In Re A Transfer Of Structured Settlement Payment Rights By Laurel J. Shanks ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 10, 2014 Session
IN RE A TRANSFER OF STRUCTURED SETTLEMENT PAYMENT RIGHTS BY
LAUREL J. SHANKS
Appeal from the Circuit Court for Hamblen County
No. 13CV101 Thomas J. Wright, Judge
No. E2013-01702-COA-R3-CV-FILED-MAY 27, 2014
The respondent financial services company appeals the trial court’s entry of an order
approving a transfer of the payee’s structured settlement payment rights to the petitioner
financial services company and its assignee, pursuant to Tennessee’s Structured Settlement
Protection Act (“SPPA”). See Tenn. Code Ann. §§ 47-18-2601 to 2607 (2013). The trial
court found that the transfer at issue met all statutory requirements. On appeal, the
respondent company raises the issue of whether the transfer order contravened two prior
court orders partially transferring the payee’s structured settlement payment rights to the
respondent and if so, whether this contravened applicable law under the SSPA. Discerning
no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., C.J., and D. M ICHAEL S WINEY, J., joined.
Jason H. Long, Knoxville, Tennessee, for the appellant, JG Wentworth Originations, LLC.
Paul W. Kruse, Chris Raybeck, and Olatayo O. Atanda, Nashville, Tennessee; and E. John
Gorman, Houston, Texas, pro hac vice, for the appellee, RSL Funding, LLC.
OPINION
I. Factual and Procedural Background
The essential facts underlying this action are undisputed. The structured settlement
rights at issue originated with a settlement agreement entered by the parents of Laurel J.
Shanks on her behalf on June 9, 1994, when Ms. Shanks was a minor. The settlement was
for personal injuries Ms. Shanks suffered from an automobile collision. To fund the
settlement, the structured settlement obligor, Keyport Life Insurance Company (“Keyport”),
purchased an annuity requiring the annuity issuer, Liberty Life Assurance Company of
Boston (“Liberty”), to make periodic payments to Ms. Shanks.
On May 8, 2008, the Anderson County Circuit Court entered an order approving a
transfer of partial structured settlement payment rights from Ms. Shanks to the respondent,
JG Wentworth Originations, LLC (“Wentworth”), as described in a Purchase Agreement
incorporated into the order.1 According to the order, Wentworth was required to pay Ms.
Shanks $16,500 as a lump sum in return for annual payments of $5,000 from July 1, 2008,
through July 1, 2010, and annual payments of $12,500 from July 1, 2015, through July 1,
2016. All periodic payments from Liberty were to be made to Wentworth, which would in
turn forward any unassigned portion of the payments to Ms. Shanks.
On November 24, 2008, the Cocke County Circuit Court entered an order approving
a second transfer of partial structured settlement rights from Ms. Shanks to Wentworth, as
described in a second Purchase Agreement incorporated into the order. This order
transferred additional payments, requiring Wentworth to pay Ms. Shanks $16,750 as a lump
sum in return for one payment of $5,000 due on July 1, 2009; one payment of $5,000 due on
July 1, 2010; one payment of $6,250 due on July 1, 2015; one payment of $6,250 due on July
1, 2016; one payment of $12,500 due on July 1, 2017; one payment of $15,000 due on July
1, 2018; and one payment of $20,000 due on July 1, 2019. As with the previous order, all
periodic payments from Liberty were made to Wentworth, which would forward any
unassigned portions to Ms. Shanks.
On May 20, 2013, the petitioner, RSL Funding, LLC (“RSL”), filed an application in
the Hamblen County Circuit Court (“trial court”), requesting approval of a Transfer
Agreement executed by RSL and Ms. Shanks (“Transfer Agreement”). According to the
Transfer Agreement, RSL would pay Ms. Shanks a lump sum of $40,000 for the remaining
portions of her periodic payments that were not assigned to Wentworth. These consisted of
one payment of $6,250 due on July 1, 2015; one payment of $6,250 due on July 1, 2016; one
payment of $12,500 due on July 1, 2017; one payment of $15,000 due on July 1, 2018; and
one payment of $20,000 due on July 1, 2019.
On May 28, 2013, RSL filed an amendment to its petition, requesting that the trial
court add Wentworth as an interested party and “prior assignee.” On June 12, 2013,
1
The 2008 transfer orders and agreements list 321 Henderson Receivables, now known as JG
Wentworth, as the transferee.
