Matter of J.G. Wentworth Originations LLC (Lozano)
Annotate this CaseDecided on April 26, 2016
Supreme Court, Broome County
In the Matter of the Petition of J.G. Wentworth Originations, LLC, Petitioner,
against
K. Lozano, HARTFORD CEBSCO, and HARTFORD LIFE INSURANCE COMPANY as Interested Parties pursuant to G.O.L. Sec. 5-1701 (f), Respondents.
EFCA2016000356
COUNSEL FOR J.G. WENTWORTH LL" target="_blank">Singer Asset Fin. Co., LLC v Melvin, 33 AD3d 355, 357 [1st Dept 2006]). This court's judicial function under the SSPA requires an evaluation of a variety of factors, but particularly: (1) whether the transaction is fair and reasonable; and (2) whether the transfer is in the best interest of the payee, taking into account the welfare and support of the payee's dependents, if any.
Whether the proposed transaction is fair and reasonable is a function of the discount rate [*3]and the fees and costs associated with the transaction in relation to the level of financial hardship affecting the individual (Matter of Barr v Hartford Life Ins. Co., 4 Misc 3d 1021(A) [Sup Ct Nassau Co 2004]). Stated another way, "[t]he more pressing the need, the more reasonable it may be for a payee to obtain immediate cash at a steep discount rate" (Matter of 321 Henderson Receivables Ltd. Parthership, 2 Misc 3d 463, 465 [Sup Ct Monroe Co 2003]). Here, Ms. Lozano seeks to transfer $267,760 in exchange for a current payment of $115,000 at an annual discount rate of 7.09%. There are no fees or expenses being deducted from the gross payment. In and of itself, this transfer is fair and reasonable.[FN6] While the proposed transfer may well be fair and reasonable from a purely financial aspect, the court finds the next prong, whether the transfer is in the payee's best interest supersedes any financial aspects of the proposed transfer.
The next consideration is whether the proposed transfer is in Ms. Lozano's "best interest." The short answer is that the court finds that the proposed transfer is not in Ms. Lozano's best interests, but the court will detail its reasoning.
Ms. Lozano is 21 years old, single, unemployed, with no dependents.[FN7] Ms. Lozano states she is a full time student at SUNY Broome. Ms. Lozano further states that her mother Julissa Thoby and her two sisters, Elizabeth Thoby and Diana Thoby, will be moving in with her to assist with expenses. Ms. Lozano's stated reasons for the need for this transfer include the purchase of a home and furnishings, moving expenses, the purchase of a used car, and related repair expenses for the home and car.
The primary use to which Ms. Lozano seeks to put this money is the purchase of a home. More specifically, Ms. Lozano states:
[I] will be using around $80,000 to purchase a home in full. I have been searching houses online and have also visited a few open houses to get an idea of the current housing market around SUNY Broome's campus. I currently attend school there full-time. This will elimate [sic] my current room and board expenses on campus. I am having my mother and sisters move into the house with me to help cover the yearly tax expenses and other monthly expenses that pop up. I am very close to my family, and they will be the best tennants [sic] that I could ask for. I also wish to modestly furnish this home and will need about $6,000 to do so. Moving expenses will also cost around $1,000.(Affidavit of Kathrine Lozano, ¶ 11).[FN8]
With respect to the purchase of a home, this and many other trial courts have repeatedly stated that the purchase of a home is not in a payee's best interest when there is no demonstrated source of income that would enable the payee to financially handle the enormous responsibility of being a homeowner (Matter of Washington Square Financial LLC v Mejia, 38 Misc 3d 1204(A) [Sup Ct Queens Co 2012]; Settlement Funding of NY, LLC v Hartford-Comprehensive Empl. Ben. Svc. Co., 25 Misc 3d 1220[A] [Sup Ct Queens Co 2009]). Ms. Lozano does not set forth any proof by which this court could ascertain that she is financially capable of managing the ongoing financial strains of owning a home especially given that she is a student without any full-time employment. Furthermore, the purchase of a home, even when paid in full, is only the beginning of the enormous related expenses such as real estate taxes, maintenance, repairs, utilities, furnishings, etc. Quite simply, Ms. Lozano has offered absolutely no explanation as to how she would meet these ongoing expenses. The so-called financial help she expects to receive from her mother and sisters is questionable, especially in view of the fact that her sister needs to transfer her own structured settlement payments in order to be able to afford rent. Moreover, given Ms. Lozano's status as a full-time student, it seems possible that her continuing education and/or employment prospects may take her out of this geographic area (Matter of 321 Henderson Receivables, International Partnership (DeMallie), 2 Misc 3d 463 [2003]). A final comment about Ms. Lozano's mother and sisters moving in to help with expenses. The court emphasizes that these monies belong to Ms. Lozano and should not be used to financially assist or subsidize family members (none of whom are her dependents) in their housing needs.
