Preview
FILED: SUFFOLK COUNTY CLERK 01/08/2021 01:29 PM INDEX NO. 600386/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2021
"D"
EXHIBIT
FILED: SUFFOLK COUNTY CLERK 01/08/2021 01:29 PM INDEX NO. 600386/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2021
NEW YORK DISCLOSURE STATEMENT
Payee: I
Disclosure Receipt Date: December 17, 2020
A. Amounts and due dates of the structured settlement payments to
be transferred to TRANSFEREE:
1 fump sum payment of $303,153.00 due on August 14, 2023.
B. Aggregate amount of the payments: $303,153.00.
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: $298,354.19. The amount of the applicable federal rate used
in calculating such discounted present value is: 0.6%
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
are·
payments to be transferred $294,058.41, and $320,236.00.
E. Gross advance amount: $239,214.57 and the annual discount rate,
compounded monthly, used to determine such s figure: 8.94‰
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
amount of future payments received by the buyer, less the total amount
of commissions, fees, costs, expenses and charges payable by you is
$239,214.57.
H. Amount of any penalties or liquidated darnages payable by the
Payee in the event of any breach of the transfer agreement by the
Payee: None.
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l. You have the right to cancel the transfer agreement, without
penalty or further obligation, not later than the thirdbusiness 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
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KENTUCKY DISCLOSURE STATEMENT
Payee: I A
Disclosure Receipt Date: December 17, 2020
A. Amounts and due dates of the structured settlement payments
to be transferred to TRANSFEREE:
1 lump sum payment of $303,153.00 due on August 14, 2023.
B. Aggregate amount of the payments: $303,153.00.
C. Discounted present value of the transferred structured
settlement payments under federal standards for valuing annuities:
$298,354.19. The discount rate used in determining the calculation of
current value: 0.6%
D. Gross amount payable to the Payee in exchange for the
payments: $239,214.57
E. Itemized listing of all broker's commissions, service charges,
application or processing fees, closing costs, filing or administrative
charges, legal fees, notary fees, and other commissions fees, costs,
expenses, and charges payable by the Payee or deductible from the
gross amount otherwise payable the Payee: Legal Fees: $0.00,
Processing Fees: $0.00.
F. Net amount payable to the Payee after deduction of all
commissions, fees, costs, expenses and charges described in section
E above: $239,214.57
G. Amount of any penalty and the aggregate amount of any
liquidated damages, Including penalties, payable by the Payee in the
event of a breach of the transfer agreement the Payee: None
H. You are advised to obtain independent professional advice
regarding the transfer.
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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 prior to the date
on which you sign a transfer agreement.
Payee: I
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.
NEW YORK SUPREME COURT - COUNTY OF BRONX
PART 23
Case Disposed O
SUPREME COURT OF THE STATE OF NEW YORK Settle Order Q
COUNTY OF BRONX: Schedule Appearance O
MEDINA,CHERLEE Index Ne. Ó0363/2008
-against- D W XUNTER. JR. .
. Justice.
---------.-------------------X
The following papers numbered 1 to Read on this motion MISCELLANEOUS
Noticeigoetober 20 dar of
03_
PAPERS NUMBERED
Notice 'of Motion - Onler to Show Cause Exhibits and Affldavits Annexed --
/ //
Answering Affadavit and Exhibits
Replying AEdavit and Exhibits
Amdavks and Exhibi
Pleadings - Exhibit
Memranda of Law 1 7
Upon the foregoing papers this
3
c
o
Jated: Of
Hon.
ALEXANDER T . H ER, JR., J.S.C.
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County
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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.
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 amoüiit of $1,000 beginning on Scptcmber
1, 1993 through to and including September 1, 2004; four (4) annual payments, each in the
amount of S16,900 beginning with the payment on June 5, 2005 through to and including June 5,
2008; one (1) lump sum payment in the amount of $55,000 due and payable on June 5, 2012; one
lump sum payment in the amount of $87,500 due and payable on June 5, 2017.
According to the Disclosure Statement that was signed by Ms. Medina, which is annexed
to petitioner's motion as Exhibit E, the discounted present value of the aggregate payments to be
transferred is $47,296.71. The annual discount rate for this transaction is 13.92%. The
discounted present value is calculated by using the applicable federal rate of 3.6%. The
petitioner is not charging any commissions, fees, costs or expenses to the payee, Ms. Medina.
