Structured settlement expert John Darer reviews the latest structured settlement news, information and provides expert opinion and commentary, including settlement planning issues/ ideas for settlement management, incisive Structured Settlement Watchdog® reports that may be helpful to lawyers, plaintiffs, claims adjusters, judges, the news media, sellers, buyers of structured settlement payment rights and interested others, The style is spicy, informative, irreverent and effective. The most prolific structured settlement blog, Now in 18th Year! Check back daily for something new.
What does it mean if you have a structured settlement and you've received a mailer that refers to "Unclaimed Funds" Structured
Don't be fooled by silly emails like this one sent to structured settlement annuitants
Settlement "Client Relations Dept" "Immediate Verification Required", and bears the telephone number of 888-556-2740?
Here's what I've discovered:
The mailing department of Fortune Settlement Solutions has been blitzing people with structured settlements to generate leads with the teaser of "unclaimed funds" using the mailer displayed below [Disclaimer: the green nail is not mine :-)].
FACT: THERE ARE NO UNCLAIMED FUNDS. You could call any structured settlement factoring company and get an offer to buy your payments, whether or not it is in your best interest.
What Happened When I Called 888-556-2740?
I called 888-556-2740 yesterday after receiving a call from Pennsylavania concerning a similatly worded letter.
With the addressee listening in on the phone I dialed 888-556-2740. The person who answered the phone at 888-556-2740 was really cagey, claimed to be from New York and said the name of the business was Structured Settlements and that it was registered to do business in New York and that they were based in Manhattan. I looked up the name and there was no such company. It would have been much simpler to simply say who they really are, like the person who answered the follow up call today, at Fortune Settlement Solutions from Miami Lakes, Florida.
I called the same number today and spoke to Will from Fortune Settlement Solutions and he was far more professional and straightforward from the start of the conversation.
Silly letters like the one displayed have plagued the structured settlement factoring industry for years.
A Qualified Settlement Fund is a fund, account or trust authorized by Treasury Regulation 1.468B-1(c). Under the regulation, each QSF must:
Be established pursuant to an order of, or is approved by, the United States, any state (including the District of Columbia), territory, possession, or political subdivision thereof, or any agency or instrumentality (including a court of law) of any of the foregoing and is subject to the continuing jurisdiction of that governmental authority;
It is established to resolve or satisfy one or more contested or uncontested claims that have resulted or may result from an event (or related series of events) that has occurred and that has given rise to at least one claim asserting liability; and
The fund, account, or trust is a trust under applicable state law, or its assets are otherwise segregated from other assets of the transferor (and related persons).
It has been said that "A qualified settlement funds are a great tool in litigation to 'park' money or create a tax free way station", which conjures up that at least quarter of a century old dilemma once pondered by 1990s slackers Wayne and Garth. [Jeopardy question for readers born after 1985, "What is Wayne's World?"] #mikemyersbeforeaustinpowers
According to Chris Lordan CPA, whose Minnesota firm administers qualified settlement funds, "an independent, qualified trustee, often an accountant or a lawyer, is appointed to handle the trust. The trustee manages the funds, handles ongoing claim resolution, and works with the plaintiffs to determine the trust’s payout structure.The trustee also assures strict compliance with 468B and other regulations: without constant and careful oversight, the benefits of the qualified settlement fund may not be fully realized or even disallowed".
If it's a trust under state law, wouldn't any income and gains generated by the investment of the assets in the trust be subject to tax on a state or federal level? Even money markets aren't paying zero these days.
As of October 31, 2018
CIBC Bank USA 2.16% APY
HSBC 2.01% APY
Goldman Sachs Marcus 2.05%
Source: Bestrates.com
One of the duties of a QSF administrator is to file tax returns for the QSF. For a New York QSF, this might include a Federal return, as well as fiduciary tax forms for New York state and other applicable taxing authorities.
Settlement Advocates is what Ryan Blank, the owner of a website associated with a purported affiliate member of the National Association of Settlement Purchaser claims to be. This blog ponders the question of "what is a settlement advocate?" and whether a purported member of an association of "cents on the dollar" buyers can legitimately use the term settlement advocate.
What is the definition of Advocate?
One who pleads the cause of another; specifically: one who pleads the cause of another before a tribunal or judicial court. One who supports or promotes the interests of a case or group (e.g. consumer advocate, advocate for women's health)Merriam Webster
To support or defend by argument; to recommendpublicly. An individualwhopresents or arguesanother'scase;onewhogiveslegaladviceandpleadsthecause of anotherbefore a court or tribunal; a counselor. A personadmitted to thePractice of Lawwhoadvisesclients of theirlegalrightsandarguestheircases in court. West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved
Is a structured settlement factoring transaction a settlement?
No, it is a structured settlement factoring transaction, which is nota settlement. The structured settlement was established when the case was settled between plaintiff and defendant or defendant's insurer. A structured settlement factoring transaction is a defined term under the Internal Revenue Code at IRC 5891.The word " settlement advocate" does not appear anywhere in IRC 5891, the Code section discussing a structured settlement factoring transaction.
Is a Structured Settlement factoring intermediary working on behalf of a seller or an investor a settlement advocate?
No, a settlement factoring intermediary IS NOT a settlement advocate. That is because the legal case settled at the time the structured settlement was established. An investor in structured settlement derivatives is not settling anything. The investor is buying the rights to a payment stream.
So, When You Sell My Structured Settlement For a Discounted Lump Sum of Cash That's Not a Settlement?
Correct, when you sell your structured settlement payments either to an investor, a company or you commute the payments with an annuity issuer such as Berkshiure Hathaway Life Insurance Company of Nebraska or First Berkshire Hathaway Life Insurance Company, pursuant to its Hardship Exchange Provision, that is not a settlement.
