Preview
FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
---------------------------------------------------------------------------X Index No.
In the Matter of the Petition of
APOLLO MATHERS, LLC, for
Approval of Transfer of Structured Settlement Payment
Rights In Accordance with New York GOL §5-1701,
-against- VERIFIED
PETITION
PACIFIC LIFE & ANNUITY SERVICES, INC.,
PACIFIC LIFE & ANNUITY COMPANY,
and TRACY HARMAN
----------------------------------------------------------------------------X
Petitioner, APOLLO MATHERS, LLC ("APOLLO"), by its attorney, Greg Saber,
on notice to respondents, TRACY HARMAN, PACIFIC LIFE & ANNUITY
SERVICES, INC. and PACIFIC LIFE & ANNUITY COMPANY, alleges as follows:
1. This is a special proceeding pursuant to the Structured Settlement
Protection Act, General Obligations Law §5-1701 et seq. seeking approval of the transfer
of certain structured settlement payment rights due under a structured settlement
agreement, in accordance with 26 U.S.C. §5891 et seq. and GOL §5-1701 et seq (the
"Act"). The proposed transfer seeks approval, as authorized by the statute, for the sale of
the following: 1 lump sum payment of $10,000.00 due on August 25, 2025;
1 lump sum payment of $10,000.00 due on August 25, 2030;1 lump sum payment of
$15,000.00 due on August 25, 2035; (the "Assigned Payments").
2. The New York GOL §5-1705(a) mandates the filing of this matter
by Order to Show Cause (Exhibit "A").
3. The Petitioner, APOLLO, with its principal place of business located in
California, is a "Transferee" as defined in GOL §5-1701(t).
4. The Respondent, TRACY HARMAN
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("HARMAN"), is a "Payee" as defined in GOL §5-1701(h). The Payee is entitled to receive
a structured settlement payment stream that is the subject of this Application.
5. Payee is pro se in this matter. Counsel for Petitioner makes no representations
on behalf of the Payee, his/her interests or the terms or suitability of this transaction as the
same relates to Payee. Upon information and belief, Payee does not have an appointed
guardian or conservator and Payee contends that he or she has the mental capacity to enter
this transaction.
6. Jurisdiction exists in this Court because HARMAN resides in Erie County.
7. Certain entities are deemed to be "interested parties" to this Petition as
defined in GOL §5-1701(f); pursuant to GOL §5-1705(c) they are to be served at least 20
days prior to the Petition being heard with copies of said Petition and the notice of Petition
or Order to Show Cause, as the case may be.
8. The interested parties noticed of the special proceeding herein are:
i. Upon information and belief, the Payee is prepared to testify before this
Court regarding the proposed transfer and the needs surrounding it;
ii. PACIFIC LIFE & ANNUITY SERVICES, INC. is a "Structured
Settlement Obligor" as defined in GOL §5-1701(n) with respect to the
structured settlement payment rights at issue in this proceeding; and
iii. PACIFIC LIFE & ANNUITY COMPANY is the "Annuity Issuer" as
defined in GOL §5-1701(a) in connection with the structured settlement
payment rights at issue in this proceeding.
9. HARMAN, as she disclosed to APOLLO, is single and has one minor
dependent.
10. The Payee is the recipient of structured settlement payments as through a
settlement contract resulting from a personal injury claim, which provided for a series of
deferred cash payments under a "structured settlement" as defined in GOL §5-1791(l) and
2
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26 U.S.C. §5891(c)(1). A true and correct copy of the resulting annuity contract is attached
hereto as Exhibit "B".
11. Pursuant to 26 U.S.C. §5891(a), any transfer of structured settlement
payment rights pursuant to a Transfer Agreement entered into after the effective date
subjects the Transferee (i.e., the purchaser of the structured settlement payment rights) to
an excise tax unless the transfer has been approved by, inter alia, by a court of the state in
which the Payee of the structured settlement is domiciled through the issuance of a
"Qualified Order," which is defined as an order issued pursuant to the terms of a statute
regulating the transfer of structured settlement transfer rights enacted by the state in which
the Payee is domiciled or the settled case was litigated. The Structured Settlement
Protection Act, GOL §5-1701 et seq. is such a statute.
12. New York Insurance Law §3212(d) provides that any purported
limitations upon transfer in an annuity contract funding a structured settlement are
ineffective if the transfer has been approved pursuant to GOL §5-1701 et seq.
13. The Payee executed a "Transfer Agreement" as defined in GOL §5-
1701(r), wherein he/she agreed to sell, assign or transfer to APOLLO rights to certain
payments remaining under the settlement agreement. A copy of the said proposed Transfer
Agreement is annexed hereto as Exhibit "C". Pursuant to and consistent with the Act and
the Transfer Agreement, the Petitioner, in its exclusive role as a buyer of structured
settlement payments, provided no services whatsoever to the Payee including, but not
limited to, not providing any legal, tax, or financial advice. No fees or costs are owed or
paid by the Payee in conjunction with the sale of the Assigned Payments to the Transferee.
14. Pursuant to the Transfer Agreement, the Payee seeks to sell, assign or
transfer to APOLLO rights to the Assigned Payments as defined above.
