[WSBAPT] Creditor's Claim not filed with Court

Fri May 11 12:21:16 PDT 2018

“The creditor’s claim statute at RCW 11.40.010 et seq. is strictly construed.  Because you did not properly present the claim by _________ in the manner provided at 11.40.070, your claim is forever barred.  Courts can give no relief to a creditor who failed to comply with RCW 11.40.010.  New York Merchandise Co. v. Stout, 43 Wn. 2d 825, 264 P.2d 863 (1953); Wilson Estate v. Livingston, 8 Wn. App. 519, 507 P.2d 902 (1973).  The statute is mandatory, not subject to enlargement by interpretation, and cannot be waived.  Compliance with its requirements is essential for recovery.”  Judson v. Associated Meats & Seafoods, 32 Wn. App. 794, 651 P.2d 222 (1982) (Citations omitted)”

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Brent Williams-Ruth
Sent: Friday, May 11, 2018 12:04 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Creditor's Claim not filed with Court

The only authority that I have found, thus far, that discussed strict construction of the statute is Villegas v. McBride 112 Wn. App 689 (2002). The facts of that case, however, deal with the failure to describe the debt, not the timing element. The court in Villegas does give me a little love by holding that "[w]hen interpreting a statute, we look to the Legislature's intent as reflected in the statutory language. We presume that the Legislature means exactly what it says and, if a statute is unambiguous, we derive its meaning from the statutory language alone." (internal cites removed).

I would argue that the word "AND" is pretty unambiguous.

What I am faced with though is how hard will large insurance company push back such that the legal fight could substantially drain the assets of the estate.

If anyone is aware of specific authority (I've looked at the annotations and notes of decision and even pulled a search from other appellate briefing) that addresses the time bar element and/or the failure to both file and mail - it would be much appreciated.

Brent

On Fri, May 11, 2018 at 11:51 AM, Philip N. Jones <pjones at duffykekel.com<mailto:pjones at duffykekel.com>> wrote:
I agree with Nestor.  But if the claim is properly filed, I believe that the PR has a fiduciary duty to the creditor(s).  But I have not found any authority to that effect, or at least not much authority.  Anyone have any authority?
Phil Jones
Portland, OR

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>] On Behalf Of nestor at pplsweb.com<mailto:nestor at pplsweb.com>
Sent: Friday, May 11, 2018 11:38 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Creditor's Claim not filed with Court

In my opinion the PR has a duty to the other beneficiaries to reject any claim not properly filed.

Nestor

Nestor Gorfinkel, Attorney at Law
Licensed in Washington & Florida
Florida Civil-Law (International) Notary

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Brent Williams-Ruth
Sent: Friday, May 11, 2018 11:21 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Creditor's Claim not filed with Court

Greetings -

I have a PR, that gave actual notice to a creditor, mailed on April 9, 2018 and stamped received on April 12, 2018.  As of this date, the creditor has only sent an email and a US Mail notice of payment recovery but has not, as of today, filed the claim with the Court.

The estate is small and there are other creditor's claims that were properly filed with the Court that have reduced the residual to an even smaller amount.  The PR (who is also one of three beneficiaries) would like to reject the claim for failing to properly file the claim within 30 days of receiving notice.  Reading through RCW 11.40.70 it clearly states that notice needs to come to the personal representative AND be filed with the Court.

My question really relates to 11.40.070(4) - the waiver of defects, where it says that if written notice was provided the PR may elect to treat the claim as properly filed.

Do Courts expect PR's to waive the defect of not filing the claim? This is a large insurer with a subro department that is seeking money for a claim that they paid out for their insured (and before you ask, my decedent was driving around without insurance for the last couple years of his life) and now want to recover from the Estate.

Thank you for your responses.

Brent

--

Brent Williams-Ruth
Founding Member

BWR Consulting, PLLC

Phone: (425) 830-5134

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Brent Williams-Ruth
Founding Member

BWR Consulting, PLLC

Phone: (425) 830-5134

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