IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON WASHINGTON FEDERAL SAVINGS, Appellant,

v. MICHAEL P. KLEIN, Personal Representative ofthe Estate of ROBERT KLEIN, Deceased, Respondent. No. 68749-2-1 DIVISION ONE

UNPUBLISHED OPINION FILED: August 12, 2013



### Becker, J. —Washington Federal Savings appeals a summaryjudgment orderthat dismissed as untimely its creditorclaim against a deceased borrower's estate. Washington Federal contends that because it did not receive a copy of the estate's notice to creditors, itwas subjectto a two-yeartime baron creditor claims—which itmet—not the far shorterperiod permitted under RCW 11.40.051(a) to creditors who are given actual notice—which itfailed to meet. But the statute requires only proofthatthe estate's notice was mailed, not proof that itwas received. Washington Federal's evidence ofnonreceipt does not rebutthe estate's proofof mailing. We affirm.

FACTS In June 2006, appellantWashington Federal Savings, a savings and loan association, loaned $375,000 to Robert Klein, M.D., to buy a condominium unit inNo. 68749-2-1/2 

### Tacoma, Washington. To secure payment ofthe promissory note, a deed oftrust
was recorded againstthe property. 

### Three years later, on December 11, 2009, Dr. Klein died atthe age of 82. He had not paid offthe loan. The balance on the loan was about $350,000. The value ofthe property had dropped. It is now worth about $200,000. Dr. Klein's son Michael Klein, respondent herein, became the personal representative ofthe 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 inJanuary 2010, in accordance with RCW 11.40.020(1)(a). Underthe 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 atthe creditor's last known address, by regularfirst-class mail, postage prepaid
. . . 

### RCW 11.40.020(c). A creditorwho is given actual notice as provided in RCW 11.40.020(c) must presentthe claim within 30 days ofthe personal 

### representative's service or mailing ofthe notice, or within 4 months of first publication ofthe notice, whichever is later. RCW 11.40.051(1)(a). Ifthe 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).No. 68749-2-1/3 Washington Federal, a known creditor, presented its creditor claim to the 

### estate on May 10, 2011. This was months afterthe 30-daytime bar had elapsed but still within the 2-yeartime barthat applies ifWashington Federal was not 

### given actual notice. The question in this appeal is whetherWashington Federal
was given actual notice inthe manner required by RCW 11.40.020(c)—i.e., by service or mailing ofthe notice to creditors. On January 28, 2011, about a year afterthe opening ofprobate, the 

### estate's attorney wrote a letterto Washington Federal stating that a copy ofthe 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 ofMailing" with the court inthe probate matter. The affidavit was sworn by Anne Favretto, a legal assistant ofthe law office for the estate's attorney, under seal ofnotary on the same date. The affidavit states, in full: Anne Favretto, first being duly sworn on oath, states thatthis Affidavit is made on behalfofthe personal representative. On January 28, 2011, Ihave given, or caused to have given, the creditors listed on said ExhibitA, actual notice by mailing to the creditor's last known address, by regularfirst class mail, postage prepaid, a true and correct copy ofthe notice to creditors filed herein. Is/ Anne Favretto SUBSCRIBED AND SWORN to before me this 28th day of January, 2011. [signature and stamp ofnotary] Exhibit A comprised page two ofthe affidavit. Washington Federal was one of

two creditors listed on Exhibit A. Under RCW 11.40.051 (a), the applicable claims barwas 30 days aftertheNo. 68749-2-1/4 personal representative served or mailed the notice to creditors. The 30-day deadline passed on February 27, 2011, with no response from Washington Federal. 

### The estate had been making monthly payments of$2,433 on the loan 

### since Dr. Klein's death, while trying to sell the condo. The estate received, and rejected, an offer of$260,000 forthe condo in March 2011. On April 8, 2011, Kleinwrote to Washington Federal and offered to give it the deed to the property in lieu offoreclosure. He wished to "turn overthe 

### property to Washington Federal. . . and to walk away from" the condo and its related costs. Washington Federal declined. 

### On April 27, 2011, Klein filed a "Petition for Instructions" asking the court 

### to orderWashington Federal to accept his offer of a deed in lieu of foreclosure, in 

### light of itsfailure tofile atimely creditor's claim to any unsecured deficiency above the value ofthe deed. Klein attached to his petition the January 2011 

### letterfrom the estate's attorney, the attached notice to creditors, and the affidavit 

### ofmailing byFavretto. Washington Federal claims this was the firsttimeithad
ever seen any ofthese documents. OnMay 10, 2011, within 30 days, Washington Federal filed a creditor's claim. 

