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UANC. LOZANO, . (State Bar No. 241930)
THE LAW OFFICE OF JUAN C. LOZANO
3555 Rosecrans St., Suite 114-208
San Diego, CA
PHONE: (619)647-9129/ FAX: (619)330-9979
EMAIL: lozanolaw@ gmail.com
Attorneys for Petitioner,
DRB CAPITAL, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN MATEO
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12 In Re Petition of:
Case No.:
13 DRB CAPITAL, LLC
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Petitioner PETITION FOR APPROVAL FOR
15 TRANSFER
SETTLEMENT PAYMENT RIGHTS
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[Per Ins. Code. Section 10134, et seq.]
17 (Real Party in Interest: E.C.)
18 DEPT:
DATE:
19 TIME:
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COMES NOW DRB CAPITAL, LLC, by the undersigned counsel, which
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respectfully petitions this Court pursuant to §§ 10139.5 of the California Insurance Code, as
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amended, for approval of the transfer of certain structured settlement payment rights, and in
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support hereof, states as follows:
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1 Petitioner, DRB CAPITAL, LLC is a Florida Limited Liability Company.
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27 2 This Court has jurisdiction to hear this Petition and grant the relief requested
28 herein pursuant to California Insurance Code §10135(c) (1).
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[PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS]
3 Venue is proper in this Court pursuant to Insurance Code Section
10139.5(c)(5)(A) because E.C. (“Payee”), resides in the County of SAN MATEO, in the
State of California.
4 This Court has subject matter jurisdiction over the instant action pursuant to
Cal. Ins. Code § 10135(c) as either (1) the Payee was domiciled in California at the time
the transfer agreement was signed by the Payee, or (2) the Payee was not domiciled in
California at the time the transfer agreement was signed and the state where the payee was
domiciled does not have a structured settlement transfer statute, but either the Obligor or the
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Annuity Issuer is domiciled in Califomia.
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12 5. Payee entered into an agreement for the settlement of a claim for damages
13 arising in connection with a personal injury claim;
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6 The settlement agreed to by the Transferor provides for certain lump sum and
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periodic structured payments, including but not limited to the payments that are the subject
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17 of this Petition;
18 7 Pursuant to the agreement which settled that personal injury claim, Payee
19 became entitled to certain structured settlement payments from two separate annuities,
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which include the payments sought to be transferred herein.
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COUNT I
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23 TRANSFER OF PAYMENTS FROM PACIFIC LIFE AND ANNUITY SERVICES,
24 INC
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8 Pursuant to the above-described settlement agreement, certain payments are
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due to Payee from PACIFIC LIFE AND ANNUITY SERVICES, INC. (hereinafter the
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“Payment Obligor I") and are being funded by an annuity issued by PACIFIC LIFE AND
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[PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS]
ANNUITY COMPANY (hereinafter the "Annuity Issuer I"). The Annuity Issuer and the
Payment Obliger identified in this paragraph are sometimes collectively referred to
hereafter as the "Pacific Life Payment Issuer’.
9 Payee has agreed to sell, and Transferee, DRB CAPITAL, LLC, has agreed to
purchase certain periodic payments, as referenced within their proposed Transfer
Agreement. A true and correct copy of the proposed Transfer
A greement will be filed
subsequently hereto.
10. DRB CAPITAL, LLC, shall, upon this Court entering an Order approving the
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Transfer A greement, assign all its right, title and interest in and to the said proposed
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12 Transfer A greement to its assignee, to be designated at the time of the hearing on the
13 present matter.
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11. Pursuantto Cal. Ins. Code § 10137(a)(1) and Cal. Ins. Code § 10139.5(a)(1)
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as well as 26 USC § 5891(b)(2)(A)(ii), Petitioner alleges that that transfer of structured
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17 settlement payment rights in the present matter is fair and reasonable and in the best
18 interests of the Payee, taking into account the welfare and support of the Payee's
19 dependents, if any.
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12. Pursuantto Cal. Ins. Code §§ 10137(b) and 10139.5(a)(4) as well as 26 USC
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§ 5891(b)(2)(A)(i), Petitioner alleges that the transfer complies with the requirements of
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23 Cal. Ins. Code § 10134, et seq., and will not contravene other applicable law, does not
24 contravene any applicable statute or the order of any court or other government authority,
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and does not contravene any Federal or State statute or the order of any court or responsible
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administrative authority.
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[PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS]
13. Pursuant to Cal. Ins. Code § 10139.5(a)(2), Petitioner alleges that the Payee
has been advised in writing by the transferee to seek independent professional advice
regarding the transfer and has either received that advice or knowingly, in writing, waived
the opportunity to receive the advice.
14, Pursuantto Cal. Ins. Code § 10139.5(a)(3), the Petitioner has complied, or
will comply at the time of the hearing, with the notification requirements of Cal. Ins. Code
§ 10139.5(f)(2) and the Petitioner (or its predecessor) has provided the Payee with a
disclosure statement that complies with Cal. Ins. Code § 10136(b) and the transfer
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agreement complies with Cal. Ins. Code §§ 10136(c) and 10138.
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12 15. Pursuantto Cal. Ins. Code § 10139.5(a)(5), the Payee understands the terms
13 of the transfer agreement, including the terms set forth in the disclosure statement required
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by Cal. Ins. Code § 10136(b).
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16. Pursuantto Cal. Ins. Code § 10139.5(a)(6), the Payee understands and does
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17 not wish to exercise the Payee's right to cancel the transfer agreement.
18 17. Pursuantto Cal. Ins. Code § 10139.5(f) the following documents shall be
19 served along with a copy of this Petition and Notice of Hearing:
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(A) A copy of the transferee's current petition and any other prior petition, whether
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approved or withdrawn, that was filed with the court in accordance with Cal. Ins.
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Code § 10139.5(c)(6).
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(B)A copy of the proposed transfer agreement and disclosure statement required by Cal
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Ins. Code § 10136(b).
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(C)A listing of each of the payee's dependents, together with each dependent's age.
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(D)A copy of the annuity contract, if available.
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(E) A copy of the qualified assignment agreement, if available.
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(F) A copy of the underlying structured settlement agreement, if available.
[PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS]
18. It is submitted that all of the foregoing requirements either have been met or
will be met prior to any scheduled hearing, and the Petitioner respectfully requests that this
Court approve the transfer of the structured settlement payments that are the subject of this
Petition.
19. Califomia Insurance Code section 10139.5(h) requires that no later than the
time of filing of the Petition for court approval, the Transferee shall advise the Payee of the
payee's right to seek independent counsel and financial advice in connection with the
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transferee's petition for court approval of the transfer agreement, and that the transferee
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shall further advise the payee that if the payee retains counsel, a licensed certified public
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13 accountant, or a licensed actuary in connection with a petition for an order approving the
14 transfer agreement, that the transferee shall pay the fees of the payee's counsel, accountant,
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or actuary, regardless of whether the transfer agreement is approved, and regardless of
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whether the attorney, accountant, or actuary files any document or appears at the hearing on
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18 the Petition for transfer, in an aggregate amount not to exceed one thousand five hundred
19 dollars ($1,500). Further, that such advice may not be provided by an accountant, counsel,
20 or actuary of the transferee.
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20. It is submitted to this Court that this Petition, the Notice of Petition attached
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hereto, and the advisory statement provided to the payee all comply with and satisfy the
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24 requirements of California Insurance Code section 10139.5.
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[PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS]
COUNT II
TRANSFER OF PAYMENTS FROM TALCOTT (CEBSCO) FORMERLY
KNONWNAS HARTFORD COMPREHENSIVE EMPLOYEE BENEFIT SERVICE
COMPANY (HARTFORD CEBSCO)
Pursuant to the above-described settlement agreement, certain payments are due to
Payee from TALCOTT RESOLUTION (CEBSCO) formerly known as HARTFORD
COMPREHENSIVE EMPLOY EE BENEFIT SERVICE COMPANY (HARTFORD
CEBSCO) (hereinafter the "Payment Obligor II”) and are being funded by an annuity issued]
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by TALCOTT RESOLUTION LIFE INSURANCE COMPANY successor-in-interest to
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12 formerly known as HARTFORD LIFE INSURANCE COMPANY (hereinafter the
13 “Annuity Issuer II"). The Annuity Issuer and the Payment Obliger identified in this
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paragraph are sometimes collectively referred to hereafter as the "Talcott Payment Issuer’.
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21. Payee has agreed to sell, and Transferee, DRB CAPITAL, LLC, has agreed to
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17 purchase certain periodic payments, as referenced within their proposed Transfer
18 Agreement. A true and correct copy of the proposed Transfer
A greement will be filed
19 subsequently hereto.
