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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. My daughters' kids was removed from the home in March 2015, she has been in total compliance with the requirements of cps, she is going to court on the 4th of August. Cps had called the first team meeting last Monday to inform her that she was not in compliance, by not attending home based therapy, which is done normally with the children in the home, and now they are recommending her to have a psych evaluation, and they are also recommending that the children not be returned to the home. This is all bull hockey. In this so called team meeting which I did attend for the best interest of my child and grandbabies, I learned that no matter how much she does that cps is not trying to return the children and the concerns my daughter has is not important to cps, they only told her that she is to do as they say and not to resist or her rights will be terminated. I cant not believe the way Cps treats people knowing if they threaten you with loosing your kids you will do anything to get them back. My daughter is drug free she has never put her hands on any of her children she does not scream at her babies at all, but she is only allowed to see her kids 6 hours a week and someone has to supervise. Lets all tske a stand against the child protection services. THEY CAN NO LONGER TAKE CHILDREN FROM THERE PARENTS.

  2. Planned Parenthood has the government so trained . . .

  3. In a related story, an undercover video team released this footage of the government's search of the Planned Parenthood facilities. https://www.youtube.com/watch?v=ZXVN7QJ8m88

  4. Here is an excellent movie for those wanting some historical context, as well as encouragement to stand against dominant political forces and knaves who carry the staves of governance to enforce said dominance: http://www.copperheadthemovie.com/

  5. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

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