Friday, September 27, 2013

Affidavits of Want of Knowledge

The First District Appellate Court issued an opinion last week titled Parkway Bank and Trust Company v. Korzen, 2013 IL App (1st) 130380.  It is a foreclosure case involving two pro se defendants who claimed to be "sovereign citizens."  We have probably all seen these people in court and it is actually quite amusing.  I don't really know what their deal is, but they claim that they are not subject to the court's jurisdiction, or something.

This opinion is not only about foreclosures, or sovereign citizens, but it touches on dozens of areas of civil procedure including service of process, pleadings, discovery, judicial admissions, requests to admit, summary judgment, several Supreme Court Rules, etc.  The opinion is 53 pages long and is basically a primer on how to handle a civil lawsuit from beginning to end.  I haven't read the whole thing yet, but I just came across one section regarding affidavits for want of knowledge that I wanted to share.

The issue appears frequently in litigation.  This principle is violated constantly, but it is one of those technicalities that most judges would have a hard time punishing the other side for violating.  I have had a few judges take the opinion that the omission is easily cured and then grant the other side leave to amend their answer.  Even if you cannot expect to win the case outright for the defendant's omission, raising the issue will at least clarify the issues in the case as you proceed into discovery.

I know that I've been talking about this mystery affidavit for want of knowledge and I haven't even explained what it is.  For that, I will just copy and paste the section from the Parkway Bank case that prompted me to write this in the first place:
Failure to Submit Want of Knowledge Affidavit 
¶ 36 Unlike criminal defendants, who can remain mute and require the State to prove them guilty, civil defendants must answer a complaint truthfully and in good faith, even if that means undermining their own interests. See Ill. S. Ct. R. 137 (eff. Feb. 1, 1994) (The signature of a party on a pleading constitutes a certificate by him that he has read the pleading and “that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument,” and “that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”). A civil complaint and a proper truthful answer delimit the factual disputes which the court must adjudicate. A common error by defendants, made even by seasoned foreclosure defense attorneys, is to answer with language such as: “the defendant neither admits nor denies paragraph x, but demands strict proof thereof.” Defendants in civil lawsuits are not allowed to “demand strict proof” of facts they know are true, and so the words “demand strict proof” do not belong anywhere in a properly drafted answer. 
¶ 37 A proper answer to a complaint must contain an explicit admission or an explicit denial of each allegation in the complaint. 735 ILCS 5/2-610(a) (West 2010). An allegation not explicitly denied is admitted unless: (1) the allegation is about damages, (2) the party states that it lacks knowledge of the matter sufficient to form a belief and supports this statement with an affidavit, or (3) the party has not had the chance to deny the allegation. 735 ILCS 5/2-610(b) (West 2010). “The failure of a defendant to explicitly deny a specific allegation in the complaint will be considered a judicial admission and will dispense with the need of submitting proof on the issue.” Gowdy v. Richter, 20 Ill. App. 3d 514, 520 (1974). 
¶ 38 In this case, defendants stated that they lack knowledge sufficient to answer an allegation, but did not include the required lack of knowledge affidavit. Accordingly, they have admitted the allegation. Hoxha v. LaSalle National Bank, 365 Ill. App. 3d 80, 85 (2006); see also 735 ILCS 5/1-109 (West 2010). Because the verified answer contains no “want of knowledge” affidavit as required by section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109 (West 2010)), defendants admitted the allegations of count I, paragraph 2, of the complaint, which establish the authenticity of the notes and mortgage.

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