Preview
FILED: BRONX COUNTY CLERK 04/28/2021 01:42 PM INDEX NO. 805858/2021E
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/28/2021
"C"
EXHIBIT
FILED: BRONX COUNTY CLERK 04/28/2021 01:42 PM INDEX NO. 805858/2021E
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/28/2021
DISCLOSURE STATEMENT PURSUANT TO
NEW YORK LAW
DATE RECElVED: April 16, 2021
PAYEE: A Rivera
This Disclosure Statement is being provided b Mastiles Assignments, LLC
Assignments" ("Payee"
("Mastiles or "Us") to Rivera or "You") in
connection with Payee's agreement to transfer and assign to Mastiles
Assignments certain structured settlement payment rights due Payee. This
Disclosure Statement is being provided pursuant to New York Structured
Settlement Protection Act,(the"NewYork Transfer Statute").
1. Schedule of Payments Transferred. The Payee intends to assign,
transfer or sell to Mastiles Assignmentsallof Payee's right, title and interest in
and to the following payments:
240 payments of S1,195.30 commencing February 15, 2027
Monthly
continuing through and including January 15, 2047
2. Aggregate Amount of Payments Transferred. The aggregate
amount of payments to be transferred to Mastiles Assignments, LLC totals
$286,872.00.
3. Calculation of the Current Value of the Transferred Structured
Settlement Payments under Federal Standards for Valuing Annuities. The
discounted present value of the payments transferred at 1.0% is $245,399.79.
The discounted present value is the calculation of current value of the
transferred structured settlement payments under federal standards for
valuing annuities. THIS IS NOT THE RATE USED TO CALCULATE THE
PURCHASE PRICE.
4. Calculation of Discounted Present Value. The discounted present
value of payments shall be calculated as follows: The applicable federal rate
used in calculating the discounted present value is 1.0%.
5. Two (2) Price Quotes. The following represents two quotes from
two annuity issuers (other than the original Annuity Issuer that issued Payee's
FILED: BRONX COUNTY CLERK 04/28/2021 01:42 PM INDEX NO. 805858/2021E
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structured settlement payments). The quotes reflect the current cost of
purchasing a comparable annuity for the aggregate amount of payments to be
transferred: $237,953.14 from Symetra; and $230,764.25 from AIG. Two
comparable annuity price quotes are used here, since a quote from the original
Annuity issuer is not readily available.
6. Gross Advance Amount. In exchange for these payments, the
Payee will receive the gross amount of $103,573.83 which represents a nominal
annual discount rate of 6.98% assuming monthly compounding and an
assumed funding date of April 16, 2021. Funding will not occur until everything
necessary under the Assignment Agreement has taken place.
7. Fees and Expenses. The Payee will be responsible for the following
approximate commissions, charges, fees, expenses, and costs in connection with
the closing of this transaction:
Legal Fees - $ 0.00
Fees - $ 0.00
Processing
8. Net Advance Amount The net cash payment the Payee will receive
in this transaction from Mastiles Assignments, was determined the
by applying
specified discount rate to the amount of future payments received by Mastiles
Assignments, less the total amount of commissions, fees, costs, expenses and
charges payable by you. The net amount is $103,573.83.
9. Penalty In The Event Of Breach Of Contract. The amount of any
and the aggregate amount of any liquidated damages (inclusive of
penalty
penalties), payable to Mastiles Assignments, by the Payee in the event of the
Payee's breach of the transfer agreement are NONE.
10. Right To Cancel. The Payee shall have the right to cancel the
Assignment Agreement without penalty or further obligation not later than the
third (3d) business day after the date the Assignment Agreement is signed by
the Payee.
11. independent Professional Advice. The Payee understands that the
Payee should consult with the Payee's own attorney, certified public
accountant, actuary or other licensed professionai adviser regarding any
federal and state income tax consequences arising from the proposed transfer
of payments.
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I have read and understand in this Disclosure Statement.
everything
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.
.-.
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-12/17/2008 2:16:08 PM Bronx County Clerk
Filed on
FILED: BRONX COUNTY CLERK 04/28/2021 01:42 PM INDEX NO. 805858/2021E
NYSCEF DOC. NO. 5 . RECEIVED NYSCEF: 04/28/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX: PART IA23
X
In Re: the Matter of the Sale and Transfer of Index No.: 260363/08
Structured Settlement Payment Rights of Charlee
Medina, Pursuant to and in Acconiance whh Decision/Order
Ocn. Oblig. Law §5-1701, et seq.
X
HON. ALEXANDER W.ItUNTER, JR
The motion by petitioner, Structured Asset Funding, 11C, for an order seeking approval
ofthe sale and transfer of certain structured settlement payment rights due inder a structumd
settlement agreement obtained on behalf of mspondent/payee, Cheries Modina. is denied without
prejudice.
