Preview
FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/18/2020
.
"F"
EXHIBIT
FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/18/2020
Aug 13 20, 09:22p Rickie Craft 1-845-693-1657 p.11
NEW YORK TRANSFER DISCLOSURE
PAYEE: Rickie Craft, Executor of the Estate of Jeffrey Schmidt
Resident of NY
A. Amounts and due dates of the structured-settlement
payments to be transferred: $5,841.13 monthly from
6/18/2049.4i/18/2052 with 4% COLA every 6/18;
B. Aggregate amount of the payments: $218,804.16;
C. Calculation of the current value of the transferred
structured settlement payments under federal standards
for valuing annuities: $193825.24 determined by applying
the most recent published (discount) rate of 0.4% as of
July 31, 2020;
D. Two price quotes from two annuity issuers (other than the
original Annuity Issuer that issued Payee's structured
settlement payments). These quotes reflect the current
cost of purchasing a comparable annuity for the aggregate
amount of payments to be transferred: Symetra Life
Insurance Company $TBD; American National Insurance
Company $TBD;
E. Gross amount payable to the Payee in exchange for such
payments: $22,725.90 determined by applying an annual
discount rate of 7.75% compounded monthly
brokers'
F. Itemized listing of all commissions, service
charges, application fees, processing fees, closing costs,
filing fees, referral fees, administrative fees, legal fees, and
notary fees aM6tfibr comrñissions, fees, cðsts, expenses,
and charges payable by the Payee or deductible from the
gross amount otherwise payabje_to the Payee: Legal Fees:
NONE; Processing Fee: NONE
FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383
NYSCEF DOC. NO. 24 1-845-693-1657
RECEIVED NYSCEF:
p.12
08/18/2020
Aug 13 20, 09:22p Rickie Craft
G. 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: $22,725.90
minus any advances made to the Payee or on the Payee's
behalf, or claims satisfied, against the amount payable to
Payee.
H. Amount of any penalty and the aggregate amount of any
liquidated damages, including penalties, payable by the
Payee in the event of a breach of the transfer agreement by
the Payee: NONE
1. Payee shall have the right to cancel the Absolute
Assignment Agreement without penalty or further
obligation not later that the third (3rd) business day after
the date the Absolute Assignment Agreement is signed by
the Payee.
J. Payee has been advised to consult with Payee's own
attorney, certified public accountant, actuary, or other
professional adviser concerning the legal, tax, and
financial implications of a sale and transfer of structured
settlement payment rights, including the federal and state
income tax consequences of a sale and transfer.
Payee acknowledges receipt of, and acknowledges to have read
and understood, the above disclosure statement and
information required to be disclosed by Payee's applicable state
statute(s
Initial:
By signing below you are confirming that you received a copy of
that disclosure at least 10 days prior to executing your transfer
agreement.
Rickie Craft, Executor f the Estate of Jeffrey Schmidt
FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383
NYSCEF DOC. NO. 24 1-845-693-1657
RECEIVED NYSCEF:
p.13
08/18/2020
Aug 13 20, 09:22p Rickie Craft
KENTUCKY TRANSFER DISCLOSURE
Payee: Rickie Craft, Executor of the Estate of Jeffrey Schmidt
Resident of NY
A. Amounts and due dates of the structured-settlement
payments to be transferred: $5,841.13 monthly from
6/18/2049-5/18/2052 with 4% COLA every 6/18;
B. Aggregate amount of the payments: $218,804.16;
C. Discounted present value of the payments:
$193,825.24 determined by applying the most recently
published (discount) rate of 0.4% as of July 31, 2020;
D. Gross amount payable to the Payee in exchange for such
payments: $22,725.90;
brokers'
E. Itemized listing of all commissions, service
charges, application fees, processing fees, closing costs,
filing fees, referral fees, administrative fees, legal fees, and
notary fees and other commissions, fees, costs, expenses,
and charges payable by the Payee or deductible from the
gross amount otherwise payable to the Payee:
Legal Fees: WAlVED; Processing Fee: WAIVED.
F. Net amount payable to Payee after deducting all
commissions, fees, costs, expenses and charges
described above: $22,725.90 minus any advances made to
the Payee or on Payee's behalf, or claims satisfied, against
the amount payable to Payee.
G. Based on the gross amount that you will receive from us
and the amounts and timing of the structured-settlement
payments that you are turning over to us, you will, in
effect, be paying interest to us at a rate of 7.75% per year.
