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H0237aaS........................................................by BUSINESS UNIFORM COMMERCIAL CODE - DAMAGES/BENEFITS - Amends existing law to exclude from application of the Uniform Commercial Code a claim or right to receive compensation for certain damages described under specified federal law, and a claim or right to receive benefits under a special needs trust under specified federal law. 02/14 House intro - 1st rdg - to printing 02/15 Rpt prt - to Bus 02/16 Rpt out - rec d/p - to 2nd rdg 02/19 2nd rdg - to 3rd rdg 02/22 3rd rdg - PASSED - 62-0-8 AYES -- Barraclough, Barrett, Bedke, Bell, Bieter, Black, Bolz, Bradford, Bruneel, Callister, Campbell, Chase, Clark, Collins, Crow, Cuddy, Deal, Denney, Ellis, Ellsworth, Eskridge, Field(13), Field(20), Gagner, Hadley, Harwood, Henbest, Higgins, Hornbeck, Jaquet, Jones, Kellogg, Kendell, Kunz, Langford, Loertscher, Mader, Marley, McKague, Meyer, Mortensen, Moss, Moyle, Pearce, Pischner, Pomeroy, Raybould, Roberts, Robison, Sali, Schaefer, Sellman, Shepherd, Smith, Smylie, Stevenson, Stone, Tilman, Trail, Wheeler, Wood, Young NAYS -- None Absent and excused -- Boe, Gould, Hammond, Lake, Montgomery, Ridinger, Swan, Mr. Speaker Floor Sponsor -- Gagner Title apvd - to Senate 02/23 Senate intro - 1st rdg - to Com/HuRes 03/12 Rpt out - to 14th Ord Rpt out amen - to 1st rdg as amen 03/13 1st rdg - to 2nd rdg as amen 03/14 2nd rdg - to 3rd rdg as amen 03/15 3rd rdg as amen - PASSED - 31-0-4 AYES -- Andreason, Boatright, Branch(Bartlett), Brandt, Bunderson, Burtenshaw, Danielson, Darrington, Davis, Deide, Dunklin, Frasure, Geddes, Goedde, Hawkins, Ingram, Ipsen, Keough, King-Barrutia, Lee, Noh, Richardson, Risch, Sandy, Schroeder, Sims, Sorensen, Stegner, Stennett, Thorne, Whitworth NAYS -- None Absent and excused -- Cameron, Lodge, Wheeler, Williams Floor Sponsors -- Davis & Andreason Title apvd - to House 03/19 House concurred in Senate amens - to engros 03/20 Rpt engros - 1st rdg - to 2nd rdg as amen 03/21 2nd rdg - to 3rd rdg as amen 03/26 3rd rdg as amen - PASSED - 62-0-8 AYES -- Barraclough, Barrett, Bedke, Bieter, Black, Boe, Bolz, Bruneel, Callister, Campbell, Chase, Clark, Collins, Crow, Cuddy, Deal, Denney, Ellis, Ellsworth, Eskridge, Field(13), Field(20), Gagner, Gould, Hadley, Hammond, Hansen, Harwood, Henbest(Farley), Higgins, Hornbeck, Jaquet, Jones, Kellogg, Kendell, Lake, Langford, Mader, Marley, McKague, Meyer, Montgomery, Mortensen, Moss, Moyle, Pearce, Pomeroy, Raybould, Ridinger, Roberts, Robison, Sali, Schaefer, Sellman, Shepherd, Smith, Smylie, Stevenson, Tilman, Trail, Young, Mr. Speaker NAYS -- None Absent and excused -- Bell, Bradford, Kunz, Loertscher, Pischner, Stone, Wheeler, Wood Floor Sponsor -- Gagner Title apvd - to enrol Rpt enrol - sp signed 03/28 Pres signed 03/29 To Governor 04/02 Governor signed Session Law Chapter 299 Effective: 07/01/01
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-sixth Legislature First Regular Session - 2001IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 237 BY BUSINESS COMMITTEE 1 AN ACT 2 RELATING TO THE UNIFORM COMMERCIAL CODE; AMENDING SECTION 28-9-109, AS ADDED 3 BY HOUSE BILL NO. 205, ENACTED BY THE FIRST REGULAR SESSION OF THE 4 FIFTY-SIXTH IDAHO LEGISLATURE, TO EXCLUDE FROM THE APPLICATION OF CHAPTER 5 9, TITLE 28, IDAHO CODE, A CLAIM OR RIGHT TO RECEIVE WORKER'S COMPENSATION 6 FOR CERTAIN DAMAGES AS DESCRIBED UNDER SPECIFIED FEDERAL LAW AND A CLAIM 7 OR RIGHT TO RECEIVE BENEFITS UNDER A SPECIAL NEEDS TRUST AS DESCRIBED 8 UNDER SPECIFIED FEDERAL LAW. 9 Be It Enacted by the Legislature of the State of Idaho: 10 SECTION 1. That Section 28-9-109, Idaho Code, as added by House Bill No. 11 205, enacted by the First Regular Session of the Fifty-sixth Idaho Legisla- 12 ture, be, and the same is hereby amended to read as follows: 13 28-9-109. SCOPE. (a) Except as otherwise provided in subsections (c) and 14 (d), this chapter applies to: 15 (1) A transaction, regardless of its form, that creates a security inter- 16 est in personal property or fixtures by contract; 17 (2) An agricultural lien; 18 (3) A sale of accounts, chattel paper, payment intangibles or promissory 19 notes; 20 (4) A consignment; 21 (5) A security interest arising under section 28-2-401, 28-2-505, 22 28-2-711(3) or 28-12-508(5), as provided in section 28-9-110; and 23 (6) A security interest arising under section 28-4-210 or 28-5-120. 24 (b) The application of this chapter to a security interest in a secured 25 obligation is not affected by the fact that the obligation is itself secured 26 by a transaction or interest to which this chapter does not apply. 27 (c) This chapter does not apply to the extent that: 28 (1) A statute, regulation, or treaty of the United States preempts this 29 chapter; 30 (2) Another statute of this state expressly governs the creation, perfec- 31 tion, priority or enforcement of a security interest created by this state 32 or a governmental unit of this state; 33 (3) A statute of another state, a foreign country, or a governmental unit 34 of another state or a foreign country, other than a statute generally 35 applicable to security interests, expressly governs creation, perfection, 36 priority or enforcement of a security interest created by the state, coun- 37 try or governmental unit; or 38 (4) The rights of a transferee beneficiary or nominated person under a 39 letter of credit are independent and superior under section 28-5-114. 