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22. DRB CAPITAL, LLC, shall, upon this Court entering an Order approving the
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Transfer A greement, assign all its right, title and interest in and to the said proposed
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23 Transfer A greement to its assignee, to be designated at the time of the hearing on the
24 present matter.
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23. Pursuantto Cal. Ins. Code § 10137(a)(1) and Cal. Ins. Code § 10139.5(a)(1)
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as well as 26 USC § 5891(b)(2)(A)(ii), Petitioner alleges that that transfer of structured
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settlement payment rights in the present matter is fair and reasonable and in the best
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[PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS]
interests of the Payee, taking into account the welfare and support of the Payee's
dependents, if any.
24. Pursuantto Cal. Ins. Code §§ 10137(b) and 10139.5(a)(4) as well as 26 USC
§ 5891(b)(2)(A)(i), Petitioner alleges that the transfer complies with the requirements of
Cal. Ins. Code § 10134, et seq., and will not contravene other applicable law, does not
contravene any applicable statute or the order of any court or other government authority,
and does not contravene any Federal or State statute or the order of any court or responsible
administrative authority.
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25. Pursuant to Cal. Ins. Code § 10139.5(a)(2), Petitioner alleges that the Payee
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12 has been advised in writing by the transferee to seek independent professional advice
13 regarding the transfer and has either received that advice or knowingly, in writing, waived
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the opportunity to receive the advice.
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26. Pursuantto Cal. Ins. Code § 10139.5(a)(3), the Petitioner has complied, or
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17 will comply at the time of the hearing, with the notification requirements of Cal. Ins. Code
18 § 10139.5(f)(2) and the Petitioner (or its predecessor) has provided the Payee with a
19 disclosure statement that complies with Cal. Ins. Code § 10136(b) and the transfer
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agreement complies with Cal. Ins. Code §§ 10136(c) and 10138.
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27. Pursuantto Cal. Ins. Code § 10139.5(a)(5), the Payee understands the terms
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23 of the transfer agreement, including the terms set forth in the disclosure statement required
24 by Cal. Ins. Code § 10136(b).
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28. Pursuantto Cal. Ins. Code § 10139.5(a)(6), the Payee understands and does
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not wish to exercise the Payee's right to cancel the transfer agreement.
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[PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS]
29. Pursuantto Cal. Ins. Code § 10139.5(f) the following documents shall be
served along with a copy of this Petition and Notice of Hearing:
(G) 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 Cal. Ins.
Code § 10139.5(c)(6).
(H)A copy of the proposed transfer agreement and disclosure statement required by Cal
Ins. Code § 10136(b).
(I) A listing of each of the payee's dependents, together with each dependent's age.
(J) A copy of the annuity contract, if available.
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(K)A copy of the qualified assignment agreement, if available.
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(L) A copy of the underlying structured settlement agreement, if available.
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30. It is submitted that all of the foregoing requirements either have been met or
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will be met prior to any scheduled hearing, and the Petitioner respectfully requests that this
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16 Court approve the transfer of the structured settlement payments that are the subject of this
17 Petition.
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31. Califomia Insurance Code section 10139.5(h) requires that no later than the
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time of filing of the Petition for court approval, the Transferee shall advise the Payee of the
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payee's right to seek independent counsel and financial advice in connection with the
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22 transferee's petition for court approval of the transfer agreement, and that the transferee
23 shall further advise the payee that if the payee retains counsel, a licensed certified public
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accountant, or a licensed actuary in connection with a petition for an order approving the
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transfer agreement, that the transferee shall pay the fees of the payee's counsel, accountant,
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27 or actuary, regardless of whether the transfer agreement is approved, and regardless of
28 whether the attorney, accountant, or actuary files any document or appears at the hearing on
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[PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS]
the Petition for transfer, in an aggregate amount not to exceed one thousand five hundred
dollars ($1,500). Further, that such advice may not be provided by an accountant, counsel,
or actuary of the transferee.
32. It is submitted to this Court that this Petition, the Notice of Petition attached
hereto, and the advisory statement provided to the payee all comply with and satisfy the
requirements of California Insurance Code section 10139.5.
In accordance with the foregoing, Petitioner hereby requests that this Court approve
this Petition and enter an order in accordance with Insurance Code Section 10139.5(b)
approving this transfer of structured settlement payment rights and ordering Payment
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12 Obligor and Payment Issuer to pay the Transferred Payments to Petitioner or its assignee.
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14 THE LAW OFFICE OF JUAN C. LOZANO
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16 fone ©
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By ae
18 Juan C. Lozano
Attomey for PETITIONER,
19 DRB CAPITAL, LLC
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[PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS]
VERIFICATION
I, Stephanie Post, Paralegal, with DRB CAPITAL, LLC, am familiar with the contracts utilized
and the procedures adhered to in the course of transferring structured settlement benefits, and I
hereby verify that all of the conditions of Section 10136, 10137 and 10138 of the law governing
the transfer of structured settlement payments (Chapter 624) have been complied with.
I declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct. Executed DATE
ir Bech —
Stephanie Post
Paralegal
DRB CAPITAL, LLC
EXHIBITA
DocuSign Envelope ID: 49139BF3-1644-43B4-962A-5A960FBE916D
Absolute Sale and Security Agreement
(The “Agreement”)
You, E Cc
(“you” or the “Seller”), are entitled to certain periodic payments (the “Periodic Payments”), which
you are receiving as a result of the settlement of a personal injury claim (the “Settlement”). The terms
of the Settlement are stated in an agreement (the “Settlement Agreement”). The Periodic Payments
are due to you from the Settlement Obligor. The Settlement Agreement provides for the Periodic
Payments to be paid to you through an annuity (the “Annuity”) issued by the Annuity Issuer.
In consideration of the mutual promises contained here, you agree as follows:
1. Definitions.
a The “Annuity Issuer” means the entity defined in Exhibit A of this Agreement.
b. The “Settlement Obligor” means the entity defined in ExhibitA of this Agreement.
Cc The “Purchaser” means DRB Capital LLC or its assigns.
d. The “Parties” means both Purchaser and you; a “Party” means either the Purchaser or you.
Transfer Agreement. You agree to sell and transfer to the Purchaser all of your rights to and
interest in the Periodic Payments that are identified in Exhibit A of this Agreement (the “Assigned
Payments”), which is incorporated herein by reference. In exchange for selling and transferring to
the Purchaser my rights to receive these payments, the Purchaser shall pay you the amount
specified in Exhibit A of this Agreement (the “Purchase Price”).
Disclosures and Statements Required by Law.
The transfer agreement is not effective until the date on which a court enters a final order
approving the transfer. The payment to you pursuant to this Agreement will be delayed up to 30
days or more after the date you signed this Agreement in order for the court to review and
approve the transfer.
The amounts and due dates of the structured settlements to be transferred to the Purchaser are
You have agreed to sell to the Purchaser future payments totaling:
The aggregate amount of all expenses, if any, to be deducted from the purchase price to be paid
to you in exchange for the payments to be transferred is:
The amount payable to you, net of all expenses, in exchange for the payments to be transferred is
[SS2-CA-LC-DS-2/18] Agreement-Page 1
DocuSign Envelope ID: 49139BF3-1644-43B4-962A-5A960FBE916D
The structured settlement payments to be transferred to the Purchaser pursuant to this
Agreement have a discounted present value equal to . This is the value of your
structured settlement in current dollars.
The most recently published applicable federal rate for determining the present value of an
annuity, as issued by the United States Internal Revenue Service and used to determine the
discounted present value of the Assigned Payments is:
YOU WILL BE PAYING THE EQUIVALENT TO AN INTEREST RATE OF PER YEAR. Based
on the net amount that you will receive from us and the amounts and timing of the structured
settlement payments that you are transferring to us, if the transferred structured settlement
payments were installment payments on a loan, with each payment applied first to accrued
unpaid interest and then to the principal, it would be as if you were paying interest to us of
per year, assuming funding on the effective date of transfer.
The quotient (expressed as a percentage) obtained by dividing the net payment amount by the
discounted present value of the payments:
You should obtain independent professional advice regarding any federal and state income tax
consequences arising from the proposed transfer. The Purchaser may not refer you to any specific
adviser for that purpose. You have the right to seek independent counsel and financial advice in
connection with the petition for court approval of the Transfer Agreement, and if you retain
counsel, a licensed certified public accountant, or a licensed actuary in connection with the
petition for an order approving the Transfer Agreement, the Purchaser shall pay counsel,
accountant, or actuary fees you incur, regardless of whether the Transfer Agreement is approved
and regardless of whether the attorney, accountant or actuary files any document or appears at
the hearing on the application for transfer, in an aggregate amount not to exceed one thousand
five hundred dollars ($1,500.00). The Purchaser's accountant, counsel, or actuary may not advise
you.
The court approving the Transfer Agreement retains continuing jurisdiction to interpret and
monitor implementation of the Agreement as justice may require.
