It’s time to set the record straight on poaching. It’s a difficult topic to broach because nobody wants to criticize something that gets annuitants more money. I have always advocated for annuitants; however, increased payouts need to come from ethical and sustainable business practices. Poaching is neither. If you’re not familiar with the term, poaching is the search of court records to steal a competitor’s pending factoring transaction. It doesn’t matter if they take over the transaction entirely or simply act as a “negotiator”, it’s still the theft of a competitor’s work product.
Poachers spin the narrative that their actions are justified because they find and fix egregious transactions. I’d be inclined to agree if that’s all they did; however, the reality these days is there are far fewer truly predatory deals than poachers want you to believe. What these poachers and their advocates aren’t telling you is that they usually just prey upon the everyday marketing and staffing costs of the originating factoring company; expenses they don’t undertake.
You don’t need an Ivy League MBA to realize that poaching can’t last. Ultimately, somebody must invest the funds to get a case to where poachers can steal it, and with every stolen file driving up the originating company’s costs, it becomes a vicious circle that’s not sustainable. The entire factoring industry will go into a tailspin if poaching continues unabated. Unfortunately, the last ones standing will be these parasitic poachers; something you absolutely don’t want for your clients. They are truly the bottom feeders of an industry where the ethics bar isn’t set too high to start with.
You might remember some time ago the open question posed to the industry: Why is Berkshire still a NSSTA member? That question really teased out a larger issue that apparently prompted dozens of pages be written and dedicated to twisting and framing into far more acceptable, more marketablelanguage. Here’s some blunt, honest talk to fill in all the gaps in such smiley bend-over talk.
Did you know that it’s apparently acceptable for insurers to factor their own annuities, but not another’s? One’s OK because it’s called “servicing” whereas the other is called “factoring.” In other words, when someone else makes money, it’s “factoring,” which is bad for the client, but if the insurer makes the money, then it’s “servicing,” which is good for the client. This is merely poorly-veiled marketing-speak for insurers preferring to make money themselves in as many areas as possible, squeezing out as many competitors as possible. Giants have mighty appetites, after all.
The idea that insurers factoring their own annuities is somehow good for the annuitants themselves is a Robin Hood story; just as fictitious as the fairy tale. Many of you are opposed to factoring on principle, but argue that if the annuitant gets more money in the end, then hey, who cares if it’s the insurance company doing it? This approach is problematic because it simply doesn’t account for all the facts.
Insurance companies that factor their own annuities aren’t providing a service, they’ve got the proverbial golden ticket: the names, addresses, and payment details of every annuitant which, lest this be lost in translation, is a salesman’s goldmine. You can mine your list for as long as you keep putting structures together. But again, how’s that a bad thing, even from a business perspective? How is that damning? Because it’s a blatant conflict of interest for insurers.
Structures are put together in a careful way, with insurers as legally specified gatekeepers to factoring transactions. They are the second line of defense, behind the Courts, to securing a factoring transaction based on an annuitant’s demonstrative need, not simply desire, for structured funds. How are insurers, in their gatekeeping function, supposed to adequately gatekeep against their own profit motives? Are insurers going to object against making more money for themselves? Of course not.
Some may claim that no profit is made off these transactions. That’s silly to the point of foolish. No service line or product from any insurance company exists to not turn profit. As for measuring this profit, don’t look exclusively at the red or black numbers at the bottom of the sheet, but instead consider this: insurers get tax breaks for making secure, guaranteed payments to underwrite structured settlements, the same structures that they’re going to now purchase, at a discount, and still enjoy the tax breaks despite not paying out to injured parties anymore, thus enjoying huge profits. Beyond this simple rehash of how providing services actually does make money, there’s something more problematic at work: optics.
Structure brokers need attorneys to work with them to put these things together. Attorneys already have qualms with the mere existence of factoring, so that many won’t advise structures for their clients, the would-be annuitants. How does it look to these attorneys, then, for insurance companies – supposed benevolent gatekeepers – to have everything they need, that glorious golden ticket, to relentlessly market to their clients? Not so good.
