093_HB3582ham002 LRB093 10522 JLS 13828 a 1 AMENDMENT TO HOUSE BILL 3582 2 AMENDMENT NO. . Amend House Bill 3582, AS AMENDED, 3 by replacing everything after the enacting clause with the 4 following: 5 "Section 1. Short title. This Act may be cited as the 6 Structured Settlement Protection Act. 7 Section 5. Definitions. For purposes of this Act: 8 "Annuity issuer" means an insurer that has issued a 9 contract to fund periodic payments under a structured 10 settlement. 11 "Dependents" include a payee's spouse and minor children 12 and all other persons for whom the payee is legally obligated 13 to provide support, including alimony. 14 "Discounted present value" means the present value of 15 future payments determined by discounting such payments to 16 the present using the most recently published Applicable 17 Federal Rate for determining the present value of an annuity, 18 as issued by the United States Internal Revenue Service. 19 "Gross advance amount" means the sum payable to the payee 20 or for the payee's account as consideration for a transfer of 21 structured settlement payment rights before any reductions 22 for transfer expenses or other deductions to be made from -2- LRB093 10522 JLS 13828 a 1 such consideration. 2 "Independent professional advice" means advice of an 3 attorney, certified public accountant, actuary, or other 4 licensed professional adviser. 5 "Interested parties" means, with respect to any 6 structured settlement, the payee, any beneficiary irrevocably 7 designated under the annuity contract to receive payments 8 following the payee's death, the annuity issuer, the 9 structured settlement obligor, and any other party that has 10 continuing rights or obligations under such structured 11 settlement. 12 "Net advance amount" means the gross advance amount less 13 the aggregate amount of the actual and estimated transfer 14 expenses required to be disclosed under item (5) of Section 15 10 of this Act. 16 "Payee" means an individual who is receiving tax free 17 payments under a structured settlement and proposes to make a 18 transfer of payment rights thereunder. 19 "Periodic payments" includes both recurring payments and 20 scheduled future lump sum payments. 21 "Qualified assignment agreement" means an agreement 22 providing for a qualified assignment within the meaning of 23 Section 130 of the United States Internal Revenue Code, 24 United States Code Title 26, as amended from time to time. 25 "Responsible administrative authority" means, with 26 respect to a structured settlement, any government authority 27 vested by law with exclusive jurisdiction over the settled 28 claim resolved by such structured settlement. 29 "Settled claim" means the original tort claim or workers' 30 compensation claim resolved by a structured settlement. 31 "Structured settlement" means an arrangement for periodic 32 payment of damages for personal injuries or sickness 33 established by settlement or judgment in resolution of a tort 34 claim or for periodic payments in settlement of a workers' -3- LRB093 10522 JLS 13828 a 1 compensation claim. 2 "Structured settlement agreement" means the agreement, 3 judgment, stipulation, or release embodying the terms of a 4 structured settlement. 5 "Structured settlement obligor" means, with respect to 6 any structured settlement, the party that has the continuing 7 obligation to make periodic payments to the payee under a 8 structured settlement agreement or a qualified assignment 9 agreement. 10 "Structured settlement payment rights" means rights to 11 receive periodic payments under a structured settlement, 12 whether from the structured settlement obligor or the annuity 13 issuer, when: 14 (1) the payee is domiciled in, or the domicile or 15 principal place of business of the structured settlement 16 obligor or the annuity issuer is located in, this State; 17 (2) the structured settlement agreement was 18 approved by a court or responsible administrative 19 authority in this State; or 20 (3) the structured settlement agreement is 21 expressly governed by the laws of this State. 22 "Terms of the structured settlement" include, with 23 respect to any structured settlement, the terms of the 24 structured settlement agreement, the annuity contract, any 25 qualified assignment agreement, and any order or other 26 approval of any court or responsible administrative authority 27 or other government authority that authorized or approved 28 such structured settlement. 