-2-
Wentworth subsequently filed a motion to intervene and an objection, asserting that approval
of the Transfer Agreement would contravene the court orders entered previously by the other
courts and would impose upon Wentworth obligations and liabilities to which it did not
contract.
The trial court granted Wentworth’s motion to intervene. Following a bench hearing,
the trial court approved the Transfer Agreement, finding that it met all requirements of the
SSPA and was in Ms. Shanks’s best interest. The court specifically overruled Wentworth’s
objection, finding that the Transfer Agreement did not contravene applicable law under the
SSPA or impose undue obligations upon Wentworth. The court entered an Order of Transfer
on June 19, 2013, incorporating the Transfer Agreement and also ordering Wentworth to
forward the previously unassigned portions of the periodic payments to the designated
assignee of RSL, Extended Holdings, Ltd. (“Extended Holdings”), as it would have to Ms.
Shanks under the previous court orders. Wentworth timely appealed.
II. Issue Presented
Wentworth presents one issue on appeal, which we restate as follows:
Whether the trial court erred by entering an order transferring structured
settlement payments from Ms. Shanks, as payee, to RSL and its assignee upon
the court’s finding, inter alia, that the order did not contravene applicable law
or two previous orders of other courts partially transferring Ms. Shanks’s
structured settlement payment rights to Wentworth.
III. Standard of Review
The issue raised is primarily a question of law, specifically involving interpretation
of Tennessee’s SPPA. See Tenn. Code Ann. §§47-18-2601 to 2607. We review questions
of law, including those of statutory construction, de novo with no presumption of correctness.
See Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41, 43 (Tenn. 2013) (citing
Mills v. Fulmarque, Inc., 360 S.W.3d 362, 366 (Tenn. 2012)). Our Supreme Court has
summarized the principles involved in statutory construction as follows:
When dealing with statutory interpretation, well-defined precepts apply. Our
primary objective is to carry out legislative intent without broadening or
restricting the statute beyond its intended scope. Houghton v. Aramark Educ.
Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing legislative
enactments, we presume that every word in a statute has meaning and purpose
and should be given full effect if the obvious intention of the General
-3-
Assembly is not violated by so doing. In re C.K.G., 173 S.W.3d 714, 722
(Tenn. 2005). When a statute is clear, we apply the plain meaning without
complicating the task. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507
(Tenn. 2004). Our obligation is simply to enforce the written language. Abels
ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only
when a statute is ambiguous that we may reference the broader statutory
scheme, the history of the legislation, or other sources. Parks v. Tenn. Mun.
League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998). Further, the
language of a statute cannot be considered in a vacuum, but “should be
construed, if practicable, so that its component parts are consistent and
reasonable.” Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968).
Any interpretation of the statute that “would render one section of the act
repugnant to another” should be avoided. Tenn. Elec. Power Co. v. City of
Chattanooga, 172 Tenn. 505, 114 S.W.2d 441, 444 (1937). We also must
presume that the General Assembly was aware of any prior enactments at the
time the legislation passed. Owens v. State, 908 S.W.2d 923, 926 (Tenn.
1995).
In re Estate of Tanner, 295 S.W.3d 610, 613-14 (Tenn. 2009).
To the extent that we need also review the factual findings of the trial court, we
presume those findings to be correct and will not overturn them unless the evidence
preponderates against them. See Tenn. R. App. P. 13(d); Morrison v. Allen, 338 S.W.3d 417,
425-26 (Tenn. 2011). “In order for the evidence to preponderate against the trial court’s
findings of fact, the evidence must support another finding of fact with greater convincing
effect.” Wood v. Starko, 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006).
IV. Transfer Order Not in Contravention of Applicable Law or Prior Orders
Wentworth contends that the trial court erred by entering the Order of Transfer
because the Order violated the previous orders entered by the Anderson County and Cocke
County Circuit Courts, which Wentworth argues constitute “applicable law” under Tennessee
Code Annotated § 47-18-2603 of Tennessee’s SSPA. RSL contends that the transfer at issue
does not contravene applicable law or the prior court orders. We agree with RSL.
Pursuant to Tennessee’s SSPA, a “payee,” such as Ms. Shanks in the instant action,
is defined as “an individual who is receiving tax-free damage payments under a structured
settlement and proposes to make a transfer of payment rights thereunder . . . .” See Tenn.