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15. It is a condition of the Transfer Agreement that the transfer be approved by
a court and an order entered, that must be recognized and honored by PACIFIC LIFE &
ANNUITY SERVICES, INC., the structured settlement obligor and PACIFIC LIFE &
ANNUITY COMPANY, the annuity issuer.
16. Petitioner is informed and believes and upon that basis alleges that the
underlying structured settlement that established the annuity at issue in the present case
contained language that restricted and/or prohibited the right and/or power to assign the
Assigned Payments in question.
17. All disclosure requirements of GOL §5-1703 have been complied with by
providing, not less than ten (10) days prior to the date on which the Payee executed the
Transfer Agreement by first class mail and certified-mail, return-receipt requested and/or
postal office priority mail, the disclosure statement in 14-point bold type containing
disclosures in plain language the information required therein, namely;
a. the amount and due date of the structured settlement payments to be
transferred;
b. the aggregate amount of such payments;
c. the discounted present value of the payments to be transferred which
shall be identified as the "calculation of current value of the transferred
structured settlement payments under federal standards for valuing
annuities", and the amount of the applicable federal rate used in
calculating such discounted present value;
d. the price quote from the original annuity issuer or, if such price quote is
not readily available from the original annuity issuer, then a price quote
from two other annuity issuers that reflects the current cost of
4
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purchasing a comparable annuity for the aggregate amount of payments
to be transferred;
e. the gross advance amount and the annual discount rate, compounded
monthly, used to determine such figures;
f. an itemized listing of all commissions, fees, costs, expenses and charges
payable by the Payee or deductible from the gross amount otherwise
payable to the Payee and the total amount of such fees;
g. the net advance amount including the statement: "The net cash payment
you receive in this transaction from the buyer was determined by
applying the specified discount rate to the amount of future payments
received by the buyer, less the total amount of commissions, fees, costs,
expenses and charges payable by you";
h. the amount of any penalties or liquidated damages payable by the Payee
in the event of any breach of the Transfer Agreement by the Payee; and
i. a statement that the Payee has the right to cancel the Transfer
Agreement, without penalty or further obligation, not later than the third
business day after the date the Transfer Agreement is signed by the
Payee.
The Disclosure Statement and proof of its mailing via United States postal service priority
mail and receipt by the Payee, as reflected in the Disclosure Statement, is attached hereto
as Exhibit "D".
18. Pursuant to 26 U.S.C. 5891, the Court in approving the transfer must find:
a. the transfer is in the best interests of the Payee, taking into account
the welfare and support of the Payee's dependents, if any; and
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b. the transfer does not contravene any applicable federal or state
statute or the order of any court or responsible administrative or
government authority.
19. Pursuant to GOL §5-1701 et seq., the Court in approving the transfer must
find:
a. the transfer complies with all requirements of the Structured
Settlement Protection Act, GOL §5-1701 et seq.;
b. the transfer is in the best interests of the Payee taking into account
the welfare and support of the Payee's dependents, if any, (for the
reasons identified in the affidavit of the Payee annexed hereto as
Exhibit "E", upon information and belief, the Payee believes that
the transfer is in the Payee's best interest taking into account the
welfare and support of the Payee's dependents).
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; (Exhibit "F")
d. The transfer does not contravene any applicable federal or state
statute or the order of any court or other government or responsible
administrative authority; and
e. The Transfer Agreement and all disclosures are written in plain
language and in compliance with GOL § 5-702.
20. Except as referenced elsewhere in the Petition, no previous application has
been made to this or any other Court for the relief sought herein.
21. Upon information and belief, the Payee is aware of other transferees and
that those transferees could make alternative offers.
22. The controlling statute is attached herewith as Exhibit "G"
23. A list of the Payee's dependents, as identified to the Petitioner by the Payee,
is attached herewith as Exhibit "H".
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24. Upon information and belief, Payee has previously attempted and/or
completed the following structured settlement transfers:
a. None
Transfers may have been attempted or completed but after good faith efforts
Petitioner is not able to locate any additional filings.
25. The undersigned respectfully requests a hearing in this matter to address
any questions or concerns of the Court.
WHEREFORE, pursuant to GOL §5-1701, et seq., Petitioner, APOLLO, hereby
respectfully requests that this Court enter an Order approving the transfer, based upon
findings that it is in compliance with the requirements of 26 U.S.C. §5891 and GOL §5-
1701 et seq.
Dated: April 25, 2023
Respectfully Submitted,
/s/ Greg Saber__________________
Greg Saber/Petitioner's Attorney
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
----------------------------------------------------------------------------X
In the Matter of the Petition of
APOLLO MATHERS, LLC,
Petitioner(s),
For Approval of Transfer of Structured Settlement Payment ATTORNEY'S
Rights In Accordance with New York GOL §5-1701, VERIFICATION
-against-
PACIFIC LIFE & ANNUITY SERVICES, INC.,
PACIFIC LIFE & ANNUITY COMPANY,
and TRACY HARMAN,
Respondents
----------------------------------------------------------------------------X
GREG SABER, an attorney duly admitted to practice in the Courts of the State of New
York, affirms the following, upon information and belief, under the penalties of perjury:
I am the attorney of record for the Petitioner, Apollo Mathers, LLC, in the above-entitled
action.
