Gertner

Petitioner Michael J. Gertner, the executor of a decedent’s estate, seeks to vacate an order of respondent superior court granting the petition of VW Credit, Inc., the real party in interest, to file a late creditor’s claim under Probate Code section 9103.

Facts

Gertner is the executor of the estate of Bruce Geoffrey Saville pursuant to letters issued by the superior court September 1, 1992. VW Credit asserts it is a secured creditor of Saville’s under a motor vehicle sale agreement executed by VW Credit and Saville before his death.

On January 13, 1993, Gertner mailed notice of the administration of the estate to VW Credit at the following address: Depart. 0052, Palatine, Illinois 60055-0052. VW Credit did not file a creditor’s claim with Saville’s estate within 30 days after the notice was mailed to it.

On March 9, VW Credit petitioned for an order allowing it to file a late claim. In a supporting declaration Amy Lebeau, an employee of VW Credit’s legal department, admitted VW Credit received the notice and that it had a January 13 postmark. She declared the address to which the notice was sent is a lock box bank address used to receive payments on installment…

Dissenting.—In January 1992, the decedent, Bruce G. Saville, purchased a new Mitsubishi Montero and financed it through real party, VW Credit, Inc. At the time of Saville’s death the loan balance was approximately $8,700. Letters of administration were issued to the executor, Michael Gertner, on September 1, 1992. On January 13, 1993, a one-page probate court form notice to creditors was mailed to VW Credit at a post office box in Palatine, Illinois. The record establishes the post office box is actually a bank lock box used to gather and apply installment payments. It is not VW Credit’s business premises. The form did not refer to an account number or provide any identifying information other than Saville’s name. This led to some delay in processing so that the form was not received by VW Credit at its corporate office until February 9, 1993. VW Credit had no previous knowledge, actual or otherwise, of the administration of the estate. On that date the form was forwarded to VW Credit’s attorneys in Orange County who filed a petition for an order allowing a late claim on March 9, 1993. Following a hearing in probate court before Judge John C. Woolley, the petition was granted.…

Cooksey, Howard, Martin & Toolen, Kim Patterson Gage, Lawrence H. Miller and Richard J. Radcliffe for Real Party in Interest.

OPINION

MOORE, Acting P.J.

Petitioner Michael J. Gertner, the executor of a decedent's estate, seeks to vacate an order of respondent superior court granting the petition of VW Credit, Inc., the real party in interest, to file a late creditor's claim under Probate Code section 9103. [1]

Gertner is the executor of the estate of Bruce Geoffrey Saville pursuant to letters issued by the superior court September 1, 1992. VW Credit asserts it is a secured creditor of Saville's under a motor vehicle sale agreement executed by VW Credit and Saville before his death.

On January 13, 1993, Gertner mailed notice of the administration of the estate to VW Credit at the following address: Depart. 0052, Palatine, Illinois XXXXX-XXXX. VW Credit did not file a creditor's claim with Saville's estate within 30 days after the notice was mailed to it.

On March 9, VW Credit petitioned for an order allowing it to file a late claim. In a supporting declaration Amy Lebeau, an employee of VW Credit's legal department, admitted VW Credit received the notice and that it had a…