Code Ann. § 47-18-2602(7). Tennessee is one of a majority of states to have enacted an
SSPA in an effort to protect payees from “bargaining away their interests in structured
-4-
settlement agreements for less than adequate consideration.” See In re Sparks, No. 03-
38563L, 2005 WL 1669609 (Bankr. W.D. Tenn. July 14, 2005); see generally, Jay M. Zitter,
Annotation, Construction and Application of State Structured Settlement Protection Acts, 27
A.L.R. 6th 323 (2007). Enacted in 2000, Tennessee’s SSPA, similar to those enacted in other
states, is based on a model SSPA written with the contributions of, inter alia, the National
Association of Settlement Purchasers. See Symetra Life Ins. Co. v. Rapid Settlements, Ltd.,
657 F. Supp. 2d 795, 799-803 (S.D. Tex. 2009) (“Symetra II”); Zitter, 27 A.L.R. 6th at 323.2
The SSPAs typically, as Tennessee’s does, “require the factoring company to disclose fully
the effects of the proposed transfer and require a state-court judge to decide whether to
approve the transfer as in the best interests of the [payee].” See Symetra II, 657 F. Supp. 2d
at 799; see also Tenn. Code Ann. § 47-18-2603; Zitter, 27 A.L.R. 6th at 323. The financial
companies purchasing structured settlement payment rights, such as Wentworth and RSL,
are often described as “factoring” companies, referring to the “factoring discount” amount
they accept in exchange for acquisition of a payee’s structured settlement payment rights.
See 26 U.S.C.A. § 5891(a), (c)(3)-(4) (2002) (excepting structured settlement factoring
transactions approved by a qualified state order from imposition of a federal tax that would
otherwise be equal to forty percent of the factoring discount).3
In Tennessee, the requirements for a transfer of structured settlement payment rights
are delineated in Tennessee Code Annotated § 47-18-2603, which provides:
No direct or indirect transfer of structured settlement payment rights shall be
effective and no structured settlement obligor or annuity issuer shall be
required to make any payment directly or indirectly to any transferee of
structured settlement payment rights unless the transfer has been authorized in
advance in a final order of a court of competent jurisdiction or a responsible
administrative authority, and complies with all of the following:
2
The district court in Symetra II noted in 2009 that forty-seven states had enacted an SSPA based
on the model statute. Symetra II at 657 F. Supp. 2d at 799 n.1. Since that time, a forty-eighth state, Vermont,
has also enacted an SSPA, which took effect on July 1, 2012. See Vt. Stat. Ann. 9 § 2480dd (2013). Our
research shows that to date, neither New Hampshire nor Wisconsin has enacted an SSPA.
3
26 U.S.C.A. § 5891(c)(4) defines “factoring discount” as:
an amount equal to the excess of–
(A) the aggregate undiscounted amount of structured settlement payments being
acquired in the structured settlement factoring transaction, over
(B) the total amount actually paid by the acquirer to the person from whom
such structured settlement payments are acquired.
-5-
(1) The Transfer complies with the requirements of this part and will not
contravene other applicable law;
(2) Not less than ten (10) days prior to the date on which the payee
executes the transfer agreement, the transferee has provided to the
payee a disclosure statement in bold type, no smaller than fourteen (14)
points, setting forth:
(A) The amounts and due dates of the structured settlement
payments to be transferred.
(B) The aggregate amount of such payments;
(C) The discounted present value of such payments, together with
the discount rate used in determining such discounted present
value;
(D) The gross amount payable to the payee in exchange for such
payments;
(E) An itemized listing of all brokers’ commissions, service charges,
application fees, processing fees, closing costs, filing fees,
administrative fees, notary fees and other commissions, fees,
costs, expenses and charges, and a good faith estimate of all
legal fees and court costs payable by the payee or deductible
from the gross amount otherwise payable to the payee;
(F) The net amount payable to the payee after deduction of all
commissions, fees, costs, expenses and charges described in
subdivision (2)(E); and
(G) The amount of any penalty and the aggregate amount of any
liquidated damages (inclusive of penalties) payable by the payee
in the event of any breach of the transfer agreement by the
payee;
(3) The payee has established that the transfer is fair and reasonable and in
the best interest of the payee;
-6-
(4) The payee has been advised by the transferee, in writing, to seek
independent professional advice regarding the financial, legal and tax
implications of the transfer; and
(5) The transferee has given written notice of the transferee’s name,
address and taxpayer identification number to the annuity issuer and the
structured settlement obligor and has filed a copy of such notice with
the court or responsible administrative authority.