Don’t believe any of this is happening, or that it’s just a twist on the benevolent intentions of your favorite insurer? Look at those who already do it: Visit Symetra’s website (symetra.com/clearscape) to see how unabashedly they sell factoring by marketing their familiarity as the insurance company and the ease of having all the required paperwork already. Allstate, too, has an ongoing factoring entity. Still others are taking it a bit slower, rolling into ‘test markets’ before unleashing themselves nation-wide, napkin and cutlery ready. The list goes on.
Insurers aren’t white knights bludgeoning the evil factoring industry; they’re foxes guarding the henhouse, gatekeeping be damned. Don’t like this new development? Speak up; stand up and object. Otherwise, you should remind annuitants to say ‘thank you’ while you assist them in bending over.
Fire and brimstone aside, we do have an industry-wide solution that can satisfy most, if not all parties. It just requires us all to be on the same page before we get there. The article is forthcoming.
Bentzen Financial is pleased to announce that W. Campbell Mears, CPA, CSSC has joined the company, effective July 2, 2018. Bentzen Financial has worked tirelessly to become the beacon of ethics in an otherwise controversial market-space. It’s rare to encounter someone with the level of integrity Mr. Mears demonstrates, so adding him to the company simply made sense.
Mr. Mears brings 25 years of structured settlement experience to the company. He has held senior positions at leading firms in the insurance industry, including AIG, Cambridge Galaher Settlements, and Crowe Paradis Services Corporation, and he was co-founder and CEO of StructureOnline, a provider of Internet-based structured settlement management systems. In 2010, he joined the factoring industry. His significant experience and expertise will help serve structured settlement annuitants whose financial needs have changed post-settlement and will greatly enhance Bentzen Financial’s unique capabilities.
“I’m excited to join Bentzen Financial because Rhonda and the team share my strong beliefs about factoring,” said Mears. “Structured settlements are meant to protect people affected by injury, but the needs anticipated at the time of settlement can change as life goes on. Factoring is a valuable tool to address these situations, but it must be provided as a consultative service that helps annuitants balance current and future needs. Factoring should be done with the same care, attention, and expertise that is used to put structured settlements together.”
Mr. Mears holds a BA from Wesleyan University in Middletown, CT and is a Certified Public Accountant. He earned his Certified Structured Settlement Consultant designation from the National Structured Settlement Trade Association (NSSTA) at the University of Notre Dame. He is former co-chair of the NSSTA Marketing and Technology Committees.
Berkshire, like Symetra and Allstate before it, has entered the factoring game. Unlike Symetra and Allstate, though, who jumped in all at once, Berkshire has opted for the slow creep. There is no difference between these players other than the way they’ve entered. The end game is the same. So why does Berkshire get a pass?
For the past couple of years Berkshire has acted primarily as a gatekeeper for annuitants seeking cash now providers. There’s no problem with that, and it’s certainly their prerogative, but last year they dipped their toe into the factoring waters of Texas as a special test market. Fast forward and they’re doing the same in a few other states. Really, it’s merely a matter of time until Berkshire is nationwide like the other insurance companies before them. I firmly believe this is a problem for one crucial reason: it’s a strong conflict of interest.
This conflict of interest centers around the fact that as the historical gatekeeper, it has a list of annuitants (read: customers), ready to go. This is the holy grail of any would-be player in the industry. Who doesn’t want a free list of people ready to go? Moreover, they’re not just prospective customers in some potential, hypothetical sales district, they’re existing customers, who aren’t protected by traditional consumer protections such as the TCPA because of their ‘existing customer’ status. In other words: they can, and likely will be contacted for ‘additional services’ when it’s nothing more than a veiled sales pitch from someone who already has their business in the first place. It looks like Berkshire is slowly but surely having their cake and eating it too.
I have always abhorred the factoring industry’s scouring of court records for profit. It’s a perversion of the intent of open court records. These firms search for past factoring transactions as well as every personal injury suit that may have settled with a structure. Combined with sophisticated skip-tracing tools, today’s legal databases allow factoring companies to compile massive lists of potential sellers. It wouldn’t be such an issue if they just sent annoying junk mail like the mortgage and real estate companies who also scour public records. Instead, they also bombard annuitants with unending phone calls, stalking on social media and even in-person sales visits. Worse yet, the factoring industry uses these records to purposely target the poor and unsophisticated with endless temptations of “cash now”. The Baltimore lead paint scandal targeting cognitively challenged inner city annuitants is my case in point. Then there are the horrific number of cases where court records are used to coerce annuitants into multiple transactions until they are penniless and destitute.