40 (d) This chapter does not apply to: 41 (1) A landlord's lien, other than an agricultural lien; 42 (2) A lien, other than an agricultural lien, given by statute or other 43 rule of law for services or materials, but section 28-9-333 applies with 2 1 respect to priority of the lien; 2 (3) An assignment of a claim for wages, salary or other compensation of 3 an employee; 4 (4) A sale of accounts, chattel paper, payment intangibles or promissory 5 notes as part of a sale of the business out of which they arose; 6 (5) An assignment of accounts, chattel paper, payment intangibles or 7 promissory notes which is for the purpose of collection only; 8 (6) An assignment of a right to payment under a contract to an assignee 9 that is also obligated to perform under the contract; 10 (7) An assignment of a single account, payment intangible or promissory 11 note to an assignee in full or partial satisfaction of a preexisting 12 indebtedness; 13 (8) A transfer of an interest in or an assignment of a claim under a pol- 14 icy of insurance, other than an assignment by or to a health care provider 15 of a health care insurance receivable and any subsequent assignment of the 16 right to payment, but sections 28-9-315 and 28-9-322 apply with respect to 17 proceeds and priorities in proceeds; 18 (9) An assignment of a right represented by a judgment, other than a 19 judgment taken on a right to payment that was collateral; 20 (10) A right of recoupment or set-off, but: 21 (A) section 28-9-340 applies with respect to the effectiveness of 22 rights of recoupment or set-off against deposit accounts; and 23 (B) section 28-9-404 applies with respect to defenses or claims of 24 an account debtor; 25 (11) The creation or transfer of an interest in or lien on real property, 26 including a lease or rents thereunder, except to the extent that provision 27 is made for: 28 (A) liens on real property in sections 28-9-203 and 28-9-308; 29 (B) fixtures in section 28-9-334; 30 (C) fixture filings in sections 28-9-501, 28-9-502, 28-9-512, 31 28-9-516 and 28-9-519; and 32 (D) security agreements covering personal and real property in sec- 33 tion 28-9-604; 34 (12) An assignment of a claim arising in tort, other than a commercial 35 tort claim, but sections 28-9-315 and 28-9-322 apply with respect to pro- 36 ceeds and priorities in proceeds;or37 (13) A claim or right to receive compensation for injuries or sickness as 38 described in 26 U.S.C. section 104(a)(1) or (2), as amended from time to 39 time; or 40 (14) A claim or right to receive benefits under a special needs trust as 41 described in 42 U.S.C. section 1396p(d)(4), as amended from time to time.
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-sixth Legislature First Regular Session - 2001Moved by Davis Seconded by Andreason IN THE SENATE SENATE AMENDMENT TO H.B. NO. 237 1 AMENDMENTS TO SECTION 1 2 On page 2 of the printed bill, in line 37, following "(13)" insert: "(A)"; 3 in line 38, following "described in" insert: "(i)"; and also in line 38, 4 delete "or (2), as amended from time to"; and in line 39, delete "time" and 5 insert: ", as amended from time to timeand (ii) on and after the effective 6 date of this chapter, in 26 U.S.C. section 104(a)(2), as those sections may be 7 amended from time to time. Notwithstanding the foregoing, this chapter (other 8 than sections 28-9-406(d) and 28-9-408(a) and (c), Idaho Code, in the case of 9 transfers made on and after the effective date of this chapter) shall apply to 10 such compensation as described in 26 U.S.C. section 104(a)(2) if the sale, 11 pledge, assignment or other transfer of rights to receive such compensation 12 under a structured settlement is approved by the final order of a court pursu- 13 ant to, and otherwise complies with, the requirements of paragraph (B) of this 14 subsection. 15 (B) (i) Definitions. For purposes of this subsection: 16 1. "annuity issuer" means an insurer that has issued a 17 contract to fund periodic payments under a structured set- 18 tlement; 19 2. "dependents" include a payee's spouse and minor chil- 20 dren and all other persons for whom the payee is legally 21 obligated to provide support, including alimony; 22 3. "discounted present value" means the present value of 23 future payments determined by discounting such payments to 24 the present using the most recently published applicable 25 federal rate for determining the present value of an annu- 26 ity, as issued by the United States internal revenue ser- 27 vice; 28 4. "gross advance amount" means the sum payable to the 29 payee or for the payee's account as consideration for a 30 transfer of structured settlement payment rights before any 31 reductions for transfer expenses or other deductions to be 32 made from such consideration; 33 5. "independent professional advice" means advice of an 34 attorney, certified public accountant, actuary or other 35 licensed professional adviser; 36 6. "interested parties" means, with respect to any struc- 37 tured settlement, the payee, any beneficiary irrevocably 38 designated under the annuity contract to receive payments 39 following the payee's death, the annuity issuer, the struc- 40 tured settlement obligor, and any other party that has con- 41 tinuing rights or obligations under such structured settle- 42 ment; 43 7. "net advance amount" means the gross advance amount 44 less the aggregate amount of the actual and estimated 2 1 