If you believe you were treated unfairly or were misled as to the nature of the obligations you
assumed upon entering into this Agreement, you should report those circumstances to your local
district attorney or the office of the Attorney General.
4. Other Obligations and Promises. You hereby make and agree to the following representations,
warranties and promises, which are unconditionally binding from the moment you sign this
Agreement:
a No one other than you has any interest or claim of any kind or nature in, to or under the
Assigned Payments.
[SS2-CA-LC-DS-2/18] Agreement-Page 2
DocuSign Envelope ID: 49139BF3-1644-43B4-962A-5A960FBE916D
You are not indebted to anyone that would in any way affect either the sale and transfer of the
Assigned Payments referenced above or the Purchaser's absolute rights to receive the Assigned
Payments.
You agree to conduct your affairs from the moment you sign this Agreement so as to ensure
that, if the transfer of the Assigned Payments is approved by a court, the Purchaser will receive
the Assigned Payments described in Section 2 above. This means, among other things, that you
agree not to negotiate with, entertain offers from or enter into agreements with third parties to
purchase the rights to and/or interest in any portion or all of the Assigned Payments after you
execute this Agreement and/or while a petition for the approval of the transfers of the Assigned
Payments to the Purchaser is pending before a court or other government authority (the
“Petition”).
You agree to cooperate with the Purchaser and provide any additional documentation and
information as the Purchaser may reasonably require from you regarding the Assigned
Payments and the transaction contemplated herein, and to cooperate with the Purchaser and
its attorney in connection with the Petition.
You acknowledge that documents underlying a settlement or an annuity contract may contain
language —and based upon information and belief, the Settlement or Annuity do contain such
language-purporting to prohibit your right or powerto accelerate, defer, increase, decrease or
assign your Periodic Payments. Should the pertinent documents relating to the Settlement or the
Annuity contain a provision with this or similar language, you knowingly waive any such provision
and claims you may have relating to such provision. You agree and promise that you will never
claim that the rights to and interest in the Assigned Payments are not transferable, or that the
language mentioned before renders this Agreement void or voidable in any respect. You hereby
release the obligor of the Periodic Payments from any liability related to the existence and waiver
of this prohibitory language and specifically request that they honor my request to assign and sell
the Periodic Payments to the Purchaser.
The Purchaser advised you to seek independent professional advice regarding the Agreement
from an attorney, accountant or other professional of your choice. You have knowingly waived
any right and opportunity to seek and receive such advice. You confirm that the Purchaser did
not provide you with financial or legal advice, and that you did not rely on the Purchaser for any
such advice.
Your state of residence and domicile on the date of the Agreement is the State of California
(“Your State”). You have provided complete and correct information to the Purchaser
concerning your residency status and have not falsified any of that information nor relocated for
the purpose of entering into this Agreement.
Default Provision. You understand and agree that you will be in default if you are in breach of any
of your obligations, covenants, representations and warranties under this Agreement, including
without limitation, in the any of the following situations:
[SS2-CA-LC-DS-2/18] Agreement-Page 3
DocuSign Envelope ID: 49139BF3-1644-43B4-962A-5A960FBE916D
Any of the representations stated in Section 4 at any time turn out to be untrue.
You fail to perform the promises you made under Section 4, even if a court order approving the
transfer of Assigned Payments has not yet been obtained.
Either the Settlement Obligor or the Annuity Issuer refuses or fails to make any one or more of
the Assigned Payments as a result of any act by you, your estate, your representatives, or any of
your heirs.
You fail to promptly forward to the Purchaser any Assigned Payments you receive from the
Settlement Obligor or the Annuity Issuer, after the sale and transfer to the Purchaser has been
completed.
You understand that the Purchaser may seek any and all available remedies against you, including
specific performance in case of default by you.
The Purchaser's Obligation to Pay You. The Purchaser shall pay you the Purchase Price minus any
deductions allowed hereunder, upon the following four conditions being met (each, a “Condition
Precedent”), unless waived by the Purchaser to the extent permitted by law, and you acknowledge
that the Purchaser's obligation to pay you shall not arise unless the four Conditions Precedent are
met or waived by the Purchaser at its discretion:
The Purchaser shall be satisfied, in the Purchaser's sole reasonable judgment, that there are no
claims or interests of any kind or nature that do or could affect rights to or interest in the
Assigned Payments and/or prevent or interfere with the Purchaser's receipt of the Assigned
Payments on the dates and in the amounts described above Section 2.
The Purchaser has received a final non-appealable court order and/or a signed acknowledgment
from Settlement Obligor and Annuity Issuer satisfactory to the Purchaser in its sole discretion
and which the Purchaser, in its sole judgment, considers sufficient to recognize, authorize, and
provide for the transfer by sale of the Assigned Payments (which may continue to be made out
to your name) to the Purchaser and to insure that the Periodic Payments due on or after the day
of the Order will be forwarded directly to the Purchaser (collectively referred to as the “Order”).
The Purchaser has received all documents and information that the Purchaser, in its sole
reasonable judgment, deems necessary to effect the transfer.
Final approval has been given by the Purchaser's underwriting department and the Purchaser
has not determined, in its sole reasonable judgment, that there has been a change of law or
there exists a threatened change of law that could adversely affect this transaction and/or render
this Agreement unenforceable.
Security Interest. To secure the performance of my representations, covenants and warranties in
this Agreement, and only to the extent permitted by law, the Purchaser and you intend to create a
security interest -under Article 9 of the Uniform Commercial Code (the “UCC”)- in your rights to
[SS2-CA-LC-DS-2/18] Agreement-Page 4
DocuSign Envelope ID: 49139BF3-1644-43B4-962A-5A960FBE916D
and interest in the Assigned Payments, which rights have been assigned to the Purchaser as
payment intangibles under Article 9 of the UCC. This security interest secures payment of the rights
assigned to the Purchaser in this Agreement and the performance by you of your obligations under
this Agreement, including Section 3 above. You authorize the Purchaserto direct any account
debtor or obligor on an instrument, including without limitation, Settlement Obligor or Annuity
Issuer, to make periodic payments directly to the Purchaser and as contemplated by the UCC. You
understand that these liens are perfected when they attach, which you agree is the date on which
the Closing takes place. Purchaser may also perfect this lien by notice to the party obligated to pay
you the Periodic Payments and/or by filing a UCC-1 Financing Statement. You understand and
agree that the Periodic Payments are payment intangibles.
Payments Received by Party Other Than the Party Intended to Receive the Payments.
If prior to obtaining the Order or completing the transfer provided for in this Agreement, you
receive any of the Assigned Payments or any portion thereof, you understand and agree an
equal amount shall be deducted from the Purchase Price, and the Purchase Price shall be
reduced in the same amount as these payments, and that the terms of this Agreement
regarding the payments to be assigned, shall be treated as amended to reflect for the adjusted
amount.
In the event the Purchaser receives or otherwise comes into possession of any of the Periodic
Payments or a portion thereof which are not included in the payments being absolutely sold to
the Purchaser pursuant to this Agreement, the Purchaser agrees to forward such amount(s) to
you within seven (7) days of receipt of such amount(s).
Disclosure Statements. All disclosure statements you may receive from the Purchaser in
connection with this transaction as required by applicable law (each, a “Disclosure Statement”) are
a material part of and incorporated by into this Agreement, so that it shall be read as if the contents
of each disclosure statement was stated in full in the body of this Agreement.
10. Advanced Payment and Escrow. You know that it will take some time for the Settlement Obligor
and the Annuity Issuer to receive and process the Order once it is granted. You would like to receive
the Purchase Price or a portion thereofas soon as possible thereafter, and request the Purchaser to
pay you a portion of the Purchase Price as soon as possible after the Order is obtained. That
notwithstanding, you understand and agree that the Purchaser may (but is not required to) to hold
in escrow an amount it deems necessary or advisable from the Purchase Price (the “Escrow
Amount") for a period of up to 120 days, until (1) all conditions precedent have been satisfied,
including, without limitation, the receipt by the Purchaser of the Settlement Obligor and the
Annuity Issuer’s acknowledgment of the terms of the Order in writing and their agreement to honor
and comply with same, and (2) the Purchaser has received the first of the Assigned Payments as
contemplated hereunder. At such time, or earlier as the Purchaser may determine in its discretion,
the Purchaser will send the Escrow Amount to you minus any Assigned Payments that the Annuity
Issuer and/or Settlement Obligor has sent to you.
