[WSBAPT] Decedent Landlord in Unlawful Eviction

Mon Sep 11 12:11:51 PDT 2023

Thank you all. I will send this along, particularly Nick's  thoughts.

Best,
David J. Faber
Faber Feinson PLLC
800 Polk Street, Suite B
Port Townsend, WA 98368
(360) 379-4110

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On Mon, Sep 11, 2023 at 9:10 AM Eric Nelsen <eric at sayrelawoffices.com>
wrote:

> Diane—This is one of those situations where the statutes, despite being
> still on the books, are superseded by the court rules.
>
>
>
> The statutory deadlines have been superseded by flexibility under CR
> 25(a). The overall operative statute is RCW 2.04.200
> <https://app.leg.wa.gov/RCW/default.aspx?cite=2.04.200> which allows
> court rules to override statutes as to procedural matters. *See also* *Petrarca
> v. Halligan*, 83 Wash.2d 773, 522 P.2d 827 (1974) (overriding former RCW
> 11.40.100 requiring substitution within 90 days); *Barker v. Mora*, 52
> Wn.App. 825, 764 P.2d 1014 (1988) (overriding RCW 4.20.050 requiring
> substitution within one year of date of death).
>
>
>
> CR 25(a) also overrides RCW 4.08.140 so that, in order to substitute the
> proper parties, one need only serve them with the Motion for Substitution
> under CR 5, and need not achieve service of process of the complaint and
> summons on the new parties. *Mikkelborg, Broz, Wells & Fryer v. Bean*, 97
> Wash.App. 573, 985 P.2d 950 (1999). Though I don’t know that I’d feel
> comfortable trusting that entirely; I think I’d rather get an acceptance of
> service from the new party or use actual service of process to serve them
> with summons and complaint at the same time as the motion for substitution.
>
>
>
> I wish the statutes would be get “cleaned up” by repeal or something.
>
>
>
> Sincerely,
>
>
>
> Eric
>
>
>
> Eric C. Nelsen
>
> Sayre Law Offices, PLLC
>
> 1417 31st Ave South
>
> Seattle WA 98144-3909
>
> 206-625-0092
>
> eric at sayrelawoffices.com
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *Diane J. Kiepe
> *Sent:* Saturday, September 9, 2023 1:50 PM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* Re: [WSBAPT] Decedent Landlord in Unlawful Eviction
>
>
>
> Sad story, recently we were involved in a case where the estate was
> allowed to be substituted over a  year later – basically judge said all
> parties know of the litigation and no harm would be done by allowing the
> substitution.  It’s always very confusing to me when rules will be applied
> by the court and when they won’t.
>
>
>
> All that to say, the rule of 4 months, in my case, was not applied.
>
>
>
>
>
> *Diane J. Kiepe*
>
> Douglas Eden, P.S.
>
> 717 W. Sprague Ave., Suite 1500
>
> Spokane, WA  99201
>
> djkiepe at depdslaw.com
>
> 509-455-5300
>
>
>
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>
> *From:* wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *Nick Pleasants
> *Sent:* Friday, September 8, 2023 5:14 PM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* Re: [WSBAPT] Decedent Landlord in Unlawful Eviction
>
>
>
> David,
>
> Take a look at RCW 11.40.110. You’ll need to file a motion to substitute
> the PR as defendant. I believe this would be done in the probate action. If
> no probate is pending, you can open one as the Plaintiff/Creditor (RCW
> 11.28.120(6)) . Note the 4-month statute of limitations to accomplish the
> substitution. I don’t believe it is subject to the creditor claim process,
> although folks often do file a claim as well as a petition for
> substitution. See, e.g., *Alexander v. Highfill*, 18 Wash.2d 733, 140
> P.2d 277 (1943).
>
> Best,
>
> Nick
>
>
>
> *Nicholas Pleasants | Shareholder *
>
>
>
> [image: OseranHahnAttyatLaw 8]
>
>
>
> 11225 SE 6th Street | Suite 100 | Bellevue, WA 98004
> Main: (425) 455-3900 | Fax: (425) 455-9201 | E-mail:
> npleasants at ohswlaw.com
>
>
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> *From:* wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *David Faber
> *Sent:* Friday, September 8, 2023 4:15 PM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* [WSBAPT] Decedent Landlord in Unlawful Eviction
>
>
>
> List,
>
>
>
> A colleague who is working an eviction defense under the Washington State
> pro bono eviction defense pilot program had the defendant landlord die
> during the court of the case with a trial scheduled for the end of
> September. The colleague has asked me whether I know what he should do to
> bring the estate into the trial. I stay away from estate litigation so I am
> no help whatsoever to the colleague. I presume he moves to substitute the
> Personal Representative as defendant, but with TEDRA and creditor claim
> procedures, I'm immediately at a loss for whether that's the correct
> procedural move. Has anyone on this list dealt with a similar situation/are
> you willing to have a quick phone chat with the colleague regarding how he
> might properly proceed?
>
>
>
> Best,
>
> David J. Faber
>
> Faber Feinson PLLC
>
> 800 Polk Street, Suite B
>
> Port Townsend, WA 98368
> (360) 379-4110
>
>
>
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