transfer expenses required to be disclosed under 2 paragraph (B)(ii)5. of this subsection; 3 8. "payee" means an individual who is receiving tax free 4 payments under a structured settlement and proposes to make 5 a transfer of payment rights thereunder; 6 9. "periodic payments" includes both recurring payments 7 and scheduled future lump sum payments; 8 10. "qualified assignment agreement" means an agreement 9 providing for a qualified assignment within the meaning of 10 26 U.S.C. section 130, as amended from time to time; 11 11. "settled claim" means the original tort claim resolved 12 by a structured settlement; 13 12. "structured settlement" means an arrangement for peri- 14 odic payment of damages for personal injuries or sickness 15 established by settlement or judgment in resolution of a 16 tort claim; 17 13. "structured settlement agreement" means the agreement, 18 judgment, stipulation, or release embodying the terms of a 19 structured settlement; 20 14. "structured settlement obligor" means, with respect to 21 any structured settlement, the party that has the continu- 22 ing obligation to make periodic payments to the payee under 23 a structured settlement agreement or a qualified assignment 24 agreement; 25 15. "structured settlement payment rights" means rights to 26 receive periodic payments under a structured settlement, 27 whether from the structured settlement obligor or the annu- 28 ity issuer, where: 29 A. the payee is domiciled in, or the domicile or 30 principal place of business of the structured settle- 31 ment obligor or the annuity issuer is located in, this 32 state; or 33 B. the structured settlement agreement was approved 34 by a court in this state; or 35 C. the structured settlement agreement is expressly 36 governed by the laws of this state; 37 16. "terms of the structured settlement" include, with 38 respect to any structured settlement, the terms of the 39 structured settlement agreement, the annuity contract, any 40 qualified assignment agreement and any order or other 41 approval of any court or other government authority that 42 authorized or approved such structured settlement; 43 17. "transfer" means any sale, assignment, pledge, hypothe- 44 cation or other alienation or encumbrance of structured 45 settlement payment rights made by a payee for consider- 46 ation; provided that the term "transfer" does not include 47 the creation or perfection of a security interest in struc- 48 tured settlement payment rights under a blanket security 49 agreement entered into with an insured depository institu- 50 tion, in the absence of any action to redirect the struc- 51 tured settlement payments to such insured depository insti- 52 tution, or an agent or successor in interest thereof, or 53 otherwise to enforce such blanket security interest against 54 the structured settlement payment rights; 55 18. "transfer agreement" means the agreement providing for 3 1 a transfer of structured settlement payment rights; 2 19. "transfer expenses" means all expenses of a transfer 3 that are required under the transfer agreement to be paid 4 by the payee or deducted from the gross advance amount, 5 including, without limitation, court filing fees, 6 attorney's fees, escrow fees, lien recordation fees, judg- 7 ment and lien search fees, finder's fees, commissions, and 8 other payments to a broker or other intermediary; "transfer 9 expenses" do not include preexisting obligations of the 10 payee payable for the payee's account from the proceeds of 11 a transfer; 12 20. "transferee" means a party acquiring or proposing to 13 acquire structured settlement payment rights through a 14 transfer. 15 (ii) Required disclosures to payee. Not less than three (3) 16 days prior to the date on which a payee signs a transfer agree- 17 ment, the transferee shall provide to the payee a separate dis- 18 closure statement, in bold type no smaller than fourteen (14) 19 points, setting forth: 20 1. the amounts and due dates of the structured settlement 21 payments to be transferred; 22 2. the aggregate amount of such payments; 23 3. the discounted present value of the payments to be 24 transferred, which shall be identified as the "calculation 25 of current value of the transferred structured settlement 26 payments under federal standards for valuing annuities," 27 and the amount of the applicable federal rate used in cal- 28 culating such discounted present value; 29 4. the gross advance amount; 30 5. an itemized listing of all applicable transfer 31 expenses, other than attorney's fees and related disburse- 32 ments payable in connection with the transferee's applica- 33 tion for approval of the transfer, and the transferee's 34 best estimate of the amount of any such fees and disburse- 35 ments; 36 6. the net advance amount; 37 7. the amount of any penalties or liquidated damages pay- 38 able by the payee in the event of any breach of the trans- 39 fer agreement by the payee; and 40 8. a statement that the payee has the right to cancel the 41 transfer agreement, without penalty or further obligation, 42 not later than the third business day after the date the 43 agreement is signed by the payee. 44 (iii) Approval of transfers of structured settlement payment 45 rights. 