Fifteen years in the factoring business has shown me that most of the egregious behavior can be directly tied to court record scraping. It’s been an issue since I started in this business in 2002, however, the increased sophistication of online databases in recent years has compounded the scraping problem exponentially. Today, these searches are cheap, easy and profitable. Curtailing online access could completely change the cost-benefit rationale. The added work and complexity of using court runners would drive up costs, making scraping far less lucrative. More importantly, it could drive the worst actors out of the business altogether: the small, scamming, castoffs of the big firms whose entire business model revolves around online record searches combined with unending, coercive sales calls.
Despite the recent reports of factoring industry shenanigans, the search engine companies still seem to turn a blind eye. I can’t say for certain which services the factoring industry uses since I don’t engage in court record scraping, but I can state that Westlaw has been a premier sponsor of NASP’s annual meeting for years. I reviewed the terms of service for some the larger legal search firms and found the following related to commercial use:
You and your Authorized Users (defined below in Section 2.1) are granted a nonexclusive, nontransferable, limited right to access and use for research purposes the Online Services and Materials made available to you.
You may not use the Service for any illegal purpose, for the facilitation of the violation of any law or regulation, or in any manner inconsistent with the TOS. You agree to use the Service solely for your own noncommercial use and benefit, and not for resale or other transfer or disposition to, or use by or for the benefit of, any other person or entity.
you will not use, intentionally or unintentionally any of the content, information, or services on this website in a manner contrary to or in violation of any applicable international, national, federal, state, or local law, rule, or regulation having the force of law.
… you will not reproduce, duplicate, copy, download, store, further transmit, disseminate, transfer, or otherwise exploit this website, or any portion hereof without Thomson Reuters’ prior written consent…
The above excerpts seem to suggest that these firms are concerned with the legal, non-commercial and ethical use of their services. That said, the ones that do allow factoring industry access clearly don’t seem too concerned with enforcement. Regarding legal use, the reality is that the information scraped from these databases is used to continually violate the Telephone Consumer Protection Act (TCPA) with incessant calls to annuitants. Our survey of past clients confirmed the never-ending calls and the industry’s refusal to follow the law by not honoring do-not-call requests. For some, it was so bad that they no longer answered their phones and couple even changed phone numbers, to no avail. Rampant industry violation of the TCPA is also suggested by an ongoing potential class action suit against a large NASP-affiliated firm for their alleged failure to honor do-not-call requests. When it comes to derivative works violations, I have also seen several Craigslist ads offering the contact information for thousands of annuitants, all likely gleaned from these court record services.
Court record scraping has been a longstanding issue that seems to be getting worse by the day as more factoring companies become increasingly aggressive and underhanded in their pursuit of unsuspecting annuitants. Ideally, some regulations restricting the commercial use of court records would be more beneficial to annuitants, but I don’t see that happening. However, anything that can be done to limit the ease of access can’t hurt. The question becomes, how does one get these legal database firms to actually enforce their terms of service?
Have you been approached by a factoring company to sell your client list? There is no denying that it has value and I assume that they’ll pay handsomely to get their hands on it. To them, your list is guaranteed fresh meat. That’s a welcome change to their usual court scraping endeavors, where the status quo involves daily battles with the numerous other hyenas circling the same carcasses. These similes may seem overly dramatic; however, I’ve been in this business 15 years and naively worked for a couple of these firms early on, so I can definitively state that they’re entirely accurate. It’s all about the hunt, the kill, and the feasting, not about integrity and compassion.
I can also categorically state that you can’t trust these people regardless of contracts and non-disclosure agreements. I know first-hand that neither promise or contract mean anything to them. They are smooth, fast-talking snake oil salesmen who will tell you what you want to hear but rarely deliver on those promises and guarantees. After all, these sleazy “cash now” hucksters are the ones who routinely deceive, harass and coerce annuitants through every unethical scheme imaginable. It’s a stretch to believe that they will treat you with any more integrity.