What Does The Term Settlement Advocate Mean to You?
Someone who speaks for the plaintiff or defendant in settlement discussions.
The Truth about Settlement Advocates website
Gurgling from the noxious depths of the Maryland Cauldron of Deceit, Settlement Advocates(dot)org is just another lead generation website associated with Owings MIlls Maryland bred Ryan Blank. When I called today, the receptionist had no clue about the NASP affiliation and said to speak with the executive in charge, which turns out to be Ryan Blank. Ryan Blank has been associated with Einstein Structured Settlements, which has used paid fake testimonials to intentionally mislead prospective customers. Ryan Blank has also been associated with AnnuitySold, which fraudulently advertised that is was licensed in all 50 states and was banned from doing business in Maryland for 7 years from January 2018, following a Maryland Attorney General investigation.
The Settlement Advocates(dot)org website claims to affiliated with the National Association of Settlement Purchasers (NASP) and displays the NASP logo. However Settlement Advocates was not listed as a member of NASP at time of posting. I contacted an officer of NASP at the time of posting and confirmed that Ryan Blank is not an affiliate of NASP. NASP affiliation is only open to individual lawyers who represent factoring companies in court. Upon information and belief Ryan Bank is not a barrister. Ryan Blank will be receiving a cease and desist according to the NASP officer I spoke with.
Who is Ryan William Blank?
Ryan William Blank (a/k/a Ryan Einstein), is a poker player associated with Richart Ruddie and the director of research at a company associated with Ryan Blank, AnnuitySold LLC using an AnnuitySold email address, emailed court papers to a process server in a phony RI lawsuit, extensively written up by Paul Alan Levy of the Public Citizen law group. His high school buddy Richart Ruddie (a/k/a Derek Ruddie, a/k/a Rich Ru), the reputation management fraudster who signed a check drawn on an account for a company co-managed with Ryan Blank, that was dissolved as the heat was turned up on Ruddie by UCLA law professor Eugene Volokh in the Washington Post in October 2016.
Settlement Advocates makes the dubious claim to be "the trusted source for settlement planners who require a reliable and transparent settlement purchaser referral for their clients’ extreme circumstances".
There is plenty of reason to be skeptical of Ryan Blank's questionable claims. How can Ryan Blank be a trusted source for settlement planners when he has personally promoted scraping of court records? I'd love to know, if it were true, which settlement planner's due diligence is so exemplary substandard that it would patronize these folks given that many settlement planners purport to ascribe to a fiduciary standard. Based on the short but well documented history of how these folks conduct their business in the structured settlement factoring and reputation management space, I would never patronize nor recommended any company or brand affiliated with the Owings Mills bred bros to a client or settlement planning colleague.
Seneca One Finance falsely implies that you can retire broke if you are receiving structured settlement payments (with its putative solution being selling your structured settlement to them for a discounted lump sum)
Seneca One must be pilloried for soliciting American consumers with a what appear to be old British coins. I see pennies, half pennies and even some tuppence! Typical of the often lack of attention to detail deployed by social media experts for settlement purchasers.
Seneca One's marketing ploy is not substantiated by AMERICAN government and industry experts.
With respect to pension plans, the Government Accounting Office (GAO) found that the amount of the lump sum payment may be less than what it would cost in the retail market to replace the plan's benefit. This is because the mortality and interest rates used by retail market insurers are different from the rates used by sponsors, particularly when calculating lump sums for younger participants and women. Similar logic applies to selling your structured settlement payments for a lump sum.
“Participants who assume management of their lump sum payment gain control of their assets but also face potential investment challenges,” the study found. In addition, the GAO said, “some participants may not continue to save their lump sum payment for retirement but instead may spend some or all of it.”
(“[I]n many cases because it assumes that injured parties will wisely manage large sums of money so as to provide for their lifetime needs. In fact, many of these successful litigants, particularly minors, have dissipated their awards in a few years and are then without means of support.”); Miscellaneous Tax Legislation: Hearings Before the Subcomm. on Select Revenue Measures of the H. Comm. on Ways & Means, 97th Cong. 7, 82, 84 (1982) (statement of Patrick J. Hindert, President Benefit Designs, Inc., a consulting firm for personal injury case parties) [Source: Justifying the Tax Subsidy: The Use of Lump Sum Settlement Monies by Jeremy Babener NYU Journal of Law and Business Vol. 6, 2009]
If lump sum dissipation were not a concern why would Kingston New York Medical Malpractice attorney John Fisher be so concerned to post this on his website:
"By having your client sign the Grillo Waiver before they accept a lump sum settlement, you are protecting yourself from a potential legal malpractice lawsuit down the road".
"I am aware that the law enables all principal and interest earned in a structured settlement annuity to be excluded from my gross income adn that this opportunity is only available to persons like me who are recovering tort damages on account of a physical injury or physical sickness that I or an immediate family member have suffered."
"I understand that, if I do not participate in a structured settlement, all earnings on any investment I may choose could be fully taxed at my highest income tax bracket."
"My attorney has warned me of the pitfalls of not selecting a portion of my recovery to be included in a structured settlement annuity and has informed me that due to unexpected events or circumstances, many plaintiffs who do not participate in a structured settlement annuity either lose their money award due to investment risks and/or deplete their funds and lose financial security."
"I understand this is my only opportunity to take advantage of a structured settlement annuity and that my settlement decision cannot be changed or reversed on a future date in that it is irrevocable. I have been given every opportunity to ask questions and all my questions have been answered."
Earnings from a qualifying SSA are received tax free.
Future payments scheduled to be received from a SSA are protected from creditors.
A rated age may be available with the use of the SSA, increasing the benefit to the client.