### Washington Federal also filed an opposition to the petitionforinstructions. Bankemployees Barbara Peten and Betsy Nelson submitted declarations stating 

### that neither they nor anyone else at Washington Federal received the estate's 

### January 2011 letter, thatWashington Federalmaintained "standardpolicies andNo. 68749-2-1/5 procedures" for the proper handling ofsuch notices that arrive by mail, and that the April 2011 petition was theirfirst notice that the estate was attempting to avoid liability for any deficiency between the value ofthe promissory note and the value ofWashington Federal's secured deed. There followed several months of inconclusive litigation concerning the petition for instructions which need not be detailed here. For purposes ofthis appeal, the next significantevent occurred on October 27, 2011, when Klein filed

a formal notice rejecting Washington Federal's creditor claim. Washington Federal then sued the estate for breach ofcontract, alleging thatthe personal representative had breached the estate's obligations underthe promissory note and the deed oftrust. Washington Federal soughtto enforce the promissory note againstthe estate and to collect the deficiency above the value secured by the deed oftrust. The estate moved for summaryjudgment. The estate argued, in part, that Favretto's mailing ofthe notice to creditors inJanuary 2011 constituted an affirmative defense to any unsecured claim against the estate by Washington Federal because the lender had notfiled its claim within 30 days afterthat notice

was mailed. The court granted the estate's motion on April 11, 2012, reasoning thatthe notice mailed in January 2011 with the letterfrom the estate's attorney was 

### enough to startthe clockticking. The court awarded the estate its attorney fees and costs, totaling $12,045. This appeal followed.No. 68749-2-1/6 

### When reviewing an ordergranting summaryjudgment, this court engages inthe same inquiry as the trial court, viewing the facts and all reasonable 

### inferences inthe lightmostfavorable to the nonmoving party. Jones v. Allstate Ins. Co.. 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). Summaryjudgmentis appropriate ifthe pleadings, affidavits, depositions, and admissions on file 

### demonstrate the absence ofany genuine issues ofmaterial fact and the moving party is entitled to judgment as a matter of law. CR 56(c). A material fact is one
on which the outcome ofthe litigation depends. Zedrick v. Kosenski, 62 Wn.2d 50, 54, 380 P.2d 870 (1963). 

### The party opposing a motion for summaryjudgment may not rely on speculation, argumentative assertions that unresolved factual issues remain, or
on having its affidavits considered atface value. Seven Gables Corp. v. MGM/UAEntm'tCo.. 106Wn.2d 1, 13, 721 P.2d 1 (1986). The party must set 

### forth specificfacts rebutting the moving party's contentions and disclose that a genuine issue as to a material fact exists. Seven Gables, 106Wn.2d at 13. Washington Federal rests its case on its claim that itnever received the documents mailed by the estate's legal team inJanuary 2011. The evidence Washington Federal submits are affidavits by two of its employees stating that the documents were never received and detailing the careful procedures that have been put in place to ensure that mail does not get lost. IfFavretto's affidavit proves mailing ofthe notice—an issue we will address below—these affidavits do not rebut it. A creditor's claimed nonreceiptNo. 68749-2-1/7 

### of a probate notice is not material to proving actual notice. Had proof of receipt been ofconcern to the legislature, it could have so provided. Just such a requirementexists inthe mortgage foreclosure context, for example, where the 

### legislature requires creditors to transmit notices offoreclosure sale "bybothfirstclass and eithercertified or registered mail, return receipt requested." RCW 

### 61.24.040(1 )(b) (emphasis added). Actual notice under RCW 11.40.020(c) is accomplished by mailing, without regard to proofofreceipt. 

### And proofof receipt is not necessary to satisfy due process. Under most 

### circumstances, notice sentby ordinary mail satisfies due process because it is 

### deemed reasonably calculated to inform interested parties of an impending action. Weiqner v. New York. 852 F.2d 646, 650 (2d Cir. 1988). cert, denied. 488 U.S. 1005 (1989); Tulsa ProfICollection Srvs. v. Pope. 485 U.S. 478, 490, 108 

### S. Ct. 1340, 99 L. Ed. 2d 565 (1988); Mennonite Bd. ofMissions v. Adams. 462 U.S. 791, 800, 103 S. Ct. 2706, 77 L. Ed. 2d 180 (1983). The Mississippi and Kansas cases cited by Washington Federal do not establish a rule that due process requires proofof receipt. One would have to lift sentences out ofcontext in orderto give them that interpretation. Inthe Kansas case, there was no issue as to whether an affidavit of mailing was adequate to 

### prove receipt; indeed, the record was "void ofany evidence" thatthe creditor "was ever notified" ofthe probate, by mailing or otherwise. In re Estate of Reynolds. 266 Kan. 449, 970 P.2d 537, 545 (1998). Nor was there a live dispute

as to mailing versus receipt inthe Mississippi case. There, the court presumedNo. 68749-2-1/8 

### that a mailed notice was a received notice; itdescribed the affidavit of mailing as listing "creditors who receivednotice by mail." Inre Estate ofPetrick. 635 So. 2d 1389, 1390 (Miss. 1994) (emphasis added). 

### Washington Federal's essential argument on appeal is that Favretto's 

### affidavitwas inadequate to prove thatthe estate mailed notice. Washington Federal argues Favretto's use ofthe wording "have given, or caused to have given" creates ambiguity as to who actually placed the document intothe mail, and whether such a person ever did, infact, mail the document. 

