Judge: Kevin C. Brazile, Case: 22STCV23474, Date: 2022-09-16 Tentative Ruling

Hearing Date: September 16, 2022

Case Name: In re: Petition of Peachtree Settlement Funding, LLC and Gennifer 

Brandon

Case No.: 22STCP02995

Matter: Petition for Transfer of Structured Settlement Payments 

Moving Party: Petitioner Peachtree Settlement Funding, LLC

Responding Party: Unopposed

Ruling: The Petition is denied without prejudice.

Petitioner to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

Petition Request.  Petitioner Peachtree Settlement Funding, LLC seeks approval to transfer $53,000 in exchange for Payee Gennifer Brandon’s right to 360 monthly life contingent payments of $776.12 each, beginning on November 23, 2028, and ending on October 23, 2058.  Payee’s right to these monthly payments arises out of a 1999 settlement of a wrongful death claim.

Service/Filing Requirements.  Insurance Code § 10139.5(f)(2) provides for service of a petition not less than 20 days prior to the hearing.  Petitioner timely served the First Amended Petition on August 22, 2022.  However, there is no indication that the notice to interested parties indicates the manner and time in which there could be responses to the Petition.  (See infra; Ins. Code § 10139.5(f)(2).)

Further, at the time of filing a petition, the transferee shall file a copy of the petition with the California Attorney General.  (Ins. Code § 10139.)  There is no indication that Petitioner has complied with this requirement.  

Required Documents. The following documents are required to be served and filed not less than 20 days prior to the scheduled hearing on any application for approval of a transfer of structured settlement payment rights.  

1. A copy of the transferee's current and any prior petitions. 

2. A copy of the transfer agreement. 

3. A listing of each of the payee's dependents, together with each dependent's age. 

4. A copy of the disclosure required in subdivision (b) of section 10136. 

5. A copy of the annuity contract, if available.

6. A copy of any qualified assignment agreement, if available. 

7. A copy of the underlying structured settlement agreement, if available.

8. Notification that any interested party is entitled to support, oppose, or otherwise respond to the transferee's application, either in person or by counsel, by submitting written comments to the court or by participating in the hearing. 

9. Notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the application must be filed, which may not be less than 15 days after service of the transferee's notice, in order to be considered by the court. 

10. If the payee entered into the structured settlement at issue within five years prior to the date of the transfer agreement, then the transferee shall provide notice to the payee's attorney of record at the time the structured settlement was created, if the attorney is licensed to practice in California, at the attorney's address on file with the State Bar of California. The notice shall be delivered by regular mail. 

11. Proof of service showing compliance with the notification requirements of this section.  

(Ins. Code § 10139.5(f)(2).)

Substantive 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(a).)  The Court must make written findings in the court 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 (Ins. Code §§ 10136, 10138).

(4)  The transfer does not contravene any applicable statute or court order.

(5)  The payee reasonably understands the terms of the transfer agreement.

(6)  The payee reasonably understands and does not wish to exercise the payee’s right to cancel the transfer agreement.  

(Ins. Code § 10139.5(a).)

Best interests of the payee.  Insurance Code § 10139.5(b) lists 15 factors for the Court to consider in determining whether the transfer would be fair, reasonable, and in the payee’s best interests.  When considering the totality of the circumstances, the Court should consider 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, 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(b).)

Payee G. Brandon. The First Amended Petition states that when the original settlement was completed the future payments that are the subject of the proposed transfer were not intended to pay for the future medical care and treatment relating to the incident that was the subject of the settlement.  In addition, the payment was not intended to provide for necessary living expenses.  

Brandon is 31 years old, is not married, has no children, and is not employed.  She completed two previous transactions: 

1. a transaction on 12/15/2015 via case no. BS157167 transferring monthly payments of $776.12 beginning on 11/23/2015 through and including 10/23/2020 to JG Wentworth Originations, LLC.  She received $33,000.

2. a transaction on 02/07/2017 via case no. BS167259 transferring monthly payments of $776.12 beginning on 11/23/2020 through and including 10/23/2028 to JG Wentworth Originations, LLC.  She received $45,000.

 Brandon has not attempted previous transactions that were denied, dismissed, or withdrawn prior to a decision on the merits, within the past five years.  

Brandon is currently experiencing financial hardship.  She intends to use the money to pay off credit card and personal loan debt.  She also seeks to use some of the funds as a downpayment for real property. 

Advice to seek professional advice.  Brandon did not receive independent legal or financial advice regarding the proposed transaction.  She was advised to seek such advice and signed a waiver to that effect, which is attached to the First Amended Petition as Exhibit E.

Disclosure form.  The disclosure form signed by Brandon 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.  Brandon has received and signed a copy of this form.  (First Amended Petition, Exh. B.)

Contravention of statute or court order.  There does not appear to be any applicable statute or court order relating to this transaction.

Reasonable understanding of terms of the transfer agreement. Brandon seems to understand the terms of the transfer agreement (having completed prior similar transactions) and believes the transaction is in her best interest.  (Brandon Decl. ¶¶ 4, 13.)

Payee’s right to cancel.  Brandon acknowledges the right to cancel but will not exercise such right.  (Brandon Decl. ¶ 14.)

The Court has considered the totality of the circumstances and finds that the transfer appears to be in Brandon’s best interests.  

Deficiencies of the Petition.  The First Amended Petition is denied without prejudice due to the following deficiencies:

1. As discussed, there has been no showing that the First Amended Petition was filed with the Attorney General.

2. There is no indication that the notice to interested parties indicates the manner and time in which there could be responses to the Petition.

3. The attached documents are not admissible because they have not been properly authenticated.  Petitioner’s Vice President merely attaches a verification that the Petition meets all requirements of the Insurance Code, without actually authenticating each document.  It would seem that some of these documents must be authenticated by the transferee.

4. The Petition omits the transferee’s annuity agreement and underlying structured settlement agreement.  If available, these documents should be provided.  If not available, Petitioner must show it made reasonable efforts to obtain these documents.  

Petitioner to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic