by John Darer CLU ChFC MSSC CeFT RSP CLTC
The Minneapolis Star Tribune has published an important and impactful expose of the structured settlement secondary market and bares its untreated festering sores. The second installment of four parts was published this week as the culmination of a two year effort by the Star Tribune team. The Star Tribune explores the data and presents it in a meaningful way. In four installments they focus on The Sellers, The Judges, The Buyers and The Guardians.
Although 50 states and the District of Columbia have enacted Structured Settlement Protection Acts, the Star Tribune found that "judges are often hampered by doubts and vague laws. They say that the final, often reluctant arbiter in settlement buyout cases are given little information about sellers and few rules on companies seeking to buy". Indeed, while a number of participants that I've spoken with would be willing to have a licensing standard, there is no licensing standard or regulator of sales practices in any state, unlike other financial services. Two states Maryland and Louisiana require transferees to be registered, but that isn't nearly enough. Unless there is a mechanism that could fine, suspend or revoke licenses the free for will likely continue to the detriment of consumers such as those profiled by the Star Tribune.
Star Tribune talking points
- "Judges say they are routinely deprived of key information about the people selling their payments, including medical records and court filings that might provide insight about their cognitive ability or mental competency".
- "Based on its review of 1,400 Minnesota cases that have gone to a hearing since 2000, the Star Tribune says that (factoring) companies have successfully sought removal of some judges who have rejected sales or questioned the lopsided nature of deals in past cases.
- "A former Hennepin County judge cited by the Star Tribune, raised concerns at bench meetings but was met with apathy by other judges "nobody wanted to get into it"
- "A guardian was appointed in just a single case" of the ones reviewed by the Star Tribune.
- "Some judges take a narrow view of responsibilities". Summons up an apparition of former Portsmouth Virginia Circuit Court Judge Dean Sword for his "best interest standard" exhibited in presiding over 9 of 10 transactions of systematic destruction of a black man's structured settlement in 2 years. Sword relied solely on affidavits, according to Washington Post commentary in 2015.
The Star Tribune profiled a number of sellers. One of them was Laura Dalluhn. In November 2019, a Dakota County Minnesota judge rejected a structured settlement transfer petition, noting that Dalluhn testified that she "suffers from a mental health condition, has been civil committed four times and is under civil commitment now". The petition was essentially resubmitted in January 2020 and assigned to another judge (Joseph Carter),who approved the transfer as well as a day later extending Dalluhn's commitment for another 6 months, finding her mental problems were still serious enough to require close supervision. The company that preyed on Laura Dalluhn was Greenwood Funding, which after being rejected in November 4 2019, refiled under the affiliate name Sempra Finance.
Sempra Finance is a real piece of work. It's certainly not the first time they've been encountered participating in transactions involving highly vulnerable persons. For example, Sempra Finance was on the tail end of a daisy chain in what might best be described as "the serial financial rape of a minor's structured settlement" in Pennsylvania.
See ZACHARY BARBER, JEFFREY BARBER, ADMINISTRATOR OF THE ESTATE OF LINDA LEE JENKINS A/K/A/ LINDA LEE BARBER, DECEASED
v. BRUCE STANKO, NORTH HILLS PHARMACY SERVICES, LLC; PACERCHECK, INC.; ET AL
APPEAL OF: SEMPRA FINANCE, LLC ("SEMPRA") : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 615 WDA 2020
Appeal from the Order Entered June 5, 2020 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): No. 4037 of 2005
and my blog of May 14, 2021 Structured Settlement Investors' Bad Day in Barber Case as PA Superior Court Quashes Appeal
According to that decision "It has been said that the SSPA places the common pleas court in “position of a guardian of a person who stands in the presumptive position of the defenseless recipient of a benefit. It is for the Court to determine, as a guardian would, on an independent basis, whether the transaction serves the best interests of an unsophisticated (if not incompetent) person” and “is to ensure that an otherwise financially defenseless and possibly injured individual would receive a regular, sustaining source of income.” In re Jacobs, 936 A.2d 1156, 1160 (Pa. Super. 2007).
Requiring a judge to serve as guardian to protect the interests places the judge in unfamiliar territory. Generally, the petition to transfer payment is unopposed with plaintiff-payee wanting to transfer payments so that it can receive payments for what he or she considers in its best interests, whether it is or not, and the factoring company wanting it approved so it can make the Requiring a judge to serve as guardian to protect the interests places the judge in unfamiliar territory. Generally, the petition to transfer payment is unopposed with plaintiff-payee wanting to transfer payments so that it can receive payments for what he or she considers in its best interests, whether it is or not, and the factoring company wanting it approved so it can make the most money. That requires the trial judge to make an independent determination of whether the sale is in the best interests of the plaintiff-payee based on economic factors that it is not within its ken and with parties who are not that forthcoming. Moreover, this determination is made even more difficult because the proceedings are non-adversarial, with no factual development and competing positions to inform its judgment as would be the usual. It depends on the forthrightness and good faith of counsel to provide all the information available for the judge to make an informed decision on what is in the best interests of the plaintiff-payee to avoid fraud on the court".
States where judges don't do their part to take "best interest" seriously hurt both the sellers, any applicable and investors who buy assigned rights to the payments from the transaction the judge has approved.
Stay tuned for the next installments from the Minneapolis Star Tribune's expose on the structured settlement secondary market on Structured Settlement Payment Buyers and Guardians