[SS2-CA-LC-DS-2/18] Agreement-Page 5
DocuSign Envelope ID: 49139BF3-1644-43B4-962A-5A960FBE916D
11. Power of Attorney. You hereby grant the Purchaser, its COO and its Senior Vice President of
Structured Settlements an irrevocable power of attorney with full powers of substitution to do all
acts and things that you might do regarding the Assigned Payments being transferred under this
Agreement, and any and all rights you have under the Annuity regarding such payments, including
the execution of stipulations or other documents that may be required by or negotiated with the
Settlement Obligor and/or Annuity Issuer. You understand and intend that by doing so, you are
giving the Purchaser all of the power and right you have under the Settlement Agreement to
endorse checks, drafts or other instruments, to alter, edit and change payment instructions and/or
beneficiary designations, and/or to perform any other act in your name that, in the Purchaser's sole
discretion as your Attorney-in-Fact, is necessary or expedient for the Purchaser to obtain all of the
benefits of the bargain contemplated by this transaction. This includes the power and right to
communicate directly with the Settlement Obligor and the Annuity Issuer in connection with the
Assigned Payments. This power of attorney is coupled with an interest and shall survive your death
or disability.
12. Agreement to Arbitrate.
a Agreement. The Purchaser and you (each, a “Party” and collectively, the “Parties”) agree that
any and all controversies, claims, disputes, rights, interests, suits or causes of action between
the Parties (other than the petitions required by law to be filed in court for the approval of
transfers) arising out of or relating to this Agreement, to the negotiations thereto related or to
the breach thereof, or to the formation, validity and/or enforceability of this agreement to
arbitrate or the Agreement (each, a “Claim”), as well as the question of arbitrability of any such
Claim, shall be settled by binding arbitration. This agreementto arbitrate is binding upon and
inures to the benefit of each of the Parties’ respective heirs, executors, administrators,
successors, agents, representatives and assigns, in which case they shall each be treated as a
“Party” for purposes of this Section 11.
Initiation. Either Party may initiate an arbitration (in such capacity, the “Claimant”) by serving
the other Party (in such capacity, the “Respondent”) with a written demand for arbitration, via
U.S.P.S. Certified Mail. The arbitration of a Claim must be initiated within a reasonable time
after the Claim has accrued. In no event shall a Claim (in a demand or counter-demand) be
entertained if the demand (or counter-demand), is filed after the date when institution of legal
or equitable proceedings based on such Claim would be barred by the applicable statute of
limitations. If a Party raises untimeliness of the filing of the demand as a defense, the arbitrator
must resolve that question prior to holding the hearing on the merits of the demand. If either
Party fails to comply with this Section 11 and the other Party is required to seek court
intervention, the Party failing to comply with the obligations hereunder shall be responsible for
paying the fees and expenses (including attorneys’ fees) incurred in seeking an order to compel
Administration. The arbitration shall not be administered by an arbitration organization but
shall instead be privately administered by the arbitrator appointed pursuant hereto.
Notwithstanding the preceding sentence, the Commercial Rules of the American Arbitration
Association (the “AAA Rules”) shall govern the arbitration and the arbitrator must follow the
AAA Rules, except those regarding the administration of the arbitration process by the
[SS2-CA-LC-DS-2/18] Agreement-Page 6
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American Arbitration Association (the “AAA”) and those as to which this Section 11 otherwise
provides. In the case of inconsistencies between the terms of this Section 11 and the AAA Rules,
the terms of Section 21 shall govern.
The Arbitrator. The arbitration shall be held before a single neutral arbitrator (the “Arbitrator”).
The Claimant shall nominate the Arbitrator within 20 calendar days of the commencement of
the arbitration, by sending the name and resume of the Arbitrator (the “Nomination”) to the
Respondent via U.S.P.S. Certified Mail. The Respondent then has 7 calendar days of receipt of
the Nomination to send an objection in writing to Claimant. If no such objection is sent within
the 7-day period, the Arbitrator shall be deemed appointed. If a written objection is sent within
the 7-day period, the Arbitrator must be selected from a list of arbitrators obtained from the
AAA, from any other statewide or nationwide organization that provides names of arbitrators, or
from an organization with arbitrators who are former judges (the “List”). The Claimant is
responsible for obtaining and sending the List and arbitrator resumes to the Respondent via
U.S.P.S. Certified Mail. If the Parties are unable to agree on an Arbitrator within 14 calendar days
after the List is sent, each Party will have 7 additional calendar days to select an appointing
arbitrator from the List. The Arbitrator will be selected from the List by the appointing
arbitrators by agreement and such selection shall be made within 7 calendar days from the date
the last appointing arbitrator is selected. If a Party fails to timely select an appointing arbitrator,
the other Party’s appointing arbitrator shall be deemed the Arbitrator. If the Arbitrator resigns or
needs to be replaced, the replacement shall be selected in the same manner. Each Party is
responsible to pay the arbitrator directly for 50% of the arbitrator fees as these become due, but
either Party may, in its discretion, pay 100% of the arbitrator fees.
Arbitration Process. The arbitration will be held in the largest city of My State. Discovery,
specifically including interrogatories, production of documents and depositions, shall be allowed
at the discretion of the arbitrator. The arbitration may be held telephonically and may be
resolved by submission of documents under Rule E-6 of the AAA Rules, regardless of the
amounts involved in the Claim, unless one of the Parties objects. Any discovery shall be
conducted in accordance with, and governed by, the Federal Rules of Civil Procedure.
Waivers. No arbitration of a Claim shall include (by consolidation, joinder or in any other
method) a person or entity who is not a Party to this Agreement, except by written consent
containing a reference to this Agreement and the specific Claim to be arbitrated and the
signature of both Parties and the person or entity sought to be joined. Consent to arbitration
involving an additional person or entity shall not constitute consent to arbitration of any Claim
not described in the written consent or with a person or entity not named therein or who has not
signed the consent. There shall be no right or authority for any Claim to be arbitrated on a class
action basis or on any basis involving Claims brought in a purported representative capacity on
behalf of the general public or other persons or entities similarly situated. | UNDERSTAND
THAT | WILL NOT HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR
AS A MEMBER OF ANY CLASS OF CLAIMANTS IN ANY PROCEEDING PERTAINING OR
RELATING TO A CLAIM THAT | AM HEREBY EXPRESSLY WAIVING THE RIGHT TO SEEK
RELIEF IN A COURT OF LAW, AND THAT SOME RIGHTS THAT | WOULD HAVE IF | WENT TO
COURT MAY NOT BE AVAILABLE IN ARBITRATION.
[SS2-CA-LC-DS-2/18] Agreement-Page 7
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g. The Award. The award rendered by the arbitrator shall be final, and judgment may be entered
upon it in accordance with applicable law in any competent court with jurisdiction.
Notwithstanding anything herein or in the AAA Rules to the contrary, the arbitrator has the
power to issue a default award, in the event one of the Parties fails to appear or to participate in
the arbitration proceedings. The final award shall identify the substantially prevailing Party and
shall award to that substantially prevailing Party fees and expenses, including attorneys’ fees,
expert fees, arbitrator fees and costs of arbitration.
Inconsistencies with Transfer Statutes. This Section 12 does not apply to the extent it is found
to be inconsistent with applicable state law regarding the transfer of structured settlement
payments. In such case, any disputes between the Parties will be governed in accordance with
the laws of my domicile state and Your State and the courts in Your State will be the proper
venue for any such disputes.
13. Authorizations. By signing this Agreement:
a You expressly authorize the Purchaserto endorse on your behalf any checks or other negotiable
instrument payable to you with respect to the Assigned Payments, to the extent necessary for
the consummation and enforcement of the transaction contemplated in this Agreement. This
authorization shall survive your death or disability.
You authorize the Purchaserto discharge any liens or adverse claims against you or any of the
Assigned Payments, whether or not such liens or adverse claims are disclosed by you , and to pay
(or if the Purchase Price has been deposited into an escrow account, to instruct the escrow agent
to pay) any amounts necessary to discharge such liens or adverse claims, provided the Purchaser
furnishes prior written notice to you. You understand and agree that any such payments are
made on your behalf and shall reduce the Purchase Price. Adverse claims may include disclosed
amounts to be deducted by the Purchaser from the Purchase Price to enable you to obtain the
release of any encumbrance on a portion of the Assigned Payments relating to a prior transfer
transaction(s) that occurred before the enactment of the applicable statue regulating such
transfers. You understand that the law currently in effect requires that such encumbrance be
released in orderto complete the transfer that is the subject of this Agreement.
You understand that, in the event that a third party has provided a cash advance to you, the
Purchaser may, in its sole and absolute discretion, pay back the third party all or part of the cash
advance. In such an event, you authorize the Purchaser to deduct the amount paid to the third
party from the Purchase Price.
14. Applicable Law. This Agreement shall be governed by and interpreted, construed and enforced in
accordance with the laws of Your State. Except as provided in the agreement to arbitrate, proper
venue to bring any cause of action arising out of a breach of this Agreement lies in the courts of
Your State with competent jurisdiction and the Parties agree and submit to the jurisdiction of such
courts.
