Preview
FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021
"D"
EXHIBIT
FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021
NEW YORK DISCLOSURE STATEMENT
Payee: FREDERICK ALUEDE JR.
Disclosure Rèceipt Date: April 23, 2021
A. Amounts and due dates of the structured settlement payments to
be transferred to TRANSFEREE:
1 lump sum payment of $368,223.00 due on September 5, 2030
B. Aggregate amount of the payments: $368,223.00.
C. Discounted present value of the transferred structured settlement
payments, which is the calculation of current value of the transferred
structured settlement payments under federal standards for valuing
annuities: $335,313.38. The amount of the applicable federal rate used
in calculating such discounted present value is: 1.0%
D. The price quote from the original annuity issuer or a price quote
from two other annuity issuers that reflects the current cost of
purchasing a comparable annuity for the aggregate amount of
payments to be transferred are: $337,353.86, and $336,680.50.
E. Gross advance amount: $202,301.41 and the annual discount rate,
compounded monthly, used to determine such a figure: 6.41
F. Itemized listing of all commissions, fees, costs, expenses and
charges payable by the payee or deductible from the gross amount
otherwise payable to the payee: Legal Fees: $0.00, Processing Fees:
$0.00 Total Fees: $0.00.
G. The net cash payment you receive in this transaction from the
buyer was determined by applying the specified discount rate to the
smount of future payments received by the buyer, less the total aniqunt
of commissions, fees, costs, expenses and charges payable by you is
$202,301.41
H. Amount of any penalties or liquidated damages payable by the
Payee in the event of any breach of the transfer agreement by the
Payee None.
FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021
I. You have the right to cancel the transfer agreement, without
penalty or further obligation, not later than the third business day after
the date the agreement is signed by you.
. J. You are advised to seek independent professional advice
regarding the transfer from an attorney, certified public accountant,
actuary or other licensed professional adviser.
By signing below, you acknowledge receipt of this disclosure
statement on or before the date above. You are required to receive this
disclosure statement not less than ten (10) days before the date on
which you sign a transfer agreement.
Payee(fREDE f K ALUEDE JR.
FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021
ILLINOIS DISCLOSURE STATEMENT
Payee: FREDERICK ALUEDE JR.
Disclosure Receipt Date: April 23,'2021
A. Amounts and due dates of the structured settlement payments
to be transferred to TRANSFEREE:
1 lump sum payment of $368,223.00 due on September 5, 2030.
B. Aggregate amount of the payments: $368,223.00.
C. The discounted present value of the payments to be transferred
which is the calculation of the current value of the transferred
structured settlement payments under federal standards for valuing
annuities: $335,313.38. The applicable federal rate used in calculating
such discounted present value: 1.0%.
D. Gross advance amount: $202,301.41
E. Itemized listing of all applicable transfer expenses, other than
attorney's fees and related disbursements payable in connection with
the transferee's application for approval of the transfer, and the
transferee's best estimate of the amount of any such fees and
disbursements: Legal Fees: $0.00, Processing Fees: $0.00;
F. Net advance amount: $202,301.41
G. Amount of any penalties or liquidated damages payable by the
Payee in the event of any breach of the transfer agreement the Payee:
$0.00.
H. The Payee has the right to cancel the transfer agreement,
without penalty or further obligation, not later than the third business
day after the date the agreement is signed by the Payee.
l. Based on the net amount that you will receive from us and the
amounts and timing of the structured settlement payments that you
are turning over to us, you will, in effect, be paying interest to us at a
rate of 6.41 percent per year.
FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021
J. You are advised to seek independent professional advice
regarding the transfer from an attorney, certified public accountant,
actuary, or other licensed professional adviser.
By signing below, ybu acknowledge receipt of this disclosure
statement on or before the date above. You are required to receive
this disclosure statement not less than ten (10) days prior to the date
on which you sign a transfer agreement.
PayeW: FRED ICK ALUtDE JR.
FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021
.
COURT - COUNTY OF BRONX
NEW YORK SUPREMB
PART 23 a
Set6e onier Q
SUPREMB COURT OF THE STATE OF NEW YORK
Schedule Appearance O
COUNTY OF BRONX:
MEDINA,CHERLEE Inda &
NDER W. HUNTER. JR. .