46 1. No direct or indirect transfer of structured settlement 47 payment rights shall be effective and no structured settle- 48 ment obligor or annuity issuer shall be required to make 49 any payment directly or indirectly to any transferee of 50 structured settlement payment rights unless the transfer 51 has been approved in advance in a final court order based 52 on express findings by such court that: 53 A. the transfer is in the best interest of the payee, 54 taking into account the welfare and support of the 55 payee's dependents; 4 1 B. the payee has been advised in writing by the 2 transferee to seek independent professional advice 3 regarding the transfer and has either received such 4 advice or knowingly waived such advice in writing; and 5 C. the transfer does not contravene any applicable 6 statute or the order of any court or other government 7 authority. 8 (iv) Effects of transfer of structured settlement payment 9 rights. Following a transfer of structured settlement payment 10 rights under this subsection: 11 1. The structured settlement obligor and the annuity 12 issuer shall, as to all parties except the transferee, be 13 discharged and released from any and all liability for the 14 transferred payments; 15 2. The transferee shall be liable to the structured set- 16 tlement obligor and the annuity issuer: 17 A. if the transfer contravenes the terms of the 18 structured settlement, for any taxes incurred by such 19 parties as a consequence of the transfer; and 20 B. for any other liabilities or costs, including rea- 21 sonable costs and attorney's fees, arising from com- 22 pliance by such parties with the order of the court or 23 arising as a consequence of the transferee's failure 24 to comply with this subsection; 25 3. Neither the annuity issuer nor the structured settle- 26 ment obligor may be required to divide any periodic payment 27 between the payee and any transferee or assignee or between 28 two (2) or more transferees or assignees; and 29 4. Any further transfer of structured settlement payment 30 rights by the payee may be made only after compliance with 31 all of the requirements of this subsection. 32 (v) Procedure for approval of transfers. 33 1. An application under this subsection for approval of a 34 transfer of structured settlement payment rights shall be 35 made by the transferee and may be brought in the county in 36 which the payee resides, in the county in which the struc- 37 tured settlement obligor or the annuity issuer maintains 38 its principal place of business, or in any court which 39 approved the structured settlement agreement. 40 2. Not less than twenty (20) days prior to the scheduled 41 hearing on any application for approval of a transfer of 42 structured settlement payment rights under paragraph 43 (B)(iii) of this subsection, the transferee shall file with 44 the court and serve on all interested parties a notice of 45 the proposed transfer and the application for its authori- 46 zation, including with such notice: 47 A. a copy of the transferee's application; 48 B. a copy of the transfer agreement; 49 C. a copy of the disclosure statement required under 50 paragraph (B)(ii) of this subsection; 51 D. a listing of each of the payee's dependents, 52 together with each dependent's age; 53 E. notification that any interested party is entitled 54 to support, oppose or otherwise respond to the 55 transferee's application, either in person or by coun- 5 1 sel, by submitting written comments to the court or by 2 participating in the hearing; and 3 F. notification of the time and place of the hearing 4 and notification of the manner in which and the time 5 by which written responses to the application must be 6 filed (which shall be not less than fifteen (15) days 7 after service of the transferee's notice) in order to 8 be considered by the court. 9 (vi) General provisions -- construction. 10 1. The provisions of this subsection may not be waived by 11 any payee. 12 2. Any transfer agreement entered into on or after the 13 effective date of this subsection by a payee who resides in 14 this state shall provide that disputes under such transfer 15 agreement, including any claim that the payee has breached 16 the agreement, shall be determined in and under the laws of 17 this state. No such transfer agreement shall authorize the 18 transferee or any other party to confess judgment or con- 19 sent to entry of judgment against the payee. 20 3. No transfer of structured settlement payment rights 21 shall extend to any payments that are life-contingent 22 unless, prior to the date on which the payee signs the 23 transfer agreement, the transferee has established and has 24 agreed to maintain procedures reasonably satisfactory to 25 the annuity issuer and the structured settlement obligor 26 for (i) periodically confirming the payee's survival, and 27 (ii) giving the annuity issuer and the structured settle- 28 ment obligor prompt written notice in the event of the 29 payee's death. 30 4. No payee who proposes to make a transfer of structured 31 settlement payment rights shall incur any penalty, forfeit 32 any application fee or other payment, or otherwise incur 33 any liability to the proposed transferee or any assignee 34 based on any failure of such transfer to satisfy the condi- 35 tions of this subsection. 36 5. Nothing contained in this subsection shall be construed 37 to authorize any transfer of structured settlement payment 38 rights in contravention of any law or to imply that any 39 transfer under a transfer agreement entered into prior to 40 the effective date of this subsection is valid or invalid. 