81R9239 PB-F
By: Eiland H.B. No. 2739
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of certain life settlement contracts;
providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 1111, Insurance Code, is
amended to read as follows:
CHAPTER 1111. LIFE SETTLEMENT CONTRACTS, [AND] VIATICAL
SETTLEMENTS, AND CERTAIN RELATED PRACTICES; ACCELERATED TERM LIFE
INSURANCE BENEFITS
SECTION 2. The heading to Subchapter A, Chapter 1111,
Insurance Code, is amended to read as follows:
SUBCHAPTER A. LIFE SETTLEMENT CONTRACTS AND VIATICAL SETTLEMENTS
SECTION 3. Section 1111.001, Insurance Code, is amended by
adding Subsections (2-a), (2-b), (2-c), (2-d), and (2-e) to read as
follows:
(2-a) "Premium finance loan" means a loan, made
primarily for the purpose of making premium payments on a life
insurance policy, that is secured by an interest in the life
insurance policy.
(2-b) "Provider" means a person, other than an owner,
who enters into or effectuates a life settlement contract with an
owner. The term does not include:
(A) a bank, savings bank, savings and loan
association, or credit union;
(B) a licensed lending institution, creditor, or
secured party under a premium finance loan agreement that takes an
assignment of a policy or certificate as collateral for a loan;
(C) the insurer of a policy or rider to the extent
of providing accelerated death benefits, riders, or cash surrender
value;
(D) any individual who enters into or effectuates
not more than one agreement in a calendar year for the transfer of
an insurance policy or certificate for compensation or anything of
value less than the expected death benefit payable under the
policy;
(E) a purchaser;
(F) an authorized or eligible insurer that
provides stop loss coverage to a provider, purchaser, financing
entity, special purpose entity, or related provider trust;
(G) a financing entity;
(H) a special purpose entity;
(I) a related provider trust;
(J) a broker; or
(K) an accredited investor or qualified
institutional buyer, as defined respectively by Securities and
Exchange Commission Regulation D (17 C.F.R. Section 230.501 et
seq.) and Securities and Exchange Commission Rule 144A (17 C.F.R.
Section 230.144A), who purchases a life settlement contract from a
provider.
(2-c) "Purchaser" means a person who pays compensation
or anything of value as consideration for a beneficial interest in a
trust that is vested with, or for the assignment, transfer, or sale
of, an ownership or other interest in an insurance policy or a
certificate that has been the subject of a life settlement
contract.
(2-d) "Related provider trust" means a titling trust
or other trust established by a registered provider or a financing
entity for the sole purpose of holding the ownership or beneficial
interest in purchased policies in connection with a financing
transaction, that includes a written agreement with the registered
provider under which:
(A) the registered provider is responsible for
ensuring compliance with all statutory and regulatory
requirements; and
(B) the trust agrees to make all records and
files relating to life settlement transactions available to the
department as if those records and files were maintained directly
by the provider.
(2-e) "Special purpose entity" means a corporation,
partnership, trust, limited liability company, or other legal
entity formed solely to provide, either directly or indirectly,
access to institutional capital markets for a financing entity or
provider in connection with a transaction in which the securities
in the special purpose entity:
(A) are acquired by the owner or by a "qualified
institutional buyer," as defined by Securities and Exchange
Commission Rule 144A (17 C.F.R. Section 230.144A); or
(B) pay a fixed rate of return commensurate with
established asset-backed institutional capital markets.
SECTION 4. Subchapter A, Chapter 1111, Insurance Code, is
amended by adding Sections 1111.0011, 1111.0012, and 1111.0013 to
read as follows:
Sec. 1111.0011. LIFE SETTLEMENT CONTRACT. (a) For
purposes of this subchapter, a "life settlement contract" means a
written agreement, entered into between a provider and an owner,
that establishes the terms under which:
(1) compensation or any thing of value that is less
than the expected death benefit of an insurance policy or
certificate of insurance will be paid in return for the owner's
assignment, transfer, sale, devise, or bequest, for compensation,
of the death benefit or any portion of the insurance policy or
certificate of insurance for compensation; and
(2) the minimum contract value is greater than any
cash surrender value or accelerated death benefit available on the
date of the application for the contract.
