2001 Legislation
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HOUSE BILL NO. 237 – UCC, claims, damages/benefits

HOUSE BILL NO. 237

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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

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                                                        
                                                                        
                              IN 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; or
 37        (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.

Amendment


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                                                        
                                                                        
                                                     Moved 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 time and (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".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                                                        
                                                                        
                              IN 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; or
 37        (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 time
 39        to  time  and  (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 / Fiscal Impact



                       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