41 6. Compliance with the requirements set forth in paragraph 42 (B)(ii) of this subsection and fulfillment of the condi- 43 tions set forth in paragraph (B)(iii) of this subsection 44 shall be solely the responsibility of the transferee in any 45 transfer of structured settlement payment rights, and nei- 46 ther the structured settlement obligor nor the annuity 47 issuer shall bear any responsibility for, or any liability 48 arising from, noncompliance with such requirements or fail- 49 ure to fulfill such conditions. 50 (vii) Effective date. This subsection shall apply to any trans- 51 fer of structured settlement payment rights under a transfer 52 agreement entered into on or after the thirtieth day after the 53 date of enactment of this subsection; provided however, that 54 nothing contained herein shall imply that any transfer under a 55 transfer agreement reached prior to such date is either effec- 6 1 tive or ineffective". 2 CORRECTION TO TITLE 3 On page 1, in line 5, delete "WORKER'S".
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-sixth Legislature First Regular Session - 2001IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 237, As Amended in the Senate BY BUSINESS COMMITTEE 1 AN ACT 2 RELATING TO THE UNIFORM COMMERCIAL CODE; AMENDING SECTION 28-9-109, AS ADDED 3 BY HOUSE BILL NO. 205, ENACTED BY THE FIRST REGULAR SESSION OF THE 4 FIFTY-SIXTH IDAHO LEGISLATURE, TO EXCLUDE FROM THE APPLICATION OF CHAPTER 5 9, TITLE 28, IDAHO CODE, A CLAIM OR RIGHT TO RECEIVE COMPENSATION FOR CER- 6 TAIN DAMAGES AS DESCRIBED UNDER SPECIFIED FEDERAL LAW AND A CLAIM OR RIGHT 7 TO RECEIVE BENEFITS UNDER A SPECIAL NEEDS TRUST AS DESCRIBED UNDER SPECI- 8 FIED FEDERAL LAW. 9 Be It Enacted by the Legislature of the State of Idaho: 10 SECTION 1. That Section 28-9-109, Idaho Code, as added by House Bill No. 11 205, enacted by the First Regular Session of the Fifty-sixth Idaho Legisla- 12 ture, be, and the same is hereby amended to read as follows: 13 28-9-109. SCOPE. (a) Except as otherwise provided in subsections (c) and 14 (d), this chapter applies to: 15 (1) A transaction, regardless of its form, that creates a security inter- 16 est in personal property or fixtures by contract; 17 (2) An agricultural lien; 18 (3) A sale of accounts, chattel paper, payment intangibles or promissory 19 notes; 20 (4) A consignment; 21 (5) A security interest arising under section 28-2-401, 28-2-505, 22 28-2-711(3) or 28-12-508(5), as provided in section 28-9-110; and 23 (6) A security interest arising under section 28-4-210 or 28-5-120. 24 (b) The application of this chapter to a security interest in a secured 25 obligation is not affected by the fact that the obligation is itself secured 26 by a transaction or interest to which this chapter does not apply. 27 (c) This chapter does not apply to the extent that: 28 (1) A statute, regulation, or treaty of the United States preempts this 29 chapter; 30 (2) Another statute of this state expressly governs the creation, perfec- 31 tion, priority or enforcement of a security interest created by this state 32 or a governmental unit of this state; 33 (3) A statute of another state, a foreign country, or a governmental unit 34 of another state or a foreign country, other than a statute generally 35 applicable to security interests, expressly governs creation, perfection, 36 priority or enforcement of a security interest created by the state, coun- 37 try or governmental unit; or 38 (4) The rights of a transferee beneficiary or nominated person under a 39 letter of credit are independent and superior under section 28-5-114. 40 (d) This chapter does not apply to: 41 (1) A landlord's lien, other than an agricultural lien; 42 (2) A lien, other than an agricultural lien, given by statute or other 43 rule of law for services or materials, but section 28-9-333 applies with 2 1 respect to priority of the lien; 2 (3) An assignment of a claim for wages, salary or other compensation of 3 an employee; 4 (4) A sale of accounts, chattel paper, payment intangibles or promissory 5 notes as part of a sale of the business out of which they arose; 6 (5) An assignment of accounts, chattel paper, payment intangibles or 7 promissory notes which is for the purpose of collection only; 8 (6) An assignment of a right to payment under a contract to an assignee 9 that is also obligated to perform under the contract; 10 (7) An assignment of a single account, payment intangible or promissory 11 note to an assignee in full or partial satisfaction of a preexisting 12 indebtedness; 13 (8) A transfer of an interest in or an assignment of a claim under a pol- 14 icy of insurance, other than an assignment by or to a health care provider 15 of a health care insurance receivable and any subsequent assignment of the 16 right to payment, but sections 28-9-315 and 28-9-322 apply with respect to 17 proceeds and priorities in proceeds; 18 (9) An assignment of a right represented by a judgment, other than a 19 judgment taken on a right to payment that was collateral; 20 (10) A right of recoupment or set-off, but: 21 (A) section 28-9-340 applies with respect to the effectiveness of 22 rights of recoupment or set-off against deposit accounts; and 23 (B) section 28-9-404 applies with respect to defenses or claims of 24 an account debtor; 25 (11) The creation or transfer of an interest in or lien on real property, 26 including a lease or rents thereunder, except to the extent that provision 27 is made for: 28 (A) liens on