[SS2-CA-LC-DS-2/18] Agreement-Page 8
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15. Miscellaneous.
a Assignment. You understand and agree that you have no right or powerto assign your rights or
obligations under this Agreem
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UANC. LOZANO, . (State Bar No. 241930) THE LAW OFFICE OF JUAN C. LOZANO 3555 Rosecrans St., Suite 114-208 San Diego, CA PHONE: (619)647-9129/ FAX: (619)330-9979 EMAIL: lozanolaw@ gmail.com Attorneys for Petitioner, DRB CAPITAL, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO 10 11 12 In Re Petition of: Case No.: 13 DRB CAPITAL, LLC 14 Petitioner PETITION FOR APPROVAL FOR 15 TRANSFER SETTLEMENT PAYMENT RIGHTS 16 [Per Ins. Code. Section 10134, et seq.] 17 (Real Party in Interest: E.C.) 18 DEPT: DATE: 19 TIME: 20 21 COMES NOW DRB CAPITAL, LLC, by the undersigned counsel, which 22 respectfully petitions this Court pursuant to §§ 10139.5 of the California Insurance Code, as 23 amended, for approval of the transfer of certain structured settlement payment rights, and in 24 support hereof, states as follows: 25 1 Petitioner, DRB CAPITAL, LLC is a Florida Limited Liability Company. 26 27 2 This Court has jurisdiction to hear this Petition and grant the relief requested 28 herein pursuant to California Insurance Code §10135(c) (1). 1 [PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS] 3 Venue is proper in this Court pursuant to Insurance Code Section 10139.5(c)(5)(A) because E.C. (“Payee”), resides in the County of SAN MATEO, in the State of California. 4 This Court has subject matter jurisdiction over the instant action pursuant to Cal. Ins. Code § 10135(c) as either (1) the Payee was domiciled in California at the time the transfer agreement was signed by the Payee, or (2) the Payee was not domiciled in California at the time the transfer agreement was signed and the state where the payee was domiciled does not have a structured settlement transfer statute, but either the Obligor or the 10 Annuity Issuer is domiciled in Califomia. 11 12 5. Payee entered into an agreement for the settlement of a claim for damages 13 arising in connection with a personal injury claim; 14 6 The settlement agreed to by the Transferor provides for certain lump sum and 15 periodic structured payments, including but not limited to the payments that are the subject 16 17 of this Petition; 18 7 Pursuant to the agreement which settled that personal injury claim, Payee 19 became entitled to certain structured settlement payments from two separate annuities, 20 which include the payments sought to be transferred herein. 21 COUNT I 22 23 TRANSFER OF PAYMENTS FROM PACIFIC LIFE AND ANNUITY SERVICES, 24 INC 25 8 Pursuant to the above-described settlement agreement, certain payments are 26 due to Payee from PACIFIC LIFE AND ANNUITY SERVICES, INC. (hereinafter the 27 “Payment Obligor I") and are being funded by an annuity issued by PACIFIC LIFE AND 28 2 [PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS] ANNUITY COMPANY (hereinafter the "Annuity Issuer I"). The Annuity Issuer and the Payment Obliger identified in this paragraph are sometimes collectively referred to hereafter as the "Pacific Life Payment Issuer’. 9 Payee has agreed to sell, and Transferee, DRB CAPITAL, LLC, has agreed to purchase certain periodic payments, as referenced within their proposed Transfer Agreement. A true and correct copy of the proposed Transfer A greement will be filed subsequently hereto. 10. DRB CAPITAL, LLC, shall, upon this Court entering an Order approving the 10 Transfer A greement, assign all its right, title and interest in and to the said proposed 11 12 Transfer A greement to its assignee, to be designated at the time of the hearing on the 13 present matter. 14 11. Pursuantto Cal. Ins. Code § 10137(a)(1) and Cal. Ins. Code § 10139.5(a)(1) 15 as well as 26 USC § 5891(b)(2)(A)(ii), Petitioner alleges that that transfer of structured 16 17 settlement payment rights in the present matter is fair and reasonable and in the best 18 interests of the Payee, taking into account the welfare and support of the Payee's 19 dependents, if any. 20 12. Pursuantto Cal. Ins. Code §§ 10137(b) and 10139.5(a)(4) as well as 26 USC 21 § 5891(b)(2)(A)(i), Petitioner alleges that the transfer complies with the requirements of 22 23 Cal. Ins. Code § 10134, et seq., and will not contravene other applicable law, does not 24 contravene any applicable statute or the order of any court or other government authority, 25 and does not contravene any Federal or State statute or the order of any court or responsible 26 administrative authority. 27 28 3 [PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS] 13. Pursuant to Cal. Ins. Code § 10139.5(a)(2), Petitioner alleges that the Payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received that advice or knowingly, in writing, waived the opportunity to receive the advice. 14, Pursuantto Cal. Ins. Code § 10139.5(a)(3), the Petitioner has complied, or will comply at the time of the hearing, with the notification requirements of Cal. Ins. Code § 10139.5(f)(2) and the Petitioner (or its predecessor) has provided the Payee with a disclosure statement that complies with Cal. Ins. Code § 10136(b) and the transfer 10 agreement complies with Cal. Ins. Code §§ 10136(c) and 10138. 11 12 15. Pursuantto Cal. Ins. Code § 10139.5(a)(5), the Payee understands the terms 13 of the transfer agreement, including the terms set forth in the disclosure statement required 14 by Cal. Ins. Code § 10136(b). 15 16. Pursuantto Cal. Ins. Code § 10139.5(a)(6), the Payee understands and does 16 17 not wish to exercise the Payee's right to cancel the transfer agreement. 18 17. Pursuantto Cal. Ins. Code § 10139.5(f) the following documents shall be 19 served along with a copy of this Petition and Notice of Hearing: 20 (A) A copy of the transferee's current petition and any other prior petition, whether 21 approved or withdrawn, that was filed with the court in accordance with Cal. Ins. 22 Code § 10139.5(c)(6). 23 (B)A copy of the proposed transfer agreement and disclosure statement required by Cal 24 Ins. Code § 10136(b). 25 (C)A listing of each of the payee's dependents, together with each dependent's age. 26 (D)A copy of the annuity contract, if available. 27 (E) A copy of the qualified assignment agreement, if available. 28 (F) A copy of the underlying structured settlement agreement, if available. [PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS] 18. It is submitted that all of the foregoing requirements either have been met or will be met prior to any scheduled hearing, and the Petitioner respectfully requests that this Court approve the transfer of the structured settlement payments that are the subject of this Petition. 19. Califomia Insurance Code section 10139.5(h) requires that no later than the time of filing of the Petition for court approval, the Transferee shall advise the Payee of the payee's right to seek independent counsel and financial advice in connection with the 10 transferee's petition for court approval of the transfer agreement, and that the transferee 11 shall further advise the payee that if the payee retains counsel, a licensed certified public 12 13 accountant, or a licensed actuary in connection with a petition for an order approving the 14 transfer agreement, that the transferee shall pay the fees of the payee's counsel, accountant, 15 or actuary, regardless of whether the transfer agreement is approved, and regardless of 16 whether the attorney, accountant, or actuary files any document or appears at the hearing on 17 18 the Petition for transfer, in an aggregate amount not to exceed one thousand five hundred 19 dollars ($1,500). Further, that such advice may not be provided by an accountant, counsel, 20 or actuary of the transferee. 21 20. It is submitted to this Court that this Petition, the Notice of Petition attached 22 hereto, and the advisory statement provided to the payee all comply with and satisfy the 23 24 requirements of California Insurance Code section 10139.5. 25 26 27 28 5 [PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS] COUNT II TRANSFER OF PAYMENTS FROM TALCOTT (CEBSCO) FORMERLY KNONWNAS HARTFORD COMPREHENSIVE EMPLOYEE BENEFIT SERVICE COMPANY (HARTFORD CEBSCO) Pursuant to the above-described settlement agreement, certain payments are due to Payee from TALCOTT RESOLUTION (CEBSCO) formerly known as HARTFORD COMPREHENSIVE EMPLOY EE BENEFIT SERVICE COMPANY (HARTFORD CEBSCO) (hereinafter the "Payment Obligor II”) and are being funded by an annuity issued] 10 by TALCOTT RESOLUTION LIFE INSURANCE COMPANY successor-in-interest to 11 12 formerly known as HARTFORD LIFE INSURANCE COMPANY (hereinafter the 13 “Annuity Issuer II"). The Annuity Issuer and the Payment Obliger identified in this 14 paragraph are sometimes collectively referred to hereafter as the "Talcott Payment Issuer’. 15 21. Payee has agreed to sell, and Transferee, DRB CAPITAL, LLC, has agreed to 16 17 purchase certain periodic payments, as referenced within their proposed Transfer 18 Agreement. A true and correct copy of the proposed Transfer A greement will be filed 19 subsequently hereto. 20 22. DRB CAPITAL, LLC, shall, upon this Court entering an Order approving the 21 Transfer A greement, assign all its right, title and interest in and to the said proposed 22 23 Transfer A greement to its assignee, to be designated at the time of the hearing on the 24 present matter. 25 23. Pursuantto Cal. Ins. Code § 10137(a)(1) and Cal. Ins. Code § 10139.5(a)(1) 26 as well as 26 USC § 5891(b)(2)(A)(ii), Petitioner alleges that that transfer of structured 27 settlement payment rights in the present matter is fair and reasonable and in the best 28 6 [PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS] interests of the Payee, taking into account the welfare and support of the Payee's dependents, if any. 24. Pursuantto Cal. Ins. Code §§ 10137(b) and 10139.5(a)(4) as well as 26 USC § 5891(b)(2)(A)(i), Petitioner alleges that the transfer complies with the requirements of Cal. Ins. Code § 10134, et seq., and will not contravene other applicable law, does not contravene any applicable statute or the order of any court or other government authority, and does not contravene any Federal or State statute or the order of any court or responsible administrative authority. 