Circuit courts in Tennessee have nonexclusive jurisdiction over applications for authorization
of transfers of structured settlement payment rights. Tenn. Code Ann. § 47-18-2604(a).
At specific issue in the instant action is the statutory requirement that the “transfer
. . . will not contravene other applicable law.” See Tenn. Code Ann. § 47-18-2603(1); -2606
(“Nothing contained in this part shall be construed to authorize any transfer of structured
settlement payment rights in contravention of applicable law or to give effect to any transfer
of structured settlement payment rights that is invalid under applicable law.”). The SSPA
defines “applicable law” as “state or federal statutes of the United States.” Tenn. Code Ann.
§47-18-2602(2). Because Tennessee circuit courts are granted the authority by statute to
approve proposed transfers of structured settlements, see Tenn. Code Ann. § 47-18-2604(a),
Wentworth argues that the orders previously entered by the Anderson County Circuit Court
and the Cocke County Circuit Court are “applicable law” under the statutory definition.
Prior to the filing of this opinion, Tennessee state appellate courts had not yet been
called upon to interpret provisions of the SSPA. One federal bankruptcy court decision from
the Western Division of Tennessee does address a debtor’s/decedent’s right to payment under
a transfer order qualified under the Tennessee SSPA as property of the debtor’s/decedent’s
estate. See In re Sparks, 2005 WL 1669609 at *4-5 (also explaining the background and
basic requirements of Tennessee’s SSPA). The court in Sparks does not address the
requirement of adhering to applicable law. Id. We note also that the Sparks order is a federal
bankruptcy court decision and as such, is not binding on this Court. See Gossett v. Tractor
Supply Co., 320 S.W.3d 777, 785 n.3 (Tenn. 2010) (explaining that even opinions of federal
intermediate courts are “only persuasive authority and not binding” on Tennessee state
courts).
Tennessee’s SSPA does not include a definition of “contravene,” but we note the plain
meaning as “to violate or infringe” or “to be contrary to.” See B LACK’S L AW D ICTIONARY
352 (8th ed. 2004); see, e.g., Planned Parenthood of Middle Tenn. v. Sundquist, 38 S.W.3d
1, 8 (Tenn. 2000) (“We may only invalidate a statute when it contravenes either the federal
or state constitution.”). The Tennessee General Assembly did, however, take pains to define
-7-
“applicable law” to the SSPA as “state or federal statutes of the United States.” Tenn. Code
Ann. § 47-18-2602(2). We are unconvinced, as the trial court was, by Wentworth’s argument
that the legislature intended something other than this clear and straightforward definition.
See Rich v. Tenn. Bd. of Med. Examiners, 350 S.W.3d 919, 927 (Tenn. 2011) (applying the
“canon of construction ‘expressio unius est exclusio alterius,’ which holds that the expression
of one thing implies the exclusion of others . . . .”); cf. In re Rapid Settlements LTD’s
Application for Approval of Structured Settlement Rights, 136 P.3d 765, 772 (Wash. Ct. App.
2006) (explaining that Washington’s SSPA explicitly provides that an order transferring
structured settlement payment rights in that state must “not violate the order of any court”)
(citing Wash. Rev. Code § 19.205.030(3)). We stress again that our primary objective when
interpreting statutes is to “carry out legislative intent without broadening or restricting the
statute beyond its intended scope.” See In re Estate of Tanner, 295 S.W.3d at 613.
Wentworth also argues that because 26 U.S.C.A. § 5891 defines a transfer order
qualifying for the federal tax exception in part as one that “does not contravene any Federal
or State statute or the order of any court or responsible administrative authority,” any
contravention of a prior transfer order would contravene applicable federal law. See 26
U.S.C.A. § 5891(b)(2)(A)(i). 26 U.S.C.A. § 5891 provides in pertinent part:
(a) Imposition of tax.–There is hereby imposed on any person who
acquires directly or indirectly structured settlement payment rights in
a structured settlement factoring transaction a tax equal to 40 percent
of the factoring discount as determined under subsection (c)(4) with
respect to such factoring transaction.
(b) Exception for certain approved transactions–
(1) In general.–The tax under subsection (a) shall not apply in the
case of a structured settlement factoring transaction in which the
transfer of structured settlement payment rights is approved in
advance in a qualified order.