I have read the foregoing Order to Show Cause and Verified Petition and know the contents
thereof; the same is true to my own knowledge except as to the matters therein stated to be alleged
on information and belief, and that as to those matters, I believe them to be true.
This verification is made by your affirmant and not by Petitioner because said Petitioner
does not maintain its principal place of business within New York County, New York, which is
the county where your affirmant maintains offices.
The grounds of your affirmant's belief as to all matters not stated upon affirmant's
knowledge are correspondence had with Petitioner, information contained in said Petitioner's file,
which is in your affirmant's possession, and other pertinent data relating thereto.
Dated: April 25, 2023
/s/ Greg Saber__________
Greg Saber, Esq.
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SUPREME COURT OF THE STATE OF NEW YORK INDEX NO.
COUNTY OF ERIE
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In the Matter of the Petition of
APOLLO MATHERS, LLC,
Petitioner(s),
For Approval of Transfer of Structured Settlement Payment
Rights In Accordance with New York GOL §5-1701,
-against-
PACIFIC LIFE & ANNUITY SERVICES, INC.,
PACIFIC LIFE & ANNUITY COMPANY,
and TRACY HARMAN,
Respondent(s).
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X
_________________________________
ORDER TO SHOW CAUSE, VERIFIED PETITION AND EXHIBITS
_________________________________
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney duly admitted to practice in the
courts of New York State, certifies that, upon information and belief and reasonable inquiry, the
contentions contained in the annexed documents are not frivolous.
Dated: April 25, 2023 Signature: /s/ Greg Saber_______
Greg Saber, Esq.
GREG SABER, ESQ.
Attorney(s) for Petitioner(s)
264 W. 40th St.
Ste. 403
New York, NY 10018
(800) 449-6311 – Telephone
(800) 922-6312 – Facsimile
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Exhibit A
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Page 1
LekisNexis'
1 of 2
DOCUMENTS
NEW YORK
CONSOLIDATED LAW SERVICE
Copyright O 2011 Matthew
a member of the Bender, inc.
IzzisNexis (TM)
Group
All rights reserved
'"*
THIS SECTION IS CURRENT THROUGH
*** 2011 RELEASED CHAPTERS '**
1-54, 57-76 ***
. GENERAL OD120ATIONS
ARTICLE 5. CREATION, LAW
DEFINTTION AND BNFORCBMENT OF CONTRACrUAL
TITLE 17. STRUCTURED OBLTOATIONS
SETTLEMENT PROTECTION ACT
Go to the New York Code Archive
Directory
NY CLS Gen Oblig § 5-1705
(2011)
§ 5-1705. Procedure for approval
of transfers
(a) An action for approval of a transfer of a structured
order to show cause. settlement shall be by a special
proceeding brought on only by
(b) Such proceeding shall be commented
to obtain approval of a transfer of
structured settlement payment rights. Such
proceeding shall be commenced:
(i) in the supreme court of the
county in which the payce resides:or
(ii)in any court which approved the
structured settlement agreement.
(c) A copy of the (fig 1] ordct to show cause and
petition shall be served upon all interested
before the time at which the parties at least twenty days
petition is noticed to be heard. A response
petition is noticed to be heard. shall be served at least seven days before the
(d) A petition for approval of a transfer of structured settlement
payment rights shall include:
(i) a copy of the transfer agreement;
(ii) a copy of the disclosure statement and proof of notice of that statement
required under section 5-1703 of this ti-
ile; (fig 1]
(iii) a listing of each of the psyce's dependents, together with each
dependent's age; and
(iv) a statement setting forth whether there have been
any previous transfers or applications for transfer of the struc-
tured settlement payment rights and
giving details of all such transfers or applications for Iransfer.
(c) On the hearing, the payce shall ottend before the court
unless attendance is excused for good cause.
HISTORY:
Add, L 2002, ch 537. § 2, eff July 1, 2002 (see 2002 note
below); amd, L 2010, ch 511, § 1, eff Jan 1, 2011.
NOTES:
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NY CLS Gen
Oblig § 5-1705 Page 2
2010
Recommenda,ions of the
The Cornmittee Advisory Committee on Civil
r6commends the amendment Practice
lar as it of New York%
governs the procedure General Obligations Law
for Title 17, enacted in
By way o f obtaining court approval for the
backgSnund, in a structured transfer of a structured 2002, inso-
ment. Rather, all:or'.a settlernent the recipient
portion are paid out in does not receive all the settlement.
Usually a atrue,tured settlement scheduled periodic proceeds at the time of settle-
payments over a course
agreement restricts the of time.
Nonetheless, a market has recipient from
developed transferring the rights to the future
panics - purchase the whereby entitics - payments.
rights to future commonly itfetted lo anstructi-r"J
Craig H. paynionts for a present cash a"utement
Ulman,Transfers of Structured payment (see rectoring com.
tlement Protection Sentament Payment Rights: What generally. Daniel w. Hindart and
Acts, A.B.A. Judges' Judges Should Know
The structured Journal, Spring 2005.). About 5tructured Set-
senaternem recipient
rate by the (referred to in OOL Title 17
factoring company in exchange for as the
whether the transfes is the present cash "payee") is typically charged a high
"in the best interests payment. In order to assist discount
1705 are of the payee," the Court in
recommended: (GOL § 0l706(6)] the determining
First: Section following amendments to section 5-
to show cause. 5-1705(a) would add the requirement that the action
for spproval or a
'ltis addition would aid transfer be initiated
in only by order
assigning the action,
Requiring that the action be brought particularly in counties where one judge
specified in section on by order to show handles all such applications.