Justice.
.
X
motion. MMCELLANEOUS
The foHowing paperanumbered 1 to _( __ Reed on this
ar of
Notict i
PAPRRS NUMBERED
-
needon-oniw to show c se -subtWa and ASdavim Annex 1 / ll
Ammodag Amgarit and Bxhibia
Replying Asdavitand Bxhibits . .,
Amdavis and Exhibts
Pleadings - Bshibb
Hon.
W.· J.S.C.
ALEXANDER JR.,
Fited On - 12/17/2008 2:16:08 PM Bronx County Clerk
FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021
NYSCEF DOC. NO. 6 . RECEIVED NYSCEF: 06/24/2021
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 Cherlee
Medina, Pursuant to and in Accordance with Decision/Order
Gen. Oblig. Law §5-1701, et seq.
X
HON. ALEXANDER W. HUNTER, JR
The motion by petitioner, Structured Asset Funding, LLC, for an order seeking approval
of the sale and transfer of certain structured settlement payment rights due under a structured
settlement agreement obtained on behalf of respondent/payee, Cherlee Medina. is denied without
prejudice.
.
The only details provided by Ms. Medina with respect to the structured settlement that is
the subject of this application is that said structured settlement entitled her to the following
payments: twelve
(12) annual payments, each in the amount of $1,000 beginning on September
1, 1993 through to and including September 1, 2004; four (4) annual payments, each in the
amount of S16,900 beginning with the payment on June 5, 2005 thmugh to and including June 5,
2008; one (1) lump sum payment in the amount of $55,000 due and payable on June 5, 2012; one
lump sum payment in the amount of $87,500 due and payable on June 5, 2017.
According to the Disclosure Statement that was signed by Ms. Medina, which is annexed
to petitioncr's motion as Exhibit E, the discounted present value of the aggregate payments to be
transferred is $47,296.71. The annual discount rate for this transaction is 13.92%. The
discounted present value is calculated by using the applicable federal rate of3.6%. The
petitioner is not charging any commissions, fees, costs or expenses to the payee, Ms. Medina.
The Structured SettlementProtection Act (SSPA) codified under General Obligations
Law , Title 17, was enacted in July of 2002 because of the concern that "...a growing number of
factoring companies have used aggressive advertising, plus the allure of quick and easy cash, to
induce settlement recipients to cash out future payments, often at substantial discounts, depriving
victims and their famihes of the long-tenn financial
security their structured settlements were
designed to provide. Although transfers of structured settlements payments are generally
prohibited by contract.-factoring companies have built a rapidly expanding business around
prchibitions."
circumventing these (NY Spons. Memo., 2002 Ch. 537). A determination would
be made by a Supreme Court judge as to whether the transfer is "in compliance with applicable
law, that key terms have been disclosed, that the transfer meets a hardship standard, and that
obtained."
independertt professional advice has been (NY Bill Jacket, 2002 A.B. 6936, Ch. 537).
In 2004, the SSPA was amended in that the hardship requirement was "eliminated as a
end'
precondition to transfers and the requirement that disclosures be made 'at the front was
added."
(NY Spons. Memo., 2004 Ch. 480).
The procedural requirements that must be met for approval of a transfer are found under
General Obligations Law §5-1705. The requirements
that a copy of the notice of petition
as 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 agreement, a copy of the disclosure statement and proof of notice of that statement as
dependents'
weil as a listing of cach of the payee's dependents along with the age. Procedurally,
Filed On - 12/17/2008 2·16:08 PM Bronx County Clerk
FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021
the petitioner herein has met all of the aforementioned requirements.
