Thursday, October 10, 2013

Failure to Deny Authenticity of Commercial Documents Under Oath

I recently wrote about the Parkway Bank and Trust case, which contains dozens of civil litigation practice tips. Keep in mind that these pointers not only relate to mortgage foreclosure cases, but all breach of contract and civil cases in general. Here's another good tip:
Failure to Deny Authenticity of Commercial Documents under Oath
¶ 40 Modern banking practices, along with the inventions of the photocopier, fax machine, word processor, and computer, have made disputes regarding the authenticity of written contracts and business documents extraordinarily rare. This is particularly true in foreclosure cases. Mortgages are closed at title insurance company offices. Borrowers leave the closings with photocopies of their mortgage documents in large file folders, and they are admonished to securely keep the files with their most important papers and possessions. The title company immediately records a copy of the mortgage with the recorder of deeds, whose records forever memorialize the image of the mortgage as it existed on the day of the closing. See 55 ILCS 5/3-5010 (West 2010) (duties of recorder); 55 ILCS 5/3-5013 (West 2010) (transcription or reproduction of written instruments to be recorded); Solomon Gutstein, Illinois Practice, § 12:77 (2d ed. 2000).
¶ 41 Our legislature has enacted a special rule which discourages debtors from unduly prolonging collection lawsuits with obdurate denials. If a defendant truly wishes to deny the authenticity of a mortgage or note, he must do so under oath so as to subject himself to a criminal perjury charge if his denial is knowingly false. Defendants merely stated lack of knowledge regarding the mortgage and note. By doing so, they automatically admitted these allegations. See 735 ILCS 5/2-605(b) (West 2010) (providing that the “allegation of the execution or assignment of any written instrument is admitted unless denied in a pleading verified by oath”).

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