5-1705(c). cause does not reduce
the minimum notice
Second: Section period of 20 days
ment 5,1705(d)(iv) would be added to
setting forth whether there have provide that the petition
for appmval of a
and giving details been any previous transfers or transfer include: a state-
of all such applications for transfer of the
This information is transfers or applications for structured settlement
transfer.
obviously useful to the Court, but
filing a petition will
seeking a transfer in one venue after it hopefully also have the effect of
Angel L. has already been denied deterring the practice of
Claudio, Jr., Index in a different venue.
#7063/2006, Supreme Court, Dutchess (Sec, c.g., In re:
01/10/074 County, Order of Hon. Christine A.
Third: Section Sproat, LS.C.
S-1705(c) would be added; On the
excused for good cause. hearing, the payee shall attend before
the court unless
This new language is attendance is
adopted from CFLR l208(d).
(c) must It is not intended that the "hearing"
necessarily be a formal described in new subdivision
used in the broader hearirig that is "on the recorda and
sense with the expectation involves the reception of
that the court wilt direct avidence, but the term is
such formalities as it
deems advisable.
Editor's Notes
Laws 2002, ch
537, §§ 1 and 4, efE
July 1, 2002, provide as follows:
Section 1. Short title. This
act shall be known and
4.
§ This act shall take may be cited as the "structured
cffect July 1, 2002 and shall settlement protection act".
a transfer agrccinent apply lo any transfer of structured settlement
entered into on or after such paymen t rights under
date.
Amendment Notes
2010. Chapter 511,
§ 1 amended:
Sub (a) by
adding the matter in italics.
Sub (c) by
deleting at fig I "notice of petition and petition
Sub (d), par or".
(ii) by;dc)cting at fig 1 "and".
Sub (d), par
(iii) by adding the matter in italics.
By adding sub (d),!par (iv).
By adding sub (e).
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NY CIE Ocri
Oblig § 5-1705 P'88 3
LeýNexis 50 State
Surveys, Legislation & Regulations
5tructured settlements
Case Notes:
. i
;
1Agislative $lasidards
the assignmen t that upply to the
of periodic assignment of structured
lottery payinents in etchange for sctilements lit p runnal
329, 765 NYS2d 208. n lurnp sum njury eam elso apply to
psyofE In re Cabrera
(2003, 5ty) 296 Misc 2d
Structured settlement
in and operate a recipient's request for transfer
pi a business of the settlement
from was denied to him sothat he
to the request, when by a trial court as the could buy a
the recipient was 17 settlement was entered into building to live
him to have years old and was act only three years prior
learning difOculties. The court up due to him leed
tured settlement deferred to the assessment acquiring poisoning, which did cause
(only threc years prior) that it of the recipient% mother
(2008, Sup) 20 Mise 3d was necessary. Matter at the time of the struc-
1114A, 240 NY12 23. of 321 Henderson
ReceivaMes Origination LLC
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Exhibit B
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PACIFICLIFE
&ANNUITY COMPANY
(A Stock Insurance Company)
Administrative Office:
700 Newport Center Drive, Newport Beach, California 92660
SINGLE PREMlUM SETTLEMENT ANNUITY
POLICY DATA
Owner: PACIFIC LIFE & ANNUITY Policy Number: 16800290
SERVICES, INC.
Measuring Lives: TRACY HARMAN
issue Date: November 28, 2016
Annuity Payments to be Made to Owner's Designee
Pacific Life & Annuity Company, an Arizona corporation, ("the Company") will pay annuity
payments to the policy owner, or such person(s) as the policy owner may designate, subject to the
provisions of this and the following pages which are made a part of this policy, according to the
attached Schedule of Benefits.
READ YOUR POLICY CAREFULLY. This policy is a legal contract between the policy owner and
the Company. Pacific Life & Annuity Company is a stockholder owned company. As such,
purchasing and owning a Pacific Life & Annuity Company policy does not confer any membership
rights nor ownership rights in Pacific Life & Annuity Company or any other company affiliated with
Pacific Life & Annuity Company.
Free Look Right - At time within 10 days after you receive this policy, you return it to us
any may
or the broker through whom you bought it. This policy will then be deemed void from the Issue
Date. We will refund any premium paid less any annuity payments made.
This policy is executed for the Company at its Administrative Office at Newport Beach, California,
to be effective on the Issue Date.
Chairman and Chief Executive Officer Secretary
Single Premium Settlement Annuity
Immediate - No Cash Value
Annuity
- No Annual Dividends
Non-Participating
Annuity Payments Specified in Schedule
Page 1
25-21694 1-11
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COPY
SCHEDULE OF BENEFITS
Measuring Life: TRACY HARMAN
Policy/Certificate No.: 81014-08057
(Please see Application.)
