Judge: Ralph C. Hofer, Case: 24NNCP00059, Date: 2024-05-03 Tentative Ruling
Case Number: 24NNCP00059 Hearing Date: May 3, 2024 Dept: D
TENTATIVE RULING
Calendar: 7
Date: 5/3/2024
Case No: 24 NNCP00059
Case Name: Apollo Mathers, LLC v. Certain Statutory Interested Parties as Defined by
Cal. Ins. Code 10134(G)
PETITION FOR APPROVAL FOR TRANSFER OF STRUCTURED SETTLEMENT PAYMENT RIGHTS
Moving Party: Petitioner Apollo Mathers, LLC
Responding Party: No Opposition
RELIEF REQUESTED:
Approve transfer of structured settlement payment rights by and between Ernesto Bermudez, as payee, and petitioner Apollo Mathers, LLC, as transferee.
ANALYSIS:
Procedural
There are several procedural irregularities with this petition, any of which would be an independent ground for its denial.
No Proof of Notice of Hearing Date
There has been no proof of service filed showing that the interested parties have been served with notice that the hearing date on this petition has been continued by the court from the originally noticed hearing date of May 2, 2024 to the current hearing date of May 3, 2024.
Specifically, the file shows that the Notice of Hearing of Petition which was served by petitioner noticed that petition would be brought before the court on May 2, 2024. [Notice, filed 04/11/2024]. On April 16, 2024, the court filed and served on petitioner a Notice Re: Continuance of Hearing and Order, notifying petitioner that the hearing on petition for approval of transfer of payment rights previously set for hearing on May 2, 2024 had been reset for hearing on May 3, 2024. Petitioner was ordered to give notice by mail of such fact to all parties and to file proof of service of such notice to all parties.
There has been no notice of the resetting filed by petitioner, and petitioner has also failed to file proof of service of such notice to all parties as required by the court’s order.
Insurance Code §10139.5 provides, in pertinent part, that “[a] direct or indirect transfer of structured settlement payment rights is not effective…unless the transfer has been approved in advance in a final court order based on express written findings by the court that: (3) The transferee has complied with the notification requirements pursuant to paragraph (2) of subdivision (f)…”
Insurance Code § 10139.5(f)(2) provides:
“Not less than 20 days prior to the scheduled hearing on any petition for approval of a transfer of structured settlement payment rights under this article, the transferee shall file with the court and serve on all interested parties a notice of the proposed transfer and the petition for its authorization…
The notice shall include a copy of the petition, along with copies of other specified documents and information, including, under Insurance Code § 10139.5(f)(2)(I), “Proof of service showing compliance with the notification requirements of this section.”
There is no proof of service showing the proper notification which includes the appropriate hearing date to permit the interested parties to respond to or object to the petition being granted.
The petition is denied for failure to show notice of the resetting of the hearing date and the filing of proof of service of such notice, as required under statute and this court’s April 16, 2024 order.
Supporting Documents Not Timely Filed or Served
The file does not include the necessary supporting documents required in connection with a petition for transfer of structured settlement. The petition refers to documents which are to be filed with the declaration of the Factoring Company Representative, including a copy of the annuity contract, qualified assignment agreement, and underlying structured settlement. [First Amended Petition, para. 19]. The declaration filed, consisting of a Declaration of Lucia Sanchez, a customer service representative for petitioner Apollo Mathers, LLC, states that a copy of the annuity contract or benefits letter is attached to the declaration as Exhibit A, and a copy of the settlement agreement or affidavit in lieu of settlement is attached as Exhibit B. [Sanchez Decl., para. 1]. No exhibits are in fact attached to the declaration filed with the court.
Under Insurance Code § 10139.5, a petition for approval of a transfer of structured settlement payment rights shall include various documents and information, including copies of certain pertinent documents.
Under Insurance Code § 10139.5:
“(f)
(1) A petition under this article for approval of a transfer of structured settlement payment rights shall be made by the transferee and brought in the county in which the payee resides at the time the transfer agreement is signed by the payee, or, if the payee is not domiciled in California, in the county in which the payee resides or in the county where the structured settlement obligor or annuity issuer is domiciled.
(2) Not less than 20 days prior to the scheduled hearing on any petition for approval of a transfer of structured settlement payment rights under this article, the transferee shall file with the court and serve on all interested parties a notice of the proposed transfer and the petition for its authorization, and shall include the following with that notice:…”
(Emphasis added).
Accordingly, this court has entered an order on the court website, under Notice to All Counsel Re: Petitions for Approval of Transfer of Structured Settlement Payment Rights, last dated October 5, 2023, which provides, in pertinent part:
1. General Order:
A Petition for Approval of a Transfer of Structured Settlement Payment Rights filed in Department D must be complete before consideration by the Court. Although the petition may be superseded by a First Amended Petition and/or supported by subsequent filings which are filed and served after the filing of the Petition commencing the petition process, any documents not included in the original petition must be filed and served no less than 20 days prior to the date scheduled for hearing, pursuant to Insurance Code § 10139.5 (f)(2).
