Lawyer failed to deny note execution under oath

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Because an attorney acting pro se in a mortgage suit didn't include a statement in his general denial that the denial was truthful and made under penalty for perjury, he failed to deny under oath the execution of the note, the Indiana Court of Appeals ruled today.

In Brian B. Baldwin v. Tippecanoe Land & Cattle Co., No. 55A01-0902-CV-52, the appellate court affirmed summary judgment in favor of Tippecanoe Land & Cattle Co. in its claim to foreclose its second mortgage held by Baldwin.

Tippecanoe submitted the secured installment promissory note that was not signed, and a real estate second mortgage that appeared to be signed by Baldwin. Baldwin filed a one-sentence answer entering a general denial. His answer was signed and listed his attorney number, but didn't contain an oath.

The day before the hearing, Baldwin filed a verified response arguing the second mortgage was unenforceable because the note wasn't signed nor attached to the second mortgage.

Taken collectively, Indiana Trial Rules 8(B), 9.2(B), and 11(A) mean that an attorney's signature on a general denial rejects the assertion of the claim, but doesn't constitute an oath by which the pleader denies the execution of an instrument attached to a claim, wrote Judge Patricia Riley. Execution of the note and second mortgage would be deemed established under Indiana Trial Rule 9.2(B) unless Baldwin denied under oath that they were executed.

He didn't include a statement that his general denial was truthful and made under penalty for perjury, so he failed to deny under oath the execution of the note, she wrote.


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