Structured settlement factoring transaction

A structured settlement factoring transaction describes the selling of future structured settlement

payments (or, more accurately, rights to receive the future structured settlement payments). People who

receive structured settlement payments (for example, the payment of personal injury damages over time

instead of in a lump sum at settlement) may decide at some point that they need more money in the short

term than the periodic payment provides over time. People's reasons are varied but can include

unforeseen medical expenses for oneself or a dependent, the need for improved housing or transportation,

education expenses and the like. To meet this need, the structured settlement recipient can sell (or,

less commonly, encumber) all or part of their future periodic payments for a present lump sum.

History

Structured settlements experienced an explosion in use beginning in the 1980s.[1] The growth is most

likely attributable to the favorable federal income tax treatment such settlements receive as a result

of the 1982 amendment of the tax code to add § 130.[2] [3] Internal Revenue Code § 130 provides, inter

alia, substantial tax incentives to insurance companies that establish “qualified” structured

settlements.[4] There are other advantages for the original tort defendant (or casualty insurer) in

settling for payments over time, in that they benefit from the time value of money (most demonstrable in

the fact that an annuity can be purchased to fund the payment of future periodic payments, and the cost

of such annuity is far less than the sum total of all payments to be made over time). Finally, the tort

plaintiff also benefits in several ways from a structured settlement, notably in the ability to receive

the periodic payments from an annuity that gains investment value over the life of the payments, and the

settling plaintiff receives the total payments, including that “inside build-up” value, tax-free.[5]

However, a substantial downside to structured settlements comes from their inherent inflexibility.[6] To

take advantage of the tax benefits allotted to defendants who choose to settle cases using structured

settlements, the periodic payments must be set up to meet basic requirements [set forth in IRC 130(c)].

Among other things, the payments must be fixed and determinable, and cannot be accelerated, deferred,

increased or decreased by the recipient.[7] For many structured settlement recipients, the periodic

payment stream is their only asset. Therefore, over time and as recipients’ personal situations change

in ways unpredicted at the settlement table, demand for liquidity options rises. To offset the liquidity

issue, most structured settlement recipients, as a part of their total settlement, will receive an

immediate sum to be invested to meet the needs not best addressed through the use of a structured

settlement. Beginning in the late 1980s, a few small financial institutions started to meet this demand

and offer new flexibility for structured settlement payees.[8]

Process

Pre-2002

Before the enactment of IRC 5891, which became effective on July 1, 2002, some states regulated the

transfer of structured settlement payment rights, while others did not. Most states that regulated

transfers at this time followed a general pattern, substantially similar to the present day process

which is mandated in IRC 5891 (see below for more details of the post-2002 process). However, the

majority of the transfers processed from 1988 to 2002 were not court ordered.[9] After negotiating the

terms of the transaction (including the payments to be sold and the price to be paid for those

payments), a formal purchase contract was executed, effecting an assignment of the subject payments upon

closing. Part of this assignment process also included the grant of a security interest in the

structured settlement payments, to secure performance of the seller’s obligations. Filing a public lien

based on that security agreement created notice of this assignment and interest. The insurance company

issuing the structured settlement annuity checks was typically not given actual notice of the transfer,

due to antagonism by the insurance industry against factoring and transfer companies. Many annuity

issuers were concerned that factoring transactions, which were not contemplated when Congress enacted

IRC 130, might upset the tax treatment of qualified assignments. HR 2884 (discussed below) resolved this

question for annuity issuers.

Federal legislation

In 2001, Congress passed HR 2884, signed into law by the President in 2002 and effective July 1, 2002,

codified at Internal Revenue Code § 5891.[10] Through a punitive excise tax penalty, this has created

the de facto regulatory paradigm for the factoring industry. In essence, to avoid the excise tax

penalty, IRC 5891 requires that all structured settlement factoring transactions be approved by a state

court, in accordance with a qualified state statute. Qualified state statues must make certain baseline

findings, including that the transfer is in the best interest of the seller, taking into account the

welfare and support of any dependents. In response, many states enacted statutes regulating structured

settlement transfers in accord with this mandate.

Post-2002

Today, all transfers are completed through a court order process. As of September 6, 2006, 46 states

have transfer laws in place regulating the transfer process. Of these, 41 are based in whole or in part

on the model state law enacted by NCOIL, the National Conference of Insurance Legislators (or, in cases

when the state law predates the model act, they are substantially similar).