(2) Qualified order.–For purposes of this section, the term
“qualified order” means a final order, judgment, or decree
which–
(A) finds that the transfer described in paragraph (1)–
-8-
(i) does not contravene any Federal or State statute or
the order of any court or responsible
administrative authority, and
(ii) is in the best interest of the payee, taking into
account the welfare and support of the payee’s
dependents, and
(B) is issued–
(i) under the authority of an applicable State statute
by an applicable State court, or
(ii) by the responsible administrative authority (if
any) which has exclusive jurisdiction over the
underlying action or proceeding which was
resolved by means of the structured settlement.
We agree that the plain meaning of 26 U.S.C.A. § 5891(b)(2)(A)(i) is that a transfer
order contravening a prior state court order would not qualify for the tax exception delineated
by that federal statute. We do not determine, however, that such an unqualified order would
contravene the federal statute; it would simply fail to qualify for the exception. The resultant
financial consequence of such a failure to qualify the order would be borne by the factoring
company acquiring the payee’s structured settlement payment rights, in this case, RSL. See
26 U.S.C.A. § 5891(a), (b)(2)(A)(i). We conclude that in order for a transfer order to
contravene applicable law, pursuant to Tennessee Code Annotated §§ 47-18-2603(1) and
-2606, it must contravene a state or federal statute of the United States, pursuant to
Tennessee Code Annotated § 47-18-2602(2). Because a prior circuit court order does not
constitute a statute, it does not constitute “applicable law” under Tennessee’s SSPA.
Moreover, upon a thorough review of the record, we determine that the transfer order
at issue does not contravene the prior court orders. In explaining this conclusion, it is helpful
to track the portion of periodic payments not assigned and therefore retained by Ms. Shanks
upon entry of each order. The May 8, 2008 Anderson County Circuit Court order approved
a transfer from Ms. Shanks to Wentworth of the following periodic payment portions:
• July 1, 2008 $5,000 (unassigned portion: $10,000)
• July 1, 2009 $5,000 (unassigned portion: $10,000)
• July 1, 2010 $5,000 (unassigned portion: $10,000)
-9-
• July 1, 2015 $12,500 (unassigned portion: $12,500)
• July 1, 2016 $12,500 (unassigned portion: $12,500)4
Pursuant to the May 2008 order, Wentworth was obligated to forward the unassigned
portions noted above to Ms. Shanks upon receipt of the periodic payments from the annuity
issuer.
The November 24, 2008 Cocke County Circuit Court order subsequently approved a
transfer from Ms. Shanks to Wentworth of the following previously unassigned payment
portions:
• July 1, 2009 $5,000 (unassigned portion: $5,000)
• July 1, 2010 $5,000 (unassigned portion: $5,000)
• July 1, 2015 $6,250 (unassigned portion: $6,250)
• July 1, 2016 $6,250 (unassigned portion: $6,250)
• July 1, 2017 $12,500 (unassigned portion: $12,500)
• July 1, 2018 $15,000 (unassigned portion: $15,000)
• July 1, 2019 $20,000 (unassigned portion: $20,000)
As before, Wentworth was obligated to forward the remaining unassigned payment portions
to Ms. Shanks upon receipt from the annuity issuer.
In the Order of Transfer at issue, entered on June 19, 2013, the trial court approved
a transfer from Ms. Shanks to RSL and its assignee of the following previously unassigned
payment portions:
• July 1, 2015 $6,250 (unassigned portion: $0)
• July 1, 2016 $6,250 (unassigned portion: $0)
• July 1, 2017 $12,500 (unassigned portion: $0)
• July 1, 2018 $15,000 (unassigned portion: $0)
• July 1, 2019 $20,000 (unassigned portion: $0)
Upon entry of this last order, Ms. Shanks no longer retained ownership of any portion of her
periodic payments from the structured settlement.
It is undisputed that at the time Ms. Shanks entered the Transfer Agreement with RSL,
she owned the rights to the periodic payment portions she had not previously assigned to
4
Unassigned portions are taken from a “Breakdown of Annuity Payments,” attached to the Order of
Transfer, as well as analysis of the collective effect of the three transfer orders.
