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Court rules gynecologist can’t testify on mental competency

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A bank is able to foreclose on a mortgage against the estate of a deceased 95-year-old woman who opened the line of credit to pay her granddaughter to take care of her. But the elderly woman’s daughter argued the granddaughter unduly influenced Mildred Borgwald to open the account.

Borgwald insisted on remaining on her own in her home despite failing health and limited sight. Raelynn Pound, Borgwald’s granddaughter, agreed to take care of her grandmother around the clock for $650 per week. The two went to Old National Bank to open an equity line of credit against her home in the amount of $36,000. Nearly a third of this was paid to Pound within a week of opening; $650 was paid out weekly from November 2007 through June 2008. Borgwald died in August 2008.

Her daughter, Lana McGee – who is also Pound’s mother – opened Borgwald’s estate. The bank filed a claim for $36,274.54, seeking to foreclose on the home’s mortgage. The estate filed a petition to recover assets from Pound and asserted fraud and undue influence.

After holding a bench trial, the court found Borgwald had the mental capacity to enter into the contract with the bank and was not unduly influenced by Pound. ONB was entitled to have the mortgage foreclosed as a valid and paramount lien on Borgwald’s property.

The estate appealed, arguing its proffered expert witness Dr. Robert Lalouche should have been included. But Lalouche, a gynecologist, had never treated Borgwald and formed his opinions only based on the medical records submitted by the estate.

“Although Dr. Lalouche relies in his report on the conclusions by Mildred’s treating psychiatrist and internist, he does not profess an independent competency in neurological diseases or age-related mental deficiencies and his conclusion with respect of Mildred’s ability to comprehend the mortgage process is of no assistance to the trier of fact,” Judge Patricia Riley wrote in In the Matter of the Supervised Estate of Mildred Borgwald, Deceased v. Old National Bank and Raelynn Pound, 84A01-1302-ES-80.

The judges found the estate was not denied the opportunity to make an offer of proof and the trial court properly excluded references to expert opinions and medical diagnosis because the estate sought to admit Borgwald’s medical records through the testimony of McGee. But McGee is a lay witness and not a medical expert under Evidence Rule 702.

Finally, the Court of Appeals declined to find the line of credit was invalid because the bank customer service representative’s notary did not read every single word of the document to Borgwald, as required under I.C. 33-42-2-2(4).  But the estate never called the notary as a witness, and the judges pointed out that a mortgage does not need to be notarized in order to be enforceable in Indiana.

“Even assuming that the mortgage was not read to Mildred and that Mildred could be characterized as being blind and not merely ‘having trouble seeing,’ the validity of the mortgage would not be affected, only the notary’s signature. Therefore, we decline the Estate’s invitation to invalidate the mortgage,” Riley wrote.

 

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  1. Payday loans take advantage of people in many ways. It's great to hear that the courts are using some of their sins to pay money back to the community. Hopefully this will help change the culture of many loan companies, and make lending a much safer endeavor for those in need. http://lawsuitlendingnow.com/lawsuit-loans-post-settlement.html

  2. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  3. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  4. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  5. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

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