF 10 TRANSFERS.--At least 20 days before the scheduled hearing on 11 an application for authorizing a transfer of 12 structured-settlement-payment rights under this section, the 13 transferee must file with the court and all interested parties 14 a notice of the proposed transfer and the application for its 15 authorization. The notice must include: 16 (a) A copy of the transferee's application to the 17 court or judge of compensation claims; 18 (b) A copy of the transfer agreement; 19 (c) A copy of the disclosure statement required under 20 subsection (3); 21 (d) Notification that an interested party may support, 22 oppose, or otherwise respond to the transferee's application, 23 in person or by counsel, by submitting written comments to the 24 court or by participating in the hearing; and 25 (e) Notification of the time and place of the hearing 26 and notification of the manner in which and the time by which 27 any written response to the application must be filed in order 28 to be considered by the court. A written response to an 29 application must be filed within 15 days after service of the 30 transferee's notice. 31 (5) WAIVER PROHIBITED; NO PENALTIES INCURRED.-- 9 File original & 9 copies 03/20/01 hjo0006 08:15 pm 00767-jo -053069
HOUSE AMENDMENT Bill No. HB 767 Barcode 053069 Amendment No. 01 (for drafter's use only) 1 (a) The provisions of this section may not be waived. 2 (b) If a transfer of structured-settlement-payment 3 rights fails to satisfy the conditions of subsection (3), the 4 payee who proposed the transfer does not incur any penalty, 5 forfeit any application fee or other payment, or otherwise 6 incur any liability to the proposed transferee. 7 (6) NONCOMPLIANCE.-- 8 (a) If a transferee violates the requirements for 9 stipulating the discount and finance charge provided for in 10 subsection (3), neither the transferee nor any assignee may 11 collect from the transferred payments, or from the payee, any 12 amount in excess of the net advance amount, and the payee may 13 recover from the transferee or any assignee: 14 1. A refund of any excess amounts previously received 15 by the transferee or any assignee; 16 2. A penalty in an amount determined by the court, but 17 not in excess of three times the aggregate amount of the 18 discount and finance charge; and 19 3. Reasonable costs and attorney's fees. 20 (b) If the transferee violates the disclosure 21 requirements in subsection (3), the transferee and any 22 assignee are liable to the payee for: 23 1. A penalty in an amount determined by the court, but 24 not in excess of three times the amount of the discount and 25 finance charge; and 26 2. Reasonable costs and attorney's fees. 27 (c) A transferee or assignee is not liable for any 28 penalty in any action brought under this section if the 29 transferee or assignee establishes by a preponderance of 30 evidence that the violation was not intentional and resulted 31 from a bona fide error, notwithstanding the transferee's 10 File original & 9 copies 03/20/01 hjo0006 08:15 pm 00767-jo -053069
HOUSE AMENDMENT Bill No. HB 767 Barcode 053069 Amendment No. 01 (for drafter's use only) 1 maintenance of procedures reasonably designed to avoid such 2 errors. 3 (d) Notwithstanding any other law, an action may not 4 be brought under this section more than 1 year after the due 5 date of: 6 1. The last transferred structured-settlement payment, 7 in the case of a violation of the requirements for stipulating 8 the discount and finance charge provided for in subsection 9 (3). 10 2. The first transferred structured-settlement 11 payment, in the case of a violation of the disclosure 12 requirements of subsection (3). 13 (e) When the state attorney has reason to believe that 14 any transferee has violated this section, the state attorney 15 may bring a civil action for injunctive relief, penalties, and 16 any other relief that is appropriate to secure compliance with 17 this section. 18 Section 2. This act shall take effect October 1, 2001. 19 20 21 ================ T I T L E A M E N D M E N T =============== 22 And the title is amended as follows: 23 remove from the title of the bill: the entire title 24 25 and insert in lieu thereof: 26 A bill to be entitled 27 An act relating to the transfer of structured 28 settlements; specifying the purpose of the act; 29 providing definitions; providing requirements 30 for the direct or indirect transfer of 31 structured-settlement-payment rights; requiring 11 File original & 9 copies 03/20/01 hjo0006 08:15 pm 00767-jo -053069
HOUSE AMENDMENT Bill No. HB 767 Barcode 053069 Amendment No. 01 (for drafter's use only) 1 that any such transfer be approved by a court; 2 requiring that the court make certain findings 3 with respect to the transfer; authorizing an 4 interested party to file an objection to a 5 proposed transfer; providing requirements for 6 an order approving a transfer; requiring that 7 an obligor make certain disclosures to a 8 claimant in negotiating a settlement of claims; 9 requiring a transferee to provide certain 10 notice with respect to a proposed transfer of 11 structured-settlement-payment rights; providing 12 for penalties to be imposed for certain 13 violations of the act; authorizing the state 14 attorney to bring an action for injunctive 15 relief; providing an effective date. 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 12 File original & 9 copies 03/20/01 hjo0006 08:15 pm 00767-jo -053069