H. Amount of any penalty and the aggregate amount of any
liquidated damages, including penalties, payable by the
Payee in the event of a breach of the transfer agreement
by the Payee: NONE
FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383
NYSCEF DOC. NO. 24 1-845-693-1657
RECEIVED NYSCEF:
p.14
08/18/2020
Aug 13 20, 09:23p Rickie Craft
I. Payee has been advised to consult with Payee's own
attorney, certified public accountant, actuary, or other
professional adviser concerning the legal, tax, and
financial implications crf a sale and transfer of structured
settlement payment rights, including the federal and state
income tax consequences of a sale and transfer.
J. An estimate of the Administrative fee(s) being charged by
the Annuity Owner and or the Annuity Issuer to be paid by
the transferee (not the consumer) as a result of the
transfer: Metropolitan Life Insurance - $1,250.00
Company
Payee acknowledges receipt of, and acknowledges to have read
and understood, the above disclosure statement and information
required to be disclosed by Payee's applicable state statute(s).
Initials:
By signing below you are confirming that you received a copy of
this disclosure at least 10 days prior to executing your transfer
agreement.
Nickie Graft, Execut of e tstate of Jeffrey Schmidt
FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383
13 20, 09:21p Rickie1-845-693-1657
Craft p.8
Aug
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/18/2020
DISCLOSURE AFFIDAVIT
1, Rickie Craft, Executor of the Estate of Jeffrey Schmidt, being of full age and duly sworn
according to law, upon my oath depose and say:
1. I currently reside at 710 Loch Sheldrake Hurleyville Rd, Loch Sheldrake, NY 12759, USA.
2. I am over the age of (18) years old and am I make this affidavit upon my own personal
knowledge.
3. I received all of the statutorily required Disclosures on 08/03/2020 at the following
address: 710 Loch Sheldrake Hurleyville Rd, Loch Sheldrake, NY 12759, USA
Further, the affidavit sayeth not.
Rickie Craft, Executor of e Estate of Jeffrey Schmidt
Date
STATE OF
COUNTY OR CITY OF ( f 6
On the Ú day of , , m the year before me, the undersigned, personally
appeared Rickie Craft, Executor of the Estate of Jeffrey Schmidt, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument, and acknowledged to me that he/she/they executed the same
in his/her/their capacity(ies), and that by his/her/their signature(s) on theinstrument, the
individual(s), or the person upon behalf of which the individual(s) acted, executed the
instrument.
Notary MaWDAA. SWA'rTON
My Commission expires on ic2
/ / o
__
FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/18/2020
NEW YORK SUPREME COURT - COUNTY OF BRONX
Case Disposed O
SUPREME COURT OF THE STATE0F NEW YORK Settle Order O
COUNTY OF BRONX: Schedule Appearance O
____-.----------..----.__..---------------X
MEDINA,CHERLEE Index M. 260363/2008
-against- .-A . NDER W, HUNTER, JR. ,
. Justice.
------------- _______________..---X
The following papers numbered 1 to Read on this rnotion, MISCELLANEOUS
Noticed on O de of
PAPERS NUMBERED
Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed -
{ [[
Answering Affidavit and Exhibits
Replying Affidavit and Exhibits
Affidavits and Exhibits
Pleadings - Exhibit
Stiptletio::(s)- Referee's Report - Minutes
REC
Filed Papers
Memoranda of Law
Upon the foregoing papers this
ated: O
Hon.
ALEXANDER W ER, JR., J.S.C.
Filed On - 12/17/2008 2:16:08 PM Bronx Clerk
County
FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/18/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTYOF BRONX:PARTIA23
_________.._____________-----------------------X
In Re: the Matter of the Sale and Transfer of Index No.: 260363/08
Structured Settlement Payment Rights of Cherlee
Medina, Pursuant to and in Accordance with Decision/Order
Gen. Oblig. Law §5-1701, et seq.
---------------------------------------------------X
HON. ALEXANDER W. HUNTER, JR
The motion by petitioner, Structured Asset Funding, LLC, for an order seeking approval
of the sale and transfer of certain structured settlement payment rights due under a structured
settlement agreement obtained on behalf of respondent/payee, Cherlee Medina, is denied without
prejudice.
The only details provided by Ms. Medina with respect to the structured settlement that is
the subject of this application is that said structured settlement entitled her to the following
payments: twelve (12) annual payments, each in the amount of $1,000 beginning on September
1, 1993 through to and including September 1, 2004; four (4) annual payments, each in the
amount of S16,900 beginning with the payment on June 5, 2005 through to and including June 5,
2008; one (1) lump sum payment in the amount of $55,000 due and payable on June 5, 2012; one
lump sum payment in the amount of $87,500 due and payable on June 5, 2017.
