Court rules gynecologist can’t testify on mental competency

Back to TopCommentsE-mailPrintBookmark and Share

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.



Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. Great observation Smith. By my lights, speaking personally, they already have. They counted my religious perspective in a pro-life context as a symptom of mental illness and then violated all semblance of due process to banish me for life from the Indiana bar. The headline reveals the truth of the Hoosier elite's animus. Details here: Denied 2016 petition for cert (this time around): (“2016Pet”) Amicus brief 2016: (“2016Amici”) As many may recall, I was banned for five years for failing to "repent" of my religious views on life and the law when a bar examiner demanded it of me, resulting in a time out to reconsider my "clinging." The time out did not work, so now I am banned for life. Here is the five year time out order: Denied 2010 petition for cert (from the 2009 denial and five year banishment): (“2010Pet”) Read this quickly if you are going to read it, the elites will likely demand it be pulled down or pile comments on to bury it. (As they have buried me.)

  2. if the proabortion zealots and intolerant secularist anti-religious bigots keep on shutting down every hint of religious observance in american society, or attacking every ounce of respect that the state may have left for it, they may just break off their teeth.

  3. "drug dealers and traffickers need to be locked up". "we cannot afford just to continue to build prisons". "drug abuse is strangling many families and communities". "establishing more treatment and prevention programs will also be priorities". Seems to be what politicians have been saying for at least three decades now. If these are the most original thoughts these two have on the issues of drug trafficking and drug abuse, then we're no closer to solving the problem than we were back in the 90s when crack cocaine was the epidemic. We really need to begin demanding more original thought from those we elect to office. We also need to begin to accept that each of us is part of the solution to a problem that government cannot solve.

  4. What is with the bias exclusion of the only candidate that made sense, Rex Bell? The Democrat and Republican Party have created this problem, why on earth would anyone believe they are able to fix it without pushing government into matters it doesn't belong?

  5. This is what happens when daddy hands over a business to his moron son and thinks that everything will be ok. this bankruptcy is nothing more than Gary pulling the strings to never pay the creditors that he and his son have ripped off. they are scum and they know it.