10 25. Pursuant to Cal. Ins. Code § 10139.5(a)(2), Petitioner alleges that the Payee 11 12 has been advised in writing by the transferee to seek independent professional advice 13 regarding the transfer and has either received that advice or knowingly, in writing, waived 14 the opportunity to receive the advice. 15 26. Pursuantto Cal. Ins. Code § 10139.5(a)(3), the Petitioner has complied, or 16 17 will comply at the time of the hearing, with the notification requirements of Cal. Ins. Code 18 § 10139.5(f)(2) and the Petitioner (or its predecessor) has provided the Payee with a 19 disclosure statement that complies with Cal. Ins. Code § 10136(b) and the transfer 20 agreement complies with Cal. Ins. Code §§ 10136(c) and 10138. 21 27. Pursuantto Cal. Ins. Code § 10139.5(a)(5), the Payee understands the terms 22 23 of the transfer agreement, including the terms set forth in the disclosure statement required 24 by Cal. Ins. Code § 10136(b). 25 28. Pursuantto Cal. Ins. Code § 10139.5(a)(6), the Payee understands and does 26 not wish to exercise the Payee's right to cancel the transfer agreement. 27 28 7 [PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS] 29. Pursuantto Cal. Ins. Code § 10139.5(f) the following documents shall be served along with a copy of this Petition and Notice of Hearing: (G) 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 Cal. Ins. Code § 10139.5(c)(6). (H)A copy of the proposed transfer agreement and disclosure statement required by Cal Ins. Code § 10136(b). (I) A listing of each of the payee's dependents, together with each dependent's age. (J) A copy of the annuity contract, if available. 10 (K)A copy of the qualified assignment agreement, if available. 11 (L) A copy of the underlying structured settlement agreement, if available. 12 13 30. It is submitted that all of the foregoing requirements either have been met or 14 will be met prior to any scheduled hearing, and the Petitioner respectfully requests that this 15 16 Court approve the transfer of the structured settlement payments that are the subject of this 17 Petition. 18 31. Califomia Insurance Code section 10139.5(h) requires that no later than the 19 time of filing of the Petition for court approval, the Transferee shall advise the Payee of the 20 payee's right to seek independent counsel and financial advice in connection with the 21 22 transferee's petition for court approval of the transfer agreement, and that the transferee 23 shall further advise the payee that if the payee retains counsel, a licensed certified public 24 accountant, or a licensed actuary in connection with a petition for an order approving the 25 transfer agreement, that the transferee shall pay the fees of the payee's counsel, accountant, 26 27 or actuary, regardless of whether the transfer agreement is approved, and regardless of 28 whether the attorney, accountant, or actuary files any document or appears at the hearing on 8 [PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS] the Petition for transfer, in an aggregate amount not to exceed one thousand five hundred dollars ($1,500). Further, that such advice may not be provided by an accountant, counsel, or actuary of the transferee. 32. It is submitted to this Court that this Petition, the Notice of Petition attached hereto, and the advisory statement provided to the payee all comply with and satisfy the requirements of California Insurance Code section 10139.5. In accordance with the foregoing, Petitioner hereby requests that this Court approve this Petition and enter an order in accordance with Insurance Code Section 10139.5(b) approving this transfer of structured settlement payment rights and ordering Payment 11 12 Obligor and Payment Issuer to pay the Transferred Payments to Petitioner or its assignee. 13 14 THE LAW OFFICE OF JUAN C. LOZANO 15 16 fone © 17 By ae 18 Juan C. Lozano Attomey for PETITIONER, 19 DRB CAPITAL, LLC 20 21 22 23 24 25 26 27 28 9 [PETITION FOR APPROVAL OF TRANSFER OF STRUCTURED SETTLEMENT PAY MENT RIGHTS] VERIFICATION I, Stephanie Post, Paralegal, with DRB CAPITAL, LLC, am familiar with the contracts utilized and the procedures adhered to in the course of transferring structured settlement benefits, and I hereby verify that all of the conditions of Section 10136, 10137 and 10138 of the law governing the transfer of structured settlement payments (Chapter 624) have been complied with. I declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct. Executed DATE ir Bech — Stephanie Post Paralegal DRB CAPITAL, LLC EXHIBITA DocuSign Envelope ID: 49139BF3-1644-43B4-962A-5A960FBE916D Absolute Sale and Security Agreement (The “Agreement”) You, E Cc (“you” or the “Seller”), are entitled to certain periodic payments (the “Periodic Payments”), which you are receiving as a result of the settlement of a personal injury claim (the “Settlement”). The terms of the Settlement are stated in an agreement (the “Settlement Agreement”). The Periodic Payments are due to you from the Settlement Obligor. The Settlement Agreement provides for the Periodic Payments to be paid to you through an annuity (the “Annuity”) issued by the Annuity Issuer. In consideration of the mutual promises contained here, you agree as follows: 1. Definitions. a The “Annuity Issuer” means the entity defined in Exhibit A of this Agreement. b. The “Settlement Obligor” means the entity defined in ExhibitA of this Agreement. Cc The “Purchaser” means DRB Capital LLC or its assigns. d. The “Parties” means both Purchaser and you; a “Party” means either the Purchaser or you. Transfer Agreement. You agree to sell and transfer to the Purchaser all of your rights to and interest in the Periodic Payments that are identified in Exhibit A of this Agreement (the “Assigned Payments”), which is incorporated herein by reference. In exchange for selling and transferring to the Purchaser my rights to receive these payments, the Purchaser shall pay you the amount specified in Exhibit A of this Agreement (the “Purchase Price”). Disclosures and Statements Required by Law. The transfer agreement is not effective until the date on which a court enters a final order approving the transfer. The payment to you pursuant to this Agreement will be delayed up to 30 days or more after the date you signed this Agreement in order for the court to review and approve the transfer. The amounts and due dates of the structured settlements to be transferred to the Purchaser are You have agreed to sell to the Purchaser future payments totaling: The aggregate amount of all expenses, if any, to be deducted from the purchase price to be paid to you in exchange for the payments to be transferred is: The amount payable to you, net of all expenses, in exchange for the payments to be transferred is [SS2-CA-LC-DS-2/18] Agreement-Page 1 DocuSign Envelope ID: 49139BF3-1644-43B4-962A-5A960FBE916D The structured settlement payments to be transferred to the Purchaser pursuant to this Agreement have a discounted present value equal to . This is the value of your structured settlement in current dollars. The most recently published applicable federal rate for determining the present value of an annuity, as issued by the United States Internal Revenue Service and used to determine the discounted present value of the Assigned Payments is: YOU WILL BE PAYING THE EQUIVALENT TO AN INTEREST RATE OF PER YEAR. Based on the net amount that you will receive from us and the amounts and timing of the structured settlement payments that you are transferring to us, if the transferred structured settlement payments were installment payments on a loan, with each payment applied first to accrued unpaid interest and then to the principal, it would be as if you were paying interest to us of per year, assuming funding on the effective date of transfer. The quotient (expressed as a percentage) obtained by dividing the net payment amount by the discounted present value of the payments: You should obtain independent professional advice regarding any federal and state income tax consequences arising from the proposed transfer. The Purchaser may not refer you to any specific adviser for that purpose. You have the right to seek independent counsel and financial advice in connection with the petition for court approval of the Transfer Agreement, and if you retain counsel, a licensed certified public accountant, or a licensed actuary in connection with the petition for an order approving the Transfer Agreement, the Purchaser shall pay counsel, accountant, or actuary fees you incur, regardless of whether the Transfer Agreement is approved and regardless of whether the attorney, accountant or actuary files any document or appears at the hearing on the application for transfer, in an aggregate amount not to exceed one thousand five hundred dollars ($1,500.00). The Purchaser's accountant, counsel, or actuary may not advise you. The court approving the Transfer Agreement retains continuing jurisdiction to interpret and monitor implementation of the Agreement as justice may require. If you believe you were treated unfairly or were misled as to the nature of the obligations you assumed upon entering into this Agreement, you should report those circumstances to your local district attorney or the office of the Attorney General. 