[WSBAPT] Probate Notice Sent to Creditor but Collection Agency Responds

[Jayne Gilbert]

Joshua: Wouldn't the assignee "inherit" the standing of the assignor's
claim under the statute of limitations?
I don't see how a Creditor can receive notice on a certain day, wait, and
then at the last minute assign
the claim to the collection company, thus extending the statutory bar.

On Tue, Nov 3, 2020 at 1:05 PM Joshua McKarcher <josh at mckarcherlaw.com>
wrote:

> Jeff,
>
>
>
> I vote yes, assuming this is an ordinary, valid, uncontested debt in a
> solvent estate. In fact, I vote you can just pay it and be done with it.
>
>
>
> First, the creditor claim period is 4 months, not 90 days, and those
> receiving “actual notice” have until the LATER of 30 days from
> service/mailing date of your notice and the 4 month deadline. RCW
> 11.40.051(1)(a). (I send my actual notices about 45 days before the
> publication deadline so I don’t hurt my brain trying to figure it all out.
> They all then just have “until the 4 month deadline.”)
>
>
>
> Next, I think the fair reading of RCW 11.40 would make this separate legal
> entity to which the credit card company has assigned its claim a different,
> separate creditor that is NOT on notice. So upon receiving the collector’s
> statement (in “their form”) they have become a reasonably ascertainable
> creditor. (See “correspondence received after the date of death” in RCW
> 11.40.040(1).) They are thus entitled to specific notice; and a “new” 30
> days if your 4 month deadline comes earlier.
>
>
>
> Or, instead of sending them a notice and seeing if they file formally, the
> PR of a solvent estate can simply pay the claim if it is known and valid,
> and dispense with all the formalities (and formality’s attendant costs).
> See RCW 11.40.070(4), which is a very sensible addition to the statute.
>
>
>
> In a solvent estate with known debts, it is my view that costing the
> estate money to go through the hoops above to see if the creditor will
> “pass the test” is not usually in the estate’s best interest. Assuming the
> claim was known and valid; assigned; and noticed up to you or your PR in
> some form before the relevant deadlines, then, *if valid*, it should be
> paid. I think RCW 11.40.070(4) properly balances the relevant
> considerations.
>
>
>
> Going back to a discussion on this list previously about duties owed to
> creditors or beneficiaries, this is where I balance the PR’s duty to the
> beneficiaries of a solvent estate with the clear rights of creditors of
> solvent estates. If you received that collection letter *after* the
> expiration of the 4 month period, or if the estate was insolvent, then this
> analysis may be different. But I do not think “actual notice” to the
> original debt holder is a solid bar to the timely, pre-deadline presentment
> of a demand for payment by an assignee, and I wouldn’t want to hang my hat
> on the argument that it is.
>
>
>
> All the best, Josh
>
>
>
> Joshua D. McKarcher
>
> McKarcher Law PLLC
>
> 537 6th Street
>
> Clarkston, WA 99403
>
> (509) 758-3345
>
> (509) 758-3314 (fax)
>
> josh at mckarcherlaw.com
>
>
>
>
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *Jeff Davis
> *Sent:* Monday, November 2, 2020 3:02 PM
> *To:* 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
> *Subject:* [WSBAPT] Probate Notice Sent to Creditor but Collection Agency
> Responds
>
>
>
> Listmates,
>
>
>
> We provided a Probate Notice to Creditors directly to a credit card
> company in September, 2020.  We recently received a standard collection
> letter from a collection company to whom the credit card company had
> assigned the account.  No creditor’s claim was filed or served on me.  The
> 90 day period from the first publication of notice is fast approaching.
> Question, do I need to send the probate notice to creditor to the
> collection company?   Your thoughts would be appreciated.
>
>
>
> Jeff Davis
>
>
>
> W. Jeff Davis, Esq.
>
> BELL & DAVIS PLLC
> P.O. Box 510
> Sequim WA 98382
> Phone No.:(360) 683.1129
> Fax No.: (360) 683.1258
> email: info at bellanddavispllc.com
> www.bellanddavispllc.com
>
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-- 
*************************************************
Jayne Marsh Gilbert
Gilbert and Gilbert Lawyers, PS
(360) 336-9515
*************************************************
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