.
h only details provided by Ms. Medina with respect to the structured settlement that is
the subject of this application is that said structmed settlement entitled her to the following
payments: twelve
(12) annual paymems, each in the amount of S1,000 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 paymera on June 5, 2005 thmugh to and including June 5,
2008; one (1) lump sum payment in the amount of S55,000 due and payable on June 5, 2012; one
lump sum payment in the amount of S87,500 due and payable on June 5, 2017.
According to the Disclosure Statement that was signed by Ms. Medina, which is annexed
to petitioncr's motion as Exhibit E, the discounted present value of the aggregate payments to be
transf brred is $47,296.71. The annual discount rate fbr this transaction is 13.92%. The
discounted present value is calculated by using the applicablo federal rate of 3.6%. h
petitioner is not charging any commissions, foes, costs or expenses to the payee, Ma 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 allare of quick and easy cash, to
induce settlement recipients to cash out fhture payments, oAen at substantial discounts, depriving
victims and their famihes of the long-term financial security their structmed settlements were
designed to pmvide. Although transfers of structured settlements payments are generally
pmhibited by contract..fhotoring companies have built
a rapidly expanding business amund
prohibitions."
circumventing these (NY Spons.Memo., 2002 Ch. 537). A detennination would
be made by a Supreme Comt 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 procedmal requirements that must be met for approval of a transfer are found under
General Obligations Law §5-1705. The requirements
am 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 must include a copy of the
transfer agmement, a copy of the disclosme stmement and proof of notice of that statement as
dependents'
well as a listing of esch of the payee's dependents along with the age. Procedurally.
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County
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the petitioner herein has met all ofthe aforementioned requirements.
Pursuant to General Obligations Law §5-1706, the comt 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 imerest of the payee, taking into account
the welfhre 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
determino the not advance amount, are fair and reasonable. Provided the cost makes the
findings as outlined in this subdivision, these is no tequirement for the comt 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 transforcc to seek
independent professional advico regarding the transfer and has either received such advice or
knowingly waived such advice in wnting; (d) the transfer does not contravene any applicabic
statute or the order of any comt or other govemment authority; and (e) is written in plain
article."
language 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 anomey by the name of Jed Marcus, Esq.
(Exhibit G).
The two most important components of the SSPA are whether or not the tranmation,
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 mled on what is
detennined 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 Canital
Corp. v. Yates. 12 Mise. 3d 1198(A) (2006).
This court finds that the transaction is fhir taking into account the totality of the
herein
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 $$5,000 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) yoms 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 carently living at her aunt's house and she wishes to relieve her aunt of the
burden. She also plans to use some ofthe proceeds to purchase furniture for herself and ber
children and to pay for the livag expenses other children.
However, Ms. Medina does not indicate whether or not she is employed or otherwisc
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 placc other own.
Accordingly, the application for the transfer of the stmctured settlement payment is
denied without prejudice and with leave to renew upon submission of a more detailed aflidavit
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Filed On - 12/17/2008 2·16:08 PM Brorst County Clerk
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from Ms. Medina with respect to her monthly household income and the amount of rent she
intends to pay on a basis in order for this court to determine whether or not the transfer
monthly
is in the best interest of the payee into account the welfare and support of her dependents
taking
This constitutes the decision and order of this court.
.
Dated:_December 12. 2008
J.S.C.
.
.
.
.
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Filed On - 12/17/2008 2·16:08 PM Bronx County Cierk
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 04/28/2021
At an All Purpose Term of the Supreme
Court of the State of New York, held in
and for the County of Ulster, Kingston,
New York, on the 4th day of December,
2008.
PRESENT: HON. HENRY F. ZWACK
Acting Supreme Court Justice
STATE OF NEW YORK
SUPREME COURT COUNTY OF ULSTER
InRe:the Matterofthe Sale and TransferofStructured Settlement DEGHON
Payment Rights of Khaberly Whispell, pursuant to and in
accordance with General Obligation Law et. seq. Index No. 08-4095
§ 5-1701,
Structured Asset Funding, LLC (petitioner) is seeking approval of the sale and transfer
of certain structured settlement payment rights due Kimberly Whispell (Whispell) under a
structmed settlement agreement. Whispell has consented to and joined in this application by
petitioner. .
.
The Court has received and considered the verified petition, with exhibits A thrcügh J,
the testimony of Whispell at the hearing held on December 4, 2008, and the post hearing
submission by Whispell dated December 29, 2008.
Whispell, who is32 years ofageand has custody and care offour minor childrenranging
in ages one throughthirteen, is requesting to tranafar 121 monthly payment portions ofS745.00
each to petitioner. In exchange, petitioner would provide a gross advance of$47,000.00. The
aggregate amount of payments to be transferred by Whispell is $90,145.00, the discounted
.
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present value of the payments to be transferred is $75,017.24, and the annual discount rate,
compounded monthly, used to detamine the gross advance amount is 15.66%.
Whispell presently receives $2,121.80 monthly under the structured settlement'.