(b) The term includes:
(1) the transfer for compensation or value of
ownership or a beneficial interest in a trust or other entity that
owns the policy if the trust or other entity was formed or availed
of for the principal purpose of acquiring one or more life insurance
contracts owned by a person residing in this state; and
(2) a premium finance loan made for a policy on or
before the date of issuance of the policy if:
(A) the loan proceeds are not used solely to pay:
(i) policy premiums; and
(ii) any costs or expenses incurred by the
lender or the borrower in connection with the financing;
(B) the owner receives on the date of the premium
finance loan a guarantee of the future life settlement value of the
policy; or
(C) the owner agrees on the date of the premium
finance loan to sell the policy or any portion of the death benefit
of the policy on any date following the issuance of the policy.
(c) The term does not include:
(1) a policy loan made by a life insurer under the
terms of a life insurance policy or accelerated death provisions
contained in the life insurance policy, whether issued with the
original policy or as a rider;
(2) a premium finance loan, or any loan made by a bank
or other licensed financial institution, if default on the loan or
the transfer of the policy in connection with such a default is not
in accordance with an agreement or understanding with any other
person entered into for the purpose of evading regulation under
this subchapter;
(3) a collateral assignment of a life insurance policy
made by an owner;
(4) a loan made by a lender that does not violate
Chapter 651, if the loan does not qualify as a life settlement
contract under Subsection (a) or (b);
(5) an agreement:
(A) in which each of the parties:
(i) is closely related to the insured by
consanguinity or affinity; or
(ii) otherwise has a lawful substantial
economic interest in the continued life, health, and bodily safety
of the insured; or
(B) that is a trust established primarily for the
benefit of a party described by Paragraph (A);
(6) any designation, consent, or agreement by an
insured who is an employee of an employer in connection with the
purchase by the employer, or a trust established by the employer, of
life insurance on the life of the employee;
(7) a bona fide business succession planning
arrangement:
(A) between one or more shareholders in a
corporation or between a corporation and one or more of its
shareholders or one or more trusts established by its shareholders;
(B) between one or more partners in a partnership
or between a partnership and one or more of its partners or one or
more trusts established by its partners; or
(C) between one or more members in a limited
liability company or between a limited liability company and one or
more of its members or one or more trusts established by its
members;
(8) an agreement entered into by a service recipient,
or a trust established by the service recipient, and a service
provider, or a trust established by the service provider, who
performs significant services for the service recipient's trade or
business; or
(9) any other contract, transaction, or arrangement
that the commissioner determines is not of the type intended to be
regulated by this subchapter.
Sec. 1111.0012. OWNER. (a) In this subchapter, "owner"
means the owner of a life insurance policy or a certificate holder
under a group policy who is a resident of this state who enters or
seeks to enter into a life settlement contract. The term includes a
viator. Except as otherwise provided by this subchapter, the term
is not limited to an owner of a life insurance policy or a
certificate holder under a group policy that insures the life of an
individual with a terminal or chronic illness or condition.
(b) The term does not include:
(1) a registered provider or any other person licensed
under this code while operating under this subchapter;
(2) a qualified institutional buyer, as defined by
Securities and Exchange Commission Rule 144A (17 C.F.R. Section
230.144A) under the Securities Act of 1933 (15 U.S.C. Section 77a et
seq.);
(3) a financing entity;
(4) a special purpose entity; or
(5) a related provider trust.
Sec. 1111.0013. STRANGER-ORIGINATED LIFE INSURANCE. (a) A
person may not procure a new insurance policy covering the life of
an insured if the person:
(1) lacks an insurable interest in the insured; and
(2) at the inception of the policy, owns or controls
the policy or the majority of the policy's death benefits.