Pursuant to General Obligations Law §5-1706, the court must make the following
findings before a transfer can be effectuated. These are that: "(a) the transfer complies with the
requirements of this title; (b) the transfer is in the best interest of the payee, taking into account
the welfare and support of the payee's dependants; and whether the transaction,
including the
discount rate used to determine the gross advance amount and the fees and expenses used to
determinc the net advance amount, are fair and reasonable. Provided the court makes the
findings as outlined in this subdivision, there is no requirement for the court to find that an
applicant is suffering from a hardship to approve the transfer of structured settlement payments
under this subdivision; ( c) the payee has been advised in writing by the transfercc to scck
independent professional advice regarding the transfer and has either received such advice or
knowingly waived such advice
in wnting; (d) the transfer does not contravene any applicabic
statutcor the order of any court or other govemmera 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 anorney by the name of Jed Marcus, Esq.
(Exhibit G).
The two most important components of the SSPA are whether or not the transaction,
including the discount rate and the amount of fees and expenses, is fair and reasonable and
whether the transaction is in the best interest of the payee. The trial courts have mied on what is
determined to be fair and reasonable and whether the transfer is in the best interest of the payee
on a case by case basis viewing the totality of the circumstances. Matter of Settlement Capital
Corp. v. Yates. 12 Misc. 3d 1198(A) [2006).
This court finds that the transaction is fair taking into account the totality
heroin of the
circumstances and the interest rate of 13.92% is reasonable. However, this court cannot staic
with any certainty whether or not the transaction is in the best interest of the payee.
Ms. Medina states in her affidavit that she seeks to transfer to the payor, the lump sum
payment of $55,000 that is payable to her on June 5, 2012. in her affidavit in support of the
petition, Ms. Medina states that she is twenty (20) years old, she is unmarried and has two (2)
dependents one is four (4) years old and the other is three (3) months old. Ms. Medina states that
she intends to use the money that she receives from the transfer to find a place of her own as she
and her children are currently living at her aunt's house and she wishes to relieve her aunt of the
burden. She also plans to use some ofthe proceeds to purchase furniture for herself and her
children and to pay for the livag expenses of her children.
However, Ms. Medina does not indicate whether or not she is employed or othe:wise
receives a month!y income in order to enable her to pay her monthly rent, utilities and other
household expenses. Moreover, she does not indicate how long she intends to live off of the
$31,500 she will be receiving from said transfer. She also recently received an annual payment
of $16,900 on June 5, 2008 that could have been applied toward relocating to a place ofhcr 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 affidavit
2
Filed On - 12f17/2008 2:16:08 PM Bronx County Clerk
FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021
from Ms. Medina with respect to her monthly household income and the amount of rent she
intends to pay on a monthly basis in order for this court to determine whether or not the transfer
is in the best interest of the payee taking into account the welfare and support ofher dependents
This constitutes the decision and order of this court.
Dated: -
December I2, 2008
J.S.C.
3
Filed On -12/17/2008 2:16:08PMBronx County Clerk
FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021
. .
. . .
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 Matter ofthe Sale and Transfer ofStructured Settlément DECISION
Payment Rights of Kimberly Whispell, pursuant to and in
accordance with Oeneral Obligation Law § 5-1701, et. seq. Index No. 08-4095
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
structured 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 ±=gh 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 is 32 years ofage and has custody and care of four minor children ranging
in ages one through thirteen, is requesting to transfer 121 monthly payment portions ofS745.00
each to petitioner. In exchange, petitioner would provide a gross advance of $47 nn0.00. The
aggregate amount of payments to be transferred by Whispell is $90,145.00, the discounted
QAUlstcAWhispemDecision.wpd
.
FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021
present value of the payments to be transferred is $75,017.24, and the annual discount rate,
compounded monthly, used to determine the gross advance amount is 15.66%.
Whispell presently receives $2,l 21.80 =:-±!y under the structured settlement'.
Whispell's other income includes rents of $400.00 per month, and either ients or resumption of
mortgage payments from a mome held by her. In her affidavit, she stated her intention was to
use the paceeds from petitie-aer 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 of her present
home in Ulster County, and that her original plan to sell her home in Ulster County and purchase a
more affordable home in WacM=¡pn= 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 sequires court approval of all transfers of structured
settlements after July 1, 2002 (General Obligations Law § 5-1706). This legislation was enacted,
in part, to provide protection to those individ::als seeking to transfer payments under a structured
settlementagreement(In re Settlement Capital Corp. [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, whether the transfer is fair and reasonable, whether the payee has been advised in writing
to seekindependentprofessional advice and has received or waived such advice, whetherthe transfer
is written in plain language, and whether the transfer complies with the other provisions of the
such as disclosure requi.-=ents (General - [e]).
statute, Obligations Law § 5-1706 [b]
% relevant part, Whispell is entitled under the structured settlement to =w±¹y payments
of $2,000.00, beginning November 1, 2006, increasing at 3% annually, guaranteed through
October 1, 2036 and cowia=ing for life thereafter.