The Structured Settlement Protection Act (SSPA) codified under General Obligations
Law , Title 17, was enacted in July of 2002 because of the 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 sub-tmtial discounts, depriving
victims and their famihes of the long-tenu 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 expmding business around
prohibitions."
circumventing these (NY Spons. Memo., 2002 Ch. 537). A detennination would
be made by a Supreme Court judge as to whether the transfer is "in compliance with applicable
law, that key terms have been disclosed, that the transfer meets a hardship standard, and that
obtained."
independent professional advice has been (NY Bill Jacket, 2002 A.B. 6936, Ch. 537).
In 2004, the SSPA was amended in that
the hardship requirement was "eliminated as a
end'
precondition to transfers and the requirement that disclosures be made 'at the front was
added."
(NY Spons. Memo., 2004 Ch. 480).
The procedural requirements that must be met for approval of a transfer are found under
General Obligations Law §5-1705. The requirements are that a copy of the notice of petition and
petition by order to show cause be served upon all interested parties at least twenty days before
the time at which the petition is noticed to be heard, the petition must include a copy of the
transfer agreement, a copy of the disclosure statement and proof of notice of that statement as
dependents'
well as a listing of each of the payee's dependents along with the age. Procedurally,
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County
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the petitioner herein has met all of the aforementioned requirements.
Pursuant to General Obligations Law §5-1706, the court must make the following
fmdings 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 detenuine the gross advance amount and the fees and expenses used to
determine the net advance amount, are fair and reasonable. Provided the court makes the
findings as outlined in this subdivision, there is no rcquirement for the court to find that an
app!icant is suffering from a hardship to approve the transfer of structured settlement payments
under this subdivision; ( c) the payee has been advised in writing by the transferee to seek
independent professional advice regarding the transfer and has either received such advice or
knowingly waived such advice in wnting; (d) the transfer does not contravêñe any applicabic
statute or the order of any court or other government 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 attorney by the name of Jed Marcus, Esq.
(Exhibit G).
The two most important components of the SSPA are whether or not the transaction,
inchiding the discount rate and the amount of fees and expenses, is fair and reasóñâble and
whether the transaction is in the best interest of the payee. The trial courts have ruled on what is
determined to be fair and reasonable and whether the transfer is in the best interest of the payee
on a case by case basis viewing the totality of the circumstances. Matter of Settlement Capital
Corp. v. Yates, 12 Misc. 3d 1198(A) [2006).
This court fmds that the transaction herein is fair taking into account the totality of the
circumstances and the interest rate of 13.92% is reasonable. However, this court cannot state
with any certainty whether or not the transaction is in the best interest of the payee.
Ms. Medina states in her affidavit that she seeks to transfer to the payor, the lump sum
payment of $55,000 that is payable to her on June 5, 2012. In her affidavit in support of the
petition, Ms. Medina states that she is twenty (20) years old, she is unmarried and has two (2)
dependents one is four (4) years old and the other is three (3) months old. Ms. Medina states that
she intends to use the money that she receives from the trañsfer 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 livmg expenses of her children.
However, Ms. Medina does not indicate whether or not she is employed or otherwise
receives a monthly income in order to enable her to pay her monthly rent, utilities and other
household expenses. Moreover, she does not Mdiate how long she intends to live off of the
$31,500 she will be receiving from said transfer. She also recently received an annual payment
of $16,900 on June 5, 2008 that could have been applied toward relocating to a place of her own.
Accordingly, the application for the transfer of the structured settlement payment is
denied without prejudice and with leave to renew upon submission of a more detailed affidavit
2
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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 moñthly 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 o f her depêñd cats
This constitutes the decisicii and order of this court.
Dated: December 12, 2008
J.S.C.
3
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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
In Re: t he Matter ofthe Sale and Transfer of Structured Settlemeñt DECISION
Payment Rights of Kimberly Whispell, pursuant to and in
accordance with General 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 through 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 of age and has custody and care of four minor children ranging
in ages one through thirteen, is requesting to transfer 121 monthly payment portions of $745.00
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
Q:\Ulster\Whispell\Decision.wpd
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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 determine the gross advance amount is 15.66%.
Whispell presently receives $2,121.80 monthly under the structured settlement¹.