29 "Transfer" means any sale, assignment, pledge, 30 hypothecation, or other alienation or encumbrance of 31 structured settlement payment rights made by a payee for 32 consideration; provided that the term "transfer" does not 33 include the creation or perfection of a security interest in 34 structured settlement payment rights under a blanket security -4- LRB093 10522 JLS 13828 a 1 agreement entered into with an insured depository institution 2 in the absence of any action to redirect the structured 3 settlement payments to such insured depository institution or 4 an agent or successor in interest thereof or otherwise to 5 enforce such blanket security interest against the structured 6 settlement payment rights. 7 "Transfer agreement" means the agreement providing for a 8 transfer of structured settlement payment rights. 9 "Transfer expenses" means all expenses of a transfer that 10 are required under the transfer agreement to be paid by the 11 payee or deducted from the gross advance amount, including, 12 without limitation, court filing fees, attorneys fees, escrow 13 fees, lien recordation fees, judgment and lien search fees, 14 finders' fees, commissions, and other payments to a broker or 15 other intermediary; "transfer expenses" do not include 16 preexisting obligations of the payee payable for the payee's 17 account from the proceeds of a transfer. 18 "Transferee" means a party acquiring or proposing to 19 acquire structured settlement payment rights through a 20 transfer. 21 Section 10. Required disclosures to payee. Not less than 22 3 days prior to the date on which a payee signs a transfer 23 agreement, the transferee shall provide to the payee a 24 separate disclosure statement, in bold type no smaller than 25 14 points, setting forth all of the following: 26 (1) the amounts and due dates of the structured 27 settlement payments to be transferred; 28 (2) the aggregate amount of the payments; 29 (3) the discounted present value of the payments to 30 be transferred, which shall be identified as the 31 "calculation of current value of the transferred 32 structured settlement payments under federal standards 33 for valuing annuities", and the amount of the Applicable -5- LRB093 10522 JLS 13828 a 1 Federal Rate used in calculating the discounted present 2 value; 3 (4) the gross advance amount; 4 (5) an itemized listing of all applicable transfer 5 expenses, other than attorneys' fees and related 6 disbursements payable in connection with the transferee's 7 application for approval of the transfer, and the 8 transferee's best estimate of the amount of any such fees 9 and disbursements; 10 (6) the net advance amount; 11 (7) the amount of any penalties or liquidated 12 damages payable by the payee in the event of any breach 13 of the transfer agreement by the payee; and 14 (8) a statement that the payee has the right to 15 cancel the transfer agreement, without penalty or further 16 obligation, not later than the third business day after 17 the date the agreement is signed by the payee. 18 Section 15. Approval of transfers of structured 19 settlement payment rights. No direct or indirect transfer of 20 structured settlement payment rights shall be effective and 21 no structured settlement obligor or annuity issuer shall be 22 required to make any payment directly or indirectly to any 23 transferee of structured settlement payment rights unless the 24 transfer has been approved in advance in a final court order 25 or order of a responsible administrative authority based on 26 express findings by such court or responsible administrative 27 authority that: 28 (1) the transfer is in the best interest of the 29 payee, taking into account the welfare and support of the 30 payee's dependents; 31 (2) the payee has been advised in writing by the 32 transferee to seek independent professional advice 33 regarding the transfer and has either received such -6- LRB093 10522 JLS 13828 a 1 advice or knowingly waived such advice in writing; and 2 (3) the transfer does not contravene any applicable 3 statute or the order of any court or other government 4 authority. 