Matter of Settlement Funding of NY L.L.C. (Williams)

[*1] Matter of Settlement Funding of NY L.L.C. (Williams) 2010 NY Slip Op 52103(U) [29 Misc 3d 1231(A)] Decided on December 7, 2010 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 7, 2010
Supreme Court, Queens County

In the Matter of the Application of Settlement Funding of New York, L.L.C., Petitioner For Approval of a Transfer of a Structured Settlement Payment Right of Kareem M. Williams a/k/a KAREEM WILLIAMS PURSUANT TO ARTICLE 5, TITLE 17 OF THE NEW YORK GENERAL OBLIGATIONS LAW



22688 2010



For petitioner: Segal McCambridge Singer & Mahoney, Ltd., by Theodore M. Eder, Esq., 850 Third Ave., New York, NY 10022

Charles J. Markey, J.

Petitioner commenced this special proceeding pursuant to General Obligations Law, Title 17, known as the Structured Settlement Protection Act (SSPA), for approval of the transfer of certain structured settlement payment rights to it from Kareem M. Williams (Mr. Williams).

The SSPA requires that certain procedural and substantive safeguards be followed before a structured settlement payment may be transferred (General Obligations Law § 5-1705). Specifically, the procedure mandates that a copy of a disclosure statement, as required under General Obligations Law section 5-1703, be attached to the petition and that proof of service upon the payee be provided (id.). Additionally, pursuant to General Obligations Law section 5-1706:

No direct or indirect transfer of structured settlement payment rights shall be effective and no structured settlement obligor or annuity issuer shall be required to make any payment directly or indirectly to any transferee of structured settlement payment rights unless the transfer [*2]has been authorized in advance in a final order of a court of competent jurisdiction based upon express findings by such court that:

(a) the transfer complies with the requirements of this title;

(b) the transfer is in the best interest of the payee, taking into account the welfare and support of the payee's depend[e]nts; and whether the transaction, including the discount rate used to determine the gross advance amount and the fees and expenses used to determine the net advance amount, are fair and reasonable. Provided the court makes the findings as outlined in this subdivision, there is no requirement for the court to find that an applicant is suffering from a hardship to approve the transfer of structured settlement payments under this subdivision;

(c) the payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received such advice or knowingly waived such advice in writing;

(d) the transfer does not contravene any applicable statute or the order of any court or other government authority; and

(e) is written in plain language and in compliance with section 5-702 of this article.

In the case at bar, a careful review of the submissions accompanying the petition demonstrates that the application complies with the procedural mandates of General Obligations Law sections 5-1703 and 5-1706(a), (c), (d), and (e). Having satisfied the procedural requirements of the SSPA, the Court must determine, pursuant to General Obligations Law section 5-1706(b), whether the proposed transfer is in the best interests of the payee and whether the transaction is fair and reasonable.

The funds that are the subject of this petition represent a portion of structured settlement payments due to Mr. Williams in accordance with the settlement of a personal injury action. Pursuant to the terms of the structured settlement agreement, Mr. Williams became the recipient of certain structured settlement payment rights which provided for a series of deferred cash payments as follows: a lump sum payment of $20,000.00 due on March 27, 2013, and a lump sum payment of $20,452.00 due on March 27, 2017.

In return for selling his right to receive these payments, Mr. Williams will receive immediate compensation in the gross amount of $21,857.07. In this proposed transfer, the aggregate amount of the structured settlement payments to be transferred is $40,452.00. The discounted present value of the payments to be transferred is $35,912.01 (using the applicable rate of 2.60%). The gross advance amount is $21,857.07, which, according to the "New York Transfer Disclosure" submitted in support of the petition, represents an annual discount rate of 14.99% assuming monthly compounding. The net advance amount, less $2,000.00 in legal fees [*3]and $200.00 in processing fees, is $19,657.07.

This Court, upon the foregoing papers, finds that petitioner has failed to meet its burden of establishing that the transaction is in Mr. Williams' best interests (see the decisions of the undersigned in both Settlement Funding of NY, LLC v Hartford-Comprehensive Empl. Ben. Serv. Co., 2009 WL 3630802, 2009 NY Slip Op 52201[U] [Sup Ct Queens County 2009], and Matter of 321 Henderson Receivables Origination LLC [Logan], 19 Misc 3d 504 [Sup Ct Queens County 2008]).

In his affidavit submitted in support of this application, Mr. Williams, who is 18 years old, averred that he is a full-time student, currently resides with his parents, and has no dependents. He further stated that, from the lump sum payment he would receive, it is his intention to use $6,000.00 to pay one year of rent for an apartment he will be sharing with friends, $4,000.00 to pre-pay utility bills for a period of one year, $8,600.00 to pay the portion of his college tuition not covered by financial aid, and $1,000.00 to pay court fines (i.e., posting bail in connection with an unanswered complaint in New Jersey).

Other than the enumerated structured settlement payments, it appears that Mr. Williams does not have any other source of income or assets to finance his stated goals. Although Mr. Williams does not have any dependents, it seems that, taking into account, inter alia, his age, lack of employment, and irresponsibility with the law, the proposed transfer would severely compromise his future financial security. In addition, there is no evidence indicating that Mr. Williams consulted with an independent professional advisor regarding the proposed transfer. Therefore, the Court is not satisfied that Mr. Williams fully appreciates the consequences of such transfer.

Furthermore, petitioner has not demonstrated that the 14.99% discount rate applied against the funds sought to be transferred is fair and reasonable within the meaning of the SSPA (see Settlement Funding of NY, LLC v Hartford-Comprehensive Empl. Ben. Serv. Co., 2009 WL 3630802, 2009 NY Slip Op 52201[U], slip op. at 3 [14.99% discount rate not accepted as fair and reasonable]; Matter of Settlement Capital Corp. [Ballos], 1 Misc 3d 446 [Sup Ct Queens County 2003] [15.591% discount rate not accepted as fair and reasonable]; In re Petition of Settlement Funding of NY, LLC, 195 Misc 2d 721 [Sup Ct Rensselaer County 2003] [15.46% discount rate not accepted as fair and reasonable]).

The Court also finds no evidence in the record to support the reasonableness of the proposed legal fees in the amount of $2,000.00 and the processing fee of $200.00 (see, Matter of Settlement Funding of New York [Ciraolo] v Structured Settlement Trust, 2009 WL 3713136, 2009 NY Slip Op 32553[U] [Sup Ct, Nassau County 2009]).

Accordingly, the petition for approval of the transfer of certain structured settlement rights is denied in its entirety. [*4]

Dated: December 7, 2010

J.S.C.