According to the Disclosure Statement that was signed by Ms. Medina, which is annexed
to petitioner's motion as Exhibit E, the discounted present value of the aggregate payments to be
transferred is $47,296.71. The annual discount rate for this transaction is 13.92%. The
discounted present value is calculated by using the applicable federal rate of 3.6%. The
petitioner is not charging any commissions, fees, costs or expenses to the payee, Ms. Medina.
The Structured Settlement Protection Act (SSPA) codified under General Obligations
Law , Title 17, was enacted in July of 2002 because of the concem that "...a growing number of
factoring companies have used aggressive advertising, plus the allure of quick and easy cash, to
induce settlement recipients to cash out future payments, often at substantial discounts, depriving
victims and their famihes of the long-tem1 financialsecurity their structured settlements were
desigñêd to provide. Although transfers of structured settlements payments are generally
prohibited by contract...factoring companies have built a rapidly expanding business around
prohibitions."
circumventing these (NY Spons. Memo., 2002 Ch. 537). A determination would
be made by a Supreme Court judge as to whether the transfer is "in compliance with applicable
law, that key terms have been disclosed, that the transfer meets a hardship standard, and that
obtained."
independent professional advice has been (NY Bill Jacket, 2002 A.B. 6936, Ch. 537).
In 2004, the SSPA was amended in that the hardship requirement was "eliminated as a
end'
precondition to transfers and the requirement that disclosures be made 'at the front was
added."
(NY Spons. Memo., 2004 Ch. 480).
The procedural requirements that must be met for approval of a transfer are found under
General Obligations Law §5-1705. The requirements are that a copy of the notice of petition and
petition by order to show cause be served upon all interested parties at least twenty days before
the time at which the petition is noticed to be heard, the petition
a copy of the must include
transfer agreement, a copy of the disclosure statement and proof of notice of that statement as
dependents'
well as a listing of each of the payee's depêñdents along with the age. Procedurally,
Filed On - 12/17/2008 2:16:08 PM Bronx Clerk
County
FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/18/2020
the petitioner herein has met all of the aforementioned requirements.
Pursuant to General Obligations Law §5-1706, the court must make the following
findings before a transfer can be effectuated. These are 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 dependants; 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
fmdings 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
indepcñdent 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 applicabic
statute or the order of any court or other government authority; and (e) is written in plain
article."
!anguage and in compliance with section 5-702 of this
In the case at bar, Ms. Roman was advised in writing to seek independent professional
advice, which she claims to have sought from an attorney by the name of Jed Marcus, Esq.
(Exhibit G).
The two most important components of the SSPA are whether or not the transaction,
including the discount rate and the amount of fees and expenses, is fair and reasonable and
whether the transaction is in the best interest of the payee. The trial courts have ruled on what is
determined to be fair and reasonable and whether the transfer is in the best interest of the payee
on a case by case basis viewing the totality of the circumstances. Matter of Settlement Capital
Corp. v. Yates, 12 Misc. 3d 1198(A) [2006).
This court finds that the transaction herein is fair taking into account the totality of the
circumstances and the interest rate of 13.92% is reasonable. However, this court cannot state
with any certainty whether or not the transaction is in the best interest of the payee.
Ms. Medina states in her affidavit that she seeks to transfer to the payor, the lump sum
payment of $55,000 that is payable to her on June 5, 2012. In her affidavit in support of the
petition, Ms. Medina states that she is twenty (20) years old, she is unmarried and has two (2)
dependents one is four (4) years old and the other is three (3) months old. Ms. Medina states that
she intends to use the money that she receives from the transfer to find a place of her own as she
and her children are currently living at her aunt's house and she wishes to relieve her aunt of the
burden. She also plans to use some of the proceeds to purchase furniture for herself and her
children and to pay for the livmg expenses of her children.
However, Ms. Medina does not indicate whether or not she is employed or otherwise
receives a monthly income in order to enable her to pay her monthly rent, utilities and other
household expenses. Moreover, she does not indicate how long she intends to live off of the
$31,500 she will be receiving from said transfer. She also recently received an annual payment
of $16,900 on June 5, 2008 that could have been applied toward relocating to a place of her own.