2 osuismewnisseoecision.w
.
FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021
To detennine whether the transfer is in the best interest of the payee, the court must analyze
each transfer on a case-by-case basis (In re Settlement Capital Corp. [Ballos), 1 Misc3d 450).
Factors for the court to consider may include: .
(a) the physical age, level of maturity, physical and mental capacity of the
beneficiary;
(b) the beneficiary's ability to eam a living and support his or her dependents; (c) the
beneficiary's intended usage of the proceeds;
(d) the beneficiary's present financial situation and whether he or she is laboring
under such a hardship as to be in dire and immediate need of the pmceeds;
(e) whether the beneficiary has obtained independent counsel regardingthe financial
consequences of the proposed transfer;
(f) the level of financial sophistication, or lack thereof, ofthe beneficiary;and (g)the
timing ofthe application with other scheduled payments.
(In re Symetra Assigned Benef ts Service Co. [McGuire], 13 Misc3d 1208[A][Sup. CL Suffolk Co.
2006]).
Comts have held transfers to be in the bestinterests of beneficiary when the beneficiary has
pursued alternatives to the transfer, has researched other potential purchasers of the structured
settlement, and has a clear plan for use of the proceeds ( In re Settlement Funding of NY [Platt], 2
Misc3d 872, 879 [Sup. Ct. Lewis Co. 2003]). However, in the absence ofthese factors, transfers of
structmed settlements generally are not in the best interests of the beneficiary. Specifically, courts
need"
deny the transfer when the beneficiary does not have a "pressing for the proceeds, does not
have a plan for the proceeds, or has not pursued alternatives to the transfer (see e.g., In re Settlement
Capital Corp. [Yates), 12 Misc3d 1198[A][Sup. Ct.Kings Co. 2006][denyingtransfer
Preview
FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021 "D" EXHIBIT FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021 NEW YORK DISCLOSURE STATEMENT Payee: FREDERICK ALUEDE JR. Disclosure Rèceipt Date: April 23, 2021 A. Amounts and due dates of the structured settlement payments to be transferred to TRANSFEREE: 1 lump sum payment of $368,223.00 due on September 5, 2030 B. Aggregate amount of the payments: $368,223.00. C. Discounted present value of the transferred structured settlement payments, which is the calculation of current value of the transferred structured settlement payments under federal standards for valuing annuities: $335,313.38. The amount of the applicable federal rate used in calculating such discounted present value is: 1.0% D. The price quote from the original annuity issuer or a price quote from two other annuity issuers that reflects the current cost of purchasing a comparable annuity for the aggregate amount of payments to be transferred are: $337,353.86, and $336,680.50. E. Gross advance amount: $202,301.41 and the annual discount rate, compounded monthly, used to determine such a figure: 6.41 F. Itemized listing of all commissions, fees, costs, expenses and charges payable by the payee or deductible from the gross amount otherwise payable to the payee: Legal Fees: $0.00, Processing Fees: $0.00 Total Fees: $0.00. G. The net cash payment you receive in this transaction from the buyer was determined by applying the specified discount rate to the smount of future payments received by the buyer, less the total aniqunt of commissions, fees, costs, expenses and charges payable by you is $202,301.41 H. Amount of any penalties or liquidated damages payable by the Payee in the event of any breach of the transfer agreement by the Payee None. FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021 I. You have the right to cancel the transfer agreement, without penalty or further obligation, not later than the third business day after the date the agreement is signed by you. . J. You are advised to seek independent professional advice regarding the transfer from an attorney, certified public accountant, actuary or other licensed professional adviser. By signing below, you acknowledge receipt of this disclosure statement on or before the date above. You are required to receive this disclosure statement not less than ten (10) days before the date on which you sign a transfer agreement. Payee(fREDE f K ALUEDE JR. FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021 ILLINOIS DISCLOSURE STATEMENT Payee: FREDERICK ALUEDE JR. Disclosure Receipt Date: April 23,'2021 A. Amounts and due dates of the structured settlement payments to be transferred to TRANSFEREE: 1 lump sum payment of $368,223.00 due on September 5, 2030. B. Aggregate amount of the payments: $368,223.00. C. The discounted