Probate

While not a probate litigation decision, the holding of this case is instructive for probate attorneys involved in probate litigation since it addresses the evidentiary requirements necessary to overcome a presumption.

Alicia Bonilla v. Commercial Services of Perry, Inc., et al, Case No. 45A03-0803-CV-105

In this case, the Court of Appeals addressed the effect of a presumption arising under Indiana Code § 33-42-2-6 which provides that “[t]he official certificate of a notary public, attested by the notary’s seal, is presumptive evidence of the facts stated in cases where, by law, the notary public is authorized to certify the facts.”  At issue were two mortgages which contained the defendant’s notarized signatures.  The defendant testified that she had not signed the mortgages and introduced into evidence handwriting samples which the trial court concluded “clearly show a distinct difference between the signatures of [defendant] in the exemplars and the purported signature of [defendant] on the mortgages.”  The trial court concluded, however, that this evidence was inadequate to rebut the presumption under Indiana Code § 33-42-2-6.

The Court of Appeals affirmed the trial court. In doing so, the Court relied on the Indiana Supreme Court decision of Schultz v. Ford Motor Co., 857 N.E.2d 977 (Ind. 2006) for the proposition that a presumption shall have continuing effect even though contrary evidence is received. Citing 12 Robert Lowell Miller, Indiana Practice § 301.101 at 229 (3rd ed. 2007), the Court concluded that “An inference remains in the case despite the presentation of contrary proof and may be weighed with all the other evidence.”  As such, and given the standard of review where the Court would not reweigh the evidence or reassess the credibility of the witnesses, the Court concluded that the trial court’s decision was not clearly erroneous.

This case also discussed the issues of damages where the plaintiff was not able to produce the underlying loan documents.  One member of the panel dissented on this issue concluding that “evidence on the essential terms is missing.”

The opinion was handed down on January 27, 2009 and a full text copy of the opinion can be found here for those that may be interested in reading this decision.