(b) This section does not apply to the lawful assignment of
a life insurance policy, including a life settlement contract or a
viatical settlement, or a practice described by Section
1111.0011(c).
(c) For purposes of Chapter 701, an act that violates this
section constitutes a fraudulent insurance act.
SECTION 5. Section 1111.002, Insurance Code, is amended to
read as follows:
Sec. 1111.002. PURPOSE. The purpose of this subchapter is
to:
(1) provide for registration of persons engaged in the
business of life settlement contracts or viatical settlements; and
(2) provide consumer protection for a person who may
sell or otherwise transfer the person's life insurance policy.
SECTION 6. Section 1111.003, Insurance Code, is amended to
read as follows:
Sec. 1111.003. RULES; REGISTRATION AND REGULATION. (a) To
implement this subchapter, the commissioner shall adopt reasonable
rules relating to life settlement contracts [settlements] and
relating to viatical settlements.
(b) The rules adopted by the commissioner under this section
must include rules governing:
(1) registration of providers [a person engaged in the
business of life settlements];
(2) registration of persons [a person] engaged in the
business of viatical settlements;
(3) approval of contract forms;
(4) disclosure requirements;
(5) prohibited practices relating to:
(A) unfair discrimination regarding [in the
provision of] life settlement contracts or in the provision of
viatical settlements; and
(B) referral fees paid by providers and persons
engaged in the business of [life or] viatical settlements;
(6) assignment or resale of life insurance policies;
(7) maintenance of appropriate confidentiality of
personal and medical information; and
(8) the responsibility of a registrant to ensure
compliance with this subchapter and rules relating to life
settlement contracts or viatical settlements after the
registration is revoked, suspended, or otherwise lapses.
(c) The commissioner may not adopt a rule establishing a
price or fee for the sale or purchase of a life settlement under a
life settlement contract. This subsection does not prohibit the
commissioner from adopting a rule relating to an unjust price or fee
for the sale or purchase of a life settlement.
(d) The commissioner may not adopt a rule that regulates the
actions of an investor providing money to a provider [life] or a
viatical settlement company.
SECTION 7. Section 1111.005(a), Insurance Code, is amended
to read as follows:
(a) The commissioner may suspend or revoke a registration or
deny an application for registration if the commissioner determines
that the registrant or applicant, individually or through any
officer, director, or shareholder of the registrant or applicant:
(1) wilfully violated:
(A) this subchapter;
(B) an applicable provision of this code or
another insurance law of this state; or
(C) a rule adopted under a law described by
Paragraph (A) or (B);
(2) intentionally made a material misstatement in the
application for registration;
(3) obtained or attempted to obtain registration by
fraud or misrepresentation;
(4) misappropriated, converted to the registrant's or
applicant's own use, or illegally withheld money belonging to a
party to a life settlement contract or viatical settlement;
(5) was guilty of fraudulent or dishonest practices;
(6) materially misrepresented the terms of business
conducted under this subchapter or any other provision of this code
or another insurance law of this state;
(7) made or issued, or caused to be made or issued, a
statement materially misrepresenting or making incomplete
comparisons regarding the material terms of any business conducted
under this subchapter; or
(8) was convicted of a felony or was convicted of a
misdemeanor involving moral turpitude or fraud.
SECTION 8. Section 1111.006, Insurance Code, as effective
April 1, 2009, is amended to read as follows:
Sec. 1111.006. APPLICABILITY OF OTHER INSURANCE LAWS. The
following laws apply to a provider or a person engaged in the
business of [life or] viatical settlements:
(1) Chapters 82, 83, 84, 481, 541, and 701;
(2) Sections 31.002, 32.021, 32.023, 32.041, 38.001,
81.004, 86.001, 86.051, 86.052, 201.004, 401.051, 401.054,
401.151(a), 521.003, 521.004, 543.001(c), 801.056, and 862.052;
(3) Subchapter A, Chapter 32;
(4) Subchapter C, Chapter 36;
(5) Subchapter B, Chapter 404; and
(6) Subchapter B, Chapter 491.