real property in sections 28-9-203 and 28-9-308; 29 (B) fixtures in section 28-9-334; 30 (C) fixture filings in sections 28-9-501, 28-9-502, 28-9-512, 31 28-9-516 and 28-9-519; and 32 (D) security agreements covering personal and real property in sec- 33 tion 28-9-604; 34 (12) An assignment of a claim arising in tort, other than a commercial 35 tort claim, but sections 28-9-315 and 28-9-322 apply with respect to pro- 36 ceeds and priorities in proceeds;or37 (13) (A) A claim or right to receive compensation for injuries or sick- 38 ness as described in (i) 26 U.S.C. section 104(a)(1), as amended from time39to timeand (ii) on and after the effective date of this chapter, in 26 40 U.S.C. section 104(a)(2), as those sections may be amended from time to 41 time. Notwithstanding the foregoing, this chapter (other than sections 42 28-9-406(d) and 28-9-408(a) and (c), Idaho Code, in the case of transfers 43 made on and after the effective date of this chapter) shall apply to such 44 compensation as described in 26 U.S.C. section 104(a)(2) if the sale, 45 pledge, assignment or other transfer of rights to receive such compensa- 46 tion under a structured settlement is approved by the final order of a 47 court pursuant to, and otherwise complies with, the requirements of para- 48 graph (B) of this subsection. 49 (B) (i) Definitions. For purposes of this subsection: 50 1. "annuity issuer" means an insurer that has issued a 51 contract to fund periodic payments under a structured set- 52 tlement; 53 2. "dependents" include a payee's spouse and minor chil- 54 dren and all other persons for whom the payee is legally 55 obligated to provide support, including alimony; 3 1 3. "discounted present value" means the present value of 2 future payments determined by discounting such payments to 3 the present using the most recently published applicable 4 federal rate for determining the present value of an annu- 5 ity, as issued by the United States internal revenue ser- 6 vice; 7 4. "gross advance amount" means the sum payable to the 8 payee or for the payee's account as consideration for a 9 transfer of structured settlement payment rights before any 10 reductions for transfer expenses or other deductions to be 11 made from such consideration; 12 5. "independent professional advice" means advice of an 13 attorney, certified public accountant, actuary or other 14 licensed professional adviser; 15 6. "interested parties" means, with respect to any struc- 16 tured settlement, the payee, any beneficiary irrevocably 17 designated under the annuity contract to receive payments 18 following the payee's death, the annuity issuer, the struc- 19 tured settlement obligor, and any other party that has con- 20 tinuing rights or obligations under such structured settle- 21 ment; 22 7. "net advance amount" means the gross advance amount 23 less the aggregate amount of the actual and estimated 24 transfer expenses required to be disclosed under 25 paragraph (B)(ii)5. of this subsection; 26 8. "payee" means an individual who is receiving tax free 27 payments under a structured settlement and proposes to make 28 a transfer of payment rights thereunder; 29 9. "periodic payments" includes both recurring payments 30 and scheduled future lump sum payments; 31 10. "qualified assignment agreement" means an agreement 32 providing for a qualified assignment within the meaning of 33 26 U.S.C. section 130, as amended from time to time; 34 11. "settled claim" means the original tort claim resolved 35 by a structured settlement; 36 12. "structured settlement" means an arrangement for peri- 37 odic payment of damages for personal injuries or sickness 38 established by settlement or judgment in resolution of a 39 tort claim; 40 13. "structured settlement agreement" means the agreement, 41 judgment, stipulation, or release embodying the terms of a 42 structured settlement; 43 14. "structured settlement obligor" means, with respect to 44 any structured settlement, the party that has the continu- 45 ing obligation to make periodic payments to the payee under 46 a structured settlement agreement or a qualified assignment 47 agreement; 48 15. "structured settlement payment rights" means rights to 49 receive periodic payments under a structured settlement, 50 whether from the structured settlement obligor or the annu- 51 ity issuer, where: 52 A. the payee is domiciled in, or the domicile or 53 principal place of business of the structured settle- 54 ment obligor or the annuity issuer is located in, this 55 state; or 4 1 B. the structured settlement agreement was approved 2 by a court in this state; or 3 C. the structured settlement agreement is expressly 4 governed by the laws of this state; 5 16. "terms of the structured settlement" include, with 6 respect to any structured settlement, the terms of the 7 structured settlement agreement, the annuity contract, any 8 qualified assignment agreement and any order or other 9 approval of any court or other government authority that 10 authorized or approved such structured settlement; 11 17. "transfer" means any sale, assignment, pledge, hypothe- 12 cation or other alienation or encumbrance of structured 13 settlement payment rights made by a payee for consider- 14 ation; provided that the term "transfer" does not include 15 the creation or perfection of a security interest in struc- 16 tured settlement payment rights under a blanket security 17 agreement entered into with an insured