Pleading Lack of Knowledge_ Not a Denial Under Illinois Law _ Illinois State Bar Association

7/25/2019 Pleading Lack of Knowledge_ Not a Denial Under Illinois Law _ Illinois State Bar Association

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TAKEAWAYS

Illinois pleading does not provide for a "denial"

based upon "insufficient knowledge to form a

belief." The defendant must either admit or deny

each allegation in the complaint. If it is unable to

admit or deny, then it has the option of filing an

affidavit as to insufficient information.

Once a defendant takes the path of filing an

affidavit of insufficient knowledge, it cannot

attempt to deny the allegation in a subsequent

pleading.

By Edward S. Margolis

Practitioners and judges should be aware that pleading "lack of

knowledge" in response to an allegation in a civil case is not a denial andshould not be treated as one in subsequent pleadings.

In a moment of reverie, reflecting upon the passing of that great American and master of the

malapropism, Yogi Berra, my thoughts turned to some local

examples of that fine linguistic art in the Cook County Circuit

Court.

There are still a few of us around who had the privilege of

appearing before Judge M. in his prime, and there were some

great moments which are a part of our history. I recall handing

up to Judge M. a bound volume of the Smith-Hurd AnnotatedStatutes opened to the section of the Insurance Code upon

which my claim for insurance premiums was based. Judge M.

glanced down at the well-worn volume and then looked me

straight in eye and with a disapproving growl insisted, "Counsel,

don't give me a statute; show me some law."

While these are different times and Judge M. is no longer with

us, I sometimes think his legacy still lives on, but I will let you

be the judge.

Is a statement of insufficient knowledge a judicial

admission?

What if a defendant attempts to introduce an affidavit to

controvert the plaintiff's affidavit in support of a motion for

summary judgment where the defendant had previously

pleaded in its answer "insufficient information from which to

form a belief as to the truth or falsity of the allegations, so

denies same and demands strict proof thereof." The

argument to bar introduction of the counter-affidavit goes like

this:

July 2016 Volume 104 Number 7 Page 44

ing Lack of Knowledge: Not a Denial Under Illinois Law | Illinois S... https://www.isba.org/ibj/2016/07/pleadinglackofknowledgenot

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Illinois Code of Civil Procedure Section 5/2-610, Pleadings to

Be Specific, states as follows:

(a) Every answer and subsequent pleading shall

contain an explicit admission or denialof each

allegation of the pleading to which it relates.

(b) Every allegation, except allegations of damages, not explicitly denied is admitted, unless the party states in his or

her pleading that he or she has no knowledge thereof sufficient to form a belief, and attaches an affidavit of the truth

of the statement of want of knowledge, or unless the party has had no opportunity to deny.1

Illinois pleading does not provide for a "denial" based upon "insufficient knowledge to form a belief." Under subsection (a),

the defendant must either admit or deny each allegation. If it is unable to admit or deny, then it has the option of filing an

affidavit as to insufficient information.

Under Illinois law, the defendant cannot have it both ways. Once it takes the path of filing the affidavit of insufficient

knowledge under subsection (b), it can no longer avail itself of a denial under subsection (a).

Defendant has chosen the path of lack of knowledge. After asserting under oath its lack of knowledge, defendant cannot

now, in a conclusory affidavit, change the effect of an admission of lack of knowledge in its answer into a denial.

This argument based upon the clear language of 5/2-610 seems to support the argument; but what if the court, after

examining the the statute, says "show me some law?"

On point would be Steiner Electric v. Nuline Techs, where the appellate court strikes an affidavit in opposition to a motion for

summary judgment because the affiant in a deposition previously claimed he had complete lack of knowledge on the

subject.2

Can the court distinguish Steinerbecause the judicial admission in the deposition somehow has more weight than a pleading

where the defendant has sworn to having lack of knowledge?

The lost art of pleading

Justice Mathias Delort, in an opinion that should be mandatory reading for every practitioner, reminds us of the significance

of pleadings:

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) 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.