5 Section 20. Effects of transfer of structured settlement 6 payment rights. Following a transfer of structured settlement 7 payment rights under this Act: 8 (1) the structured settlement obligor and the 9 annuity issuer shall, as to all parties except the 10 transferee, be discharged and released from any and all 11 liability for the transferred payments; 12 (2) the transferee shall be liable to the 13 structured settlement obligor and the annuity issuer: 14 (A) if the transfer contravenes the terms of 15 the structured settlement, for any taxes incurred by 16 the parties as a consequence of the transfer; and 17 (B) for any other liabilities or costs, 18 including reasonable costs and attorneys' fees, 19 arising from compliance by the parties with the 20 order of the court or responsible administrative 21 authority or arising as a consequence of the 22 transferee's failure to comply with this Act; 23 (3) neither the annuity issuer nor the structured 24 settlement obligor may be required to divide any periodic 25 payment between the payee and any transferee or assignee 26 or between 2 or more transferees or assignees; and 27 (4) any further transfer of structured settlement 28 payment rights by the payee may be made only after 29 compliance with all of the requirements of this Act. 30 Section 25. Procedure for approval of transfers. 31 (a) No annuity issuer or structured settlement obligor 32 may make payments on a structured settlement to anyone other -7- LRB093 10522 JLS 13828 a 1 than the payee or beneficiary of the payee without prior 2 approval of the circuit court or responsible administrative 3 authority. No payee or beneficiary of a payee of a 4 structured settlement may assign in any manner the structured 5 settlement payment rights without the prior approval of the 6 circuit court or responsible administrative authority. 7 (b) An application under this Act for approval of a 8 transfer of structured settlement payment rights shall be 9 made by the transferee and may be brought in the county in 10 Illinois in which the transferee is located, or the payee 11 resides, or in the county in which the structured settlement 12 obligor or the annuity issuer maintains its principal place 13 of business, or in any court or before any responsible 14 administrative authority that approved the structured 15 settlement agreement. 16 Section 30. General provisions; construction. 17 (a) The provisions of this Act may not be waived by any 18 payee. 19 (b) Any transfer agreement entered into on or after the 20 effective date of this Act by a payee who resides in this 21 State shall provide that disputes under the transfer 22 agreement, including any claim that the payee has breached 23 the agreement, shall be determined in and under the laws of 24 this State. No such transfer agreement shall authorize the 25 transferee or any other party to confess judgment or consent 26 to entry of judgment against the payee. 27 (c) No transfer of structured settlement payment rights 28 shall extend to any payments that are life-contingent unless, 29 prior to the date on which the payee signs the transfer 30 agreement, the transferee has established and has agreed to 31 maintain procedures reasonably satisfactory to the annuity 32 issuer and the structured settlement obligor for (1) 33 periodically confirming the payee's survival, and (2) giving -8- LRB093 10522 JLS 13828 a 1 the annuity issuer and the structured settlement obligor 2 prompt written notice in the event of the payee's death. 3 (d) No payee who proposes to make a transfer of 4 structured settlement payment rights shall incur any penalty, 5 forfeit any application fee or other payment, or otherwise 6 incur any liability to the proposed transferee or any 7 assignee based on any failure of the transfer to satisfy the 8 conditions of this Act. 9 (e) Nothing contained in this Act shall be construed to 10 authorize any transfer of structured settlement payment 11 rights in contravention of any law or to imply that any 12 transfer under a transfer agreement entered into prior to the 13 effective date of this Act is valid or invalid. 14 (f) Compliance with the requirements set forth in 15 Section 10 of this Act and fulfillment of the conditions set 16 forth in Section 15 of this Act shall be solely the 17 responsibility of the transferee in any transfer of 18 structured settlement payment rights, and neither the 19 structured settlement obligor nor the annuity issuer shall 20 bear any responsibility for, or any liability arising from, 21 non-compliance with those requirements or failure to fulfill 22 those conditions. 23 Section 35. Applicability. This Act shall apply to any 24 transfer of structured settlement payment rights under a 25 transfer agreement entered into on or after the 30th day 26 after the effective date of this Act; provided, however, that 27 nothing contained herein shall imply that any transfer under 28 a transfer agreement reached prior to that date is either 29 effective or ineffective. 30 (215 ILCS 5/155.34 rep.) 31 Section 97. The Illinois Insurance Code is amended by 32 repealing Section 155.34.".