[WSBAPT] Creditor's Options

Tue Aug 30 23:20:09 PDT 2022

  Law Office of
F.ANDREKITA SILVA
_______________________________________________________  

August 30, 2022

Samuel,

Ordinarily, if a creditor wants to sue the community, they must serve  
both husband and wife.  If you only serve one spouse, then you can't  
satisfy a judgment from the entire community interest, only on the 1/2  
community interest of the spouse you served.  When you go to collect  
against the non-served spouse, that spouse can assert any defenses  
like  “statute of limitations ran” or “wasn’t a community debt, etc.”  
You basically have to sue that person from scratch. To avoid that,  
even if you don’t know if the debtor/ tortfeasor has a spouse, you  
always sue “John Doe, husband” or “Jane Doe wife,” just in case.

So, I’ve never had to do this but offhand, I’m pretty sure the probate  
code says you can’t sue the estate unless a PR is appointed.   I  
hadn't read your facts very carefully, but haven’t just over 2 years  
passed?  I’m pretty positive you have to bring a claim within 2 years  
of the person’s death, even if the creditor was reasonably  
ascertainable.

You may want to ignore what I am saying because I've been pounding  
away at my computer all day ... 
Probably someone else on the list serve has the applicable statutory  
provisions committed to memory and can answer with more certainty.  
But, offhand, those are my 2 cents …

andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 2000
Seattle, Washington 98101
206-224-8288
www.seattle-silvalaw.com

Quoting samuel at meylerlegal.com:

> Thanks, Andrekita.  There is no judgment yet.  Given that no probate  
> has been commenced, who would be the correct parties to name as  
> defendants in the action?  Would you still name the estate of the  
> deceased as a defendant?  If so, who would you serve on behalf of  
> the estate?  It seems like the simple answer is the wife, but I  
> suspect that there is a specific procedure by which this scenario is  
> addressed.
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>     SAMUEL M. MEYLER
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>     MEYLER LEGAL, PLLC 
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>     1700 Westlake Ave. N., Ste. 200
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>     Seattle, Washington 98109
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>     TEL:  206.876.7770
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>     FAX:  206.876.7771
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>     EMAIL:  samuel at meylerlegal.com
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>      FROM: wsbapt-bounces at lists.wsbarppt.com  
> <wsbapt-bounces at lists.wsbarppt.com> ON BEHALF OF Andrekita Silva
> SENT: Tuesday, August 30, 2022 7:37 PM
> TO: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> SUBJECT: Re: [WSBAPT] Creditor's Options
>
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> Law Office of
> F.ANDREKITA SILVA
> _______________________________________________________  
>                                                              
> August 30, 2022
>  
> Samuel,
>  
> It sounds like you are saying the home was purchased during the  
> marriage and so, it is community property.
> Driving a car as you go about your life would 99.999 % be found to  
> have a community purpose, so the community would be liable for  
> husband’s tort.
>  
> The creditor may go after community real property (RCW 26.16.040)   
> to satisfy the community obligation/ debt.  As H died 2 years ago,  
> it sounds like surviving spouse might have small separate property  
> interest-  presumably she has been making payments on the property   
> (even though it is 100% hers now, the court would look to see what  
> portion was community at the time of husband's death.  If this car  
> accident were found to be a separate tort (which is unlikely under  
> the family car doctrine), then the creditor could only go after the  
> tortfeasor husband's 1/2 interest in community property. 
>  
> If the insurer never reduced the agreement for payments to a  
> judgment, then the insurer can do that. The statute of limitations  
> on a contract for money is 6 years, so the insurer has 6 years from  
> the date of the last payment to seek a judgment.
>  
> If there is already a judgment, then insurer can seek to collect by  
> any lawful means, i.e., writ of garnishment on wages, writ of  
> garnishment on bank accounts. Insurer could seek a writ of execution  
> against the house and sell it to get their money, too.  However, to  
> do that, they would have to first establish that there is no  
> personal property available to satisfy the judgment. They would do  
> that through a supplemental proceeding.
>  
>  
>  
> andrekita
> Law Office of F. Andrekita Silva
> 1325 Fourth Avenue, Suite 2000
> Seattle, Washington 98101
> 206-224-8288
> www.seattle-silvalaw.com[1]
>
> Quoting samuel at meylerlegal.com:
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>> Listmates,
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>>      Here is the scenario: Decedent causes a car accident in 2016,  
>> admits fault and enters into an agreement with the other/injured  
>> party’s insurer to make payments over time.  Decedent passes away  
>> on 8/17/2020.  Decedent was married and wife continues to live in  
>> the family home which has equity in it.  Probate was never opened.   
>> What options does the insurer have to pursue collection of the  
>> outstanding balance?  What procedures would the insurer have to  
>> follow?  Thanks for your input. 
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>>      SAMUEL M. MEYLER
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>>      MEYLER LEGAL, PLLC 
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>>      1700 Westlake Ave. N., Ste. 200
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>>      Seattle, Washington 98109
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>>      TEL:  206.876.7770
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>>      FAX:  206.876.7771
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>>      EMAIL:  samuel at meylerlegal.com
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>>      NOTICE:
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>>
>>      This electronic message contains information which may be  
>> Confidential or Privileged and constitutes an electronic  
>> communication within the meaning of the Electronic Communications  
>> Privacy Act 18 USC 2510. The information is intended to be for the  
>> use of the individual or entity named above.  If you are not the  
>> intended recipient, please be aware that any disclosure, copying,  
>> distribution or use of the contents of this information is  
>> prohibited.  If you received this transmission in error, please  
>> notify the sender and delete the copy you received together with  
>> any attachments.  Thank you.
>>
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Links:
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[1] http://www.seattle-silvalaw.com

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