[WSBAPT] Creditor's Claim not filed with Court

Wed May 16 08:53:43 PDT 2018

What the PR does NOT have a duty to do is to act as the creditor’s attorney.  Thus, you can wait until the 4 month creditor’s claim period expires, then reject the claim if it is not properly filed.  Until a claim is filed or pre-filing negotiations seriously offered, I would not inform the creditor of my intentions, tell the creditor what to do, what it didn’t do properly, or what the consequences of not filing a proper creditor’s claim are.  You provided notice.  Stop.

With kindest regards,

Jenny Rydberg 

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

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

 <http://www.facebook.com/pages/Jennifer-C-Rydberg-Attorney-at-Law/202026819930339?fref=ts>   <http://www.linkedin.com/company/jennifer-c.-rydberg-attorney-at-law>   <https://twitter.com/JCRLaw> 

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From: Eric Nelsen [mailto:Eric at sayrelawoffices.com] 
Sent: Tuesday, May 15, 2018 9:28 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Creditor's Claim not filed with Court

I agree with James. I also haven't found any case law regarding duties to creditors. But, I recall there was recently a case--I can't remember the full context of the decision--where "creditor" was defined there as someone who has filed a claim and the claim has been accepted, in contrast to a "claimant" or "potential creditor" who hasn't filed a claim and/or has filed a defective claim. Again, I don't remember the full context, but I think the distinction might be helpful in thinking about fiduciary duties of a PR. Perhaps a PR does have fiduciary duties to a "creditor" under that definition, but "creditor" suddenly becomes a much narrower category that doesn't include claimants/potential creditors/reasonably ascertainable creditors.

I don't necessarily agree with the case law, because the term "creditor" is I think used more broadly than that in the statutes. But it's one possible avenue of research.

Sincerely,

Eric

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1417 31st Ave South

Seattle WA  98144-3909

phone 206-625-0092

fax 206-625-9040

From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of James W. Spencer
Sent: Tuesday, May 15, 2018 8:49 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Creditor's Claim not filed with Court

Hivemind:

I agree wholeheartedly with what Mr. Culbertson says below. I do not believe that statutory and case law impute any fiduciary duty to a PR as to estate creditors. I would also agree with Mr. Gorfinkle that the PR MUST reject any claim not properly filed.

The duties of loyalty, good faith and honest judgment, impartiality, and diligence – fiduciary duties of the PR vis-à-vis the beneficiaries – are fairly-well-settled law. I am confident that any assistance provided by the PR to a creditor that deprives beneficiaries of estate assets could be actionable as a breach of fiduciary duty. The PR also has an obligation to preserve and protect from loss the property of the estate. 

That obligation to preserve property is where, I believe, the PR can get into trouble while dealing with creditor claims. If the PR’s failure to allow a properly-presented creditor claim, where there is no real defense to nonpayment, leads to litigation, the PR is, arguably, wasting estate property by way of the costs of litigation. This is a breach of duty, but it is a breach of duties owed to the beneficiaries, not to the creditor.

My $.02.

Best wishes,

James

James W. Spencer

Brothers & Henderson, P.S.

2722 Eastlake Avenue East, Suite 200

Seattle, Washington 98102

Phone: (206) 324-4300 x106

e-mail:  jamess at brothershenderson.com <mailto:jamess at brothershenderson.com> 

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

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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 Thomas M. Culbertson
Sent: Tuesday, May 15, 2018 8:26 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

Phil raises a point that every so often gives me some concern. I’m not aware of any WA authority on the subject of what duties, if any, does a PR owe a creditor. I would like the law to be that there is no duty, except perhaps to a creditor who has properly filed a claim AND the claim has been accepted (or is <$1000 and not timely rejected).  I’m sure we’ve all experienced variations on the following theme – after receiving actual notice, credit card collection agency (undoubtedly one we’re all familiar with) calls saying they are willing to accept 75 cents on the dollar, I ask whether they have filed a creditor’s claim, “no, we don’t plan to do that”, and I say I can’t respond until I talk to my client. Of course I never do respond, they never file a claim, we ignore their follow up communications, and the estate saves a bunch of money. Does anyone think my client or I owe any duty at all to tell them how to get their act together? The collection agency must have  a pretty persuasive marketing department, selling a service that routinely squanders its clients’ claims.

________________________________________

THOMAS M. CULBERTSON  I  Lukins & Annis, PS

717 W. Sprague Ave, Suite 1600, Spokane, WA 99201

(509) 455-9555  I  fax (509) 363-2500  I   <mailto:tculbertson at lukins.com> tculbertson at lukins.com 

From: wsbapt-bounces at lists.wsbarppt.com <mailto:wsbapt-bounces at lists.wsbarppt.com>  [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Philip N. Jones
Sent: Friday, May 11, 2018 11:51 AM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Creditor's Claim not filed with Court

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] 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

e-mail <mailto:brent at bwrconsults.com>  / website <http://www.bwrconsults.com>  /  <http://www.facebook.com/bwrconsults> facebook 

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