Whispell's other income includes rents of S400.00 per month, and either ients or resumption of
mortgage payments from a mortgage held by her. In her afBdavit, she stated her intention was to
use the proceeds from petitioner to "make a large down payment on a house for me and my
children."
At the hearing, Whispell testified she was at risk of mortgage foreclosure other present
home in Ulster County, and that her original plan to sell her home in Ulster County and purchase a
more affordable home in Washington County had changed. Whispell's post hearing submission
dated December 29, 2008 recites an offer from her present mortgage holder to modify the terms of
.
the mortgage, in exchange for a lump sum payment, that would reduce the interest rate from 9.25%
to 5.2%, with a monthly escrow for tax and insurance.
The Settlement Protection Act requires court approval of all transfers of structured
settlements after July 1, 2002 (General Obligations Law § 5-1706). This legislation was enacted,
in part, to pmvide protection to those individuals seeking to transfer payments under a structured
settlementagreement(Inre Settlement CapitalCorp. [Ballos], 1 Misc3d 446, 455 [Sup. Ct. Queens
Co. 2003]). In analyzing the transfer, courts consider whether the transfer is in the best interest of
the payee, whetherthe transfer is fair and reasonable, whether the payeehas been advised in writing
to seekindependentprofessionaladviceand has sweived orwaivedsuch advice, wherhar the transfer
is written in plain language, and whether the transfer complies with the other provisions of the
as disclosme requiremanta Law [b]-[e]).
statute, such (General Obligations § 5-1706
'In televant Whispell is entitled under the structured settlement to monthly payments
part,
of $2,000.00, November 1, 2006, at 3% annually, guaranteed through
beginning increasing
October 1, 2036 and contianitig for life thereafter.
2 o.winewnivememiaw
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To detannina whetherthe transferis in thebestinterestofthepayee,the court must analyze
each transfer on acase-by-case basis(Inre Settlement Cqpital Corp. [Ballos], 1 Misc3d 450).
Factorsforthecomttoconsidermayinclude: .
(a) the physical age, level of maturity, physical and mental capacity of the
beneficiary;
(b)thebeneficimy'sabilitytoeamalivingandsupporthisorherdependent••(c)the
beneficimy'sintendedusageoftheproceeds;
(d)the beneficimy'spresentenanaia1situationand whetherhoor sheislaboring
undersuchahardshipastobeindireandimmediateneedoftheproceeds;
(e)whetherthebeneficimyhasobtainedindependertoounselregardingthefinancial
consequencesofthe proposed transfer;
(f)thelevelofnnancialsophistication,orlackthereof,ofthebeneSciary;and(g)the
timingoftheapplicationwithotherscheduledpayments.
(Inres)aetraAssignedBenefkrServiceCo.[McGuire],13Misc3d1208[A][Sup. Ct. Suffolk Co.
2006D.
Courtshaveheldtransferstobeinthebestinteresisofbeneaciarywhenthebeneficiaryhas
pursued altematives to thetransfer, has researched other potential purchasers ofthe structmed
settlement, and has a clear plan for use of theproceeds (1nreSettlementFumtirgofNY[Platt],2
Misc3d872,879[Sup.Ct.Lewisco.2003D.However,inthe absenceofthessfactors,transfersof
stmetmedsettlementsgenerallyarenotinthebestinterestsofthebeneficiary. Specifically,courts
denythetransferwhenthebeneficiarydoesnothavea"pressingneed"forthoproceeds,doesnot
haveaplanfortheproceeds,orbasnotpassedaltamativestothetransfer(sece.g,1areSettlement
CqpitalCorp.[Yates], 12Misc3d1198[A][Sup.Ct.KingsCo.2006][denyingtransferofstructured
settlement wherefundswouldbensedto Anthersupportfivechildren becauseadequate=c=thly
incomeaheadyerinted] ; In re 321HemiersonReceivables, 11 Misc.3d 892[Sup.Ct.NYCo.2006)
[denyingtransferofstructuredsettlementwherebeneficiarywouldliketostatabarbershop,buthas
notdemonstratedanycommitmenttotheendeavorD.
3 osneeawnispermassision.wpa
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, .
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To determine whetherthetransferis thirand reasonable, the comtmustevaluate thodiscount
rate used to compute the gross advance amount and the fees and expenses charged, if any (General
ObligaticasLaw§5-1706). To make adeterminationregardingwhetherthe discountrate is fair and
reasonable, courts have compared discountrates to cumet credit card and unsecmed loan rates, and
transfer fees to closing costs (In re Settlement naufing of New York, LLC [Csamingham], 195
Misc2d 721 [Sup. Ct. Rense. Co. 2003]). As noted in several decisions, it is more financially
advantageous forthe beneficimy to obtain an unsecured loan or a home equity loan, when available
(fd). Currently, with the prime rate below 10 percent, unseemed loan rates are apprMtv 13
percent,and homeequityloan tates rangeup to apprmrimately 10 percent, based ona cursoryreview