A SSA places contractual and statutory restrictions on access to the funds making them more difficult to dissipate.
There may be estate tax implications of receiving this settlement in cash.
A SSA could provide lifetime income guaranteed by a highly rated insurance company.
Taking the settlement in cash could affect eligibility for government entitlements.
"Alternatively, and as many of my clients have opted to employ, I have recommended the use of a “Client Acknowledgement Letter,” often referred to as a “Grillo Waiver.” The Client Acknowledgement Letter is generally used by my clients in situations where, despite advice and recommendations to the contrary, the claimant has insisted on taking an all-cash lump sum settlement. The Letter requires the client’s signature and his/her initials at various points indicating that he/she understands certain ramifications of that decision, especially as it relates to the risk of premature dissipation of needed settlement funds and the possibility of jeopardizing certain critical governmental benefits, including and especially medical care provided by Medicaid and Medicare [ Tacker Le Carpentier, Esq. post on Lawyers Mutual website April 23, 2013]
"In order to further insulate yourself from liability, we recommend that, in the event you client refuses a structured settlement annuity (SSA), you should request that they sign a Grillo waiver. This Grillo waiver serves as formal acknowledgement that the claimant has been made aware of the opportunity to purchase a SSA. It also requires that they understand the following:
The decision not to structure is irrevocable..." [Source: plaintiff settlement planners Amicus Settlement Planners, LLC website August 15, 2015]
The Grillo case has been widely used as a "scare tactic" to motivate attorneys to structure by plaintiff settlement advisers
After a quarter of a century perhaps it is time to "scour" the internet of creative liberties concerning the case of Grillo v Pettiete, the poster child for attorney malpractice with respect to structured settlements and settlement planning. Sometimes a story gets told incorrectly and the "urban legend" gets passed from generation to generation. In this case it is happening in the structured settlement industry every day.
The Court transcript from the minor's prove up hearing does not appear to jive with the marketing
I have read a copy of the transcript and it did not appear to go down the way a generation of settlement planners has spinned it, and continues to spin it to sell more annuities or even special needs legal services.
In my June 15, 2011 blog post, I did an extensive analysis about the Grillo v Pettiete case, a legal case which has spawned white papers, Lawyers' Weekly articles and even waivers that plaintiff lawyers should have their clients sign, that are named after Ms. Grillo. The only thing missing is I _________ in the Grillo case "and all I got was this lousy t-shirt".
Consider these points:
1. Was Christina Grillo offered a structured settlement or not? Yes, she was, by the hospital.
When asked January 3, 1991, in the minor prove up hearing in the seminal case, Christina Grillo's Mom, Josephine Grillo was asked " your concern was that with an annuity paying you monthly that you would not have sufficient funds in the event of catastrophic health or --health problem, is that correct" (Josephine Grillo responded "That or a new technology, yes")
2. Evident by her testimony, the transcript of which I have seen, Ms. Grillo had concerns about annuities because of a big "what if?", access to funds in the event of a catastrophic medical need. Her testimony also suggested that whoever she relied on for advice suggested an alternative strategy to a structured settlement, on the premise that Christina Juniker (Grillo)'s medical expenses would provide an offset against the taxable income generated in the trust.
3. Don't get me wrong here. I am obviously in favor of structured settlements however, those participating in the structured settlement industry can surely stop making intentional or unintentional misprepresentations of what happened in the Grillo case to sell products or services.
It seems to me that it would behoove the structured settlement industry to place the Grillo case in context going forward and furthermore, to dig up another more current legal malpractice case, (if such a case exists) as one of the many factors to highlight the importance of having a settlement advisor.
By the way, if you really want the lousy t shirt you can get it at ErasersTees!
Other References
Henry Stong of JMW Settlements tackled the Grillo subject in a white paper " The Real Lessons of Grillo" in the summer 2004 edition of the Journal of the Virginia Trial Lawyers Association and tied it into a discussion of fiduciary responsibility. Strong, a former President of the NSSTA, notably observed in his paper that the plaintiff attorneys did discuss structured settlements with Josephine Grillo. His source is an 8/2/2001 Lawyers Weekly article. My source is the court transcript from the Grillo prove up hearing.
Settlement planners who fail to demonstrate fundamental knowledge essential to the advice they are doling out to injury victims that are relying on them by publishing information that is so out of date are an embarrassment to the profession.
Here is a quote from a website of a "serial offender" in this regard:
"The receipt of settlement proceeds, either by a lump sum or through periodic payments, when combined with the claimant’s other assets, can create an estate in excess of $1,000,000 which would be subject to estate taxes at the death of the claimant. Estate tax rates range from 37 to 55 percent of amounts above $1,000,000, and payment generally is due in cash in nine months after the death. With proper planning, the impact of potential estate taxes can be minimized" quote from website of a particular settlement planner November 27, 2011 1:48pm EST. The owner of the website claims a copyright 2007-2011.
Year
Exclusion Amount
Max/Top tax rate
2001
$675,000
55%
2002
$1 million
50%
2003
$1 million
49%
2004
$1.5 million
48%
2005
$1.5 million
47%
2006
$2 million
46%
2007
$2 million
45%
2008
$2 million
45%
2009
$3.5 million
45%
2010 *
Repealed *
35%
2011
$5 million
35%
* See paragraph to left with respect to reinstatement of this exemption
To the right is a table of the amount of exemption by year an estate would expect. Estates above these amounts would be subject to estate tax, but only for the amount above the exemption.