### Klein contends thatWashington Federal failed to preserve a challenge to the adequacy ofFavretto's affidavit. "On review of an ordergranting or denying a motion forsummaryjudgmentthe appellate court will consideronlyevidence and issues called to the attention ofthe trial court." RAP 9.12. "The appellate court may refuse to review any claim oferrorwhich was not raised inthe trial court." 

### RAP 2.5(a). As a general matter, an argument neitherpleaded nor argued to the trial court cannot be raised for the first time on appeal. Sourakli v. Kvriakos. Inc.. 144 Wn. App. 501, 509, 182 P.3d 985 (2008). review denied. 165 Wn.2d 1017 (2009).Klein is correctthatWashington Federal's position on appeal has evolved 

### from its position inthe trial court. Washington Federal's summaryjudgment opposition briefdid not mention Favretto's name, and itmade only an oblique reference to her affidavit.No. 68749-2-1/9

[Ejvidentiary issues existwith respectto the P.R.'s ostensible proof 

### of his attorney's assistant's actions. Indeed, Mr. Klein's Declaration is internallyinconsistent, indicating that both his lawyer, andhis lawyer's assistant "gave . .. direct notice," and/or "given, orcaused to have given," such notice to WaFed. Itis not up to the Court orWaFed to read between the lines 

### and attemptto ascertain which ofthe multiple possibilities actually occurred - if any; rather it is the Estate's burden to prove the 

### material facts. Even were the Estateto belatedly attempt establishing a foundation for its P.R.'s knowledge ofWaFed's ostensible service, given the existing contradictions in his testimony 

### thatevidence should be accorded very little weight. Clerk's Papers at 170 (some emphasis added) (alteration in original) (footnotes omitted). Washington Federal's motion for reconsideration similarly failed to confront Favretto's affidavit directly. Forthe sake ofargument, we will assume the challenge to Favretto's affidavit was not waived. The question, then, becomes whether her affidavit established prima facie proofof "mailing the notice" to Washington Federal as required by RCW 11.40.020(c). Favretto declared, "I have given, or caused to have given, the creditors listed on said Exhibit A, actual notice by mailing to the creditor's last known address, by regularfirst class mail, postage prepaid, a true 

### and correct copy ofthe notice to creditors filed herein." Zeroing in on the phrase, "or caused to have given," Washington Federal argues itmeans that Favretto is unable to claim personal knowledge thatthe document was mailed: Even accepting the affidavit atface value, the letter and notice may well have been given to someone else to mail or handle—butthere is no declaration from any such person as to their actions or 

### confirming mailing. That alone establishes the existence of aNo. 68749-2-1/10 genuine issue of material fact as to whether "actual notice" was given. Brief ofAppellant at 27 (emphasis omitted). According to Washington Federal, 

### Favretto's affidavit raises a reasonable inference that no one accomplished the mailing. 

### We rejectthis argument. It is not uncommon fordeclarations of mailing to

use phrases signifying thatthe declarant has "caused" an important documentto be mailed. Use ofthis passive voice construction abounds in statutes that 

### describe a party's obligation to give notice. See, e.g.. RCW 61.24.040(1)(b) ("At least ninety days before the sale,
... the trustee shall.
. . cause a copy ofthe 

### notice ofsale . . . to be transmitted') (emphasis added); RCW 23B. 15.100(3) ("the secretary of state shall immediately cause a copy thereofto be forwarded by certified mail") (emphasis added). Whatthese usages recognize is that "mailing" a notice is not a single, complete act. Mailing a notice refers to a series of linked actions, any one of which, hypothetically, is fallible. To prove mailing in accordance with RCW 11.40.020(c), if it is not enough for a legal assistantto say that she "caused" 

### actual notice to be given by mailing, then what is enough? Must she say that she personally took the documentto the mail room? Or that she personally put it on the mail truck or in an official postbox? No. The familiar standard of "reasonably calculated to apprise" encompasses the remote possibility that any one ofthese links may break down in a given case. The office messenger may drop the 

### envelope into the dustbin on the wayto the mail room; the wind may blow it off

10No. 68749-2-1/11 

### the truck into the street; or a careless postal employee may direct it to the dead letter office. The fact that mailed notice satisfies due process reflects ajudgment that such mistakes are very rare. So, when a legal assistantdeclares that she has "given, or caused to have given" a creditor actual notice by mailing, it is reasonable to accept her statement
as prima facie proofof mailing. To refute such a declaration, a creditor must do

more than swear that the mail never arrived. We concludeWashington Federal has not raised a genuine issue of material fact as to the mailing ofthe notice to creditors on January 28, 2011. The trial court did not err in concluding thatthe creditor claim is time barred. The promissory note contains an attorney fee provision. The trial court 

### awarded the estate attorney fees and costs underthis provision totaling $12,045. The estate is similarly entitled to an award ofattorney fees as the prevailing party
on appeal, subjectto compliance with RAP 18.1. Affirmed.

WE CONCUR: 

# <&X,J.

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