------------------------------------------ END ---------------------------------------
NO BENEFITS, INCLUDING ANY DEATH BENEFITS, ARE PAYABLE EXCEPT ON THE DATES
AND IN THE AMOUNTS SET FORTH ABOVE.
Page 2
25-21694 799
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Preview
FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE ---------------------------------------------------------------------------X Index No. In the Matter of the Petition of APOLLO MATHERS, LLC, for Approval of Transfer of Structured Settlement Payment Rights In Accordance with New York GOL §5-1701, -against- VERIFIED PETITION PACIFIC LIFE & ANNUITY SERVICES, INC., PACIFIC LIFE & ANNUITY COMPANY, and TRACY HARMAN ----------------------------------------------------------------------------X Petitioner, APOLLO MATHERS, LLC ("APOLLO"), by its attorney, Greg Saber, on notice to respondents, TRACY HARMAN, PACIFIC LIFE & ANNUITY SERVICES, INC. and PACIFIC LIFE & ANNUITY COMPANY, alleges as follows: 1. This is a special proceeding pursuant to the Structured Settlement Protection Act, General Obligations Law §5-1701 et seq. seeking approval of the transfer of certain structured settlement payment rights due under a structured settlement agreement, in accordance with 26 U.S.C. §5891 et seq. and GOL §5-1701 et seq (the "Act"). The proposed transfer seeks approval, as authorized by the statute, for the sale of the following: 1 lump sum payment of $10,000.00 due on August 25, 2025; 1 lump sum payment of $10,000.00 due on August 25, 2030;1 lump sum payment of $15,000.00 due on August 25, 2035; (the "Assigned Payments"). 2. The New York GOL §5-1705(a) mandates the filing of this matter by Order to Show Cause (Exhibit "A"). 3. The Petitioner, APOLLO, with its principal place of business located in California, is a "Transferee" as defined in GOL §5-1701(t). 4. The Respondent, TRACY HARMAN 1 1 of 48 FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 ("HARMAN"), is a "Payee" as defined in GOL §5-1701(h). The Payee is entitled to receive a structured settlement payment stream that is the subject of this Application. 5. Payee is pro se in this matter. Counsel for Petitioner makes no representations on behalf of the Payee, his/her interests or the terms or suitability of this transaction as the same relates to Payee. Upon information and belief, Payee does not have an appointed guardian or conservator and Payee contends that he or she has the mental capacity to enter this transaction. 6. Jurisdiction exists in this Court because HARMAN resides in Erie County. 7. Certain entities are deemed to be "interested parties" to this Petition as defined in GOL §5-1701(f); pursuant to GOL §5-1705(c) they are to be served at least 20 days prior to the Petition being heard with copies of said Petition and the notice of Petition or Order to Show Cause, as the case may be. 8. The interested parties noticed of the special proceeding herein are: i. Upon information and belief, the Payee is prepared to testify before this Court regarding the proposed transfer and the needs surrounding it; ii. PACIFIC LIFE & ANNUITY SERVICES, INC. is a "Structured Settlement Obligor" as defined in GOL §5-1701(n) with respect to the structured settlement payment rights at issue in this proceeding; and iii. PACIFIC LIFE & ANNUITY COMPANY is the "Annuity Issuer" as defined in GOL §5-1701(a) in connection with the structured settlement payment rights at issue in this proceeding. 9. HARMAN, as she disclosed to APOLLO, is single and has one minor dependent. 10. The Payee is the recipient of structured settlement payments as through a settlement contract resulting from a personal injury claim, which provided for a series of deferred cash payments under a "structured settlement" as defined in GOL §5-1791(l) and 2 2 of 48 FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 26 U.S.C. §5891(c)(1). A true and correct copy of the resulting annuity contract is attached hereto as Exhibit "B". 11. Pursuant to 26 U.S.C. §5891(a), any transfer of structured settlement payment rights pursuant to a Transfer Agreement entered into after the effective date subjects the Transferee (i.e., the purchaser of the structured settlement payment rights) to an excise tax unless the transfer has been approved by, inter alia, by a court of the state in which the Payee of the structured settlement is domiciled through the issuance of a "Qualified Order," which is defined as an order issued pursuant to the terms of a statute regulating the transfer of structured settlement transfer rights enacted by the state in which the Payee is domiciled or the settled case was litigated. The Structured Settlement Protection Act, GOL §5-1701 et seq. is such a statute. 12. New York Insurance Law §3212(d) provides that any purported limitations upon transfer in an annuity contract funding a structured settlement are ineffective if the transfer has been approved pursuant to GOL §5-1701 et seq. 13. The Payee executed a "Transfer Agreement" as defined in GOL §5- 1701(r), wherein he/she agreed to sell, assign or transfer to APOLLO rights to certain payments remaining under the settlement agreement. A copy of the said proposed Transfer Agreement is annexed hereto as Exhibit "C". Pursuant to and consistent with the Act and the Transfer Agreement, the Petitioner, in its exclusive role as a buyer of structured settlement payments, provided no services whatsoever to the Payee including, but not limited to, not providing any legal, tax, or financial advice. No fees or costs are owed or paid by the Payee in conjunction with the sale of the Assigned Payments to the Transferee. 14. Pursuant to the Transfer Agreement, the Payee seeks to sell, assign or transfer to APOLLO rights to the Assigned Payments as defined above. 