The 2001 tax act would have repealed the estate tax for one year (2010) and would then have readjusted it in 2011 to the year 2002 exemption level with a 2001 top rate. However, on December 17, 2010, President Barack Obama signed the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010. Section 301 of the 2010 Actreinstates the federal estate tax. The new law sets the exemption at $5 million per person A top tax rate of 35 percent is provided for the years 2011 and 2012. (Chart: Wikipedia)
I am embarrassed for the settlement planning profession that such individual apparently doesn't care to stay on top of the news and publish accurate information. Furthermore, by citing that he is a CSSC, the settlement planner is dragging down the integrity of Certified Structured Settlement Consultant designation with him. Thank god that NSSTA has instituted new continuing education requirements.
In discussing structured settlement rates of return the subject settlement planner is currently using (11/27/2011) examples with 7% plus rates of return and taxable equivalent yields in the 11 plus% range! The published web page disclaimer states "NOTE: The rates used in these examples were for one annuity company and were valid on the date quoted. However, rates will vary between companies are are subject to change". With a copyright of 2007-2011 listed at the bottom of the web page, when the heck were the structured settlement rates on your website quoted and with which annuity company?
The United States Treasury Department publishes an interactive chart that allows you to compare interest rates of different maturities over different time periods. The chart shows that neither of the 10 year or 30 year nominal rates exceeded 5% between 2007-2011. Structured settlement rates typically exceed, but closely track Treasury rates.
The individual in question feels it is important for every claimant to have their own consultant who is independent from the liability insurer. I agree (as a practical matter most deals are done today with brokers on both sides). Otherwise, he says you will be relying on an adversary to handle a large financial transaction on your behalf. On the aforementioned showing perhaps the adversary's advice might prove be more accurate, eh?
The "Grillo case" is the poster child for potential attorney fee liability for failing to consider (or offer) a structured settlement to their client. [see Grillo v Pettiete Cause No. 96-145090-92 and Grillo v Henry Cause 96-167943-96, 96th District Court Tarrant County, Texas.
In that now "dog-eared" legal malpractice case there arose legal questions over whether there is ever a duty to offer a structured settlement. Plaintiff's legal malpractice attorney was quoted as saying "the defendant insurance company offered a structured settlement to the child and plaintiff alleged that the offer was never relayed to the parents and, in fact, never relayed to the court.”
The quote comes from an article about the case " Is Plaintiff Lawyer Liable for Not Offering Structured Settlement?", written by Amy Johnson Carter, published in Lawyers Weekly USA ,and then republished and STILL APPEARING on the website of Denver based Kelly Ramsdale Associates. The article contains a startling error of fact that I am surprised has been overlooked by Ms. Ramsdale. (Note: that a Google Search shows in its cache at time of writing, that at the same error laden article appeared on the website of Mass Tort Settlement Services with EPS Settlements name printed on it)
The errors
A. Kevin Isern, the plaintiff legal malpractice lawyer, refers in the article to "the defendant insurance company " when there is no direct action against an insurer in Texas. See Why can't I just sue the insurance company of the guy who hit me? by Personal Injury Attorney Doug Goyen "The Injury Warrior" March 30, 2011
B. But the "pink elephant" is this statement, attributed to the plaintiff malpractice lawyer Kevin Isern, and singled out for highlighting by Lawyers Weekly USA “Failing to do the structure lost all the Medicaid and Medicare benefits until (Grillo’s daughter) turned 18.” It's a real doozy!
Analysis
A. Those who continue to post the error laden Lawyers Weekly USA article promote the inaccurate and easily rebuttable presumption that Medicare is an asset sensitive entitlement program. For further information see "Can I get Medicare if I am under age 65?" as well as how one qualified for Social Security Disabilty at the end of this post below.
B. Those who have posted the error laden Lawyers Weekly USA article, promote the inaccurate and easily rebuttable presumption (again, atttributed therein to the Amarillo, Texas malpractice attorney Kevin Isern) that Christina Grillo lost Medicaid due to failure to structure the underlying settlement.
C. Didn't the loss of Medicaid really have to do with the failure to do a Special Needs Trustas opposed to a Section 142 Trust through Merrill Lynch that was proposed? I cite as my authority noted Special Needs Attorney David Lillesand, partner in Pensacola 'Florida's Lillesand & Wolasky, who stated in "What Personal Injury Attorneys Need To Know About SSI, Medicaid and Special Needs Trusts (2009 update)".
"In 2003, a Texas law firm and the Guardian ad Litem in the case recently settled a claim for $4.1 Million when the client lost Medicaid as a result of not having a Special Needs Trust, and had to use settlement moneys to pay for medical care at the “retail” (highest) billing rate, called “fee-for service” rather than the negotiated reductions and free access to medical care through Medicaid. Grillo v. Pettiete et al., Cause No. 96-145090-92 and Grillo v. Henry Cause, 96-167943- 96, 96th District Court, Tarrant County, Texas" (emphasis ours)
D. While much has been made by many in my industry about the plaintiff attorney's and guardian ad litem's role influencing Josephine Grillo's decision not to structure her daughter's settlement, it was not the lynchpin to the overall problem. If things had gone differently and and Josephine Grillo had simply accepted the hospital's structured settlement BUT still not done a Special Needs Trust, Christina Juniker would still have lost Medicaid AND would still have had to "use settlement moneys to pay for medical care at the "retail"(highest) billing rate".
E. Ms. Grillo's testimony in the Minor's prove up hearing of January 3, 1991 shows that Ms. Grillo had concerns about annuities because of access to funds in the event of a catastrophic medical need. Her testimony also suggested that the whoever she relied on for advice suggested the strategy on the premise that Christina Juniker (Grillo)'s medical expenses would provide an offset against the taxable income generated in the trust. Not necessarily an off the wall strategy if taken out of context of the facts in the Grillo case (I cite a blog post dated June 9, 2011 SSP and NSSTA 2011 Annual Meetings-4, wherein S2KM and TSSG's Patrick Hindert stated that every settlement plan "should include some tax analysis to determine whether "tax-free" products are needed or justified").
