Where’s Your Independent Professional Adviser When You Need Them?
Independent professional advisers are like referees: they make sure everyone’s playing fair, no one gets hurt, they read the “rule book”. In California, we have the most stringent rulebook, or laws surrounding the transfer of structured settlement payment rights.
Transfer companies are not out to get you. They are here to help. They are also here to make money not friends. Sometimes contracts can get one sided.
Below is a detailed list of provisions that have been put in contracts in the past, which are now prohibited by law in California. This doesn’t mean they still don’t appear in contracts sometimes. A perceptive independent professional adviser can help referee the game. What is NOT allowed:
- Any provision that waives the seller’s right to sue under any law, or in which the seller agrees not to sue, or that waives jurisdiction or standing to sue under the contract.
- Any provision that requires the seller to release the buyer from all liability, or to pay the buyer’s cost of defense, in any claim or action brought by the seller or on the seller’s behalf contesting the sale for any reason.
- Any provision that waives benefits or rights ordered by law with respect to garnishment of wages.
- Any provision providing that the contract is confidential or proprietary, belonging to the buyer.
- Any provision in which the seller stipulates to a confession of judgment (let the other party enter a judgment against you-speak on your behalf to the judge)
- Any provision requiring the seller to pay the buyer’s attorneys fees and costs if the purchase agreement is not completed.
- Any provision requiring the seller to pay any tax liability arising under the federal tax laws, other than the seller’s own tax liability, if any, that results from the transfer.
- Any provision providing for brokerage fees incurred in the contract to be deducted from the purchase price disclosed according to the disclosure statement.
- Any provision providing for a different court outside of California if the payee is a resident of California while they signed the contract in California.
- If the payee is a resident of California at the time that the transfer agreement is signed by the payee, there can be no provision that provides for a different controlling law other than California law that controls the contract.
- Any provision that provides the transfer company, et al, with a security interest or collateral interest in any structured settlement payment rights that exceed the actual dollar amount of the structured settlement payment rights being transferred.
- Any provision that creates a “buyer’s first right of refusal” to purchase any remaining structured payment rights that the payee may desire to sell in the future. You can sell to which ever transfer company you want to.
None of these provisions can be waived by agreement of the parties. Period. Are you ready to have a chat with an independent professional adviser?
Where’s Your Independent Professional Adviser When You Need Them? Just a phone call away.Law Offices of Eugene Ahtirski http://eahtirski.com (800)200-4384 firstname.lastname@example.org
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