depository institu- 18 tion, in the absence of any action to redirect the struc- 19 tured settlement payments to such insured depository insti- 20 tution, or an agent or successor in interest thereof, or 21 otherwise to enforce such blanket security interest against 22 the structured settlement payment rights; 23 18. "transfer agreement" means the agreement providing for 24 a transfer of structured settlement payment rights; 25 19. "transfer expenses" means all expenses of a transfer 26 that are required under the transfer agreement to be paid 27 by the payee or deducted from the gross advance amount, 28 including, without limitation, court filing fees, 29 attorney's fees, escrow fees, lien recordation fees, judg- 30 ment and lien search fees, finder's fees, commissions, and 31 other payments to a broker or other intermediary; "transfer 32 expenses" do not include preexisting obligations of the 33 payee payable for the payee's account from the proceeds of 34 a transfer; 35 20. "transferee" means a party acquiring or proposing to 36 acquire structured settlement payment rights through a 37 transfer. 38 (ii) Required disclosures to payee. Not less than three (3) 39 days prior to the date on which a payee signs a transfer agree- 40 ment, the transferee shall provide to the payee a separate dis- 41 closure statement, in bold type no smaller than fourteen (14) 42 points, setting forth: 43 1. the amounts and due dates of the structured settlement 44 payments to be transferred; 45 2. the aggregate amount of such payments; 46 3. the discounted present value of the payments to be 47 transferred, which shall be identified as the "calculation 48 of current value of the transferred structured settlement 49 payments under federal standards for valuing annuities," 50 and the amount of the applicable federal rate used in cal- 51 culating such discounted present value; 52 4. the gross advance amount; 53 5. an itemized listing of all applicable transfer 54 expenses, other than attorney's fees and related disburse- 55 ments payable in connection with the transferee's applica- 5 1 tion for approval of the transfer, and the transferee's 2 best estimate of the amount of any such fees and disburse- 3 ments; 4 6. the net advance amount; 5 7. the amount of any penalties or liquidated damages pay- 6 able by the payee in the event of any breach of the trans- 7 fer agreement by the payee; and 8 8. a statement that the payee has the right to cancel the 9 transfer agreement, without penalty or further obligation, 10 not later than the third business day after the date the 11 agreement is signed by the payee. 12 (iii) Approval of transfers of structured settlement payment 13 rights. 14 1. No direct or indirect transfer of structured settlement 15 payment rights shall be effective and no structured settle- 16 ment obligor or annuity issuer shall be required to make 17 any payment directly or indirectly to any transferee of 18 structured settlement payment rights unless the transfer 19 has been approved in advance in a final court order based 20 on express findings by such court that: 21 A. the transfer is in the best interest of the payee, 22 taking into account the welfare and support of the 23 payee's dependents; 24 B. the payee has been advised in writing by the 25 transferee to seek independent professional advice 26 regarding the transfer and has either received such 27 advice or knowingly waived such advice in writing; and 28 C. the transfer does not contravene any applicable 29 statute or the order of any court or other government 30 authority. 31 (iv) Effects of transfer of structured settlement payment 32 rights. Following a transfer of structured settlement payment 33 rights under this subsection: 34 1. The structured settlement obligor and the annuity 35 issuer shall, as to all parties except the transferee, be 36 discharged and released from any and all liability for the 37 transferred payments; 38 2. The transferee shall be liable to the structured set- 39 tlement obligor and the annuity issuer: 40 A. if the transfer contravenes the terms of the 41 structured settlement, for any taxes incurred by such 42 parties as a consequence of the transfer; and 43 B. for any other liabilities or costs, including rea- 44 sonable costs and attorney's fees, arising from com- 45 pliance by such parties with the order of the court or 46 arising as a consequence of the transferee's failure 47 to comply with this subsection; 48 3. Neither the annuity issuer nor the structured settle- 49 ment obligor may be required to divide any periodic payment 50 between the payee and any transferee or assignee or between 51 two (2) or more transferees or assignees; and 52 4. Any further transfer of structured settlement payment 53 rights by the payee may be made only after compliance with 54 all of the requirements of this subsection. 55 (v) Procedure for approval of transfers. 6 1 1. An application under this subsection for approval of a 2 transfer of structured settlement payment rights shall be 3 made by the transferee and may be brought in the county in 4 which the payee resides, in the county in which the struc- 5 tured settlement obligor or the annuity issuer maintains 6 its principal place of business, or in any court which 7 approved the structured settlement agreement. 