present value of the payments to be transferred which is the calculation of the current value of the transferred structured settlement payments under federal standards for valuing annuities: $335,313.38. The applicable federal rate used in calculating such discounted present value: 1.0%. D. Gross advance amount: $202,301.41 E. Itemized listing of all applicable transfer expenses, other than attorney's fees and related disbursements payable in connection with the transferee's application for approval of the transfer, and the transferee's best estimate of the amount of any such fees and disbursements: Legal Fees: $0.00, Processing Fees: $0.00; F. Net advance amount: $202,301.41 G. Amount of any penalties or liquidated damages payable by the Payee in the event of any breach of the transfer agreement the Payee: $0.00. H. The Payee has the right to cancel the transfer agreement, without penalty or further obligation, not later than the third business day after the date the agreement is signed by the Payee. l. Based on the net amount that you will receive from us and the amounts and timing of the structured settlement payments that you are turning over to us, you will, in effect, be paying interest to us at a rate of 6.41 percent per year. FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021 J. You are advised to seek independent professional advice regarding the transfer from an attorney, certified public accountant, actuary, or other licensed professional adviser. By signing below, ybu acknowledge receipt of this disclosure statement on or before the date above. You are required to receive this disclosure statement not less than ten (10) days prior to the date on which you sign a transfer agreement. PayeW: FRED ICK ALUtDE JR. FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021 . COURT - COUNTY OF BRONX NEW YORK SUPREMB PART 23 a Set6e onier Q SUPREMB COURT OF THE STATE OF NEW YORK Schedule Appearance O COUNTY OF BRONX: MEDINA,CHERLEE Inda & NDER W. HUNTER. JR. . Justice. . X motion. MMCELLANEOUS The foHowing paperanumbered 1 to _( __ Reed on this ar of Notict i PAPRRS NUMBERED - needon-oniw to show c se -subtWa and ASdavim Annex 1 / ll Ammodag Amgarit and Bxhibia Replying Asdavitand Bxhibits . ., Amdavis and Exhibts Pleadings - Bshibb Hon. W.· J.S.C. ALEXANDER JR., Fited On - 12/17/2008 2:16:08 PM Bronx County Clerk FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021 NYSCEF DOC. NO. 6 . RECEIVED NYSCEF: 06/24/2021 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 Cherlee Medina, Pursuant to and in Accordance with Decision/Order Gen. Oblig. Law §5-1701, et seq. X HON. ALEXANDER W. HUNTER, JR The motion by petitioner, Structured Asset Funding, LLC, for an order seeking approval of the sale and transfer of certain structured settlement payment rights due under a structured settlement agreement obtained on behalf of respondent/payee, Cherlee Medina. is denied without prejudice. . The only details provided by Ms. Medina with respect to the structured settlement that is the subject of this application is that said structured settlement entitled her to the following payments: twelve (12) annual payments, each in the amount of $1,000 beginning on September 1, 1993 through to and including September 1, 2004; four (4) annual payments, each in the amount of S16,900 beginning with the payment on June 5, 2005 thmugh to and including June 5, 2008; one (1) lump sum payment in the amount of $55,000 due and payable on June 5, 2012; one lump sum payment in the amount of $87,500 due and payable on June 5, 2017. According to the Disclosure Statement that was signed by Ms. Medina, which is annexed to petitioncr's motion as Exhibit E, the discounted present value of the aggregate payments to be transferred is $47,296.71. The annual discount rate for this transaction is 13.92%. The discounted present value is calculated by using the applicable federal rate of3.6%. The petitioner is not charging any commissions, fees, costs or expenses to the payee, Ms. Medina. The Structured SettlementProtection Act (SSPA) codified under General Obligations Law , Title 17, was enacted in July of 2002 because of the concern that "...a growing number of factoring companies have used aggressive advertising, plus the allure of quick and easy cash, to induce settlement recipients to cash out future payments, often at substantial discounts, depriving victims and their famihes of the long-tenn financial security their structured settlements were designed to provide. Although transfers of structured settlements payments are generally prohibited by contract.