The other major stated purpose by Ms. Lozano for the use of monies from this proposed transfer is the purchase of a used car. Ms. Lozano states "I will need a reliable vehicle to drive to school. I am currently looking for cars around $14,000" (Lozano Affidavit, ¶ 11).[FN9] Ms. Lozano does not offer whether she currently owns a car and, if not, how she gets to and from school. In any event, courts have found transfers are not in the best interests of the payee where the payee intends to use the proceeds to ease relatively minor financial burdens such as the purchase of a new or used vehicle (Matter of 321 Henderson Receivables [Nelson], 21 Misc 3d 1109[A] [Sup Ct 2008]). Additionally, Ms. Lozano submits no proof of her ongoing ability to maintain and insure the vehicle.
Ms. Lozano also states she will use $6,000 for "minor repairs to the home I purchase, [*4]school books, and any car repairs that need to be taken care of" (Lozano Affidavit, ¶ 11).[FN10] Given the court's rejection of the purported uses for these monies - the purchase of a house and car - these remaining needs are moot.
The court also notes that Ms. Lozano should have just received a payment on January 1, 2016 of $7,500 and is due another payment of $7,500 on August 1, 2016, for a total of $15,000. Ms. Lozano could well use this $15,000 to cover the costs of some of her purported needs such as school books.
As an aside, the court does note that according to the structured payment schedule, there will be a minor gap in payments to Ms. Lozano between 2017 and 2020. Ms. Lozano is due to receive a lump sum payment of $7,500 on January 1, 2017 and her $300 monthly payments will end in July 2017. Her next round of payments of $1,074 monthly do not start until January 2020 together with a $25,000 lump sum payment on January 28, 2020. These future payments are there to secure her future and Ms. Lozano would be wise to begin planning to account for this gap. Additionally, the court notes that this gap of payments between mid-year in 2017 and January 2020 is all the more reason for Ms. Lozano not to take on the extreme financial burden of home ownership.
In sum, the court finds the proposed transfer is not in Ms. Lozano's best interest.
II.Objection/Compliance with requirements of SSPA
Assuming the court were not to deny this proposed transfer based upon petitioner's failure to establish the transfer is in the payee's best interest, the court will address the objections filed by the named interested parties. Interested parties Hartford Life Insurance Company and Hartford Comprehensive Employee Benefit Service Company (hereinafter collectively "Hartford") object to the proposed transfer alleging that the JGW March Petition does not comply with the SSPA. Petitioner JGW has not submitted any response to said objection.
As a reminder, both the JGW February Petition and JGW March Petition annex a New York Purchase Contract (e.g., the transfer agreement) between JGW and Kathrine Lozano sworn to by Ms. Lozano on February 4, 2016 (Exhibit B to Petition and Exhibit B to Amended Petition). The JGW February Petition contains a New York Disclosure Statement with a typewritten date of January 22, 2016 in the top right corner of each page and Ms. Lozano's signature is undated (JGW February Petition, Exhibit E). The JGW March Petition contains a New York Amended Disclosure Statement with a typewritten date of March 11, 2016 in the top right corner of each page and Ms. Lozano's signature is again undated (JGW March Petition, Exhibit E).
GOL § 5-1706(a) requires the court determine whether the transfer complies with the requirements of SSPA.
GOL § 5-1705(d)(ii) requires that a petition shall include "[a] copy of the disclosure statement and proof of notice of that statement required under section 5-1703 of this title". In turn, GOL § 5-1703 requires that:
[n]ot less than ten days prior to the date on which the payee signs a transfer agreement, the transferee shall provide to the payee by first class mail and certified mail, return receipt requested or United States postal service priority mail, a separate disclosure statement, in bold type no smaller than fourteen points, setting forth....As such, there is both a timing requirement and a manner of delivery requirement with respect to the interplay between the transfer agreement and the disclosure statement. Stated another way, the payee must receive the disclosure statement at least ten days prior to signing the transfer agreement and it must have been received by one of the approved methods of delivery.
Here, the JGW March Petition fails both the timing requirement and a manner of delivery requirement. With respect to the timing requirement, the subject New York Purchase Contract (e.g., the transfer agreement) was signed by Ms. Lozano on February 4, 2016. The New York Amended Disclosure Statement signed by Ms. Lozano contains a typewritten date of March 11, 2016. Obviously, there is no way that Ms. Lozano received the Amended Disclosure Statement ten days prior to signing the New York Purchase Contract almost three weeks earlier on February 4, 2016. Clearly, the JGW March Petition does not comply with the timing requirement of GOL §§ 5-1703 and 5-1705.