-10-
Wentworth. The instant Order of Transfer modified the prior court orders only insofar as it
authorized Ms. Shanks’s request to have Wentworth remit payment portions to an assignee,
RSL (and in turn RSL’s assignee, Extended Holdings), rather than directly to her. Both of
the prior orders contained the following provision:
Any further transfer of structured settlement payment rights by Payee may be
made only after compliance with all of the requirements of the Act [SSPA].
Nothing in the May 2008 order or November 2008 order prevented Ms. Shanks from seeking
authorization, pursuant to the SSPA, of a transfer of those payment rights that still belonged
to her upon entry of each respective order. In fact, the November 2008 order was the result
of Ms. Shanks’s seeking such a transfer to Wentworth of additional payment portions
remaining after entry of the first order. The difference with the order at issue is that Ms.
Shanks sought transfer of her structured settlement payment rights to a factoring company
other than Wentworth. We find no provision in either of the 2008 orders that prevented Ms.
Shanks from entering a future transfer agreement with a different transferee, provided that
the payment rights she transferred were her own and that the transfer complied with all
requirements of the SSPA.
Wentworth also asserts that in entering the Order of Transfer at issue, the trial court
violated and “ignored” the terms of the orders entered by the Anderson County and Cocke
County Circuit Courts. Wentworth argues that the trial court improperly “modified the prior
court-ordered obligation of [Wentworth] to its customer, Laurel Shanks” in requiring
Wentworth to remit the previously unassigned portions of the periodic payments to RSL’s
assignee, Extended Holdings, rather than Ms. Shanks. We disagree.
In its Order of Transfer, the trial court stated in pertinent part:
Portions of the Periodic Payments due beginning on July 1, 2015
through and including July 1, 2019 (the “Wentworth Serviced Payments”), as
more particularly set forth and described herein and in Exhibit A, which
include the RSL Assigned Payments, are currently being serviced by J.G.
Wentworth Originations, LLC (“Wentworth”), as custodian, and not as
principal, for the benefit of Ms. Shanks, and Sun Life and/or Liberty Life.
Upon entry of this Order, the Wentworth Serviced Payments shall be received
by Wentworth, as custodian, and not as principal, for the benefit of Ms. Shanks
and Extended Holdings, Ltd. (“Assignee”), with such payments being remitted
to Assignee by Wentworth promptly within five (5) business days of
Wentworth’s receipt of such payments from Liberty Life.
-11-
Wentworth filed an objection in this matter as an Interested Party
asserting this Court cannot grant the proposed transfer. Wentworth claims that
if this Court were to do so, then this Court’s order would violate the Act by
contravening prior court orders in violation of Tennessee Code Annotated §47-
18-2603. The prior court orders Wentworth referenced are in Case No.
A8LA0157 from the 7th Circuit Court of Anderson County, TN and in Case
No. CV-031371-III . . . in the 4th Circuit Court of Cocke County, TN (the
“Prior Wentworth-Shanks Orders”). This Court is not persuaded by
Wentworth’s arguments and Wentworth’s objection is overruled.
Nothing in this Order is intended to or shall create a fiduciary, trust,
principal-agent, or partnership relationship by and between Wentworth and
RSL Funding, Assignee, or Ms. Shanks. Specifically, with respect to the
Court’s order that Wentworth shall receive certain lump sum structured
settlement/annuity payments from Liberty Life from July 1, 2015 through and
including July 1, 2019 (the “Wentworth Term Payments”) and retain the
portion of said payments which were transferred and assigned to Wentworth
in connection with the transactions approved as part of the Prior Wentworth-
Shanks Orders (the “Wentworth Assigned Payments”), and remit the totality
of the remainder of said payments, which are the RSL Assigned Payments, (the
“Wentworth-Extended Holdings Serviced Payments”) to Assignee (Extended
Holdings[,] Ltd.) from July 1, 2015 through and including July 1, 2019 (the
“Wentworth Servicing Term”), the “Wentworth Servicing Arrangement” will
not create any fiduciary, trust, principal-agent, or partnership by and between
Wentworth, on the one hand, and/or RSL Funding, Assignee, or Ms. Shanks
on the other hand. However, a special custodial relationship is being created
wherein Wentworth is a servicer and custodian of the Wentworth Serviced
Payments for the benefit of Ms. Shanks and Assignee. This special custodial
relationship does not create any ownership rights or interest by Wentworth to
or in the Wentworth Serviced Payments. Moreover, by virtue of this Final
Order, Wentworth’s obligations shall be to solely and exclusively to [sic]
receive the Wentworth Term Payments, retain the Wentworth Assigned
Payments, and remit the Wentworth-Extended Holdings Serviced Payments to
Assignee as further described herein. Wentworth’s obligation under this order
terminates upon final payment to assignee as set forth in this order.