You also need to know that factoring is a small, competitive and downright vindictive industry. You have no way of controlling how widely your name will be disseminated within the organization. Partners and employees are forever parting and forming new firms, usually with great animosity. There is so much bad blood between most firms that they routinely rat each other out to colleagues and industry bloggers. That’s how I was made aware of one broker who sold a list. I don’t intend to gossip but it’s only a matter of time until this tidbit of news crosses over to the primary side, if it hasn’t done so already.
Furthermore, regardless of promises to the contrary, I guarantee that these factoring companies will hound your unwitting clients to the ends of the earth to get a return on their investment. Your clients will not simply receive harmless mailers extolling the services they offer, but instead, they will be marketed the same way they do annuitants scraped from court records: with incessant phone calls in violation of the Telephone Consumer Protection Act (TCPA), stalking on social media, or worse, sales reps at their front doors. One big “cash now” firm is currently being sued for alleged TCPA violations, with a pending motion before the court to compel client lists and phone records. Confidentiality agreements offer little protection in deposition, so what happens if the purchasing company gets sued for TCPA violations, or worse, for the victimization of vulnerable annuitants like the Baltimore lead paint fiasco? Either way, there’s a chance that your name could become public record if plaintiff’s counsel digs into the firm’s annuitant prospecting methods.
There is no denying that easy money can be made by capitalizing on the hard work you’ve already done, but if ever there was a time to be cautious of the people you do business with, this is it. Ultimately, is it worth the risk to your reputation, let alone the harm and aggravation to your clients?
In recent years there has been a proliferation of secondary market firms touting higher yields through either individual payment streams or trusts backed by factored payment rights. However, in light of recent developments, I strongly advise caution and due diligence. This is no indictment of any secondary market seller, but a warning of what may lie ahead in this market. My concern is that some of these secondary market trusts may be sitting on ticking time bombs of potentially toxic assets. I believe that the following longstanding and unethical business practices in the factoring industry may finally come home to roost:
Forum shopping – This has been a rampant problem where factoring companies will fake the residency of an annuitant in a rubber stamp jurisdiction to get a transfer approved easily. The motive is either that the proper jurisdiction is particularly difficult to get any case approved, or that much higher profits can be made in jurisdictions with little oversight.
Coercion – Unethical factoring companies are notorious for pressuring at-risk annuitants into unwarranted transactions. These annuitants have no business selling payments so the factoring companies lie to the Court to get the transfer approved. A perfect example is the recent Baltimore lead paint fiasco, where cognitively impaired annuitants were manipulated into predatory discount rate transactions, complete with bogus independent professional advice.
Fraud – Likely not as common but factoring firms have been known to forge documents. A NASP firm was recently sued for forging an annuitant’s signature on lottery transfer documents and I am aware of another pending case alleging forged signatures by two NASP firms buying structured settlement payments.
In total, the number of questionably sourced transactions falling into the above categories is quite considerable. The common denominator is that all these transactions constitute fraud committed upon the Court. Consequently, we are now starting to see suits being brought to vacate some of these deceitfully obtained court orders. When orders are vacated, the purchased payments revert back to the annuitant, potentially leaving the investor holding the bag.
For these secondary market firms, the security of the factored payments they buy is only as good as the ethics of the factoring companies with which they do business. Compounding the risk is the fact that secondary market firms typically buy from smaller producers since the larger firms usually have institutional investors. The exposure lies in the fact that many of these smaller firms are scamming, unethical, fly-by-night court record scrapers who, just like Access Funding in the wake of the Baltimore investigations, will simply close up shop if they get caught, leaving few to no assets to go after. Ultimately, how many vacated orders can these trusts absorb before they’re in serious trouble?
That leaves the question of how bad the fallout will be from vacated orders. It will depend on what transpires with the Baltimore situation and whether the plaintiff bar truly takes notice. There have only been a handful of suits to date, so how it all shakes out is anyone’s guess. It could be minor, but it could also be game changing. That’s why I’m suggesting caution. If you’re considering a trust product, I recommend waiting until the dust settles unless you can be assured that they have contingencies in place to cover potential losses. If you’re considering the purchase of individual payment streams, there are other firms who do factoring transactions by the book, like us. You simply need to ask where the transaction was sourced and do some research. An upcoming article may help you sort the wheat from the chaff when it comes to reputable factoring companies. In the interim, feel free to call us with any questions.