2. Required Documents: No less than 20 days prior to the hearing date on the petition, the petitioner shall file and serve the following required documents:
a. Documents required pursuant to Insurance Code § 10139.5 (f)(2):
1. Notice of the proposed transfer and the petition for its authorization.
2. Proof of service on all interested parties.
b. Documents required to be included in the notice and petition pursuant to Insurance Code § 10139.5 (f)(2) subdivisions (A) through (L) are the following:
1. A copy of the transferee’s current petition and any other prior petition, whether approved or withdrawn, that was filed with the court in accordance with Insurance Code § 10139.5 (c)(6).
2. A copy of the proposed transfer agreement and disclosure form required by Insurance Code § 10139.5 (a)(3).
3. A declaration of payee listing each of payee’s dependents, together with each dependent’s age.
4. A copy of the disclosure required in Insurance Code § 10136 (b).
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. If copies of items (5), (6) or (7) are not available, a declaration setting forth that reasonable efforts to locate and secure a copy of the documents have been made, including making inquiry to the payee, and describing those effort, and including, if appropriate, a declaration of the payee in lieu of production of the underlying structured settlement agreement. If the subject documents are available, but contain a confidentiality of nondisclosure provision, a declaration summarizing the payments due and owing to the payee.
9. Proof of service showing compliance with the notification requirements of Insurance Code § 10139.5.
10. Notification that any interested party is entitled to support, oppose, or otherwise respond to the transferee’s petition, either in person or by counsel, by submitting written comments to the Court or by participating in the hearing.
11. Notification of the time and place of the hearing and notification of the manner in which and time by which written responses to the petition must be filed, which may not be less that 15 days after service of the transferee’s notice, in order to be considered by the Court.”
c. Dismissal/Continuance: If the required documents specified above are not filed and served no less than 20 days prior to the hearing on the petition, including especially the declaration of the payee containing the required information, the petition will be dismissed without prejudice.
The First Amended Petition is not accompanied by the required notice, as discussed above, is not accompanied by documentation concerning four previous transfer attempts, and the declaration submitted appears to concede that the annuity contract and settlement agreement or declaration in lieu of settlement agreement are available, but those documents are not submitted with the moving papers, and have not been filed not less than 20 days prior to the May 3, 2024 hearing, which fell on April 12, 2024, three weeks ago.
Moreover, without the annuity contract, the court is unable to confirm that the First Amended Petition, with the incorrect hearing date, has been properly served on the actual annuity holder which was a party to the annuity contract, raising further issues because the First Amended Petition indicates that petitioner is informed and believes that the annuity at issue contained language that restricted the right or power to assign the assigned payments in question. [First Amended Petition, para. 7]. This prevents the court from confirming that the annuity holder has been properly served and does not object to the transfer, which is required to overcome the enforcement of a contractual provision prohibiting assignment. See 321 Henderson Receivables Origination LLC v. Sioteco (2009) 173 Cal. App.4th 1059, 1075-1076 (holding that Commercial Code section 9408 and Insurance Code section 9406 reflect a public policy against anti-assignment provisions and in favor of court approved factoring contracts, so that “where no interested parties object to the transfer of structured settlement payment rights, the anti-assignment provisions in the annuity contract, settlement agreement or other related contracts do not bar the factoring transaction at issue in this appeal.”). Without information confirming the identity and place or address for notification of the annuity holder, the court cannot confirm that no interested party objects to the transfer.
The required information has not been timely provided, the petition is not complete, and the petition will not be considered by the court.
Pursuant to the court’s order, the petition accordingly is dismissed without prejudice.
RULING:
Petition for Approval for Transfer of Structured Settlement Payment Rights is DISMISSED WITHOUT PREJUDICE.
There is no notice or proof of service showing that the interested parties have been notified of the reset assigned hearing date, as required under statute and this Court’s order of April 16, 2024, resetting the hearing date to May 3, 2024.
In addition, the petition is not complete, as petitioner has failed to timely file documents required under statute to support the petition, which the declaration in support of the petition indicates are available, specifically, the information required under Insurance Code section 10139.5, and also as required under this Court’s Notice to All Counsel Re: Petitions for Approval of Transfer of Structured Settlement Payment Rights, including copies of the annuity contract and the underlying settlement agreement. This omission further prevents the court from confirming that the court is authorized to approve the transfer when the petition alleges the annuity contract includes an anti-assignment provision, as the court cannot confirm that the interested parties have had the opportunity to object but have failed to do so.
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
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