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Washington Federal Savings v. Klein

Court of Appeals of Washington, Division 1

October 12, 2013

WASHINGTON FEDERAL SAVINGS, Appellant,
v.
MICHAEL P. KLEIN, Personal Representative of the Estate of ROBERT KLEIN, Deceased, Respondent.

ORDER GRANTING MOTIONS TO PUBLISH OPINION

Non-parties Dean V. Butler and Sandra L. Perkins, and Respondent Michael P. Klein have filed motions to publish the opinion filed August 12, 2013. Appellant Washington Federal Savings has filed responses to both motions to publish. The hearing panel has considered its prior determination and finds that the opinion will be of precedential value; Now, therefore, it is hereby

ORDERED that the written opinion shall be published and printed in the Washington Appellate Reports.

BECKER, J.

Washington Federal Savings appeals a summary judgment order that dismissed as untimely its creditor claim against a deceased borrower's estate. Washington Federal contends that because it did not receive a copy of the estate's notice to creditors, it was subject to a two-year time bar on creditor claims—which it met—not the far shorter period permitted under RCW 11.40.051(a) to creditors who are given actual notice—which it failed to meet. But the statute requires only proof that the estate's notice was mailed, not proof that it was received. Washington Federal's evidence of nonreceipt does not rebut the estate's proof of mailing. We affirm.

FACTS

In June 2006, appellant Washington Federal Savings, a savings and loan association, loaned $375, 000 to Robert Klein, M.D., to buy a condominium unit in Tacoma, Washington. To secure payment of the promissory note, a deed of trust was recorded against the property.

Three years later, on December 11, 2009, Dr. Klein died at the age of 82. He had not paid off the loan. The balance on the loan was about $350, 000. The value of the property had dropped. It is now worth about $200, 000.

Dr. Klein's son Michael Klein, respondent herein, became the personal representative of the estate. He opened a probate in King County Superior Court in late December 2009. A notice to creditors was filed with the court and published in two local newspapers in January 2010, in accordance with RCW 11.40.020(1)(a).

Under the probate code, in addition to publishing the notice, an estate may notify known creditors at any time by mailing the notice to the creditor:

The personal representative may, at any time during the probate proceeding, give actual notice to creditors who become known to the personal representative by serving the notice on the creditor or mailing the notice to the creditor at the creditor's last known address, by regular first-class mail, postage prepaid .. .

RCW 11.40.020(c). A creditor who is given actual notice as provided in RCW 11.40.020(c) must present the claim within 30 days of the personal representative's service or mailing of the notice, or within 4 months of first publication of the notice, whichever is later. RCW 11.40.051 (1)(a). If the creditor was not given actual notice despite being reasonably ascertainable, the creditor has 24 months from the decedent's date of death to present the claim. RCW 11.40.051 (1)(b)(ii).

Washington Federal, a known creditor, presented its creditor claim to the estate on May 10, 2011. This was months after the 30-day time bar had elapsed but still within the 2-year time bar that applies if Washington Federal was not given actual notice. The question in this appeal is whether Washington Federal was given actual notice in the manner required by RCW 11.40.020(c)—i.e., by service or mailing of the notice to creditors.

On January 28, 2011, about a year after the opening of probate, the estate's attorney wrote a letter to Washington Federal stating that a copy of the notice to creditors was enclosed and calling the bank's attention to the statutory time bar provisions. On the same day, the estate filed an "Affidavit of Mailing" with the court in the probate matter. The affidavit was sworn by Anne Favretto, a legal assistant of the law ...


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