Whispell's other income includes rents of $400.00 per month, and either rents or resumption of
mortgage payments from a mortgage held by her. In her affidavit, 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 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 Washington County had changed. Whispell's post hearing submission
dated December 29, 2008 recites an offer from her preseñt mortgage holder to modify the terms of
the mortgage, in exchange for a lump sum payraent, 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 provide protection to those individuals seeking to transfer payments under a structured
settlement agreement (In re Settlement Capital Corp. [Ballos], 1 Misc3d 446, 455 [Sup, Ct. Queens
Co. 2003]). In analyzing the transfer, courts comider 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 seekindependent professional advice and has received or waived such advice, whether the transfer
is written in plain language, and whether the transfer complies with the other provisions of the
such as disclosure requirements (General Law -
statute, Obligations § 5-1706 [b] [e]).
'In relevant part, Whispell is entitled under the structured settlement to monthly payments
of $2,000.00, beginnin at 3% annually, guaranteed through
g November 1, 2006, increasing
October 1, 2036 and continuing for life thereafter.
2 9:vu1stertwhispeH\Decision.wpd
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To determine 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 earn a living and support his or her depeñdêñts; (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 proceeds;
(e) whether the beneficiary has obtained independent counsel regarding the fiñâñcial
consequences of the proposed transfer;
(f) the level of financial sophistication, or lack thereof, of the beneficiary; and (g) the
timing of the application with other scheduled payments.
(In re Symetra Assigned Benefits Service Co. [McGuire], 13 Misc3d 1208[A] [Sup. Ct. Suffolk Co.
2006]).
Courts have held transfers to be in the best interests of beneficiary when the beneficiary has
pursued alternatives to the transfer, has researched other potential purchasers of the structured
settlement, and
Preview
FILED: SUFFOLK COUNTY CLERK 01/08/2021 01:29 PM INDEX NO. 600386/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2021 "D" EXHIBIT FILED: SUFFOLK COUNTY CLERK 01/08/2021 01:29 PM INDEX NO. 600386/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2021 NEW YORK DISCLOSURE STATEMENT Payee: I Disclosure Receipt Date: December 17, 2020 A. Amounts and due dates of the structured settlement payments to be transferred to TRANSFEREE: 1 fump sum payment of $303,153.00 due on August 14, 2023. B. Aggregate amount of the payments: $303,153.00. 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: $298,354.19. The amount of the applicable federal rate used in calculating such discounted present value is: 0.6% 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 are· payments to be transferred $294,058.41, and $320,236.00. E. Gross advance amount: $239,214.57 and the annual discount rate, compounded monthly, used to determine such s figure: 8.94‰ 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 amount of future payments received by the buyer, less the total amount of commissions, fees, costs, expenses and charges payable by you is $239,214.57. H. Amount of any penalties or liquidated darnages payable by the Payee in the event of any breach of the transfer agreement by the Payee: None. FILED: SUFFOLK COUNTY CLERK 01/08/2021 01:29 PM INDEX NO. 600386/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2021 l. You have the right to cancel the transfer agreement, without penalty or further obligation, not later than the thirdbusiness 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 FILED: SUFFOLK COUNTY CLERK 01/08/2021 01:29 PM INDEX NO. 600386/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2021 KENTUCKY DISCLOSURE STATEMENT Payee: I A Disclosure Receipt Date: December 17, 2020 A. Amounts and due dates of the structured settlement payments to be transferred to TRANSFEREE: 1 lump sum payment of $303,153.00 due on August 14, 2023. B. Aggregate amount of the payments: $303,153.00. C. Discounted present value of the transferred structured settlement payments under federal standards for valuing annuities: $298,354.19. The discount rate used in determining the calculation of current value: 0.6% D. Gross amount payable to the Payee in exchange for the payments: $239,214.57 E. Itemized listing of all broker's commissions, service charges, application or processing fees, closing costs, filing or administrative charges, legal fees, notary fees, and other commissions fees, costs, expenses, and charges payable by the Payee or deductible from the gross amount otherwise payable the Payee: Legal Fees: $0.00, Processing Fees: $0.00. F. Net amount payable to the Payee after deduction of all commissions, fees, costs, expenses and charges described in section E above: $239,214.57 G. Amount of any penalty and the aggregate amount of any liquidated damages, Including penalties, payable by the Payee in the event of a breach of the transfer agreement the Payee: None H. You are advised to obtain independent professional advice regarding the transfer. FILED: SUFFOLK COUNTY CLERK 01/08/2021 01:29 PM INDEX NO. 600386/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2021 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 prior to the date on which you sign a transfer agreement. Payee: I FILED: SUFFOLK COUNTY CLERK 01/08/2021 01:29 PM INDEX NO. 600386/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2021 . NEW YORK SUPREME COURT - COUNTY OF BRONX PART 23 Case Disposed O SUPREME COURT OF THE STATE OF NEW YORK Settle Order Q COUNTY OF BRONX: Schedule Appearance O MEDINA,CHERLEE Index Ne. Ó0363/2008 -against- D W XUNTER. JR. . . Justice. ---------.