F. A copy of the transcript of sworn testimony in the Grillo case (labeled "Statement of Facts")from a January 10, 1991 proceeding about distribution of settlement proceeds (that were previously placed in the Court registry) suggests that there WERE discussions about structured annuities and issues such as diversification. In it, when questioned by Michael J. Henry, the guardian ad litem, under oath, Josephine Grillo affirmed that
"Of the $2.5 million settlement, Christina is to receive $1 million of the money"
"Out of that million dollars we are putting $700,000 of it--or requesting the court for approval of placing $700,000 of it into a trust with Merrill Lynch Trust Company"; then this odd question
" And this is something that is done and requested with not much--or with a great deal of consideration and foresight, isn't it?"
"And through discussions you have reviewed the tax consequences of spending one million dollars on an annuity versus placing $700,000 in a trust and purchasing $300,000 worth of annuities, haven't you?"
"In that regard, in placing the entire million dollars in an annuity your principal concern was catastrophic health costs, or some other expenses Christina might undergo, where you might need, if not immediate, very quick access to the principal is that correct?"
Your concern was that with an annuity paying you monthly that you would not have sufficient funds in the event of catastrophic health or --health problem, is that correct" (Grillo responded "That or a new technology, yes")
" Something wherein the best interest of Christina--" (Grillo responded "exactly")
" You need access to more than $7,000 a month?" (Grillo responded "right")
Then it gets really interesting
"And the trade-off to that is the concern that the monthly payments may or may not be given the same tax treatment as annuity payments, but in consideration of that, you are willing to accept that because you feel and hope that expenses will be high enough to offset the monthly interest payments for the trust?" (Grillo responded " You are saying that the annuity that you and Mr. Pettiete had proposed would lhave had tax consequences--or no tax consequneces; is that what you are saying?" To which Henry said " I'm saying the tax consequences could have been different to which Grillo responded "Okay repeat your question please")
Henry then has the tables turned after he asks I'm not asking you to agree with me, let me put it that way to which Grillo replied " It's not that I was going to agree with you. It's that if it was a structured settlement, then that money would have not been taxed; is that right?".. To which he responded "Right" and Grillo stated "Okay". Then after the judge asked Henry to rephrase he asked...
..."did you understand that it was my understanding or position that possibly a structured annuity or structured payout would have better income tax consequences than interest from a trust"? (Grillo said "yes")
" but after consideration, and thoughtful consideration, you would rather have the access to the principal with the income from the trust and work and try to develop expenses to off set the income from the trust...?" (Grillo "Yes")
" And in that order (for distribution) you are asking the Court or district clerk to pay not only the $700,000 for the establishment of the trust to Merrill Lynch, but is ordering the district clerk to pay $300,000 to Merill Lynch Trust Company to purchase six annuities at $50,000 a piece and a ten year term a slisted in that order, si that correct?" (Grillo "Yes")
"And you are asking me to approve that portion of the Order?" (*Grillo "Yes ,please)
"And the other reason you are spreading it among six companies is to decrease the risk of the insurance or annuity company having problems and its effect on you" (Grillo "Exactly to protect her principal $50,000")
Conclusion
Plaintiff attorneys need to bring in a settlement planner to address settlement issues and options before the case is settled. Your clients deserve to be informed. At the very least the education process should begin before the case is settled.
If you are a plaintiff, or the plaintiff's guardian, and your attorney has not brought in a settlement planner, do your own research and bring in a settlement planner, who will provide expertise and work in conjunction with your attorney as part of your team. Do not wait or simply rely on the guardian ad litem after the case settles.
Isn't it time that Kelly Ramsdale Associates and Dakota Structures (and anyone else using it ) to scrap the use of the error laden Lawyers Weekly USA "pink elephant" on their websites?
San Jose, CA based Settlement Planners.com inaccurately states "The ad litem settled for an additional $2.5 million. In case you don't have your calculator handy, that's more than $4 million, all because the plaintiff was not told about a structured settlement". Powerful marketing, but obviously the "all because" qualifier makes the statement untrue. That company needs to update its website.
I am all for anything than shows structured settlements in a positive light, but let's keep it real.
The Court of Appeals for the Second District of Texas in an unpublished opinion dated January 14, 1999 (02-297-163-CV) said (at p 7) 'there is no duty imposed on an ad litem to explain his actions to the minor's parents. Accordingly, we hold that as a matter of law, Henry had no duty to explain Grillo Harris Hospital's offer" (of "a structured settlement with qualified assignment"). Again the structured settlement WAS NOT the lynch pin on the loss of Medicaid benefits.
References and other useful information
1. Can I get Medicare if I am under age 65?
If you are under age 65 and disabled, and have been entitled to disability benefits under Social Security or the Railroad Retirement Board for 24 months, you will be automatically entitled to Medicare Part A and Part B beginning the 25th month of disability benefit entitlement. You do not need to do anything to enroll in Medicare. Your Medicare card will be mailed to you about 3 months before your Medicare entitlement date. Source: Medicare website
2. How Do You Qualify For Social Security Disabilty?
Social Security pays benefits to people who cannot work because they have a medical condition that is expected to last at least one year or result in death. Federal law requires this very strict definition of disability. Source: Social Security Administration website.
Certain members of your family may qualify for benefits based on your work. They include:
Your spouse, if he or she is 62 or older;
Your spouse, at any age if he or she is caring for a child of yours who is younger than age 16 or disabled;
Your unmarried child, including an adopted child, or, in some cases, a stepchild or grandchild. The child must be younger than age 18 or younger than 19 if in elementary or secondary school full time; and
Your unmarried child, age 18 or older, if he or she has a disability that started before age 22. (The child’s disability also must meet the definition of disability for adults.)