4. Other Obligations and Promises. You hereby make and agree to the following representations, warranties and promises, which are unconditionally binding from the moment you sign this Agreement: a No one other than you has any interest or claim of any kind or nature in, to or under the Assigned Payments. [SS2-CA-LC-DS-2/18] Agreement-Page 2 DocuSign Envelope ID: 49139BF3-1644-43B4-962A-5A960FBE916D You are not indebted to anyone that would in any way affect either the sale and transfer of the Assigned Payments referenced above or the Purchaser's absolute rights to receive the Assigned Payments. You agree to conduct your affairs from the moment you sign this Agreement so as to ensure that, if the transfer of the Assigned Payments is approved by a court, the Purchaser will receive the Assigned Payments described in Section 2 above. This means, among other things, that you agree not to negotiate with, entertain offers from or enter into agreements with third parties to purchase the rights to and/or interest in any portion or all of the Assigned Payments after you execute this Agreement and/or while a petition for the approval of the transfers of the Assigned Payments to the Purchaser is pending before a court or other government authority (the “Petition”). You agree to cooperate with the Purchaser and provide any additional documentation and information as the Purchaser may reasonably require from you regarding the Assigned Payments and the transaction contemplated herein, and to cooperate with the Purchaser and its attorney in connection with the Petition. You acknowledge that documents underlying a settlement or an annuity contract may contain language —and based upon information and belief, the Settlement or Annuity do contain such language-purporting to prohibit your right or powerto accelerate, defer, increase, decrease or assign your Periodic Payments. Should the pertinent documents relating to the Settlement or the Annuity contain a provision with this or similar language, you knowingly waive any such provision and claims you may have relating to such provision. You agree and promise that you will never claim that the rights to and interest in the Assigned Payments are not transferable, or that the language mentioned before renders this Agreement void or voidable in any respect. You hereby release the obligor of the Periodic Payments from any liability related to the existence and waiver of this prohibitory language and specifically request that they honor my request to assign and sell the Periodic Payments to the Purchaser. The Purchaser advised you to seek independent professional advice regarding the Agreement from an attorney, accountant or other professional of your choice. You have knowingly waived any right and opportunity to seek and receive such advice. You confirm that the Purchaser did not provide you with financial or legal advice, and that you did not rely on the Purchaser for any such advice. Your state of residence and domicile on the date of the Agreement is the State of California (“Your State”). You have provided complete and correct information to the Purchaser concerning your residency status and have not falsified any of that information nor relocated for the purpose of entering into this Agreement. Default Provision. You understand and agree that you will be in default if you are in breach of any of your obligations, covenants, representations and warranties under this Agreement, including without limitation, in the any of the following situations: [SS2-CA-LC-DS-2/18] Agreement-Page 3 DocuSign Envelope ID: 49139BF3-1644-43B4-962A-5A960FBE916D Any of the representations stated in Section 4 at any time turn out to be untrue. You fail to perform the promises you made under Section 4, even if a court order approving the transfer of Assigned Payments has not yet been obtained. Either the Settlement Obligor or the Annuity Issuer refuses or fails to make any one or more of the Assigned Payments as a result of any act by you, your estate, your representatives, or any of your heirs. You fail to promptly forward to the Purchaser any Assigned Payments you receive from the Settlement Obligor or the Annuity Issuer, after the sale and transfer to the Purchaser has been completed. You understand that the Purchaser may seek any and all available remedies against you, including specific performance in case of default by you. The Purchaser's Obligation to Pay You. The Purchaser shall pay you the Purchase Price minus any deductions allowed hereunder, upon the following four conditions being met (each, a “Condition Precedent”), unless waived by the Purchaser to the extent permitted by law, and you acknowledge that the Purchaser's obligation to pay you shall not arise unless the four Conditions Precedent are met or waived by the Purchaser at its discretion: The Purchaser shall be satisfied, in the Purchaser's sole reasonable judgment, that there are no claims or interests of any kind or nature that do or could affect rights to or interest in the Assigned Payments and/or prevent or interfere with the Purchaser's receipt of the Assigned Payments on the dates and in the amounts described above Section 2. The Purchaser has received a final non-appealable court order and/or a signed acknowledgment from Settlement Obligor and Annuity Issuer satisfactory to the Purchaser in its sole discretion and which the Purchaser, in its sole judgment, considers sufficient to recognize, authorize, and provide for the transfer by sale of the Assigned Payments (which may continue to be made out to your name) to the Purchaser and to insure that the Periodic Payments due on or after the day of the Order will be forwarded directly to the Purchaser (collectively referred to as the “Order”). The Purchaser has received all documents and information that the Purchaser, in its sole reasonable judgment, deems necessary to effect the transfer. Final approval has been given by the Purchaser's underwriting department and the Purchaser has not determined, in its sole reasonable judgment, that there has been a change of law or there exists a threatened change of law that could adversely affect this transaction and/or render this Agreement unenforceable. Security Interest. To secure the performance of my representations, covenants and warranties in this Agreement, and only to the extent permitted by law, the Purchaser and you intend to create a security interest -under Article 9 of the Uniform Commercial Code (the “UCC”)- in your rights to [SS2-CA-LC-DS-2/18] Agreement-Page 4 DocuSign Envelope ID: 49139BF3-1644-43B4-962A-5A960FBE916D and interest in the Assigned Payments, which rights have been assigned to the Purchaser as payment intangibles under Article 9 of the UCC. This security interest secures payment of the rights assigned to the Purchaser in this Agreement and the performance by you of your obligations under this Agreement, including Section 3 above. You authorize the Purchaserto direct any account debtor or obligor on an instrument, including without limitation, Settlement Obligor or Annuity Issuer, to make periodic payments directly to the Purchaser and as contemplated by the UCC. You understand that these liens are perfected when they attach, which you agree is the date on which the Closing takes place. Purchaser may also perfect this lien by notice to the party obligated to pay you the Periodic Payments and/or by filing a UCC-1 Financing Statement. You understand and agree that the Periodic Payments are payment intangibles. Payments Received by Party Other Than the Party Intended to Receive the Payments. If prior to obtaining the Order or completing the transfer provided for in this Agreement, you receive any of the Assigned Payments or any portion thereof, you understand and agree an equal amount shall be deducted from the Purchase Price, and the Purchase Price shall be reduced in the same amount as these payments, and that the terms of this Agreement regarding the payments to be assigned, shall be treated as amended to reflect for the adjusted amount. In the event the Purchaser receives or otherwise comes into possession of any of the Periodic Payments or a portion thereof which are not included in the payments being absolutely sold to the Purchaser pursuant to this Agreement, the Purchaser agrees to forward such amount(s) to you within seven (7) days of receipt of such amount(s). Disclosure Statements. All disclosure statements you may receive from the Purchaser in connection with this transaction as required by applicable law (each, a “Disclosure Statement”) are a material part of and incorporated by into this Agreement, so that it shall be read as if the contents of each disclosure statement was stated in full in the body of this Agreement. 10. Advanced Payment and Escrow. You know that it will take some time for the Settlement Obligor and the Annuity Issuer to receive and process the Order once it is granted. You would like to receive the Purchase Price or a portion thereofas soon as possible thereafter, and request the Purchaser to pay you a portion of the Purchase Price as soon as possible after the Order is obtained. That notwithstanding, you understand and agree that the Purchaser may (but is not required to) to hold in escrow an amount it deems necessary or advisable from the Purchase Price (the “Escrow Amount") for a period of up to 120 days, until (1) all conditions precedent have been satisfied, including, without limitation, the receipt by the Purchaser of the Settlement Obligor and the Annuity Issuer’s acknowledgment of the terms of the Order in writing and their agreement to honor and comply with same, and (2) the Purchaser has received the first of the Assigned Payments as contemplated hereunder. At such time, or earlier as the Purchaser may determine in its discretion, the Purchaser will send the Escrow Amount to you minus any Assigned Payments that the Annuity Issuer and/or Settlement Obligor has sent to you. [SS2-CA-LC-DS-2/18] Agreement-Page 5 DocuSign Envelope ID: 49139BF3-1644-43B4-962A-5A960FBE916D 11. Power of Attorney. You hereby grant the Purchaser, its COO and its Senior Vice President of Structured Settlements an irrevocable power of attorney with full powers of substitution to do all acts and things that you might do regarding the Assigned Payments being transferred under this Agreement, and any and all rights you have under the Annuity regarding such payments, including the execution of stipulations or other documents that may be required by or negotiated with the Settlement Obligor and/or Annuity Issuer. You understand and intend that by doing so, you are giving the Purchaser all of the power and right you have under the Settlement Agreement to endorse checks, drafts or other instruments, to alter, edit and change payment instructions and/or beneficiary designations, and/or to perform any other act in your name that, in the Purchaser's sole discretion as your Attorney-in-Fact, is necessary or expedient for the Purchaser to obtain all of the benefits of the bargain contemplated by this transaction. This includes the power and right to communicate directly with the Settlement Obligor and the Annuity Issuer in connection with the Assigned Payments. This power of attorney is coupled with an interest and shall survive your death or disability. 