SECTION 9. Subchapter A, Chapter 1111, Insurance Code, is
amended by adding Sections 1111.007, 1111.008, and 1111.009 to read
as follows:
Sec. 1111.007. DISCLOSURE TO INSURER. (a) In addition to
other questions an insurer may lawfully pose to an applicant for
life insurance, an insurer may inquire in the application for
insurance whether the proposed owner intends to pay premiums with
the assistance of financing from a lender who will use the policy as
collateral for a premium finance loan used to support the
financing.
(b) If the premium finance loan provides funds that can be
used for a purpose other than paying for the premiums, costs, and
expenses associated with obtaining and maintaining the life
insurance policy and loan, the application may be rejected as a
prohibited practice.
(c) If the financing does not violate Subsection (b) or the
insurer's lawful underwriting guidelines, the insurer may not
reject the application solely because the premiums will be
financed. The insurer may make disclosures to the applicant, on
either the application or an amendment to the application, to be
completed not later than the date the policy is delivered, that
include the following:
"If you have entered into a loan arrangement under which the
policy is used as collateral, and the policy changes ownership at
some point in the future in satisfaction of the loan, the following
may be true:
(A) a change of ownership could lead to a stranger
owning an interest in the insured's life; and
(B) a change of ownership could in the future limit
your ability to purchase insurance on the insured's life because
there is a limit to how much coverage insurers will issue on one
life.
You should consult a professional adviser, since a change in
ownership in satisfaction of the loan may result in tax
consequences to the owner, depending on the structure of the loan."
(d) The insurer may also require certifications from the
applicant for insurance coverage or the insured, such as the
following:
"(A) I have not entered into any agreement or
arrangement under which I have agreed to make a future sale of this
life insurance policy.";
"(B) My loan arrangement for this policy provides
funds sufficient to pay for some or all of the premiums, costs, and
expenses associated with obtaining and maintaining my life
insurance policy, but I have not entered into any agreement under
which I am to receive consideration in exchange for procuring this
policy."; and
"(C) The borrower has an insurable interest in the
insured."
Sec. 1111.008. GENERAL REQUIREMENTS REGARDING LIFE
SETTLEMENT CONTRACTS. (a) Effective September 1, 2009, a person
may not enter into a life settlement contract during any period
before or on the date of the application for or the issuance of an
insurance policy, or during a period before the second anniversary
of issuance of the policy, regardless of the date:
(1) the compensation is to be provided; or
(2) the assignment, transfer, sale, devise, bequest,
or surrender of the policy is to occur.
(b) The prohibition under Subsection (a) does not apply if
the owner certifies to the provider that:
(1) the policy was issued on the owner's exercise of
conversion rights arising out of a group or individual policy, if
the total time covered under the conversion policy plus the time
covered under the prior policy is at least 24 months, and the time
covered under a group policy is computed without regard to a change
in insurers if the coverage has been continuous and under the same
group sponsorship; or
(2) the owner submits independent evidence to the
provider that one or more of the following conditions have been met
within the 24-month period:
(A) the owner or insured is terminally or
chronically ill;
(B) the owner or insured disposes of the
ownership interests in a closely held corporation under the terms
of a buyout or other similar agreement in effect at the time the
insurance policy was initially issued;
(C) the owner's spouse dies;
(D) the owner divorces his or her spouse;
(E) the owner retires from full-time employment;
(F) the owner becomes physically or mentally
disabled and a physician determines that the disability prevents
the owner from maintaining full-time employment; or
(G) on the application of a creditor of the
owner, a final order, judgment, or decree is entered by a court of
competent jurisdiction:
(i) adjudicating the owner bankrupt or
insolvent;
(ii) approving a petition seeking
reorganization of the owner; or
(iii) appointing a receiver, trustee, or
liquidator to all or a substantial part of the owner's assets.