Did you know that termites have built "cathedrals"? That's right they don't just munch on your porch! It's ironic that the household pest, that the NSSTA uses as a catalytic methaphor for wealth erosion in comparing structured settlements to one aspect of trust accounts, is one of the world's most accomplished "architects". To wit, this "termite cathedral" in Queensland Australia...
NSSTA cites the old adage "it's not what you make, it’s how much you keep" when comparing trusts to structures, uses articles associated with retirement funds to prove its point, but inexplicably ignores the value of trusts in the settlement planning process.
NSSTA cites The Wall Street Journal reporter Ian Salisbury article this week about target-date funds. These funds combine stocks and bonds, with the ratio shifting toward bonds as the “target date” (usually an investor’s retirement) nears.
Citing a new federal report, Salisbury writes that some target-date investors pay up to nine times as much in fees as others pay. “The funds' high fees could end up adding years to the time many workers will need to punch the clock,” he writes.
NSSTA suggests that you keep that in mind when you’re settling a lawsuit.
That structured settlement payments are exempt from state and federal income taxes, as well as taxes on interest, dividends and the alternative minimum tax ("AMT").With a structured settlement, there are no management or other ongoing fees. By contrast, NSSTA says, "trusts are taxed at a rate equal to or higher than regular individual income taxes. Trusts also often require annual management fees, which further reduce the overall return".
Comments
A balanced approach is a good approach.
NSSTA's point is too simplistic. Taxation of trusts may be affected by whether the trust is a grantor, non grantor simple or complex. Many settlement trusts are grantor trusts which are generally taxed at the rate of the grantor. Rules on Taxation of Grantor Trusts
Sometimes the reasons for using a trust in a settlement plan are more compelling than achieving the highest return. Said a different way, sometimes the highest return is not consistent with the goal of preservation of capital for those that are naturally (or by necessity) risk averse.
Trusts may be funded with tax exempt obligations or managed for optimal tax efficiency, particularly when medicals are involved.
Many NSSTA members actively use trusts as part of the settlement solution and NSSTA posts information about Special Needs Trusts on its home page. Trust vendors sponsor the NSSTA website and regularly attend NSSTA Regional and Annual meetings. Such an article needlessly disparages these sponsors and diminishes the intellectual credibilty of the trade association.
The following is a direct quote from the website of a member of the Registry of Settlement Planners Board that is inaccurate:
"Instead of taking the entire settlement or judgment in cash, you have the option to “structure” all or a portion of your recovery in order to generate future payments designed to coordinate with your future needs.
The original defendant will generally “assign” his/her obligation to make the future payments to a major life insurance company (such as New York Life, MetLife, John Hancock, MassMutual, etc) and the payments are then paid to you by the life insurance company in the form of an annuity." from website of Settlement Professionals, Inc. West Linn, Oregon , as of October 16, 2010.
First of all, SPI misinforms the reader by implying that the assignee and the life insurance company are one and the same.
Following is a flow chart which explains how a structured settlement works FACT: Generally, qualified assignment companies are special purpose companies not life insurance companies.
As you can see from the above chart, after the obligation to make payments is assigned to the qualified assignment company in step 2, the qualified assignment company purchases a structured annuity from a life insurance company as a "qualified funding asset". Of the current structured settlement annuity writers only the assignee where a New York Life Insurance Company annuity is used as a "qualified funding asset" is a life insurance company. Moreiver, MassMutual has not offered structured settlements for several years. Even when they did the qualified assignment company was not a life insurance company.
I am embarrassed as a Registered Settlement Planner ("RSP") that a member of the RSP board, that passes judgment on those seeking the RSP professional designation (a professional designation that I respect and worked hard to achieve) has failed to accurately articulate a foundational structured settlement concept (i.e. "Structured Settlements 101").
Frankly it doesn't matter if you frame yourself as "plaintiff loyal", "plaintiff exclusive", "plaintiff-centric", a centrist or defense oriented if your information isn't good.
A Society of Settlement Planners Board member needs to get their facts straight. Based on what appears on the Settlement Professionals Inc. website today, former SSP President Jack Meligan, gifted settlement planner from Oregon and yellow highlighter "black belt", could never be confused for someone who actual read the two legal cases that he cites,and uses, in an attempt scare plaintiff attorneys into doing business.
On the subject of Limiting Plaintiff Liability, Meligan writes (highlights included):
In Macomber v. Travelers Property & Casualty Corp. and Lyons v. Medical Malpractice Insurance Assoc.,plaintiff attorneys have been sued for the harm sustained by their clients at the hands of the defense-provided structured settlement brokers.
Reality
No plaintiff attorneys were named Defendants in the lawsuit captioned Macomber v Travelers Property & Casualty Corp.
The settlement profession has evolved over the years. It is important for plaintiff attorneys and their clients to have someone who is qualified, and that they feel comfortable with, to advise them on settlement planning and transitional financial planning issues. That being said there's no excuse for the likes of Settlement Professionals Inc. or anyone else to promote themselves using unreasonable scare tactics, such as citing facts that don't exist.
What is a Structured Settlement? What You Need to Know Structured settlements and what you need to know about them including a helpful introductory video featuring 2023 A.M. Best Client Recommended Structured Settlement Expert and Registered Settlement Planner John Darer® of 4structures.com® LLC
How Do Structured Settlements Work? How Structured Settlements Work How structured settlements work, including 4structures.com LLC's super helpful structured settlement flow chart/diagram showing how structured settlements fit in on the spectrum of settlement planning solutions.
