Judge: Lee W. Tsao, Case: 24NWCP00226, Date: 2024-10-08 Tentative Ruling
Case Number: 24NWCP00226 Hearing Date: October 8, 2024 Dept: C
Bentzen Financial LLC vs M.M.
Case No.: 24NWCP00226
Hearing Date: October 8, 2024 @ 10:30 a.m.
#6
Tentative Ruling
The First Amended Petition for Approval of
Transfer of Structured Settlement Payment Rights is GRANTED.
Petitioner to give Notice.
Background
Payee M.M. (“Payee”), a 50-year old widow, is the recipient
of certain structured settlement payments resulting from the wrongful death of
her husband in 2021. Under the settlement, Pacific Life & Annuity Services,
Inc. agreed to distribute to Payee 220 monthly payments of $2,000.00 commencing
on August 4, 2024, through and including October 1, 2042, and 19 annual
payments of $15,000.00 commencing October 1, 2024, through and including
October 1, 2042.
On September 10, 2024, Petitioner Bentzen Financial, LLC
(“Petitioner”) filed a First Amended Petition for Approval of Transfer of
Structured Settlement Payments. Under
the transfer agreement signed by Petitioner and Payee on June 5, 2024, Payee agrees
to transfer future payments totaling $725,000.00 in exchange for a purchase
price and immediate lump sum payment of $312,419.00. The discounted present value of the assigned
payments is $460,704.37. Under the
transfer agreement, Payee will be paying an effective interest rate of 11.3%
per year. (Transfer Agreement, Ex. A.)
Petitioner requests that the Court approve the
above-referenced transfer of structured settlement payments.
As of October 4, 2024, the motion is unopposed.
Legal Standard
California Insurance Code
section 10139.5 provides that a transfer of structured
settlement payment rights is not effective unless the transfer has been
approved in advance in a final court order based on the following express
findings by the court that:
1. The
transfer is in the best interest of the payee, taking into account the welfare
and support of the payee’s dependents.
2. The
payee has been advised in writing by the transferee to seek independent
professional advice regarding the transfer and has either received that advice
or knowingly waived that advice in writing.
3. The
transferee has provided the payee with a disclosure form that complies with
Section 10136 and the transfer agreement complies with Sections 10136 and
10138.
4. The
transfer does not contravene any applicable statute or the order of any court
or other government authority.
5. The
payee reasonably understands the terms of the transfer agreement, including the
terms set forth in the disclosure statement required by Section 10136.
6. The
payee understands and does not wish to exercise the payee’s right to cancel the
transfer agreement. (Ins. Code § 10139.5(a).)
When determining whether the proposed transfer should be
approved, including whether the transfer is fair, reasonable, and in the
payee’s best interest, the court shall consider the totality of the
circumstances, including, but not limited to: (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 the future periodic payments were intended to pay
for future medical care of the payee related to the incident that was the
subject of the settlement; (6) whether the payee has other means of income or
support sufficient to meet the payee’s future financial obligations for support
of payee’s dependents, such as child support; (7) whether there were previous
transactions involving payee’s structured settlement payments; and (8) whether
the payee and his or her dependents are facing a hardship situation. (Ins. Code
§ 10139.5(b).)
Procedurally, Insurance Code section 10136 provides that
ten or more days before the payee executes a transfer agreement, the transferee
shall provide the payeewith a separate written disclosure statement, accurately
completed with the information that applies to the transfer agreement in at
least 12-point type. (Ins. Code § 10136(b).) The court-approval process
requires the transferee to file a petition in the county in which the
transferor resides for approval of the transfer. (Ins. Code § 10139.5(f)(1).)
In addition, the following elements 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:
A. A copy
of the transferee’s current and any prior petitions.
B. A copy
of the transfer agreement.
C. A
listing of each of the payee’s dependents, together with each dependent’s age.
D. A copy
of the disclosure required in subdivision (b) of Section 10136.
E. A copy
of the annuity contract, if available.
F. A copy
of any qualified assignment agreement, if available.
G. A copy
of the underlying structured settlement agreement, if available.
H. If a
copy of a document described in subparagraph (E), (F), or (G) is unavailable or
cannot be located, then the transferee is not required to attach a copy of that
document to the petition or notice of the proposed transfer if the transferee
satisfies the court that reasonable efforts to locate and secure a copy of the
document have been made, including making inquiry with the payee. If the
documents are available, but contain a confidentiality or nondisclosure
provision, then the transferee shall summarize in the petition the payments due
and owing to the payee, and, if requested by the court, shall provide copies of
the documents to the court at a scheduled hearing.
I. Proof
of service showing compliance with the notification requirements of this
section.
J. 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.
K. 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.
L. 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.
(Ins. Code § 10139.5(f)(2))
Lastly, the court shall retain continuing jurisdiction to
interpret and monitor the implementation of the transfer agreement as justice
requires. (Ins. Code § 10139.5(i).)
Discussion
Payee believes the transfer agreement is fair and
reasonable and in her best interest. (Martin Decl., 12.) Payee will use the
money to pay off the remaining $160,000.00 of her home loan and $8,000.00 to
$10,000.00 in credit card debts. She
will save the rest as a “rainy-day” fund. (Ibid.)
The Court finds that the requirements of California
Insurance Code section 10139.5 have been satisfied.
Accordingly, the Petition for Approval of Transfer of
Structured Settlement Payment Rights is GRANTED.