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, 314 N.E.2d 549(1974).3

So there you have it. Despite a total disregard by most practitioners of such formalities, pleadings are pretty important as

they are the stuff of judicial admissions and "will dispense with the need of submitting proof on the issue."


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Okay. So here is the question. The defendant under oath says in an affidavit attached to a pleading that "he has insufficient

information to admit or deny." Is that one of those judicial admissions "that delimit the factual disputes which the court must

adjudicate?" In Parkway Trust, Justice Delort had it easy. The defendant had failed to comply with 5/2-610(b) by filing the

required affidavit. Accordingly, the allegations of the complaint were admitted.

But hasn't the defendant made a judicial admission by stating under oath that he has insufficient knowledge to either admit or

deny. Can a defendant years into the case and without so much as making the effort to amend the lack of knowledge

pleading miraculously produce an affidavit controverting an affidavit in support of a motion for summary judgment?

Justice Delort in a later unpublished opinion, In re Marriage of Mathew J Thibeau,4expands on his opinion in Parkway:

A party can never answer an allegation by saying she lacks knowledge and "therefore denies" the allegation. A party

can have no knowledge of the truth of the allegation, or the party can believe it to be actually false so as to truthfully

deny it. A party cannot, however, give both responses - they are mutually contradictory.5

Conclusion

Navigation through the waters of Illinois fact pleading is not for the reckless. There are rocky shoals and icebergs out there

that can sink your case. An attorney must consider the implications before opting to sign an affidavit of insufficient knowledge

on behalf of a client. Attorneys are deemed to be agents of their clients for the purposes of making admissions in all matters

relating to the progress and trial of an action.6

Judicial admissions are defined as deliberate, clear, unequivocal statements by a party about a concrete fact within the

party's knowledge. For a statement to qualify as a judicial admission, it "must not be a matter of opinion, estimate,

appearance, inference, or uncertain summary."7

The attorney who pleads the lack of knowledge defense and supports it with his affidavit is acting for the party. He or she is

making a clear and unequivocal statement on behalf of the party that the party cannot admit nor deny the allegation as

required by 5/2-610(a) and "has no knowledge sufficient to form a belief " as required by 5/2-610(b).

So the next time anyone tells you that pleading lack of knowledge is not a judicial admission, just show him the statute; and if

he still doesn't believe it, show him this article.

Edward S. Margolis is a partner in the Chicago-based creditors' rights firm Teller Levit & Silvertrust. His areas of

concentration include handling trials and appeals in the Illinois and federal Courts and the defense of bankruptcy preference

actions.

[email protected]

ISBA RESOURCES>>

ISBA FreeCLE, Civil Procedure Update and Review - Spring 2015(May 8, 2015), http://onlinecle.isba.org/store/seminar

/seminar.php?seminar=45599.

John M. Stalmack,Admissions, Trial Briefs (Aug. 2007), http://www.isba.org/sections/civilpractice/newsletter/2007/08

/admissions.


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Justin Heather, Pleading and Responding to Affirmative Defenses in Illinois State Court, Trial Briefs (May 2004),

http://www.isba.org/sections/civilpractice/newsletter/2004/05/pleadingandrespondingtoaffirmatived.

735 ILCS 5/2-610 (emphasis added).1.

Steiner Electric v. Nuline Techs, 364 Ill. App. 3d 881(1st Dist. 2006).2.

Parkway Bank & Trust Co. v. Koraen, 2013 IL App (1st) 130380.3.

In re Marriage of Mathew J Thibeau,2015 IL App (1st) 143168-U.4.

See generally Parkway Bank & Trust Co., 2013 IL App (1st) 130380, 35-38.5.

Beverly Bank v. Coleman Air Transport, 134 Ill. App. 3d 699, 703 (1st Dist. 1985).6.

Smith v. Pavlovich, 394 Ill. App. 3d 458, 468 (5th Dist. 2009).7.

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Illinois State Bar Association


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Pleading Lack of Knowledge_ Not a Denial Under Illinois Law _ Illinois State Bar Association