What is the name of your state? NY
A Collection Agency had filed a claim against my mother's estate back in 2012 upon learning of the Probate Filing.
A certified letter was sent to the creditor asking explanation of the debt. They never responded.
We are in the process of settling the estate (2019) and tried contacting this creditor by phone, only to be told that they are no longer in Business (since 2015).
To our knowledge and check of local public records, this claim has not been assigned to another agency.
My question is 1.) Is there a Statue of Limitations for this claim ?
2.) Since they are no longer in Business, does the claim become invalid ?
3.) What form can I use to file with the Surrogate Court to have this claim removed ? (based on the company no longer being solvent).
The estate is located in Upstate New York.
Any assistance would be appreciated.
What I have to say below is not intended as legal advice. For that you need to consult with a New York attorney acquainted with the state's unique probate rules and procedures. Read or ignore as you like.
Anyway, you and some others appear to be unnecessarily concerned with the effects of New York's six year statute of limitations on debt (
NYCPLR Sec. 213).
That SOL could only be a factor if the six years had expired BEFORE the date that the collector presented the claim to fiduciary/executor; in which event the claim would be barred. The statute has no significance whatsoever following the date the claim was submitted to the executor. Why?
Because the statute would have been tolled and ceased to run against the estate coincident with the submission of the claim; to-wit:
"With respect to any limitation of time within which an action or proceeding may be brought and with respect to examinations before trial, bills of particulars and disclosure generally, the presentation of a claim as provided in 1803 shall be deemed the institution of a special proceeding for the collection of the claim." (See:
Section 1808 (6) of NY Surrogate Court Procedures)
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So, assuming that the claim was not barred at the time it was presented, then attention must be directed to the laws of your state treating with the disposition of rejected creditor's claims.
We can start with
Section 1806 of New York Surrogate Court Procedures which states that any such claim that is not specifically allowed within 90 days from the time it was presented shall be deemed rejected by the fiduciary.
That's clear enough, but what follows with respect to the rights of the purported creditor whose claim has been rejected; how those claims are ultimately resolved/adjudicated, the governing rules if any, and within what prescribed periods of time are anything but clear!
For example Section 1808 provides that
"whenever a fiduciary rejects a claim in whole or in part all issues relating to the validity and enforceability of the claim shall be tried and determined upon the judicial settlement of his account".
However, there doesn't appear to be any time restraints imposed upon the fiduciary/executor within which the fiduciary is required to file an accounting and seek a judicial settlement and thus join for adjudication issues bearing upon the validity and enforceability of a rejected creditor's claim.
In other words, if there is no time limit on the executor filing a final account and seeking to resolve any rejected creditor's claims it seems to stand to reason that if so disposed the creditor is free to wait out the executor taking action to close the estate.
And yet Section 1810 SCP allows a claimant whose claim has been rejected to sue the estate in a civil court of law or equity (that is one apart from the Surrogate Court where the probate is pending), provided the suit is "commenced within 60 days after such rejection". With the strange caveat: "Failure
to bring such action within 60 days shall not, however, be deemed a waiver of claimant's right to a jury trial."
A jury trial? Where? In Surrogate Court? At the time of the "
judicial settlement of the fiduciary's account" the creditor can demand a jury trial?
If that isn't confusing enough try this one:
"
Death of person liable. The period of eighteen months after the death, within or without the state, of a person against whom a cause of action exists (?) is not a part of the time within which the action must be commenced against his executor or administrator."
NYCPLR Section 210(b)
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In sum and again as I read your posts you seem to be focusing on a means of dismissing the claim on some grounds due to lapse of time. And it may be that the doctrine of laches would apply. But you aren't going to find a solution by working your laptop. The executor is long, long, in fact ages past due in spending some of the estate's money with an attorney.