Written by Rhonda Bentzen
I was shocked that we recently got an invitation to join the National Association of Settlement Purchasers (NASP), the factoring industry’s trade group. After all, I’ve been a pretty vocal critic of their members’ shenanigans for years. I admit that the prospect of being given the opportunity to voice my ideas to the group on needed industry ethics reforms was quite enticing. Plus, I support the fact that factoring definitely needs a trade association to deal with industry issues that crop up. I’m also appreciative of the fact that NSSTA actually cooperates with NASP to address many of these issues, particularly when it comes to state statutes. I’d like to work on making that cooperation even greater. I even agree with NASP’s code of ethics and what they’ve been saying lately about the need for transparency and doing right by annuitants.
Now, for reasons, I’m not prepared to join just yet. To start, contrary to all the positive statements in their press releases lately, I believe almost everything NASP says and does these days is just lip service: rhetoric they think the structured settlement and legal communities, investors, the media, and government regulators want to hear. I haven’t seen any evidence to the contrary. Adherence to their code of ethics, along with consequences for its violation, are a complete joke. If they actually enforced their code of ethics, I believe few to none would be left in the organization. Members are currently being sued for alleged forum shopping and coercion. Another was implicated in the recent Baltimore lead paint scandal. Another recently settled a lawsuit involving the claimed falsification of an annuitant’s signature to initiate extra lottery transactions. A different firm was recently sued for allegedly calling an annuitant nearly 50 times in violation of the Telephone Consumer Protection ACT (TCPA). Yet another is now involved in a class action suit for alleged violations of the TCPA. One firm is even involved in a whistleblower suit alleging money laundering and serious breaches of banking laws. Even our survey of past clients found that most complaints related to incessant telemarketing harassment and deceptive sales tactics were directed at NASP members.
My other pause at joining the organization is that it’s not really inclusive, like NSSTA. I was easily able to be a NSSTA member even though I was a small producer in a tertiary market. Not with NASP. The cost to join NASP is prohibitively high, making it more of an exclusive cabal of the big “cash now” operators. This means that the few referral-driven, client-focused firms that actually do a good job of factoring are priced out of the association. As such, we have no say or vote whatsoever in planning and deciding the direction of the industry; however, based on their record, I honestly believe that NASP has no interest in hearing our input on best business practices anyway.
Done right, factoring can be a legitimate option for some annuitants in need of liquidity, and judging by their code of ethics and recent press releases, NASP members actually do know what they should be doing to treat annuitants fairly. Getting their members to actually do it is the hard part. Ultimately, annuitants simply need the facts and options to make informed decisions about their money, even if it means no transaction at all. They don’t need pressure, they don’t need harassment, they don’t need coercion, and they definitely don’t need to be endlessly solicited into repeat transactions…all of which are in the playbook of most NASP members today.
The Pollyanna in me says that I can’t affect change without joining; however, the realist in me says that I’d be naïve to think that I could make the slightest difference at this juncture when I can’t see any sign that NASP members are actually serious about reform and adherence to their code of ethics. I’ve spent 14 years in this business doing things differently; therefore, I concluded that my firm simply cannot be associated with a group that that approves of, or turns a blind eye to, everything I oppose. So, if you’re referring clients to any of these NASP-affiliated firms listed below, maybe it’s time to reach out to them and ask why nothing seems to change within their organization? Better yet, perhaps it’s time to stop supporting members of an organization which apparently refuses to effectively deal with questionable ethics and shady business practices?