12. Agreement to Arbitrate. a Agreement. The Purchaser and you (each, a “Party” and collectively, the “Parties”) agree that any and all controversies, claims, disputes, rights, interests, suits or causes of action between the Parties (other than the petitions required by law to be filed in court for the approval of transfers) arising out of or relating to this Agreement, to the negotiations thereto related or to the breach thereof, or to the formation, validity and/or enforceability of this agreement to arbitrate or the Agreement (each, a “Claim”), as well as the question of arbitrability of any such Claim, shall be settled by binding arbitration. This agreementto arbitrate is binding upon and inures to the benefit of each of the Parties’ respective heirs, executors, administrators, successors, agents, representatives and assigns, in which case they shall each be treated as a “Party” for purposes of this Section 11. Initiation. Either Party may initiate an arbitration (in such capacity, the “Claimant”) by serving the other Party (in such capacity, the “Respondent”) with a written demand for arbitration, via U.S.P.S. Certified Mail. The arbitration of a Claim must be initiated within a reasonable time after the Claim has accrued. In no event shall a Claim (in a demand or counter-demand) be entertained if the demand (or counter-demand), is filed after the date when institution of legal or equitable proceedings based on such Claim would be barred by the applicable statute of limitations. If a Party raises untimeliness of the filing of the demand as a defense, the arbitrator must resolve that question prior to holding the hearing on the merits of the demand. If either Party fails to comply with this Section 11 and the other Party is required to seek court intervention, the Party failing to comply with the obligations hereunder shall be responsible for paying the fees and expenses (including attorneys’ fees) incurred in seeking an order to compel Administration. The arbitration shall not be administered by an arbitration organization but shall instead be privately administered by the arbitrator appointed pursuant hereto. Notwithstanding the preceding sentence, the Commercial Rules of the American Arbitration Association (the “AAA Rules”) shall govern the arbitration and the arbitrator must follow the AAA Rules, except those regarding the administration of the arbitration process by the [SS2-CA-LC-DS-2/18] Agreement-Page 6 DocuSign Envelope ID: 49139BF3-1644-43B4-962A-5A960FBE916D American Arbitration Association (the “AAA”) and those as to which this Section 11 otherwise provides. In the case of inconsistencies between the terms of this Section 11 and the AAA Rules, the terms of Section 21 shall govern. The Arbitrator. The arbitration shall be held before a single neutral arbitrator (the “Arbitrator”). The Claimant shall nominate the Arbitrator within 20 calendar days of the commencement of the arbitration, by sending the name and resume of the Arbitrator (the “Nomination”) to the Respondent via U.S.P.S. Certified Mail. The Respondent then has 7 calendar days of receipt of the Nomination to send an objection in writing to Claimant. If no such objection is sent within the 7-day period, the Arbitrator shall be deemed appointed. If a written objection is sent within the 7-day period, the Arbitrator must be selected from a list of arbitrators obtained from the AAA, from any other statewide or nationwide organization that provides names of arbitrators, or from an organization with arbitrators who are former judges (the “List”). The Claimant is responsible for obtaining and sending the List and arbitrator resumes to the Respondent via U.S.P.S. Certified Mail. If the Parties are unable to agree on an Arbitrator within 14 calendar days after the List is sent, each Party will have 7 additional calendar days to select an appointing arbitrator from the List. The Arbitrator will be selected from the List by the appointing arbitrators by agreement and such selection shall be made within 7 calendar days from the date the last appointing arbitrator is selected. If a Party fails to timely select an appointing arbitrator, the other Party’s appointing arbitrator shall be deemed the Arbitrator. If the Arbitrator resigns or needs to be replaced, the replacement shall be selected in the same manner. Each Party is responsible to pay the arbitrator directly for 50% of the arbitrator fees as these become due, but either Party may, in its discretion, pay 100% of the arbitrator fees. Arbitration Process. The arbitration will be held in the largest city of My State. Discovery, specifically including interrogatories, production of documents and depositions, shall be allowed at the discretion of the arbitrator. The arbitration may be held telephonically and may be resolved by submission of documents under Rule E-6 of the AAA Rules, regardless of the amounts involved in the Claim, unless one of the Parties objects. Any discovery shall be conducted in accordance with, and governed by, the Federal Rules of Civil Procedure. Waivers. No arbitration of a Claim shall include (by consolidation, joinder or in any other method) a person or entity who is not a Party to this Agreement, except by written consent containing a reference to this Agreement and the specific Claim to be arbitrated and the signature of both Parties and the person or entity sought to be joined. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any Claim not described in the written consent or with a person or entity not named therein or who has not signed the consent. There shall be no right or authority for any Claim to be arbitrated on a class action basis or on any basis involving Claims brought in a purported representative capacity on behalf of the general public or other persons or entities similarly situated. | UNDERSTAND THAT | WILL NOT HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS IN ANY PROCEEDING PERTAINING OR RELATING TO A CLAIM THAT | AM HEREBY EXPRESSLY WAIVING THE RIGHT TO SEEK RELIEF IN A COURT OF LAW, AND THAT SOME RIGHTS THAT | WOULD HAVE IF | WENT TO COURT MAY NOT BE AVAILABLE IN ARBITRATION. [SS2-CA-LC-DS-2/18] Agreement-Page 7 DocuSign Envelope ID: 49139BF3-1644-43B4-962A-5A960FBE916D g. The Award. The award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any competent court with jurisdiction. Notwithstanding anything herein or in the AAA Rules to the contrary, the arbitrator has the power to issue a default award, in the event one of the Parties fails to appear or to participate in the arbitration proceedings. The final award shall identify the substantially prevailing Party and shall award to that substantially prevailing Party fees and expenses, including attorneys’ fees, expert fees, arbitrator fees and costs of arbitration. Inconsistencies with Transfer Statutes. This Section 12 does not apply to the extent it is found to be inconsistent with applicable state law regarding the transfer of structured settlement payments. In such case, any disputes between the Parties will be governed in accordance with the laws of my domicile state and Your State and the courts in Your State will be the proper venue for any such disputes. 13. Authorizations. By signing this Agreement: a You expressly authorize the Purchaserto endorse on your behalf any checks or other negotiable instrument payable to you with respect to the Assigned Payments, to the extent necessary for the consummation and enforcement of the transaction contemplated in this Agreement. This authorization shall survive your death or disability. You authorize the Purchaserto discharge any liens or adverse claims against you or any of the Assigned Payments, whether or not such liens or adverse claims are disclosed by you , and to pay (or if the Purchase Price has been deposited into an escrow account, to instruct the escrow agent to pay) any amounts necessary to discharge such liens or adverse claims, provided the Purchaser furnishes prior written notice to you. You understand and agree that any such payments are made on your behalf and shall reduce the Purchase Price. Adverse claims may include disclosed amounts to be deducted by the Purchaser from the Purchase Price to enable you to obtain the release of any encumbrance on a portion of the Assigned Payments relating to a prior transfer transaction(s) that occurred before the enactment of the applicable statue regulating such transfers. You understand that the law currently in effect requires that such encumbrance be released in orderto complete the transfer that is the subject of this Agreement. You understand that, in the event that a third party has provided a cash advance to you, the Purchaser may, in its sole and absolute discretion, pay back the third party all or part of the cash advance. In such an event, you authorize the Purchaser to deduct the amount paid to the third party from the Purchase Price. 14. Applicable Law. This Agreement shall be governed by and interpreted, construed and enforced in accordance with the laws of Your State. Except as provided in the agreement to arbitrate, proper venue to bring any cause of action arising out of a breach of this Agreement lies in the courts of Your State with competent jurisdiction and the Parties agree and submit to the jurisdiction of such courts. [SS2-CA-LC-DS-2/18] Agreement-Page 8 DocuSign Envelope ID: 49139BF3-1644-43B4-962A-5A960FBE916D 15. Miscellaneous. a Assignment. You understand and agree that you have no right or powerto assign your rights or obligations under this Agreem