...
It is further ORDERED that the portion of the Periodic Payments
which are the Wentworth Serviced Payments, as described below, due
-12-
beginning on July 1, 2015 through and including July 1, 2019 shall be
forwarded by Wentworth, when, as and if received by Wentworth from Liberty
Life within five (5) business days of their receipt, to Extended Holdings, Ltd.
at [address], and no person other than Extended Holdings, Ltd. shall be entitled
to receipt of the Wentworth Serviced Payments, such being:
• Two (2) annual payments each in the amount of $6250
beginning on July 1, 2015 through and including July 1,
2016;
• one (1) lump sum payment in the amount of $12,500 due
and payable on July 1, 2017;
• one (1) lump sum payment in the amount of $15,000 due
and payable on July 1, 2018; and
• one (1) lump sum payment in the amount of $20,000 due
and payable on July 1, 2019.
It is further ORDERED that in the event that Assignee changes its
physical address or is merged with or acquired by another individual or entity,
such that Assignee ceases to exist, the Wentworth Serviced Payments shall be
sent directly to that person or entity by Wentworth, after providing proper,
advance, written notice to Wentworth. Further, notwithstanding the foregoing,
Wentworth or Assignee are permitted to mutually agree to alter the payment
method (including, but not limited to, ACH or wire transfer) or Designated
Address without further order of the Court.
...
It is further ORDERED that RSL Funding or Assignee shall send a
signed copy of this Order to Liberty Life, Sun Life, to counsel for Wentworth
and directly to Wentworth at the address set forth below. Upon receipt thereof,
Wentworth shall issue a formal acknowledgment letter to RSL Funding and
Assignee of the transfer within ten (10) business days of the date of receipt of
this Order of Transfer that the Wentworth Serviced Payments from July 1,
2015 through and including July 1, 2019 shall be made to Extended Holdings,
Ltd. at [address] (unless a change of address has been provided to Wentworth
in writing at least 30 days in advance of the effective date of such change of
address by RSL Funding or Assignee). The formal acknowledgment letter to
-13-
be issued by Wentworth shall be delivered to Extended Holdings, Ltd. at the
address set forth above, Attn: President.
(Paragraph numbering omitted.)
We note first that the trial court certainly did not “ignore” the terms of the two prior
court orders, as demonstrated by the court’s painstaking explanation of Wentworth’s role as
to the payment portions not transferred to it by the previous orders. Under the prior transfer
orders, Wentworth was obligated to accept the full amount of each structured settlement
payment, retain the amount Ms. Shanks had transferred to Wentworth, and remit the
unassigned portion to Ms. Shanks. Pursuant to the SSPA, “[n]either the annuity issuer nor
the structured settlement obligor may be required to divide any structured settlement payment
between the payee and any transferee or assignee or between two (2) or more transferees or
assignees.” Tenn. Code Ann. § 47-18-2604(f). As Wentworth points out, it would be a
violation of this provision to require Liberty (the annuity issuer) or Keyport (the structured
settlement obligor) to divide periodic payments. The payments, therefore, must be sent to
the transferee before they may be divided. Contrary to Wentworth’s argument, however, we
find that this statutory provision anticipates that there may be more than one transferee or
assignee. See Tenn. Code Ann. § 47-18-2604(f). This statutory provision prohibits a transfer
order from requiring the annuity issuer or structured settlement obligor to divide any periodic
payments and does not apply to the transferee. See id.
According to the Order of Transfer at issue, Wentworth is obligated to accept the full
amount of each structured settlement payment, retain the amount Ms. Shanks had previously
transferred to Wentworth, and remit the remaining portion, now transferred to RSL by Ms.
Shanks, to RSL’s assignee, Extended Holdings. Thus, the only change in this obligation for
Wentworth is that it must remit the remaining payment portions to Extended Holdings rather
than to Ms. Shanks. In addition, the trial court directed Wentworth to remit the payments
within five business days of receipt, a deadline not contained within the prior orders. The
court also directed Wentworth to write one letter to the president of Extended Holdings,
formally acknowledging receipt of the transfer order within ten days of receiving a copy of
the order from RSL or its assignee. We determine that the trial court’s addition of a
reasonable deadline for processing the payment portions and the requirement of one
acknowledgment letter are not overly burdensome.