-------------------X The following papers numbered 1 to Read on this motion MISCELLANEOUS Noticeigoetober 20 dar of 03_ PAPERS NUMBERED Notice 'of Motion - Onler to Show Cause Exhibits and Affldavits Annexed -- / // Answering Affadavit and Exhibits Replying AEdavit and Exhibits Amdavks and Exhibi Pleadings - Exhibit Memranda of Law 1 7 Upon the foregoing papers this 3 c o Jated: Of Hon. ALEXANDER T . H ER, JR., J.S.C. Filed On - 12/17/2008 2:16:08 PM Bronx Clerk County FILED: SUFFOLK COUNTY CLERK 01/08/2021 01:29 PM INDEX NO. 600386/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2021 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. 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 amoüiit of $1,000 beginning on Scptcmber 1, 1993 through to and including September 1, 2004; four (4) annual payments, each in the amount of S16,900 beginning with the payment on June 5, 2005 through to and including June 5, 2008; one (1) lump sum payment in the amount of $55,000 due and payable on June 5, 2012; one lump sum payment in the amount of $87,500 due and payable on June 5, 2017. According to the Disclosure Statement that was signed by Ms. Medina, which is annexed to petitioner's motion as Exhibit E, the discounted present value of the aggregate payments to be transferred is $47,296.71. The annual discount rate for this transaction is 13.92%. The discounted present value is calculated by using the applicable federal rate of 3.6%. The petitioner is not charging any commissions, fees, costs or expenses to the payee, Ms. Medina. The Structured Settlement Protection Act (SSPA) codified under General Obligations Law , Title 17, was enacted in July of 2002 because of the 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 sub-tmtial discounts, depriving victims and their famihes of the long-tenu 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 expmding business around prohibitions." circumventing these (NY Spons. Memo., 2002 Ch. 537). A detennination would be made by a Supreme Court judge as to whether the transfer is "in compliance with applicable law, that key terms have been disclosed, that the transfer meets a hardship standard, and that obtained." independent professional advice has been (NY Bill Jacket, 2002 A.B. 6936, Ch. 537). In 2004, the SSPA was amended in that the hardship requirement was "eliminated as a end' precondition to transfers and the requirement that disclosures be made 'at the front was added." (NY Spons. Memo., 2004 Ch. 480). The procedural requirements that must be met for approval of a transfer are found under General Obligations Law §5-1705. The requirements are that a copy of the notice of petition and petition by order to show cause be served upon all interested parties at least twenty days before the time at which the petition is noticed to be heard, the petition must include a copy of the transfer agreement, a copy of the disclosure statement and proof of notice of that statement as dependents' well as a listing of each of the payee's dependents along with the age. Procedurally, Filed On - 12/17/2008 2:16:08 PM Bronx Clerk County FILED: SUFFOLK COUNTY CLERK 01/08/2021 01:29 PM INDEX NO. 600386/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2021 the petitioner herein has met all of the aforementioned requirements. Pursuant to General Obligations Law §5-1706, the court must make the following fmdings 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 detenuine the gross advance amount and the fees and expenses used to determine the net advance amount, are fair and reasonable. Provided the court makes the findings as outlined in this subdivision, there is no rcquirement for the court to find that an app!icant is suffering from a hardship to approve the transfer of structured settlement payments under this subdivision; ( c) the payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received such advice or knowingly waived such advice in wnting; (d) the transfer does not contravêñe any applicabic statute or the order of any court or other government 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 attorney by the name of Jed Marcus, Esq. (Exhibit G). The two most important components of the SSPA are whether or not the transaction, inchiding the discount rate and the amount of fees and expenses, is fair and reasóñâble and whether the transaction is in the best interest of the payee. The trial courts have ruled on what is determined to be fair and reasonable and whether the transfer is in the best interest of the payee on a case by case basis viewing the