With respect to delivery requirement, the JGW March Petition does not include proof of the method of delivery of the Amended Disclosure Statement. Rather, the "proof" attached to the JGW March Petition is the same exact print out of the FedEx tracking record showing delivery of the previously signed disclosure statement that was submitted with the JGW February Petition (JGW March Petition ¶ 12, Exhibit C). Clearly, the JGW March Petition does not comply with the delivery requirement of GOL §§ 5-1703 and 5-1705.
Additionally, Hartford alleges further defects with the JGW March Petition including the failure to establish that the payee waived, in writing, her right to receive independent professional advice in relation to the JGW March Petition (GOL § 5-1706[c]);[FN11] that there is no authority to compel Hartford to abide by the terms of a contract between two other parties (the proposed transfer agreement); and that JGW mischaracterizes Insurance Law § 3212 (d) concerning [*5]statutory restrictions versus contractual restrictions on transfer; and that the competing petitions create increased material risks and burdens for Hartford that are not acceptable.
More importantly, Hartford also argues that the proposed transfer is barred by the underlying Settlement Agreement & Release which contains a non-assignment provision. More specifically, the Settlement Agreement & Release state as follows: "[t]he periodic payments to be received by the Plaintiff and/or designated payee pursuant to Sections 2B and 2C are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge or encumbrance by Plaintiff and/or designated payee" (Objections, Exhibit 2, § XVI, p 7).
It is well-settled that contractual non-assignment provisions in structured settlement agreements are valid and enforceable (C.U. Annuity Service Corp. v Young, 281 AD2d 2920 [1st Dept 2001]; In re 321 Henderson Receivables Origination, LLC [Logan], 19 Misc 3d 504, 506-507 [NY Sup Ct 2008]). Since Hartford has appeared and asserted its rights under the non-assignment clause in the Settlement Agreement, the non-assignment provision precludes this proposed transfer.
Petitioner JGW has not responded to Hartford's objections. The court finds that each of Hartford's objections are valid. In view of the foregoing, the court finds that the JGW March Petition does not comply with the SSPA. The court will next address Hartford's request for an award of attorneys' fees pursuant to the SSPA.
III.Reasonable Costs and Attorneys' Fees
The SSPA states that a transferee, such as JGW here, "[s]hall be liable to the structured settlement obligor and the annuity issuer...for any ...liabilities or costs, including reasonable costs and attorneys' fees...arising as a consequence of the transferee's failure to comply with" the SSPA (GOL § 5-1707).
Petitioner JGW has not responded to Hartford's request for an award of attorney's fees. The court has located only one New York trial level decision addressing this provision (Pinnacle Capital, LLC v Matla, 2014 WL 3772645 [NY Supreme, July 14, 2014, No. 63254]), in addition to the several out of state cases cited by Hartford (Rapid Settlements, Ltd. v Symetra Life Ins. Co., 134 Wash. App. 329 [Wash App. Ct 2006]; RSL Funding, LLC v Aegon Structured Settlements, Inc., 384 SW3d 405 [Tex Ct App 2012]; Rapid Settlements, Ltd. v Green, 294 SW3d 701 [Tex Ct App 2009]).[FN12]
In Pinnacle, the alleged violations of the SSPA were limited to the statutory provisions against payment splitting, the anti-assignment provisions in the contract, and that the transfer was not in the payee's best interest. The trial court found the anti-assignment provision barred the transfer, but that such provision did not equate to a failure to comply with the General Obligations Law sufficient to warrant reasonable costs and attorneys' fees. Here, the allegations [*6]of violations of the SSPA go to the very heart of concept of proper disclosure to the payee regarding the proposed transfer. As such, the court finds the case at bar distinguishable from Pinnacle since the issues of non-compliance go beyond the anti-assignment provision.
Additionally, the court agrees with the reasoning set forth in both the Washington and Texas cases that the predicate statutory language "following a transfer" does not mean that attorneys' fees may only be awarded in cases in which the court has approved a transfer. As stated by the courts in those cases, to read the statute in such a restrictive way and have the attorney fee provision apply only to court-approved transfers would render the attorneys' fee provision meaningless (Rapid Settlements, 134 Wash. App. at 334; RSL Funding, LLC., 384 SW3d at 409-410).
Based upon this court's determination hereinabove that the proposed transfer does not comply with the SSPA, the court finds that an award of reasonable costs and attorneys' fees is proper. That said, however, Hartford has not submitted any proof regarding the time and value of the reasonable costs and attorneys' fees. Hartford is directed to submit an affidavit outlining its reasonable costs and attorneys' fees arising as a consequence of JGW's failure to comply with the SSPA. Upon filing, petitioner JGW will be provided an opportunity to respond within twenty (20) days. The court will consider the issue of reasonable costs and attorneys' fees on submission unless petitioner JGW requests a hearing thereon.