123 LUMPSUM, LLC – 3625 Broward Blvd, 2nd Floor, Fort Lauderdale, FL 33312
Annuity Transfers Ltd. – 1800 Preston Park Blvd., Suite 115, Plano, TX 75093
BofI Federal Bank – 4350 La Jolla Village Drive, Suite 140, San Diego, CA 92109
CBC Settlement Funding – 181 Washington Street, suite 375, Conshohocken, PA 19428
Client First Settlement Funding – 301 Yamato Road, Suite 3200, Boca Raton, FL 33496
DRB Capital – 1625 South Congress, Suite 200, Delray Beach, FL 33445
J. G. Wentworth – 201 King of Prussia Rd, Suite 200, Wayne, PA 19087
Liberty Settlement Funding, LLC – 16 NE 4th Street, Suite 210, Fort Lauderdale, FL 33301
MyLumpsum LLC – 1400 Centrepark, Blvd, Suite 960, West Palm Beach, FL 33401
Northeastern Capital – Empire State Building, 59th Floor, New York, NY 10118
Novation Capital – 1641 Worthington Road, Suite 410, West Palm Beach, FL 33409
Patriot Settlement Resources – 2799 NW Boca Raton Blvd, Suite 111, Boca Raton, FL 33431
Peachtree Settlement Funding – 201 King of Prussia Road, Suite 320, Radnor, PA 19087
Seneca One, LLC – 7920 Norfolk Avenue, Suite 300, Bethesda, MD 20814
Settlement Capital Corporation – 14755 Preston Road, Suite 610, Dallas, TX 75254
Singer Asset Finance Company, L.L.C. – 2255 Glades Road, Suite 118E, Boca Raton, FL 33431
Stone Street Capital, LLC – 7316 Wisconsin Avenue, Suite 500, Bethesda, MD 20814
Strategic Capital, LLC – 100 Sheppard Ave East, Suite 720, Toronto, Ontario, Canada
***This list was compiled from the NASP website.
The structured settlement secondary market is being regulated for, let’s face it, internal industry corruption. Greed has rendered it utterly toxic, and now Washington wants to get involved. Can you blame them, though in this post lead paint exposé environment? The Maryland reforms, many of which are spreading past the state, deal at length with the issue of forum shopping and factoring transparency. What some may laud as truly tough new regulation isn’t particularly impressive, though. The reason for this is simple: it fails to address the core problems within the industry: scraping and ruthless aggression in the generation and pursuit of sales leads.
Many were shocked and saddened by the idea that a bunch of Maryland lead paint victims could so strategically be targeted by factoring companies. The process of going through a factoring transaction was specifically examined by regulators for reform. That’s a fine start, as noted earlier – but why haven’t regulators bothered to ask the question how certain people are being targeted so exactly, with such efficiency. Scraping!
Legislators & Regulators: if you want to protect annuitants, you need to protect their privacy. Simply adding a few transparency measures into existing regulations won’t cut it. If you want predatory behavior to stop, you must remove the predators’ teeth and claws. Strengthen consumer protections and enhance annuitant record privacy.
Brokers & Annuitants: Don’t be fooled into thinking that this is it. It’s far from over. Know the ethical partners worth doing business with. Bentzen Financial doesn’t scrape or gnash its teeth in preparation for a juicy sales kill. We are referral based because it’s the right way to do business, and don’t buy our endorsements like some of our competitors.
If you want straight talk, you want Bentzen Financial.
What can someone do when confronted with the realities of court scraping, shady forum shopping, deal poaching, aggressive solicitations, and poor rates on factoring transactions, especially from big factoring firms?
- If you think your clients aren’t factoring, think again. They are getting hounded by mail, phone calls, and ads on TV. Most of the time, they don’t feel the need to call their brokers about factoring.
- If word reaches your ear that an annuitant is being hounded, refer them to www.stopcashcalls.com and www.factoringethics.com. Information is out there to arm people against factoring predators; give it to them.
- Let them know what to expect once their case is structured. When it comes down to factoring, refer only to those you know to have good track records; those who don’t engage in unethical, aggressive, or shady behavior.
- Know who’s doing more than just talking the talk – know who’s walking the walk. Bentzen Financial is leading the way to clean up the industry. We wear the title “irritant” of the big factoring companies with pride. Click here for more on choosing Bentzen Financial.
- Know why the factoring giants have notoriously poor rates, in general; it’s simply a matter of cost. The bigger you are, the more it costs to get and close a deal. Click here to learn more on this topic.
- Sign our petition to protect the personal identification information (PII) of structured settlement beneficiaries so that they won’t get scraped by shady factoring companies.