WEST VIRGINIA CODE

CHAPTER 46A.   CONSUMER PROTECTION
ARTICLE 6G. TRANSFERS OF RIGHT TO RECEIVE FUTURE PAYMENTS.

§46A-6G-1. Definitions.
      (a) For the purposes of this article:
      (1) “Closing date” means the date the transfer agreement is executed by the consumer and the transferee, and shall be at least fourteen days after the requisite disclosures have been provided to the consumer and interested parties.
      (2) "Consumer" means any person entitled to receive periodic future payments from an annuity issuer, settlement obligor or any other party as the result of an annuity, settlement, lottery winnings, sweepstakes payoff or other future payment arrangement.
      (3) “Interested party” means an insurance company, an annuity issuer, a structured settlement obligor, a lottery, a beneficiary irrevocably designated in an agreement to receive future payments following the consumer's death or other entity obligated to pay to a consumer any future payments.
      (4) "Structured settlement" means an arrangement whereby a settlement obligor, an annuity issuer, or other person agrees to make future payments to a consumer in settlement of a court claim.
      (5) "Structured settlement payment rights" means the right to receive periodic payments, including lump sum payments, under a structured settlement from a settlement obligor, annuity issuer, or other person.
      (6) "Transfer" means any sale, assignment, or other conveyance of future payment rights by a consumer to a transferee for consideration.
      (7) "Transfer agreement" means an agreement providing for the transfer of future payment rights from a consumer to a transferee.
      (8) "Transferee" means any person or entity that becomes entitled to receive a consumer’s future payments as a result of a transfer agreement and includes companies in the business of purchasing future payments.

§46A-6G-2. Disclosure requirements prior to transfer.
      (a) In order for any transfer by a consumer to a transferee to be effective, the transferee shall provide the following disclosures in writing, in bold, twelve point type, to the consumer at least fourteen days prior to the closing date or the hearing on the transfer when court approval is required by the provisions of this article:
      (1) The amount of each future payment to be transferred by the consumer and the date such payments were due to the consumer;
      (2) The aggregate amount of the future payments to be transferred by the consumer;
      (3) The discounted present value of the future payments to be transferred by the consumer and the discount rate used in the calculation;
      (4) The discount rate used in subdivision (3) of this section stated in terms of an annual percentage rate;
      (5) The lump sum payable to the consumer in exchange for transferring the future payments;
      (6) A good faith estimate of all commissions, fees, rebates, service charges, application fees, processing fees, closing costs, filing fees, administrative charges and other commissions, fees, costs, expenses and charges to be paid by the consumer from the lump sum in connection with the transfer;
      (7) The net amount payable to the consumer after the deduction of all commissions, fees, costs, expenses and charges described in subdivision six of this section; and
      (8) A statement that there may be tax consequences affecting the consumer as a result of the transfer and that the consumer is advised to seek the advice of an attorney or accountant.
      (b) The transferee shall also provide written notice to all interested parties at least fourteen days prior to the closing date of the transfer or the hearing when court approval is required including:
      (1) The closing date of the transfer, or the date, time and place of the hearing;
      (2) A copy of the disclosure statement required by subsection (a) of this section; and
      (3) The name, address and taxpayer identification number of the transferee.
      (c) If the transfer requires court approval pursuant to section three of this article, then the transferee shall also provide the disclosure statement required by subsection (a) of this section to the court and the guardian ad litem, if one is named by the court.

