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Case Number: BS161878??? Hearing Date: November 07, 2016??? Dept: 37 CASE NAME: In re Griffin COURT?S TENTATIVE RULING The petition is granted. Counsel for Petitioner to give notice. STATEMENT OF THE CASE This is a petition for approval of a transfer of structured settlement payment rights from Nicholas Griffin (Payee) to Petitioner Freedom Financial Solutions, LLC. The subject of the petition is Payee?s right to structured settlement payments arising out of a 1999 agreement. In exchange for $23,695.73, Payee has agreed to transfer to Petitioner the rights to payments totaling $90,644, which are characterized as follows: ?148 monthly life contingent payments in the amount of $515.00 with 3% increases every May 14th, which will become due and payable . . . commencing May 14, 2017 and continuing through and including August 14, 2029.? These payments have a discounted present value of $79,231.52. DISCUSSION Service. Insurance Code section 10139.5, subdivision (f)(2), requires service of a petition not less than 20 days prior to the hearing. Petitioner timely served notice of the November 7, 2016 hearing date on October 14, 2016. Standard. A direct or indirect transfer of structured settlement payment rights is not effective, and a structured settlement obligor is not required to make any payment, unless the transfer has been approved in advance in a final court order. (Ins. Code, ? 10139.5, subd. (a).) The court must make written findings in the order that: (1) The transfer is in the best interests of the payee, taking into account the payee?s dependents. (2) The payee has been advised in writing to seek independent professional advice and has either received that advice or knowingly waived it in writing. (3) The transferee has provided the payee with a disclosure form that complies with other sections of the code on structured settlement transfers. (See Ins. Code, ?? 10136 and 10138). (4) The transfer does not contravene any applicable statute or court order. (5) The payee understands the terms of the transfer agreement. (6) The payee understands and does not wish to exercise the payee?s right to cancel the transfer agreement. (Ins. Code, ? 10139.5, subd. (a).) Best interests of the payee. In determining whether to approve the proposed transaction, including whether the transfer is fair, reasonable and in the payee?s best interest, and taking into account the welfare and support of the payee?s dependents, the court considers the totality of the circumstances, including the following factors: (1) The reasonable preference and desire of the payee to complete the proposed transaction, taking into account the payee?s age, mental capacity, legal knowledge, and apparent maturity level. (2) The stated purpose of the transfer. (3) The payee?s financial and economic situation. (4) The terms of the transaction, including whether the payee is transferring monthly or lump sum payments or all or a portion of his or her future payments. (5) Whether, when the settlement was completed, the future periodic payments that are the subject of the proposed transfer were intended to pay for the future medical care and treatment of the payee relating to injuries sustained by the payee in the incident that was the subject of the settlement and whether the payee still needs those future payments to pay for that future care and treatment. (6) Whether, when the settlement was completed, the future periodic payments that are the subject of the proposed transfer were intended to provide for the necessary living expenses of the payee and whether the payee still needs the future structured settlement payments to pay for future necessary living expenses. (7) Whether the payee is, at the time of the proposed transfer, likely to require future medical care and treatment for the injuries that the payee sustained in connection with the incident that was the subject of the settlement and whether the payee lacks other resources, including insurance, sufficient to cover those future medical expenses. (8) Whether the payee has other means of income or support, aside from the structured settlement payments that are the subject of the proposed transfer, sufficient to meet the payee?s future financial obligations for maintenance and support of the payee?s dependents, specifically including, but not limited to, the payee?s child support obligations, if any. The payee shall disclose to the transferee and the court his or her court-ordered or child support or maintenance obligations for the court?s consideration. (9) Whether the financial terms of the transaction?including the discount rate applied to determine the amount to be paid to the payee, the expenses and costs of the transaction for both the payee and the transferee, the size of the transaction, and the available financial alternatives to the payee to achieve the payee?s stated objectives?are fair and reasonable. (10) Whether the payee completed previous transactions involving the payee?s structured settlement payments and the timing and size of the previous transactions and whether the payee was satisfied with any previous transaction. (11) Whether the transferee attempted previous transactions involving the payee?s structured settlement payments that were denied, or that were dismissed or withdrawn prior to a decision on the merits, within the past five years. (12) Whether, to the best of the transferee?s knowledge after making inquiry with the payee, the payee has attempted structured settlement payment transfer transactions with another person or entity, other than the transferee, that were denied, or which were dismissed or withdrawn prior to a decision on the merits, within the past five years. (13) Whether the payee, or his or her family or dependents, are in or are facing a hardship situation. (14) Whether the payee received independent legal or financial advice regarding the transaction. The court may deny or defer ruling on the petition for approval of a transfer of structured settlement payment rights if the court believes that the payee does not fully understand the proposed transaction and that independent legal or financial advice regarding the transaction should be obtained by the payee. (15) Any other factors or facts that the payee, the transferee, or any other interested party calls to the attention of the reviewing court or that the court determines should be considered in reviewing the transfer. (Ins. Code, ? 10139.5, subd. (b).) Payee?s Declaration. Payee is 35 years old, married, has two children, and resides in Lancaster, California. He owns a paint contracting business and intends to use the proceeds from the transfer to invest in his business. For instance, he intends to purchase another van, lease premises as a business location/office, and build a website for the business. Payee states that he will not be using the proceeds for day-to-day expenses and has sufficient income to support himself. He states that he believes the transfer is in his best interests and will improve his quality of life. Payee has completed four similar previous transactions. First, in 2002, Payee obtained $20,000 in exchange for 44 monthly payments of $300 commencing August 14, 2002 through and including March 14, 2006 and one lump sum payment of $25,000 due on April 20, 2010. Second, in 2007, Payee obtained $56,038.59 in exchange for 115 monthly payments of $750 commencing June 14, 2007 through and including December 14, 2016 and one lump sum payment of $75,000 due on April 20, 2015. Third, in 2010, Payee obtained $34,328 in exchange for 4 monthly payments of $728.86 commencing January 14, 2010 through and including April 14, 2010; and 80 monthly payments of $776.23 commencing May 16, 2010 through and including December 14, 2016 with a 3% annual increase. And finally, in 2014, Payee obtained $37,688 in exchange for life contingent monthly payments of $1,421.23 commencing on January 14, 2017 through and including April 14, 2017; and life contingent monthly payments of $1,463.86 commencing May 14, 2017 through and including January 14, 2029, with a 3% annual increase every May 14. Professional advice. Petitioner advised Payee in writing to seek independent professional advice, and Payee has knowingly waived the advice in writing. (Notice, Exh. 5, ?? C-E; Notice, Exh. 6, ? 8.) Disclosure form. The disclosure form signed by Payee complies with the Insurance Code sections on structured settlement transfers, including listing the amount of payments transferred, the amount to be received, and the effective interest rate (which in this case is 23.50 percent). The discounted present value of the future payment that is the subject of this transaction is $79,231.52. Payee has received and signed a copy of this form. (Notice, Exh. 5.) Contravention of statute or court order. There does not appear to be any applicable statute or court order at stake in this transaction. Reasonable understanding of terms of the transfer agreement. Payee states that he understands all of the terms of the transfer agreement and believes the transaction is in his best interests. (Notice, Exh. 6, ?? 5, 10-12.) Right to cancel. Although Payee does not expressly acknowledge the right to cancel the transaction in his declaration, and he appears to fully understand the terms of the agreement and has entered into similar transaction on four previous occasions. Payee?s best interest. Petitioner and Payee have complied with all the statutory requirements for the requested court order. Because the transaction appears to be in Payee?s best interests, the petition is granted. |