-factoring companies have built a rapidly expanding business around prchibitions." circumventing these (NY Spons. Memo., 2002 Ch. 537). A determination would be made by a Supreme Court judge as to whether the transfer is "in compliance with applicable law, that key terms have been disclosed, that the transfer meets a hardship standard, and that obtained." independertt professional advice has been (NY Bill Jacket, 2002 A.B. 6936, Ch. 537). In 2004, the SSPA was amended in that the hardship requirement was "eliminated as a end' precondition to transfers and the requirement that disclosures be made 'at the front was added." (NY Spons. Memo., 2004 Ch. 480). The procedural requirements that must be met for approval of a transfer are found under General Obligations Law §5-1705. The requirements that a copy of the notice of petition as 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 agreement, a copy of the disclosure statement and proof of notice of that statement as dependents' weil as a listing of cach of the payee's dependents along with the age. Procedurally, Filed On - 12/17/2008 2·16:08 PM Bronx County Clerk FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021 the petitioner herein has met all of the aforementioned requirements. Pursuant to General Obligations Law §5-1706, the court must make the following findings before a transfer can be effectuated. These are that: "(a) the transfer complies with the requirements of this title; (b) the transfer is in the best interest of the payee, taking into account the welfare and support of the payee's dependants; and whether the transaction, including the discount rate used to determine the gross advance amount and the fees and expenses used to determinc the net advance amount, are fair and reasonable. Provided the court makes the findings as outlined in this subdivision, there is no requirement for the court to find that an applicant is suffering from a hardship to approve the transfer of structured settlement payments under this subdivision; ( c) the payee has been advised in writing by the transfercc to scck independent professional advice regarding the transfer and has either received such advice or knowingly waived such advice in wnting; (d) the transfer does not contravene any applicabic statutcor the order of any court or other govemmera 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 anorney by the name of Jed Marcus, Esq. (Exhibit G). The two most important components of the SSPA are whether or not the transaction, including the discount rate and the amount of fees and expenses, is fair and reasonable and whether the transaction is in the best interest of the payee. The trial courts have mied on what is determined to be fair and reasonable and whether the transfer is in the best interest of the payee on a case by case basis viewing the totality of the circumstances. Matter of Settlement Capital Corp. v. Yates. 12 Misc. 3d 1198(A) [2006). This court finds that the transaction is fair taking into account the totality heroin of the circumstances and the interest rate of 13.92% is reasonable. However, this court cannot staic with any certainty whether or not the transaction is in the best interest of the payee. Ms. Medina states in her affidavit that she seeks to transfer to the payor, the lump sum payment of $55,000 that is payable to her on June 5, 2012. in her affidavit in support of the petition, Ms. Medina states that she is twenty (20) years old, she is unmarried and has two (2) dependents one is four (4) years old and the other is three (3) months old. Ms. Medina states that she intends to use the money that she receives from the transfer to find a place of her own as she and her children are currently living at her aunt's house and she wishes to relieve her aunt of the burden. She also plans to use some ofthe proceeds to purchase furniture for herself and her children and to pay for the livag expenses of her children. However, Ms. Medina does not indicate whether or not she is employed or othe:wise receives a month!y income in order to enable her to pay her monthly rent, utilities and other household expenses. Moreover, she does not indicate how long she intends to live off of the $31,500 she will be receiving from said transfer. She also recently received an annual payment of $16,900 on June 5, 2008 that could have been applied toward relocating to a place ofhcr 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 affidavit 2 Filed On - 12f17/2008 2:16:08 PM Bronx County Clerk FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021 from Ms. Medina with respect to her monthly household income and the amount of rent she intends to pay on a monthly basis in order for this court to determine whether or not the transfer is in the best interest of the payee taking into account the welfare and support ofher dependents This constitutes the decision and order of this court. Dated: - December I2, 2008 J.S.C. 3 Filed On -12/17/2008 2:16:08PMBronx County Clerk FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021 . . . . . 