Rated Ages and Structured Settlement Cost Rated Ages for Structured Settlement Annuities present advantages to all parties. Shift the mortality risk to a life insurance company whose business it it is to assess mortality risk to price its life insurance and annuities. Rated ages boost your structured settlement annuity benefit per premium dollar, or your yield on lifetime payments. Rated ages help to reduce the cost of funding a Medicare Set Aside arrangement where a Structured MSA, is being used { WCMSA LMSA or NFMSA].
Structured Settlement Annuity Companies 2023 Which life insurance companies issue structured settlement annuities going into 2023? A list of current structured annuity issuers, the location of their home offices and their financial ratings from A.M. Best, Moodys, Fitch, Standard & Poors and/or other Tier1 NAIC ratings, with links to their websites and other useful information.
Treasury Funded Structured Settlements Treasury Funded Structured Settlements are a settlement option for the most conservative using the OTHER permissible qualified funding asset under IRC 130(d), United States Treasury Bonds in addition to, or instead of, structured settlement annuities. Treasury Funded Structured Settlements can also be used to fund installment sales, also known as structured sales and other non qualified structured settlements.
Compare Structured Settlement IRR to Other Settlement Alternatives Use the Taxable Equivalent Yield chart to help compare the Internal Rate of Return (IRR) of a structured settlement to other alternative or complementary investments. Need help with the chart? Call 4structures.com® LLC at 888-325-8640
Structured Settlement Payments | Types of Structured Settlements Ways You Can Structure Your Settlement Payments. With a structured settlement you can have more than one type of payment in a single contract. Different types of structured settlement payments can be customized and combined to meet your needs on a stand-alone basis, or in conjunction with other financial products. Diversify your structured settlement, if you wish, by funding with more than one annuity issuer, with treasury funded structured settlements, index linked structured settlement payments and market based structured .
Structured Attorney Fees for Tax Deferral for Contingency Fees Structured attorney fees is a financial strategy that offers a unique way to defer taxes for lawyers and law firms. Lawyers CAN structure their legal fees even if the plaintiff doesn't structure their settlement. There are multiple ways to structure your attorney fees, such as the an index linked structured settlement where payments are adjusted based on upside changes in the S&P 500 with no downside and a cap of 5%. Trial Lawyers may also use a special deferred pay/deferred compensation arrangement, if market based returns returns are desired with no cap. Plan NOW for year end! Put structured attorney fee expert John Darer® on your settlement planning team.
Structured Settlement Annuity Company Customer Service Phone Numbers Receiving structured settlement payments from your own structured settlement or inherited structured settlement? You'll like this huge time saver. Click for a comprehensive list of customer service telephone numbers that includes both current AND former structured settlement annuity issuers and reinsurers. If you have simple bank or beneficiary changes, or if the insurance company that issued the structured annuity has merged, sold or spun off its block of structured annuity business (e.g. Aviva, Allstate, Transamerica, AEGON, GE Capital, Liberty, CNA, Confederation Life) or changed its name and you're trying to track them down, here you go! The list is regularly updated. Last updated January 23, 2023.
Structured Settlement Quote Lock-Ins | What You Need To Know What does a Structured Settlement Lock-In Mean? How do plaintiffs, defendants and insurers benefit from a structured settlement quote lock in when finalizing a settlement? How does the defendant/insurer/court benefit from using a structured settlement lock-in? Where to be careful when using structured settlement lock ins.
What Are Structured Settlement Annuities? Structured settlement annuities are annuities that can provide one or more customized annuity payment streams in a single contract. Read about structured settlement annuities here.
History of Structured Settlements Tracing the roots of structured settlements history from 1918, when Congress exempted damages for personal injury or sickness from income tax, to the establishment of structured settlements as a core personal injury settlement planning tool to the present day.
What Are Market Based Structured Settlements? Market based structured settlements are an alternative or supplementary structured settlement solution for the plaintiff, attorney or law firm that:
1. Can afford to take some market risk
2. Have discretionary settlement dollars.
Claimants and attorneys alike may find that market-based structured settlements provide the opportunity to receive tax-free income, or tax-deferred income, while enjoying growth potential.
Firmwide Qualified Settlement Funds Debunked Firmwide qualified settlement funds have been heavily promoted to trial lawyers, but have been debunked in a detailed analysis in a July 2022 legal opinion a tax partner at the law firm of Faegre Drinker Biddle & Reath, LLP. Trial lawyers and firms who have established Firmwide QSFs or coinsidering establishing a Firmwide QSF should read the analysis as part of their evaluation.
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STRUCTURED SETTLEMENTS 4REAL® Blog Is a Popular Source of Structured Settlement News, John Darer Reviews and Information, Settlement Planning News, Tax Deferral and Deferred Income Planning Solutions,
with a stable readership that seeks credible structured settlement information, John Darer Reviews, commentary and/or opinion about topical issues related to settlement planning, targeted to lawyers, injured persons and their family members, guardians, survivors, judges, magistrates, special masters, mediators, administrators, trust companies, insurance company executives and adjusters, financial advisers settlement professionals, financial professionals, insurance regulators, government leaders, federal and state law enforcement, buyers and sellers of structured settlement payment rights, the news media and other interested parties.
4structures.com LLC established this structured settlement blog in 2005. For over 17 years it has been a leading source for critical commentary. The John Darer authored blog has been among the most prolific, regularly providing reviews, fresh structured settlement, settlement planning, litigation recovery management content and commentary. John Darer®, CLU ChFC MSSC CeFT® RSP CLTC, President of Stamford, CT based 4structures.com, LLC, is an experienced New York City area structured settlement expert, structured settlement broker, Certified Financial Transitionist, and Registered Settlement Planner.