3 3 of 48 FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 15. It is a condition of the Transfer Agreement that the transfer be approved by a court and an order entered, that must be recognized and honored by PACIFIC LIFE & ANNUITY SERVICES, INC., the structured settlement obligor and PACIFIC LIFE & ANNUITY COMPANY, the annuity issuer. 16. Petitioner is informed and believes and upon that basis alleges that the underlying structured settlement that established the annuity at issue in the present case contained language that restricted and/or prohibited the right and/or power to assign the Assigned Payments in question. 17. All disclosure requirements of GOL §5-1703 have been complied with by providing, not less than ten (10) days prior to the date on which the Payee executed the Transfer Agreement by first class mail and certified-mail, return-receipt requested and/or postal office priority mail, the disclosure statement in 14-point bold type containing disclosures in plain language the information required therein, namely; a. the amount and due date of the structured settlement payments to be transferred; b. the aggregate amount of such payments; c. the discounted present value of the payments to be transferred which shall be identified as the "calculation of current value of the transferred structured settlement payments under federal standards for valuing annuities", and the amount of the applicable federal rate used in calculating such discounted present value; d. the price quote from the original annuity issuer or, if such price quote is not readily available from the original annuity issuer, then a price quote from two other annuity issuers that reflects the current cost of 4 4 of 48 FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 purchasing a comparable annuity for the aggregate amount of payments to be transferred; e. the gross advance amount and the annual discount rate, compounded monthly, used to determine such figures; f. an itemized listing of all commissions, fees, costs, expenses and charges payable by the Payee or deductible from the gross amount otherwise payable to the Payee and the total amount of such fees; g. the net advance amount including the statement: "The net cash payment you receive in this transaction from the buyer was determined by applying the specified discount rate to the amount of future payments received by the buyer, less the total amount of commissions, fees, costs, expenses and charges payable by you"; h. the amount of any penalties or liquidated damages payable by the Payee in the event of any breach of the Transfer Agreement by the Payee; and i. a statement that the Payee has the right to cancel the Transfer Agreement, without penalty or further obligation, not later than the third business day after the date the Transfer Agreement is signed by the Payee. The Disclosure Statement and proof of its mailing via United States postal service priority mail and receipt by the Payee, as reflected in the Disclosure Statement, is attached hereto as Exhibit "D". 18. Pursuant to 26 U.S.C. 5891, the Court in approving the transfer must find: a. the transfer is in the best interests of the Payee, taking into account the welfare and support of the Payee's dependents, if any; and 5 5 of 48 FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 b. the transfer does not contravene any applicable federal or state statute or the order of any court or responsible administrative or government authority. 19. Pursuant to GOL §5-1701 et seq., the Court in approving the transfer must find: a. the transfer complies with all requirements of the Structured Settlement Protection Act, GOL §5-1701 et seq.; b. the transfer is in the best interests of the Payee taking into account the welfare and support of the Payee's dependents, if any, (for the reasons identified in the affidavit of the Payee annexed hereto as Exhibit "E", upon information and belief, the Payee believes that the transfer is in the Payee's best interest taking into account the welfare and support of the Payee's dependents). 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; (Exhibit "F") d. The transfer does not contravene any applicable federal or state statute or the order of any court or other government or responsible administrative authority; and e. The Transfer Agreement and all disclosures are written in plain language and in compliance with GOL § 5-702. 20. Except as referenced elsewhere in the Petition, no previous application has been made to this or any other Court for the relief sought herein. 21. Upon information and belief, the Payee is aware of other transferees and that those transferees could make alternative offers. 22. The controlling statute is attached herewith as Exhibit "G" 23. A list of the Payee's dependents, as identified to the Petitioner by the Payee, is attached herewith as Exhibit "H". 6 6 of 48 FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 24. Upon information and belief, Payee has previously attempted and/or completed the following structured settlement transfers: a. None Transfers may have been attempted or completed but after good faith efforts Petitioner is not able to locate any additional filings. 