Accordingly, the application for the transfer of the structured settlement payment is
denied without prejudice and with leave to renew upon submission of a more detailed affidavit
2
Filed On - 12/17/2008 2:16:08 PM Bronx Clerk
County
FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/18/2020
from Ms. Medina with respect to her monthly household income and the amount of rent she
intends to pay on a monthly basis in order for this court to determine whether or not the transfer
s in the best interest of the payee taking into account the welfare and support of her depciideiits
This constitutes the decision and order of this court.
Dated: December 12, 2008
J.S.C.
Preview
FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/18/2020 . "F" EXHIBIT FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/18/2020 Aug 13 20, 09:22p Rickie Craft 1-845-693-1657 p.11 NEW YORK TRANSFER DISCLOSURE PAYEE: Rickie Craft, Executor of the Estate of Jeffrey Schmidt Resident of NY A. Amounts and due dates of the structured-settlement payments to be transferred: $5,841.13 monthly from 6/18/2049.4i/18/2052 with 4% COLA every 6/18; B. Aggregate amount of the payments: $218,804.16; C. Calculation of the current value of the transferred structured settlement payments under federal standards for valuing annuities: $193825.24 determined by applying the most recent published (discount) rate of 0.4% as of July 31, 2020; D. Two price quotes from two annuity issuers (other than the original Annuity Issuer that issued Payee's structured settlement payments). These quotes reflect the current cost of purchasing a comparable annuity for the aggregate amount of payments to be transferred: Symetra Life Insurance Company $TBD; American National Insurance Company $TBD; E. Gross amount payable to the Payee in exchange for such payments: $22,725.90 determined by applying an annual discount rate of 7.75% compounded monthly brokers' F. Itemized listing of all commissions, service charges, application fees, processing fees, closing costs, filing fees, referral fees, administrative fees, legal fees, and notary fees aM6tfibr comrñissions, fees, cðsts, expenses, and charges payable by the Payee or deductible from the gross amount otherwise payabje_to the Payee: Legal Fees: NONE; Processing Fee: NONE FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383 NYSCEF DOC. NO. 24 1-845-693-1657 RECEIVED NYSCEF: p.12 08/18/2020 Aug 13 20, 09:22p Rickie Craft G. 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: $22,725.90 minus any advances made to the Payee or on the Payee's behalf, or claims satisfied, against the amount payable to Payee. H. Amount of any penalty and the aggregate amount of any liquidated damages, including penalties, payable by the Payee in the event of a breach of the transfer agreement by the Payee: NONE 1. Payee shall have the right to cancel the Absolute Assignment Agreement without penalty or further obligation not later that the third (3rd) business day after the date the Absolute Assignment Agreement is signed by the Payee. J. Payee has been advised to consult with Payee's own attorney, certified public accountant, actuary, or other professional adviser concerning the legal, tax, and financial implications of a sale and transfer of structured settlement payment rights, including the federal and state income tax consequences of a sale and transfer. Payee acknowledges receipt of, and acknowledges to have read and understood, the above disclosure statement and information required to be disclosed by Payee's applicable state statute(s Initial: By signing below you are confirming that you received a copy of that disclosure at least 10 days prior to executing your transfer agreement. Rickie Craft, Executor f the Estate of Jeffrey Schmidt FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383 NYSCEF DOC. NO. 24 1-845-693-1657 RECEIVED NYSCEF: p.13 08/18/2020 Aug 13 20, 09:22p Rickie Craft KENTUCKY TRANSFER DISCLOSURE Payee: Rickie Craft, Executor of the Estate of Jeffrey Schmidt Resident of NY A. Amounts and due dates of the structured-settlement payments to be transferred: $5,841.13 monthly from 6/18/2049-5/18/2052 with 4% COLA every 6/18; B. Aggregate amount of the payments: $218,804.16; C. Discounted present value of the payments: $193,825.24 determined by applying the most recently published (discount) rate of 0.4% as of July 31, 2020; D. Gross amount payable to the Payee in exchange for such payments: $22,725.90; brokers' E. Itemized listing of all commissions, service charges, application fees, processing fees, closing costs, filing fees, referral fees, administrative fees, legal fees, and notary fees and other commissions, fees, costs, expenses, and charges payable by the Payee or deductible from the gross amount otherwise payable to the Payee: Legal Fees: WAlVED; Processing Fee: WAIVED. F. Net amount payable to Payee after deducting all commissions, fees, costs, expenses and charges described above: $22,725.90 minus any advances made to the Payee or on Payee's behalf, or claims satisfied, against the amount payable to Payee. G. Based on the gross amount that you will receive from us and the amounts and timing of the structured-settlement payments that you are turning over to us, you will, in effect, be paying interest to