8 2. Not less than twenty (20) days prior to the scheduled 9 hearing on any application for approval of a transfer of 10 structured settlement payment rights under paragraph 11 (B)(iii) of this subsection, the transferee shall file with 12 the court and serve on all interested parties a notice of 13 the proposed transfer and the application for its authori- 14 zation, including with such notice: 15 A. a copy of the transferee's application; 16 B. a copy of the transfer agreement; 17 C. a copy of the disclosure statement required under 18 paragraph (B)(ii) of this subsection; 19 D. a listing of each of the payee's dependents, 20 together with each dependent's age; 21 E. notification that any interested party is entitled 22 to support, oppose or otherwise respond to the 23 transferee's application, either in person or by coun- 24 sel, by submitting written comments to the court or by 25 participating in the hearing; and 26 F. notification of the time and place of the hearing 27 and notification of the manner in which and the time 28 by which written responses to the application must be 29 filed (which shall be not less than fifteen (15) days 30 after service of the transferee's notice) in order to 31 be considered by the court. 32 (vi) General provisions -- construction. 33 1. The provisions of this subsection may not be waived by 34 any payee. 35 2. Any transfer agreement entered into on or after the 36 effective date of this subsection by a payee who resides in 37 this state shall provide that disputes under such transfer 38 agreement, including any claim that the payee has breached 39 the agreement, shall be determined in and under the laws of 40 this state. No such transfer agreement shall authorize the 41 transferee or any other party to confess judgment or con- 42 sent to entry of judgment against the payee. 43 3. No transfer of structured settlement payment rights 44 shall extend to any payments that are life-contingent 45 unless, prior to the date on which the payee signs the 46 transfer agreement, the transferee has established and has 47 agreed to maintain procedures reasonably satisfactory to 48 the annuity issuer and the structured settlement obligor 49 for (i) periodically confirming the payee's survival, and 50 (ii) giving the annuity issuer and the structured settle- 51 ment obligor prompt written notice in the event of the 52 payee's death. 53 4. No payee who proposes to make a transfer of structured 54 settlement payment rights shall incur any penalty, forfeit 55 any application fee or other payment, or otherwise incur 7 1 any liability to the proposed transferee or any assignee 2 based on any failure of such transfer to satisfy the condi- 3 tions of this subsection. 4 5. Nothing contained in this subsection shall be construed 5 to authorize any transfer of structured settlement payment 6 rights in contravention of any law or to imply that any 7 transfer under a transfer agreement entered into prior to 8 the effective date of this subsection is valid or invalid. 9 6. Compliance with the requirements set forth in paragraph 10 (B)(ii) of this subsection and fulfillment of the condi- 11 tions set forth in paragraph (B)(iii) of this subsection 12 shall be solely the responsibility of the transferee in any 13 transfer of structured settlement payment rights, and nei- 14 ther the structured settlement obligor nor the annuity 15 issuer shall bear any responsibility for, or any liability 16 arising from, noncompliance with such requirements or fail- 17 ure to fulfill such conditions. 18 (vii) Effective date. This subsection shall apply to any trans- 19 fer of structured settlement payment rights under a transfer 20 agreement entered into on or after the thirtieth day after the 21 date of enactment of this subsection; provided however, that 22 nothing contained herein shall imply that any transfer under a 23 transfer agreement reached prior to such date is either effec- 24 tive or ineffective; or 25 (14) A claim or right to receive benefits under a special needs trust as 26 described in 42 U.S.C. section 1396p(d)(4), as amended from time to time.
STATEMENT OF PURPOSE RS 11070 The specific language of this amendment creates two additional categories to which the amended UCC 9 assignment provisions would not apply. The proposed rewrite of UCC 9 (HB 205) already identifies twelve situations where this chapter does not apply. The purpose of this legislation is to establish that the UCC 9, as amended by HB 205, does not apply to claims or rights to receive compensation for injuries or sickness or a claim or right to receive benefits under a Medicaid special needs trust. To qualify for Medicaid benefits, special needs trusts are established and must contain anti-assignment provisions to qualify under Medicaid rules. Prohibiting the assignment or sale of a deferred payment obligation is critical to existing public policies and to securing favorable tax benefits. If this clarification is not made, the newly revised Article 9 could arguably override present restrictions on assignment of these benefits and results in otherwise non-taxable benefits becoming taxable under the Internal Revenue Code. Non-assignment of these benefits is consistent with the public policy of protecting claimants from prematurely dissipating their funds of suffering adverse tax consequences. FISCAL IMPACT There will be no impact to the General Fund. Contact Name: Dawn Justice, Idaho Assoc. of Commerce and Industry Phone: 343-1849 Dave Whaley, Idaho AFL-CIO Dave Kerrick, Idaho Trial Lawyers Assoc. STATEMENT OF PURPOSE/FISCAL NOTE H 23