totality of the circumstances. Matter of Settlement Capital Corp. v. Yates, 12 Misc. 3d 1198(A) [2006). This court fmds that the transaction herein is fair taking into account the totality of the circumstances and the interest rate of 13.92% is reasonable. However, this court cannot state with any certainty whether or not the transaction is in the best interest of the payee. Ms. Medina states in her affidavit that she seeks to transfer to the payor, the lump sum payment of $55,000 that is payable to her on June 5, 2012. In her affidavit in support of the petition, Ms. Medina states that she is twenty (20) years old, she is unmarried and has two (2) dependents one is four (4) years old and the other is three (3) months old. Ms. Medina states that she intends to use the money that she receives from the trañsfer 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 livmg expenses of her children. However, Ms. Medina does not indicate whether or not she is employed or otherwise receives a monthly income in order to enable her to pay her monthly rent, utilities and other household expenses. Moreover, she does not Mdiate how long she intends to live off of the $31,500 she will be receiving from said transfer. She also recently received an annual payment of $16,900 on June 5, 2008 that could have been applied toward relocating to a place of her own. Accordingly, the application for the transfer of the structured settlement payment is denied without prejudice and with leave to renew upon submission of a more detailed affidavit 2 Filed On - 12/17/2008 2:16:08 PM Bronx County Clerk FILED: SUFFOLK COUNTY CLERK 01/08/2021 01:29 PM INDEX NO. 600386/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2021 from Ms. Medina with respect to her monthly household income and the amount of rent she intends to pay on a moñthly 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 o f her depêñd cats This constitutes the decisicii and order of this court. Dated: December 12, 2008 J.S.C. 3 Filed On - 12/17/2008 2:16:08 PM Bronx County Clerk FILED: SUFFOLK COUNTY CLERK 01/08/2021 01:29 PM INDEX NO. 600386/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2021 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 In Re: t he Matter ofthe Sale and Transfer of Structured Settlemeñt DECISION Payment Rights of Kimberly Whispell, pursuant to and in accordance with General 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 through 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 of age and has custody and care of four minor children ranging in ages one through thirteen, is requesting to transfer 121 monthly payment portions of $745.00 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 Q:\Ulster\Whispell\Decision.wpd FILED: SUFFOLK COUNTY CLERK 01/08/2021 01:29 PM INDEX NO. 600386/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2021 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 $2,121.80 monthly under the structured settlement¹. Whispell's other income includes rents of $400.00 per month, and either rents or resumption of mortgage payments from a mortgage held by her. In her affidavit, 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 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 Washington County had changed. Whispell's post hearing submission dated December 29, 2008 recites an offer from her preseñt mortgage holder to modify the terms of the mortgage, in exchange for a lump sum payraent, 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 provide protection to those individuals seeking to transfer payments under a structured settlement agreement (In re Settlement Capital Corp. [Ballos], 1 Misc3d 446, 455 [Sup, Ct. Queens Co. 2003]). In analyzing the transfer, courts comider 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 seekindependent professional advice and has received or waived such advice, whether the transfer is written in plain language, and whether the transfer complies with the other provisions of the such as disclosure requirements (General Law - statute, Obligations § 5-1706 [b] [e]). 'In relevant part, Whispell is entitled under the structured settlement to monthly payments of $2,000.00, beginnin at 3% annually, guaranteed through g November 1, 2006, increasing October 1, 2036 and continuing for life thereafter. 2 9:vu1stertwhispeH\Decision.wpd FILED: SUFFOLK COUNTY CLERK 01/08/2021 01:29 PM INDEX NO. 600386/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2021 To determine 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 earn a living and support his or her depeñdêñts; (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 proceeds; (e) whether the beneficiary has obtained independent counsel regarding the fiñâñcial consequences of the proposed transfer; (f) the level of financial sophistication, or lack thereof, of the beneficiary; and (g) the timing of the application with other scheduled payments. (In re Symetra Assigned Benefits Service Co. [McGuire], 13 Misc3d 1208[A] [Sup. Ct. Suffolk Co. 2006]). Courts have held transfers to be in the best interests of beneficiary when the beneficiary has pursued alternatives to the transfer, has researched other potential purchasers of the structured settlement, and