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 Matter ofthe Sale and Transfer ofStructured Settlément DECISION Payment Rights of Kimberly Whispell, pursuant to and in accordance with Oeneral Obligation Law § 5-1701, et. seq. Index No. 08-4095 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 structured 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 ±=gh 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 is 32 years ofage and has custody and care of four minor children ranging in ages one through thirteen, is requesting to transfer 121 monthly payment portions ofS745.00 each to petitioner. In exchange, petitioner would provide a gross advance of $47 nn0.00. The aggregate amount of payments to be transferred by Whispell is $90,145.00, the discounted QAUlstcAWhispemDecision.wpd . FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021 present value of the payments to be transferred is $75,017.24, and the annual discount rate, compounded monthly, used to determine the gross advance amount is 15.66%. Whispell presently receives $2,l 21.80 =:-±!y under the structured settlement'. Whispell's other income includes rents of $400.00 per month, and either ients or resumption of mortgage payments from a mome held by her. In her affidavit, she stated her intention was to use the paceeds from petitie-aer 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 of her present home in Ulster County, and that her original plan to sell her home in Ulster County and purchase a more affordable home in WacM=¡pn= 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 sequires court approval of all transfers of structured settlements after July 1, 2002 (General Obligations Law § 5-1706). This legislation was enacted, in part, to provide protection to those individ::als seeking to transfer payments under a structured settlementagreement(In re Settlement Capital Corp. [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, whether the transfer is fair and reasonable, whether the payee has been advised in writing to seekindependentprofessional advice and has received or waived such advice, whetherthe transfer is written in plain language, and whether the transfer complies with the other provisions of the such as disclosure requi.-=ents (General - [e]). statute, Obligations Law § 5-1706 [b] % relevant part, Whispell is entitled under the structured settlement to =w±¹y payments of $2,000.00, beginning November 1, 2006, increasing at 3% annually, guaranteed through October 1, 2036 and cowia=ing for life thereafter. 2 osuismewnisseoecision.w . FILED: QUEENS COUNTY CLERK 06/24/2021 11:48 AM INDEX NO. 714455/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/24/2021 To detennine whether the transfer is in the best interest of the payee, the court must analyze each transfer on a case-by-case basis (In re Settlement Capital Corp. [Ballos), 1 Misc3d 450). Factors for the court to consider may include: . (a) the physical age, level of maturity, physical and mental capacity of the beneficiary; (b) the beneficiary's ability to eam a living and support his or her dependents; (c) the beneficiary's intended usage of the proceeds; (d) the beneficiary's present financial situation and whether he or she is laboring under such a hardship as to be in dire and immediate need of the pmceeds; (e) whether the beneficiary has obtained independent counsel regardingthe financial consequences of the proposed transfer; (f) the level of financial sophistication, or lack thereof, ofthe beneficiary;and (g)the timing ofthe application with other scheduled payments. (In re Symetra Assigned Benef ts Service Co. [McGuire], 13 Misc3d 1208[A][Sup. CL Suffolk Co. 2006]). Comts have held transfers to be in the bestinterests of beneficiary when the beneficiary has pursued alternatives to the transfer, has researched other potential purchasers of the structured settlement, and has a clear plan for use of the proceeds ( In re Settlement Funding of NY [Platt], 2 Misc3d 872, 879 [Sup. Ct. Lewis Co. 2003]). However, in the absence ofthese factors, transfers of structmed settlements generally are not in the best interests of the beneficiary. Specifically, courts need" deny the transfer when the beneficiary does not have a "pressing for the proceeds, does not have a plan for the proceeds, or has not pursued alternatives to the transfer (see e.g., In re Settlement Capital Corp. [Yates), 12 Misc3d 1198[A][Sup. Ct.Kings Co. 2006][denyingtransfer