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  • Mike Huseman

Affidavits of Want of Knowledge

When answering a plaintiff's complaint in litigation, the Illinois Code of Civil Procedure gives a defendant three options. He can either admit a factual allegation, he can deny the factual allegation, or he can state that does not have sufficient knowledge to either admit or deny the allegation.

If a defendants claims insufficient knowledge, he has to attach an affidavit of his lack of knowledge. Basically, a party can't just say that he doesn't know. He has to swear under oath that he doesn't know. The consequence for failure to attach the required affidavit is severe. The court can deem the allegations admitted where the defendant claimed insufficient knowledge.

A recent case explains the issue. I have copied the relevant portion of a case called Parkway Bank and Trust Company v. Korzen, 2013 IL App (1st) 130380.

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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