(c) Copies of the independent evidence required by
Subsection (b)(2) must be submitted to the insurer when the
provider submits a request to the insurer for verification of
coverage. The copies must be accompanied by a letter from the
provider attesting that the copies are true and correct copies of
the documents received by the provider. Nothing in this subsection
affects the right of an insurer to contest the validity of any
insurance policy.
(d) If the provider submits to the insurer a copy of
independent evidence under Subsection (b)(2) on submission of a
request to the insurer to effect the transfer of the policy to the
provider, the copy is deemed to establish that the life settlement
contract satisfies the requirements of this section.
Sec. 1111.009. REPORTING REQUIREMENTS AND PRIVACY. (a)
Each registered provider shall file with the commissioner on or
before March 1 of each year an annual statement containing the
information the commissioner prescribes by rule.
(b) In addition to any other information required by
commissioner rule, the annual statement required under Subsection
(a) must specify:
(1) the total number, aggregate face amount, and life
settlement proceeds of insurance policies settled during the
immediately preceding calendar year; and
(2) a breakdown of the information described by
Subdivision (1) by policy issue year.
(c) The information required under Subsection (b) is
limited to transactions in which the owner is a resident of this
state and does not include:
(1) individual transaction information regarding the
business of life settlements; or
(2) information that reasonably could be used to
identify the owner or the insured.
(d) Each provider who wilfully fails to file the annual
statement required by this section, or who wilfully fails to reply
not later than the 30th day after the date of a written inquiry by
the department in connection with the annual statement, is subject,
after notice and an opportunity for a hearing, to an administrative
penalty of up to $250 per day of delay, not to exceed $25,000 in the
aggregate, for each failure. A penalty imposed under this
subsection is in addition to other penalties provided by this
chapter.
(e) Except as otherwise allowed or required by law, a
provider, broker, insurer, agent, information bureau, or rating
agency or company, or any other person with actual knowledge of an
insured's identity, may not disclose the identity of an insured, or
information that reasonably could be used to identify the insured
or the insured's financial or medical information, to any other
person unless the disclosure:
(1) is necessary to effect a life settlement contract
between the owner and a provider and the owner and insured have
provided prior written consent to the disclosure;
(2) is necessary to effect the sale of life settlement
contracts, or interests in those contracts, as investments, if:
(A) the sale is conducted in accordance with
applicable state and federal securities laws; and
(B) the owner and the insured have both provided
prior written consent to the disclosure;
(3) is provided:
(A) in response to an investigation or
examination by the commissioner or any other governmental officer
or agency; or
(B) under the investigation of fraud
requirements of Subtitle F, Title 5;
(4) is a term or condition to the transfer of a policy
by one provider to another provider, in which case the receiving
provider is required to comply with the confidentiality
requirements of this section;
(5) is necessary to allow the provider or broker or
their authorized representatives to make contacts for the purpose
of determining health status; or
(6) is required to purchase stop loss coverage.
(f) For the purposes of Subsection (e)(5), the term
"authorized representative" does not include a person who has or
may have any financial interest in the life settlement contract
other than a provider, licensed broker, financing entity, related
provider trust, or special purpose entity. A provider or broker
must require its authorized representative to agree in writing to
adhere to the privacy provisions of this subchapter.
(g) Nonpublic personal information solicited or obtained in
connection with a proposed or actual life settlement contract is
subject to the provisions applicable to financial institutions
under 15 U.S.C. Section 6801 et seq. and all other state and federal
laws relating to confidentiality of nonpublic personal
information.
SECTION 10. Section 1111.001(1), Insurance Code, is
repealed.
SECTION 11. The commissioner of insurance shall adopt all
rules necessary to implement Chapter 1111, Insurance Code, as
amended by this Act, not later than March 1, 2010.
SECTION 12. This Act applies only to a life settlement
contract entered into or renewed on or after January 1, 2010. A
life settlement contract entered into or renewed before January 1,
2010, is governed by the law as it existed immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
SECTION 13. This Act takes effect September 1, 2009.