[WSBARP] Two Suits or One?

[Eric Nelsen]

Initiate one TEDRA action in the county of the probate. RCW 11.96A.050(5)<http://app.leg.wa.gov/rcw/default.aspx?cite=11.96A.050>. Once the lawsuit is filed, a lis pendens recorded in both counties might be okay, but it's a tricky question as to whether the suit to restrain the PR from selling truly involves "an action affecting title to real property." RCW 4.28.320<http://app.leg.wa.gov/rcw/default.aspx?cite=4.28.320>. Arguably, the case is about whether the PR has authority to sell--that is, authority to deliver title--but I haven't researched the scope of the lis pendens statute. Beware potential fee award for recording an invalid lis pendens. RCW 4.28.328<http://app.leg.wa.gov/rcw/default.aspx?cite=4.28.328>.

But you don't need a suit in each county--Superior Court jurisdiction is statewide so any county can affect real estate in any other county. Case caption in the lis pendens will of course name the county of venue, even if recorded in a different county.

Restraining order might be a good option if lis pendens isn't available, though if the PSAs are already signed and enforceable, your client might be stuck--the PR would end up breaching the PSA, and the innocent third party Buyer will win on a specific performance action and get attorney fees against the Estate. Your client will be left with only a suit against the PR for breach of fiduciary duty, and I don't know what the measure of damages could be, except perhaps the loss of Estate money to pay the buyers' attorney fees...

I don't think RCW 11.04.250<http://app.leg.wa.gov/rcw/default.aspx?cite=11.04.250> gets too far, because the heirs' vesting is subordinate to any court-appointed PR, and the buyer under a PSA is almost certainly a "person lawfully claiming under the personal representative" clause. But I could be all wet--this was typed on the fly while avoiding other work. :-)

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA  98101-2837
phone 206-625-0092
fax 206-625-9040




From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Clark, Catherine
Sent: Thursday, December 04, 2014 2:50 PM
To: WSBA Real Property Listserv
Subject: [WSBARP] Two Suits or One?

Listmates:

I have been recently hired to represent the sole beneficiary of an estate for which probate was initiated approximately 6 weeks ago. The personal representative has signed two purchase and sale agreements for the sale of two properties identified in the will and specifically devised to my client.  The client does not agree that these properties should be sold. Notice to creditors has gone out, but it does not appear that the notice has been published. Thus, the four-month creditor's claim period has not expired if in fact it has been initiated. Counsel for the personal representative has withdrawn and thus she is operating as an unrepresented individual.

One property is located in King County and the other in Pierce County. My sense is that I initiate two suits, one in each county, to restrain each independent transaction.  My other inclination is to record a lis pendens in each county asserting the claim to title by my client. Seems to me that in order to do that I need a separate lawsuit in each County.

The other option is to pursue restraining orders restraining each transaction and not record a lis pendens. My challenge there is that I know the title company for one transaction (which is not listed in the MLS) and for the other transaction I only know the listing agent which is listed in the MLS.

Which we would you go on this?

All responses appreciated.

Thank you

Catherine C. Clark
Law Office of Catherine C. Clark PLLC
701 Fifth Avenue, Suite 4105
Seattle, WA  98104
Phone:  (206) 838-2528
Fax: (206) 374-3003
Email:  cat at loccc.com<mailto:cat at loccc.com>

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