CONCLUSION
Based on the foregoing, the court finds that petitioner has failed to demonstrate that it complied with the SSPA and/or that the transaction is in Ms. Lozano's best interest (GOL § 5-1706 [b]). Consequently, the Amended Petition is denied.
The court finds that transferee, petitioner JGW, is liable to Hartford as the structured settlement obligor and the annuity issuer for any liabilities or costs, including reasonable costs and attorneys' fees arising as a consequence of the transferee's failure to comply with the SSPA.
The court reserves on the determination of the amount of reasonable costs and attorneys' fees pending further submissions as outlined above.
A copy of this Decision & Order should be annexed as an exhibit to any future petition.
Dated:April 26, 2016
Binghamton, New York
s/ Ferris D. Lebous
Hon. Ferris D. Lebous
Justice, Supreme Court
The court considered the following papers which are on file in the Broome County Clerk's Office:
1.Order to Show Cause signed February 23, 2016;
2.Verified Petition dated February 18, 2016, with exhibits;
3.Court letter dated February 23, 2016;
4.Hamerman letter dated March 10, 2016;5.Court email dated March 9, 2016;6.Amended Verified Petition filed March 15, 2016;7.Hamerman letter dated March 15, 2016, with signed amended disclosure statement;
8.Hamerman letter dated March 22, 2016;9.Court email dated March 24, 2016;
10.Objection of Interested Parties Hartford Life Insurance Company and Hartford CEBSCO dated April 1, 2016; and
11.Brandimarte email dated March 16, 2016, Broome Index efca2016000055.
FootnotesFootnote 1:Petitioner did not provide either document to the court. Said documents were submitted as exhibits to the Objections filed by the Hartford companies.
Footnote 2:Ms. Lozano's affidavit was sworn to on February 4, 2016, just one month after she presumably received a $7,500 payment on January 1, 2016.
Footnote 3:The statement of cancellation is signed by Ms. Lozano and contains a completed notary stamp dated February 4, 2016.
Footnote 4:Counsel urged the court to hold a hearing at which time the payee could be questioned about the cancellation and the competing deals. The court declined. Counsel view these petitions as a predatory bidding war. The court is not an auctioneer attempting to elicit the highest bid. Counsel have lost sight of the reality that separate and apart from the financial aspect of the proposed transfer is whether the transfer - even if fair and reasonable - is in Ms. Lozano's best interest as opposed to their own (Discussion of best interest, infra at 9). Subjecting Ms. Lozano to the pressure of counsel attempting to offer her the deal of a lifetime would serve no purpose.
Footnote 5:The court further notes that Ms. Lozano's sister, Elizabeth Thoby, made a prior application which was denied, but coincidentally also sought funds to purchase a house (J.G. Wentworth v American General Life, Index No. 154755/2015, August 6, 2015, Hon. Jennifer G. Schecter [New York County]).
Footnote 6:This is not to say that it was the "best offer on the table". Counsel for Advance Funding in the competing petition informed the court that it could not "fathom how Your Honor would be able to conclude that the terms of the JGW deal are fair or reasonable" (Brandimarte email dated March 16, 2016 [Index efca2016000055). Counsel's bewilderment is noted for the record.
Footnote 7:There is no explanation for the change in name of Kasterin Thoby in the Infant Compromise Order to Kathrine Lozano used here. Additionally, the court notes that Ms. Lozano's first name is spelled "Kathrine" here, but "Katherine" in the Advance Funding January Petition.
Footnote 8:The JGW March Petition relies on the same Affidavit in Support from Ms. Lozano sworn to February 4, 2016 that was submitted in connection with the JGW February Petition. As such, there is no accounting for the use of the extra $10,000 if the JGW March Petition were to be approved.
Footnote 9:In the AF January Petition, Ms. Lozano stated she needed $10,000 to buy a used car and $1,000 for car insurance (Lozano Affidavit, ¶ 3, Index No. efca2016000055).
Footnote 10:In the AF January Petition, Ms. Lozano stated she needed $5,000 for moving expenses, $5,000 for home repairs and car repairs, and $1,100 for school books (Lozano Affidavit, ¶ 3, Index No. efca2016000055).
Footnote 11:The JGW March Petition refers to the exact same "Statement of Professional Representation" signed January 22, 2016 and submitted with the JGW February Petition. Obviously, the payee made no separate waiver in connection with the amended petition.
Footnote 12:These cases are based on a similar model as New York's General Obligations Law.
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