Most state transfer laws contain similar provisions, as follows: (1) pre-contract disclosures to be made

to the seller concerning the essentials of the transaction; (2) notice to certain interested parties;

(3) an admonition to seek professional advice concerning the proposed transfer; and (4) court approval

of the transfer, including a finding that it is in the best interest of seller, taking into account the

welfare and support of any dependents.
States with Transfer Laws in Place

Factoring Terminology

Best Interest Standard

Internal Revenue Code Sec. 5891 and most state laws require that a court find that a proposed settlement

factoring transaction be in the best interest of the seller, taking into account the welfare and support

of any dependents. [11] “Best interest” is generally not defined, which gives judges flexibility to make

a subjective determination on a case-by-case basis. Some state laws may require that the judge look at

factors such as the “purpose of the intended use of the funds,” the payee’s mental and physical

capacity, and the seller’s potential need for future medical treatment. [12] [13]. One Minnesota court

described the “best interest standard” as a determination involving “a global consideration of the

facts, circumstances, and means of support available to the payee and his or her dependents.” [14]

Courts have consistently found that the “best interest standard” is not limited to financial hardship

cases. [15] Hence, a transfer may be in a seller’s best interest because it allows him to take advantage

of an opportunity (i.e., buy a new home, start a business, attend college, etc.) or to avoid disaster

(i.e., pay for a family member’s unexpected medical care, pay off mounting debt, etc.). For example, a

New Jersey court found that a transaction was in a seller’s best interest where the funds were used to

“pay off bills…and to buy a home and get married.” [16]

Although sometimes criticized for being vague, the best interest standard’s lack of precise definition

allows considerable latitude in judicial review. Courts can consider on a case-by-case basis the

totality of the circumstances surrounding the transfer to determine whether it should be approved.

Discount Rate

In the beginning, the factoring industry had some relatively high discount rates due to heavy expenses

caused by costly litigation battles and limited access to traditional investors. However, once state and

federal legislation was enacted, the industry’s interest rates decreased dramatically. There is much

confusion with the terminology “discount rate” because the term is used in different ways. The discount

rate referred to in a factoring transaction is similar to an interest rate associated with home loans,

credit cards and car loans where the interest rate is applied to the payment stream itself. In a

factoring transaction, the factoring company knows the payment stream they are going to purchase and

applies an interest rate to the payment stream itself and solves for the funding amount, as though it

was a loan. Discount rates from factoring companies to consumers can range anywhere between under 9% up

to over 18% but usually average somewhere in the middle. Factoring discount rates can be a bit higher

when compared to home loan interest rates, due to the fact the factoring transactions are more of a

boutique product for investors opposed to the mainstream collateralized mortgage transactions. One

common mistake in calculating the discount rate is to use “elementary school math” where you take the

funding/loan amount and divide it by the total price of all the payments being purchased. Because this

method disregards the concept of time (and the time value of money), the resulting percentage is

useless. For example, the court in In Re Henderson Receivables Origination v. Campos noted an annual

discount rate of 16.8% where the annuitant received $36,500 for the assignment of payments totaling

$63,364.94 over 84 months (two monthly payments of $672.32 each, beginning September 30, 2006 and ending

on October 31, 2006; eighty-two monthly payments of $692.49 each, increasing 3% every twelve months,

beginning on November 30, 2006 and ending on August 31, 2013). However, had the court in Henderson

Receivables Origination applied the illogical formula of discounting from “elementary school math”

($36,500/ $63,364.94), the discount rate would have been an astronomical (and nonsensical) 61%. [17]

Discounted Present Value

Another term commonly used in factoring transactions is “discounted present value,” which is defined in

the NCOIL model transfer act as “the present value of future payments determined by discounting such

payments to the present using the most recently published Applicable Federal Rate for determining the

present value of an annuity, as issued by the United States Internal Revenue Service.” [18] The IRS

discount rate, also known as the Applicable Federal Rate (AFR), is used to determine the charitable

deduction for many types of planned gifts, such as charitable remainder trusts and gift annuities. The

rate is the annual rate of return that the IRS assumes the gift assets will earn during the gift term.

The IRS discount rate is published monthly (link to current rate may be found here). In Henderson

Receivables Origination (above), the court calculated the discounted present value of the $63,364.94 to

be transferred as $50,933.18 based on the applicable federal rate of 6.00%. [18] The “discounted present

value” is a measuring stick for determining what the value of a future payment (i.e., a payment that is

due in the year 2057) is today. Hence, the discounted present value of a payment corrects for inflation

and the principle that money available today is worth more than money not accessible for 50 years (or

some future time). However, the discounted present value is not the same thing as market value (what

someone is willing to pay). Basically, a calculation that discounts a future payment based on IRS rates

is an artificial number since it has no bearing on the payment’s actual selling price. For example, in

Henderson Receivables Origination, it is somewhat confusing for the court to evaluate future payments

totaling $63,364,94 based the discounted present value of $50,933.18 because that is not the market

value of the payments. In other words, the annuitant couldn’t go out and get $50,933.18 for his future

payments because no person or company would be willing to pay that much. Some states will require a

quotient to be listed on the disclosure that is sent to the customer prior to entering into a contract

with a factoring company. The quotient is calculated by dividing the purchase price by the discounted

present value. The quotient (like the discounted present value) provides no relevance in the pricing of

a settlement factoring transaction. In Henderson Receivables Origination (above), the court did consider

this quotient which was calculated as 71.70% ($36,500/ $50,933.18). [19]