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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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