In his capacity as a investigative journalist and commentator, and professionally, John Darer passionately believes that shining the light on a business practice is both healthy and newsworthy. It is in the best interest of injury victims, their families and their legal advisers, that the settlement planning discussion involve those that are properly trained in the topic, properly informed on the topic and, with respect to structured settlements, properly licensed and/or appointed). It has significant instructional and deterrent value to other practitioners and firms as well as those who may be caught in the cross hairs.
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Last updated April 20, 2023
New York City Structured Settlement Experts Bridge building settlement consultants who collaborate with clients using a humanistic process, providing creative and reliable advice and support for litigating parties and their lawyers with matters in Courts throughout the New York City metropolitan area
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New York Settlement Planning Expert for NY Attorneys and Residents - YouTube New York settlement expert John Darer's comprehensive approach to Settlement Planning helps New York personal injury lawyers and their clients move through the financial transition resulting from a major life event. CPLR Articles 50A and 50B expertise for New York lawyers
New York Structured Settlement Expert Useful information and ideas about structured settlements, settlement planning and litigation recovery managements for New York residents, New York Lawyers and New York judges
New York General Obligations Law §5-1702 The New York Structured Settlement Protection Act imposes mandatory requirements on the defendant or the defendant's legal representative when a structured settlement is created (as part of the resolution of a case)
Structured Settlements v Structured Judgments Often confused by writers on the Internet, but there IS a difference between structured settlements and structured judgments under CPLR Articles 50A or 50B. Find out more...
Connecticut Structured Settlement Experts 4structures.com LLC is based in Stamford CT and Connectict works with clients all over CT, Greenwich, Stamford, Darien, New Canaan, New Haven, Hartford, West Hartford, West Haven, Torrington, Danbury, Wilton, Ridgefield, Norwalk, Midletown, New London, Westport, Oxford, Stratford, Old Greenwich, Stafford, Storrs, Groton
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In my opinion, John Darer is an excellent consumer advocate in the insurance industry. When I had no one else to turn to after running up against the stone walls of these giant insurance company, John Darer used hours of his own time to investigate my situation. Not only is this an invaluable service to me the consumer but it is also of great value to the insurance industry by providing them consumer feed-back. This allows the insurance companies to correct their faults and move toward greater transparency which improves the overall public image of the insurance industry as a whole" JW 9/4/2014
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I have found the intelligent and forthright information on your site a godsend. So much so I have tried in a small way to pass on my findings to others. Please keep up the good work and enhance your well deserved reputation as the authority on this subject- Mike 4/29/2011
John -
I can't thank you enough for bringing this to my attention. In my wildest dreams... PJ-May 12, 2011
John, I love reading your blog! Not only have I found very useful information there, but the comedy is much appreciated! Thanks for talking about "the big pink elephant in the living room" that everyone else ignores!
Thank you again for your help via phone and blog! I really needed to hear what you had to say today! BM 11/23/2010
John—this (video published 11/2010) is a well done piece. I like the way you always stick to the facts-AM
What a wonderful blog you have! I have completely enjoyed reading some of your posts (4/16/2010)
Thank you so very much for discussing my concerns about Symetra, my annuity company. I am amazed that PI attorneys as well as a settlement broker in San Diego, could not answer the simplest questions I had regarding the Safeco/Symetra issue. Your blog/web site is most interesting and informative, and I am grateful you have take on the "watchdog" role!
Thank you so much again (3/25/10)
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I heard a radio ad for the Peachtree Settlement Fund as I was driving into work this morning. (San Francisco Bay area.) I decided to check it out on the Internet and came upon your blog. Thank you very much. I do not have a “structured” settlement,
"All the others that I had emailed & have seen on the net were "cash now types" & have no concern of me & just are looking for my $$$. When I came across your site & blog I realized that u are an upstanding guy & are not like others. That's why I emailed"
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Structured Settlement Best Practices Corner
New York Insurance Advertising law requires the full name of the Insurer to be listed along with the city and state of the principal office. Stating that you represent these fine companies using Insurance company logos without the preceding information are also illegal
When it comes to settlement documents it is the ultimate responsibility of the lawyers or claims adjusters who receive input concerning the structured settlement aspects of the documents to actually read the entire document, exercise independent thought and advise their clients properly
Be aware that financial advisors use of testimonials is prohibited or restricted
Most states require that Testimonials represent the CURRENT opinion of the person who made the testimonial. Be prepared to back it up.
Number of States That Prohibit Payment of QSF expenses by licensed agents and brokers
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Comments and Trackback Policy
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Jay J. Sangerman, PLLC A New York and Florida based AV rated estate planning law practice with an emphasis in Supplemental Needs Trusts, which assists attorneys in efficient case settlement though the use of Supplemental Needs Trusts and Special Needs Trusts; and Elder Law
Day Pitney LLP - People - Keith Bradoc Gallant Brad's practice includes traditional trust and estate planning and administration, special needs and disabilities planning, planning for same-sex couples and their families, planning for incapacity, and all types of probate litigation.
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Why Take a Structured Settlement?
A structured settlement offers guaranteed financial security to personal injury victims, wrongful death survivors and their families. A structured settlement involves a customized stream of payments, provides long-term stable tax-free income, for a period of years or a lifetime. Unlike other income annuities. a structured settlement annuity can have multiple payment streams to address multiple needs in a single contract.
London Market Structured Settlements Experts Bridge building settlement consulting using a humanistic process, providing creative and reliable support for London Market Insurers, Lloyds Syndicates, Claims Professionals and Lawyers
New York Structured Settlement Experts Bridge building settlement consultants who collaborate with clients using a humanistic process, providing creative and reliable advice and support for litigating parties and their lawyers.
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