us at a rate of 7.75% per year. H. Amount of any penalty and the aggregate amount of any liquidated damages, including penalties, payable by the Payee in the event of a breach of the transfer agreement by the Payee: NONE FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383 NYSCEF DOC. NO. 24 1-845-693-1657 RECEIVED NYSCEF: p.14 08/18/2020 Aug 13 20, 09:23p Rickie Craft I. Payee has been advised to consult with Payee's own attorney, certified public accountant, actuary, or other professional adviser concerning the legal, tax, and financial implications crf a sale and transfer of structured settlement payment rights, including the federal and state income tax consequences of a sale and transfer. J. An estimate of the Administrative fee(s) being charged by the Annuity Owner and or the Annuity Issuer to be paid by the transferee (not the consumer) as a result of the transfer: Metropolitan Life Insurance - $1,250.00 Company Payee acknowledges receipt of, and acknowledges to have read and understood, the above disclosure statement and information required to be disclosed by Payee's applicable state statute(s). Initials: By signing below you are confirming that you received a copy of this disclosure at least 10 days prior to executing your transfer agreement. Nickie Graft, Execut of e tstate of Jeffrey Schmidt FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383 13 20, 09:21p Rickie1-845-693-1657 Craft p.8 Aug NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/18/2020 DISCLOSURE AFFIDAVIT 1, Rickie Craft, Executor of the Estate of Jeffrey Schmidt, being of full age and duly sworn according to law, upon my oath depose and say: 1. I currently reside at 710 Loch Sheldrake Hurleyville Rd, Loch Sheldrake, NY 12759, USA. 2. I am over the age of (18) years old and am I make this affidavit upon my own personal knowledge. 3. I received all of the statutorily required Disclosures on 08/03/2020 at the following address: 710 Loch Sheldrake Hurleyville Rd, Loch Sheldrake, NY 12759, USA Further, the affidavit sayeth not. Rickie Craft, Executor of e Estate of Jeffrey Schmidt Date STATE OF COUNTY OR CITY OF ( f 6 On the Ú day of , , m the year before me, the undersigned, personally appeared Rickie Craft, Executor of the Estate of Jeffrey Schmidt, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on theinstrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. Notary MaWDAA. SWA'rTON My Commission expires on ic2 / / o __ FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/18/2020 NEW YORK SUPREME COURT - COUNTY OF BRONX Case Disposed O SUPREME COURT OF THE STATE0F NEW YORK Settle Order O COUNTY OF BRONX: Schedule Appearance O ____-.----------..----.__..---------------X MEDINA,CHERLEE Index M. 260363/2008 -against- .-A . NDER W, HUNTER, JR. , . Justice. ------------- _______________..---X The following papers numbered 1 to Read on this rnotion, MISCELLANEOUS Noticed on O de of PAPERS NUMBERED Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed - { [[ Answering Affidavit and Exhibits Replying Affidavit and Exhibits Affidavits and Exhibits Pleadings - Exhibit Stiptletio::(s)- Referee's Report - Minutes REC Filed Papers Memoranda of Law Upon the foregoing papers this ated: O Hon. ALEXANDER W ER, JR., J.S.C. Filed On - 12/17/2008 2:16:08 PM Bronx Clerk County FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/18/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTYOF BRONX:PARTIA23 _________.._____________-----------------------X In Re: the Matter of the Sale and Transfer of Index No.: 260363/08 Structured Settlement Payment Rights of Cherlee Medina, Pursuant to and in Accordance with Decision/Order Gen. Oblig. Law §5-1701, et seq. ---------------------------------------------------X HON. ALEXANDER W. HUNTER, JR The motion by petitioner, Structured Asset Funding, LLC, for an order seeking approval of the sale and transfer of certain structured settlement payment rights due under a structured settlement agreement obtained on behalf of respondent/payee, Cherlee Medina, is denied without prejudice. The only details provided by Ms. Medina with respect to the structured settlement that is the subject of this application is that said structured settlement entitled her to the following payments: twelve (12) annual payments, each in the amount of $1,000 beginning on September 1, 1993 through to and including September 1, 2004; four (4) annual payments, each in the amount of S16,900 beginning with the payment on June 5, 2005 through to and including June 5, 2008; one (1) lump sum payment in the amount of $55,000 due and payable on June 5, 2012; one lump sum payment in the amount of $87,500 due and payable on June 5, 2017. According to the Disclosure Statement that was signed by Ms. Medina, which is annexed to petitioner's motion as Exhibit E, the discounted present value of the aggregate payments to be transferred is $47,296.71. The annual discount rate for this transaction is 13.92%. The discounted present value is calculated by using the applicable federal rate of 3.6%. The petitioner is not charging any commissions, fees, costs or expenses to the payee, Ms. Medina. The Structured Settlement Protection Act (SSPA) codified under General Obligations Law , Title 17, was enacted in July of 2002 because of the concem