§46A-6G-3. Requirement of court approval for certain structured settlement transfers.
      (a) In addition to the requirements of this article, when a transfer of all or any portion of a consumer’s structured settlement payment rights results from a settlement of litigation or a court claim, or the lump sum to be paid to the consumer by the transferee exceeds twenty thousand dollars, or when the structured settlement payment rights belong to an infant or an incompetent person, the transfer shall be approved by a circuit court in the county wherein the consumer resides or where the structured settlement agreement was executed.
      (b) The transferee shall commence the action by filing a petition with the court seeking approval of the transfer, and providing to the court the disclosure statement required by subsection (a), section two of this article.
      (c) The circuit court shall set a time and date for a hearing on the matter within twenty-one days of the date of the filing of the petition. The transferee shall notify the consumer of the date and time of the hearing, as well as any interested parties.
      (d) The court shall appoint a guardian ad litem in cases where the structured payment rights belong to an infant or an incompetent person. The guardian ad litem shall review the requisite disclosures and make an independent inquiry to determine whether the proposed transfer is fair, reasonable and in the best interest of the consumer. Such information shall be reported to the court during the hearing on the matter.
      (e) If there are no interested parties, then the court may review the petition and the answer of the consumer or guardian ad litem, if appointed, on its own motion without a hearing on the matter.
      (f)       An interested party has the right to appear and contest the proposed transfer at the time of the hearing. If, after proper notice, the interested party does not make an appearance, then the interested party shall be bound by the court's ruling unless there is a provision in the structured settlement that restricts the consumer’s right to assign or transfer future payments and the interested party can show that the provisions of subsection (a) of section four, article six-g of this chapter were not followed.
      (g)      After a hearing or upon its own motion, the court may approve the transfer if court finds that:
      (1)       The transferee has complied with the provisions of section three of this article;
      (2)       The transfer is fair, reasonable and in the best interest of the consumer; and
      (3)      If there is a provision in the consumer’s structured settlement that restricts the right of the consumer to assign or transfer the consumer's future payment rights, the party obligated to make or arrange for the future payments to the consumer has consented in writing.
      (h) The court shall award the guardian ad litem reasonable fees for representing the consumer. Such fees shall be paid by the transferee.
      (i) A consumer may request court approval for a transfer that does not require court approval under this section. Such voluntary petition shall then become subject to the provisions of this section. The transferee shall be responsible for filing the action pursuant to subsection (b) of this section, and the consumer shall be responsible for attorney’s fees or guardian ad litem fees.

§46A-6G-4. Restrictions on the right to assign or transfer; prohibiting transfer agreements of worker’s compensation claims.
      (a) Where the consumer’s structured settlement or the contract or agreement establishing structured settlement payment rights contains a provision restricting the right of the consumer to assign or transfer the consumer’s future payments, no agreement to transfer future payments may proceed without the written consent of the party obligated to pay the consumer the future payments or arrange for such future payments and, where applicable, any court, administrative agency or other governmental authority that previously approved the structured settlement.
      (b) Any agreement to transfer future payments arising under a worker’s compensation claim is prohibited as is any other agreement to transfer future payments that would contravene existing law.

§46A-6G-5. Right of recision.
      (a) Any consumer who enters into a transfer agreement shall have an absolute, nonwaiveable right of recision for five business days following the closing date of the transfer. During the five-day recision period, the consumer may rescind the transfer agreement by phone, mail or facsimile, effective upon receipt, without penalty or further obligation to the transferee, except that any amounts advanced by the transferee to the consumer in contemplation of the transfer shall be immediately refunded to the transferee.
      (b) When a transfer requires court approval, the consumer may rescind without penalty until the court order is entered appointing a guardian ad litem. When the consumer dismisses the action after the appointment of a guardian ad litem or rescinds the transfer agreement within five business days of court approval of the transfer, the consumer shall be responsible for the filing fee and any guardian ad litem fees.

§46A-6G-6. Remedies; effective date; nonwaiver.
      (a) This article shall apply to transfer agreements of future payment rights executed after the effective date of this article. Nothing in this article shall be construed to impair, limit, affect or otherwise apply to any transfer agreement executed prior to the effective date of this article.
      (b) A violation of a provision of this article by the transferee is an unfair or deceptive act or practice in the conduct of commerce pursuant to the provisions of article six, section one hundred four of this chapter. The remedy provided for in this section is in addition to other remedies provided for by law.
      (c) The provisions of this article may not be waived.

§46A-6G-7. Protection from liability to consumer.
      When an interested party makes payments to the transferee pursuant to a court order of approval, as set forth in section three of this article, the interested party and the transferee are not liable to the consumer for the transfer of the consumer’s future payments.

§46A-6G-8. Registration with the secretary of state.
      (a) A transferee, or other company in the business of purchasing future payments, shall file a registration statement with the secretary of state before advertising or arranging transfers of consumer’s future payment rights in this state. The registration statement shall contain:
      (1) The name and address of the transferee;
      (2) The name and address of the transferee’s agent for service of process within the state, or if the company does not have one within the state, a statement that the secretary of state will serve as the agent for service of process; and
      (3) A full and complete disclosure of any prior or pending litigation involving alleged violations of this article’s provisions or consumer complaints filed with the attorney general’s office of this state that allege violations of this article’s provisions, or a notarized statement that there has been no such litigation or unresolved complaint relating to the operations of the transferee.
      (b) The transferee shall update the statement within thirty days after a change of information occurs.
      (c) Each transferee registering pursuant to the provisions of this section shall maintain a copy of the registration statement. The transferee shall allow a consumer, interested party or court to inspect the registration statement on request.
      (d) The secretary of state may charge each transferee that files a registration statement with the secretary of state a reasonable fee not to exceed one hundred dollars to cover the cost of filing.