[WSBAPT] Creditor Claim by Judgment Creditor?

[Marcus Fry]

John:
I am assuming you have a solvent estate, otherwise my answer would differ.  The below statute doesn’t make a distinction between a consensual lien versus an involuntary lien.  As such, I have interpreted RCW 11.40.135 to include judgment holders where their judgment has attached to decedent’s property. Failing to properly file and serve the CC would protect the estate from a deficiency, but since the spouse was separately and individually liable (as opposed to the community only being liable), I am not sure how much good that will do.

RCW 11.40.135
Secured claim—Creditor's right.
If a creditor's claim is secured by any property of the decedent, this chapter does not affect the right of a creditor to realize on the creditor's security, whether or not the creditor presented the claim in the manner provided in RCW 11.40.070<http://app.leg.wa.gov/RCW/default.aspx?cite=11.40.070>.


Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
P.O. Box 1689
Yakima, Washington  98907
Telephone:  (509) 248-7220
Facsimile:  (509) 575-1883

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of sullaw at comcast.net
Sent: Monday, April 04, 2016 4:39 PM
To: Listserv, WSBA
Subject: [WSBAPT] Creditor Claim by Judgment Creditor?

Listmates:

There is a judgment creditor against decedent and surviving spouse. JC serves a creditor's claim in decedent's probate proceeding but has so far failed to file it with the clerk. The four months won't be up until June 26th.

In this particular case it doesn't really matter because the judgment is against the surviving spouse too.

But for that, am I correct that a judgment creditor given notice must serve and file a timely creditor claim? Or is the JC in the same position as mortgage or deed of trust holder and can proceed to execute on the judgment outside probate if a deficiency judgment is unnecessary?

And what if the JC fails to file the Creditor's Claim by the four month deadline?

I probably should know this, but somehow haven't had to figure it out before.


Best regards,

John J. Sullivan<mailto:dlyons at lyonslawoffices.com>,

Attorney



Lyons | Sullivan

10655 NE 4th Street, Suite 704

Bellevue, WA 98004

425·451·2400 tel 425-451-7385 fax

www.dljslaw.com<http://www.dljslaw.com/>



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