Published Notice Held Ineffective as to Known Creditors
| Publication year | 1988 |
| Pages | 1320 |
| Citation | Vol. 07 No. 1988 Pg. 1320 |
1988, July, Pg. 1320. Published Notice Held Ineffective as to Known Creditors
Probate practitioners in Colorado should be alert to the fact that the U.S. Supreme Court recently ruled that notice to creditors provided by newspaper publication is ineffective to bar the interest of creditors whose identity was known or "reasonably ascertainable" by the personal representative. This is the basic holding in Tulsa Professional Collection Services, Inc. v. Pope.(fn1)
By way of background, in 1983 the U.S. Supreme Court, in Mennonite Board of Missions v. Adams,(fn2) decided that the due process requirements of Mullane v. Central Hanover Bank and Trust Co.(fn3) required more than publication notice to lienholders of record in connection with tax sale proceedings. A Nevada case, Continental Insurance Co.v. Moseley,(fn4) then pending before the Court, involved the related issue of whether an estate could be closed under a Nevada statute providing for summary closing of estates without actual notice to known creditors. The Nevada case was remanded for reconsideration in light of the Mennonite decision. The Nevada Supreme Court reversed its earlier opinion and held that due process required more than service by publication.(fn5)
Following Mennonite, several state court decisions were contrary to the Nevada Supreme Court decision in Moseley. These decisions held that published notice was not constitutionally required or that, if it were so required, assertion of the creditor's claim could be barred by the short limitation period under the non-claim statute. The U.S. Supreme Court granted certiorari in the Oklahoma case of Tulsa Professional Collection Services, Inc. v. Pope(fn6) in order to resolve the conflicting decisions.
The Supreme Court, in a decision involving all nine of its justices (over a dissent by Chief Justice Rehnquist), ruled in favor of the creditor. In Pope, the decedent had died in St. John Medical Center, a hospital in Tulsa, Oklahoma. His wife was appointed personal representative. Shortly after her appointment she published notice, pursuant to the provisions of the Oklahoma statute, for two consecutive weeks. The notice advised creditors that they must file any claim they had against the estate within two months of the first publication of the notice. The plaintiff, a...
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