Wentworth particularly objects to the trial court’s characterization of Wentworth’s
responsibilities toward what the court described as the “Wentworth Serviced Payments” as
a “custodial relationship.” The trial court expressly stated that it did not intend by the Order
of Transfer to “create a fiduciary, trust, principal-agent, or partnership relationship by and
between Wentworth and RSL Funding, Assignee, or Ms. Shanks.” Wentworth did, however,
-14-
already have a fiduciary relationship in place with Ms. Shanks in terms of its obligation to
accept her total periodic payments, retain its assigned portion, and remit the remainder to her.
We determine that this Order of Transfer did not create a fiduciary relationship between
Wentworth and Ms. Shanks beyond the one previously in place.
Wentworth correctly notes that “[c]ourts cannot make contracts for parties but can
only enforce the contract which the parties themselves have made.” Hafeman v. Protein
Discovery, 344 S.W.3d 889, 900 (Tenn. Ct. App. 2011). We do not, however, find this to
be an instance of the trial court’s creating a contract between Wentworth and RSL. Under
the prior orders, Wentworth did not acquire an ownership interest in the payment portions
not transferred to it. Instead, Wentworth serviced those portions by forwarding them to Ms.
Shanks. Through her application for approval of the transfer to RSL, Ms. Shanks requested
that RSL or its assignee receive the previously unassigned payment portions she would have
received. The plain meaning of “custody” is the “care and control of a thing or person for
inspection, preservation, or security.” B LACK’S L AW D ICTIONARY 412 (8th ed. 2004). We
discern no error in the trial court’s characterization of Wentworth’s role in forwarding the
previously unassigned payment portions to RSL’s assignee rather than Ms. Shanks as
“custodial.” We conclude that the trial court’s Order of Transfer did not violate the previous
orders entered by the Anderson County and Cocke County Circuit Courts.5
Finally, as RSL correctly posits, an underlying public policy consideration supporting
enactment of state SSPAs is the need for structured settlement transfers to be in the best
interest of payees. See, e.g., Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 599 F. Supp.
2d 809 (S.D. Tex. 2008) (“Symetra I”) (applying the Texas SSPA, which is similar to
Tennessee’s SSPA, and explaining that “[t]he purpose of the ‘best interests’ finding is to
make sure that the payee does not give up his or her right to the future-income stream in
exchange for a much smaller present payment, unless there is good reason for the
transaction.”), affirmed by Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 567 F.3d 754 (5th
Cir. 2009) (incorporating rationale of district court decision); see generally Zitter, 27 A.L.R.
6th at 323 (noting several cases in other jurisdictions in which trial courts have denied
transfer applications after finding that the transfers were not in the payees’ best interest).
5
On appeal, Wentworth also contends that RSL collaterally attacked the prior court orders by filing
the application of transfer. RSL argues that Wentworth is barred from raising this argument for the first time
on appeal. See Fayne v. Vincent, 301 S.W.3d 162, 170-71 (Tenn. 2009) (noting that “[t]he jurisprudential
restriction against permitting parties to raise issues on appeal that were not first raised in the trial court is
premised on the doctrine of waiver.”). We determine Wentworth’s contention in this regard to be a restated
argument that the Order of Transfer contravened the prior orders, and while not barred, the argument is moot
in light of our conclusion that the Order of Transfer did not contravene the prior orders.
-15-
In the case at bar, Wentworth does not dispute the trial court’s express finding that the
Order of Transfer was in Ms. Shanks’s best interest. See Tennessee Code Annotated §§ 47-
18-2603(3), 47-18-2604(c) (delineating factors for the trial court to consider when
determining the best interest of the payee). Upon our careful and thorough review of the
record, we determine that the evidence does not preponderate against the trial court’s finding
that the Transfer Agreement met the requirements of the SSPA, including that it did not
contravene applicable law and was in Ms. Shanks’s best interest. The trial court did not err
by entering the Order of Transfer.
V. Conclusion
For the reasons stated above, we affirm the Order of Transfer entered by the trial
court. The costs on appeal are assessed against the Appellant, JG Wentworth Originations,
LLC. This case is remanded to the trial court, pursuant to applicable law, for enforcement
of the judgment and collection of costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
-16-