that "...a growing number of factoring companies have used aggressive advertising, plus the allure of quick and easy cash, to induce settlement recipients to cash out future payments, often at substantial discounts, depriving victims and their famihes of the long-tem1 financialsecurity their structured settlements were desigñêd to provide. Although transfers of structured settlements payments are generally prohibited by contract...factoring companies have built a rapidly expanding business around prohibitions." circumventing these (NY Spons. Memo., 2002 Ch. 537). A determination would be made by a Supreme Court judge as to whether the transfer is "in compliance with applicable law, that key terms have been disclosed, that the transfer meets a hardship standard, and that obtained." independent professional advice has been (NY Bill Jacket, 2002 A.B. 6936, Ch. 537). In 2004, the SSPA was amended in that the hardship requirement was "eliminated as a end' precondition to transfers and the requirement that disclosures be made 'at the front was added." (NY Spons. Memo., 2004 Ch. 480). The procedural requirements that must be met for approval of a transfer are found under General Obligations Law §5-1705. The requirements are that a copy of the notice of petition and petition by order to show cause be served upon all interested parties at least twenty days before the time at which the petition is noticed to be heard, the petition a copy of the must include transfer agreement, a copy of the disclosure statement and proof of notice of that statement as dependents' well as a listing of each of the payee's depêñdents along with the age. Procedurally, Filed On - 12/17/2008 2:16:08 PM Bronx Clerk County FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/18/2020 the petitioner herein has met all of the aforementioned requirements. Pursuant to General Obligations Law §5-1706, the court must make the following findings before a transfer can be effectuated. These are 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 dependants; 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 fmdings 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 indepcñdent 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 applicabic statute or the order of any court or other government authority; and (e) is written in plain article." !anguage and in compliance with section 5-702 of this In the case at bar, Ms. Roman was advised in writing to seek independent professional advice, which she claims to have sought from an attorney by the name of Jed Marcus, Esq. (Exhibit G). The two most important components of the SSPA are whether or not the transaction, including the discount rate and the amount of fees and expenses, is fair and reasonable and whether the transaction is in the best interest of the payee. The trial courts have ruled on what is determined to be fair and reasonable and whether the transfer is in the best interest of the payee on a case by case basis viewing the totality of the circumstances. Matter of Settlement Capital Corp. v. Yates, 12 Misc. 3d 1198(A) [2006). This court finds that the transaction herein is fair taking into account the totality of the circumstances and the interest rate of 13.92% is reasonable. However, this court cannot state with any certainty whether or not the transaction is in the best interest of the payee. Ms. Medina states in her affidavit that she seeks to transfer to the payor, the lump sum payment of $55,000 that is payable to her on June 5, 2012. In her affidavit in support of the petition, Ms. Medina states that she is twenty (20) years old, she is unmarried and has two (2) dependents one is four (4) years old and the other is three (3) months old. Ms. Medina states that she intends to use the money that she receives from the transfer to find a place of her own as she and her children are currently living at her aunt's house and she wishes to relieve her aunt of the burden. She also plans to use some of the proceeds to purchase furniture for herself and her children and to pay for the livmg expenses of her children. However, Ms. Medina does not indicate whether or not she is employed or otherwise receives a monthly income in order to enable her to pay her monthly rent, utilities and other household expenses. Moreover, she does not indicate how long she intends to live off of the $31,500 she will be receiving from said transfer. She also recently received an annual payment of $16,900 on June 5, 2008 that could have been applied toward relocating to a place of her own. Accordingly, the application for the transfer of the structured settlement payment is denied without prejudice and with leave to renew upon submission of a more detailed affidavit 2 Filed On - 12/17/2008 2:16:08 PM Bronx Clerk County FILED: CAYUGA COUNTY CLERK 08/18/2020 02:38 PM INDEX NO. E2020-0383 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/18/2020 from Ms. Medina with respect to her monthly household income and the amount of rent she intends to pay on a monthly basis in order for this court to determine whether or not the transfer s in the best interest of the payee taking into account the welfare and support of her depciideiits This constitutes the decision and order of this court. Dated: December 12, 2008 J.S.C.