# Factoring Structured Settlement Life - Contingent Payment Annuities What Judges Should Know

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3 o o An itemized list of how the factoring company has calculated the present value of payments and gross amounts payable to the claimant in exchange for the payments; and The net amount payable to the claimant after deducting all itemized commissions, fees, costs, expenses and other items that may be charged by the factoring company. Judges must analyze these Disclosure Statements, among other evidence, and understand the cost of a transaction including how the discount rate is calculated and why a claimant is sometimes receiving a certain amount of money in return for a disproportionately larger amount of money. Judges must then determine whether the discount rate is fair and reasonable and in a claimant s and its dependents best interest. The Discount Rate and Discounted Present Value Term in Disclosure Statements There is much confusion with the terminology discount rate because the term is used in different ways and for different purposes. The discount rate used in factoring transactions is similar to an interest rate associated with home loans, credit cards and car loans where the interest rate is applied to the payment itself. In a factoring transaction, the factoring company knows the payment stream it is going to purchase and applies an interest rate to the payment stream and solves for the funding amount (purchase price). One common mistake in calculating the discount rate is to use elementary school math where one takes the funding amount and divides it by the total price of all of the payments being purchased. Because this method disregards the time value of money (discussed below), the resulting percentage is useless, is always exorbitant and has no basis to the reality of the transaction. In the past, the structured settlement factoring industry had some very high discount rates due to heavy expenses caused by costly litigation battles and limited access to traditional investors. However, due to the enactment of the SSPAs and increased competition in the structured settlement factoring space discount rates have dropped dramatically. Another confusing term commonly used in factoring transactions is the discounted present value that is required to be disclosed in Disclosure Statements. The discounted present value is a measuring stick for determining the value of a future payment. The SSPAs require that the discounted present value rate be calculated (and calculated in Disclosure Statements) using the present value of future payments determined by discounting such payments using the applicable federal rate for valuing annuities which, for purposes of discounting structured settlement payments, is currently 1.8%. A federal appeals court has held that this is truly an arbitrary discount rate used by the IRS to value an annuity and has no bearing on the true present market value of the structured settlement payments being purchased. Moreover, that same court held that the true value of the payments being purchased should focus on what is fair and reasonable in the marketplace. As noted earlier, factoring companies are also required to disclose in the Disclosure Statements and how it calculated the present value of the payments. This is the true discount rate that is used, not the applicable federal rate. 3

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