25. The undersigned respectfully requests a hearing in this matter to address any questions or concerns of the Court. WHEREFORE, pursuant to GOL §5-1701, et seq., Petitioner, APOLLO, hereby respectfully requests that this Court enter an Order approving the transfer, based upon findings that it is in compliance with the requirements of 26 U.S.C. §5891 and GOL §5- 1701 et seq. Dated: April 25, 2023 Respectfully Submitted, /s/ Greg Saber__________________ Greg Saber/Petitioner's Attorney 7 7 of 48 FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE ----------------------------------------------------------------------------X In the Matter of the Petition of APOLLO MATHERS, LLC, Petitioner(s), For Approval of Transfer of Structured Settlement Payment ATTORNEY'S Rights In Accordance with New York GOL §5-1701, VERIFICATION -against- PACIFIC LIFE & ANNUITY SERVICES, INC., PACIFIC LIFE & ANNUITY COMPANY, and TRACY HARMAN, Respondents ----------------------------------------------------------------------------X GREG SABER, an attorney duly admitted to practice in the Courts of the State of New York, affirms the following, upon information and belief, under the penalties of perjury: I am the attorney of record for the Petitioner, Apollo Mathers, LLC, in the above-entitled action. I have read the foregoing Order to Show Cause and Verified Petition and know the contents thereof; the same is true to my own knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters, I believe them to be true. This verification is made by your affirmant and not by Petitioner because said Petitioner does not maintain its principal place of business within New York County, New York, which is the county where your affirmant maintains offices. The grounds of your affirmant's belief as to all matters not stated upon affirmant's knowledge are correspondence had with Petitioner, information contained in said Petitioner's file, which is in your affirmant's possession, and other pertinent data relating thereto. Dated: April 25, 2023 /s/ Greg Saber__________ Greg Saber, Esq. 8 of 48 FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 SUPREME COURT OF THE STATE OF NEW YORK INDEX NO. COUNTY OF ERIE - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X In the Matter of the Petition of APOLLO MATHERS, LLC, Petitioner(s), For Approval of Transfer of Structured Settlement Payment Rights In Accordance with New York GOL §5-1701, -against- PACIFIC LIFE & ANNUITY SERVICES, INC., PACIFIC LIFE & ANNUITY COMPANY, and TRACY HARMAN, Respondent(s). - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X _________________________________ ORDER TO SHOW CAUSE, VERIFIED PETITION AND EXHIBITS _________________________________ Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney duly admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed documents are not frivolous. Dated: April 25, 2023 Signature: /s/ Greg Saber_______ Greg Saber, Esq. GREG SABER, ESQ. Attorney(s) for Petitioner(s) 264 W. 40th St. Ste. 403 New York, NY 10018 (800) 449-6311 – Telephone (800) 922-6312 – Facsimile 9 of 48 FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 Exhibit A 10 of 48 FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 Page 1 LekisNexis' 1 of 2 DOCUMENTS NEW YORK CONSOLIDATED LAW SERVICE Copyright O 2011 Matthew a member of the Bender, inc. IzzisNexis (TM) Group All rights reserved '"* THIS SECTION IS CURRENT THROUGH *** 2011 RELEASED CHAPTERS '** 1-54, 57-76 *** . GENERAL OD120ATIONS ARTICLE 5. CREATION, LAW DEFINTTION AND BNFORCBMENT OF CONTRACrUAL TITLE 17. STRUCTURED OBLTOATIONS SETTLEMENT PROTECTION ACT Go to the New York Code Archive Directory NY CLS Gen Oblig § 5-1705 (2011) § 5-1705. Procedure for approval of transfers (a) An action for approval of a transfer of a structured order to show cause. settlement shall be by a special proceeding brought on only by (b) Such proceeding shall be commented to obtain approval of a transfer of structured settlement payment rights. Such proceeding shall be commenced: (i) in the supreme court of the county in which the payce resides:or (ii)in any court which approved the structured settlement agreement. (c) A copy of the (fig 1] ordct to show cause and petition shall be served upon all interested before the time at which the parties at least twenty days petition is noticed to be heard. A response petition is noticed to be heard. shall be served at least seven days before the (d) A petition for approval of a transfer of structured settlement payment rights shall include: (i) a copy of the transfer agreement; (ii) a copy of the disclosure statement and proof of notice of that statement required under section 5-1703 of this ti- ile; (fig 1] (iii) a listing of each of the psyce's dependents, together with each dependent's age; and (iv) a statement setting forth whether there have been any previous transfers or applications for transfer of the struc- tured settlement payment rights and giving details of all such transfers or applications for Iransfer. (c) On the hearing, the payce shall ottend before the court unless attendance is excused for good cause. HISTORY: Add, L 2002, ch 537. § 2, eff July 1, 2002 (see 2002 note below); amd, L 2010, ch 511, § 1, eff Jan 1, 2011. NOTES: 11 of 48 FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 NY CLS Gen Oblig § 5-1705 Page 2 2010 Recommenda,ions of the The Cornmittee Advisory Committee on Civil r6commends the amendment Practice lar as it of New York% governs the procedure General Obligations Law for Title 17, enacted in By way o f obtaining court approval for the backgSnund, in a structured transfer of a structured 2002, inso- ment. Rather, all:or'.a settlernent the recipient portion are paid out in does not receive all the settlement. Usually a atrue,tured settlement scheduled periodic proceeds at the time of settle- payments over a course agreement restricts the of time. Nonetheless, a market has recipient from developed transferring the rights to the future panics - purchase the whereby entitics - payments. rights to future commonly itfetted lo anstructi-r"J Craig H. paynionts for a present cash a"utement Ulman,Transfers of Structured payment (see rectoring com. tlement Protection Sentament Payment Rights: What generally. Daniel w. Hindart and Acts, A.B.A. Judges' Judges Should Know The structured Journal, Spring 2005.). About 5tructured Set- senaternem recipient rate by the (referred to in OOL Title 17 factoring company in exchange for as the whether the transfes is the present cash "payee") is typically charged a high "in the best interests payment. In order to assist discount 1705 are of the payee," the Court in recommended: (GOL § 0l706(6)] the determining First: Section following amendments to section 5- to show cause. 