Judgment Liens Not Barred in Probate Without Notice

Judgment Liens Not Barred in Probate Without Notice

We have counseled many clients who have asked about probate, what it is, and how to avoid it. We have told them that probate is not necessary in order for a deceased person’s heirs or beneficiaries named in their will to inherit their assets – that happens by law.  The probate process in the law is for the benefit of creditors of the deceased person (bank loans, credit cards, medical bills, etc.).  Probate prescribes an orderly process by which those creditors can receive notice of the debtor’s death and file claims for payment from the estate before those assets pass on to the heirs.  A recent Mississippi case addressed the requirement of notice to a judgment creditor and the responsibility of an executor to identify and notify such creditors.

Unifund CCR Partners had two judgment liens against Frances Jordan that were properly renewed in Forrest County, Mississippi County Court in 2016. When Jordan died in 2020, her sole asset was her home. Her two daughters opened a probate administration, filing an affidavit that they gave notice to all reasonably ascertainable creditors. However, they did not mail notice to Unifund in spite of the fact of the two renewed judgments on record in the County Court clerk’s office.  Two months after the estate was closed, Unified filed two claims against the estate and the personal representatives moved to deny the claim as untimely filed. The court agreed, finding that Unifund was not a “reasonably ascertainable creditor” and that the estate could not be expected to search court records. 

The appeals court disagreed. Under the state’s judgment lien statute, Unifund’s judgment lien attached to Jordan’s property, whether or not it was given notice as a creditor. “A judgment so enrolled shall be a lien upon and bind all the property of the defendant within the county where so enrolled, from the rendition thereof, and shall have priority according to the order of such enrollment, in favor of the judgment creditor, his representatives or assigns, against the judgment debtor and all persons claiming the property under him after the rendition of the judgment.” Mississippi Code Annotated § 11-7-191 (2019) 

The court also pointed out that the estate inventory statute requires that the inventory list any encumbrances on the property. The court opinion stated:  “The Supreme Court has explained that “[f]rom a reading of this statute it is clear that an administratrix has four responsibilities[.]” In re Est. Petrick, 635 So. 2d 1389, 1392 (Miss. 1994).

(1) she must make reasonably diligent efforts to ascertain creditors having claims against the estate and mail them notice of the 90 day period within which to file a claim;

(2) she must file an affidavit stating that she has complied with the first subsection;

(3) she must publish in some newspaper in the county a notice to creditors explaining that they have 90 days within which to file claims against the estate; and

(4) she must file proof of publication with the clerk of court.” 

“Mississippi has a specific statute exempting judgment liens from the time bar of probate. The statute provides, however, that if the judgment creditor does not file a claim within the statutory period, the claim may only be enforced against the property subject to the lien. 

Estate of Jordan, 022 WL 1551390 (Miss. App. May 17, 2022)