5-1705(a) would add the requirement that the action for spproval or a 'ltis addition would aid transfer be initiated in only by order assigning the action, Requiring that the action be brought particularly in counties where one judge specified in section on by order to show handles all such applications. 5-1705(c). cause does not reduce the minimum notice Second: Section period of 20 days ment 5,1705(d)(iv) would be added to setting forth whether there have provide that the petition for appmval of a and giving details been any previous transfers or transfer include: a state- of all such applications for transfer of the This information is transfers or applications for structured settlement transfer. obviously useful to the Court, but filing a petition will seeking a transfer in one venue after it hopefully also have the effect of Angel L. has already been denied deterring the practice of Claudio, Jr., Index in a different venue. #7063/2006, Supreme Court, Dutchess (Sec, c.g., In re: 01/10/074 County, Order of Hon. Christine A. Third: Section Sproat, LS.C. S-1705(c) would be added; On the excused for good cause. hearing, the payee shall attend before the court unless This new language is attendance is adopted from CFLR l208(d). (c) must It is not intended that the "hearing" necessarily be a formal described in new subdivision used in the broader hearirig that is "on the recorda and sense with the expectation involves the reception of that the court wilt direct avidence, but the term is such formalities as it deems advisable. Editor's Notes Laws 2002, ch 537, §§ 1 and 4, efE July 1, 2002, provide as follows: Section 1. Short title. This act shall be known and 4. § This act shall take may be cited as the "structured cffect July 1, 2002 and shall settlement protection act". a transfer agrccinent apply lo any transfer of structured settlement entered into on or after such paymen t rights under date. Amendment Notes 2010. Chapter 511, § 1 amended: Sub (a) by adding the matter in italics. Sub (c) by deleting at fig I "notice of petition and petition Sub (d), par or". (ii) by;dc)cting at fig 1 "and". Sub (d), par (iii) by adding the matter in italics. By adding sub (d),!par (iv). By adding sub (e). 12 of 48 FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 NY CIE Ocri Oblig § 5-1705 P'88 3 LeýNexis 50 State Surveys, Legislation & Regulations 5tructured settlements Case Notes: . i ; 1Agislative $lasidards the assignmen t that upply to the of periodic assignment of structured lottery payinents in etchange for sctilements lit p runnal 329, 765 NYS2d 208. n lurnp sum njury eam elso apply to psyofE In re Cabrera (2003, 5ty) 296 Misc 2d Structured settlement in and operate a recipient's request for transfer pi a business of the settlement from was denied to him sothat he to the request, when by a trial court as the could buy a the recipient was 17 settlement was entered into building to live him to have years old and was act only three years prior learning difOculties. The court up due to him leed tured settlement deferred to the assessment acquiring poisoning, which did cause (only threc years prior) that it of the recipient% mother (2008, Sup) 20 Mise 3d was necessary. Matter at the time of the struc- 1114A, 240 NY12 23. of 321 Henderson ReceivaMes Origination LLC 13 of 48 FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 Exhibit B 14 of 48 FILED: LUF ERIEY COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 PACIFICLIFE &ANNUITY COMPANY (A Stock Insurance Company) Administrative Office: 700 Newport Center Drive, Newport Beach, California 92660 SINGLE PREMlUM SETTLEMENT ANNUITY POLICY DATA Owner: PACIFIC LIFE & ANNUITY Policy Number: 16800290 SERVICES, INC. Measuring Lives: TRACY HARMAN issue Date: November 28, 2016 Annuity Payments to be Made to Owner's Designee Pacific Life & Annuity Company, an Arizona corporation, ("the Company") will pay annuity payments to the policy owner, or such person(s) as the policy owner may designate, subject to the provisions of this and the following pages which are made a part of this policy, according to the attached Schedule of Benefits. READ YOUR POLICY CAREFULLY. This policy is a legal contract between the policy owner and the Company. Pacific Life & Annuity Company is a stockholder owned company. As such, purchasing and owning a Pacific Life & Annuity Company policy does not confer any membership rights nor ownership rights in Pacific Life & Annuity Company or any other company affiliated with Pacific Life & Annuity Company. Free Look Right - At time within 10 days after you receive this policy, you return it to us any may or the broker through whom you bought it. This policy will then be deemed void from the Issue Date. We will refund any premium paid less any annuity payments made. This policy is executed for the Company at its Administrative Office at Newport Beach, California, to be effective on the Issue Date. Chairman and Chief Executive Officer Secretary Single Premium Settlement Annuity Immediate - No Cash Value Annuity - No Annual Dividends Non-Participating Annuity Payments Specified in Schedule Page 1 25-21694 1-11 15 of 48 FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM INDEX NO. 805195/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/25/2023 COPY SCHEDULE OF BENEFITS Measuring Life: TRACY HARMAN Policy/Certificate No.: 81014-08057 (Please see Application.) ------------------------------------------ END --------------------------------------- NO BENEFITS, INCLUDING ANY DEATH BENEFITS, ARE PAYABLE EXCEPT ON THE DATES AND IN THE AMOUNTS SET FORTH ABOVE. Page 2 25-21694 799 16 of 48 FILED: ERIE COUNTY CLERK 04/25/2023 04:33 PM