Here’s an example of how not practice law, folks.
The recent case of Robert J. Blaha, Jr. v Faupel & Associates, P.C., unpublished per curiam opinion of the Court of Appeals, issued December 2, 2004 (Docket No. 250241) is a public relations disaster for lawyers. One can only hope that the facts as reported in the opinion are not actually true.
As set forth in the decision of the Court, defendant (“Faupel”) represented Blaha’s wife in divorce proceedings in Washtenaw county. In order to secure its fees, Faupel obtained a mortgage on the marital home. The home was titled in the wife’s name only. No problem so far. In fact, more lawyers ought to try to protect their fees in this manner.
But when the judgment of divorce entered, the home was awarded to Blaha, not Faupel’s client. The judgment specifically provided that the home was awarded to Blaha “free and clear” of any claim by his ex-wife. It also specifically provided that each party “shall pay their own attorney fees and costs.”
As sometimes occurs, Faupel didn’t get paid. Whatever the reason, the ex-wife stiffed Faupel. So, seven (yes, 7) years later, Faupel advertised the mortgage foreclosure of Blaha’s home “because of the nonpayment of attorney fees by his ex-wife.”
Incredible. Not surprisingly, the trial court granted Blaha’s request for a permanent injunction to prevent the foreclosure.
What is surprising is that Faupel appealed. And promptly lost. The Court of Appeals affirmed the trial court’s decision.
The Court of Appeals stated that Faupel “seeks to execute a lien against plaintiff, a party who did not agree to the lien.” No kidding. Helloooo. Am I missing something here? Faupel fails to obtain a judgment for its fees, and claims it can simply foreclose the mortgage by advertisement because there is a power of sale clause in the mortgage.
Those claims were given short shrift by the Court of Appeals.
The decision cites the George v Gelman case with respect to when an attorney’s charging lien for fees may be imposed upon a client’s real property. But inherent in that analysis is that, ultimately, the client has to end up being awarded the property for the lien to have any validity.
Faupel sought to enforce its mortgage years after the divorce was finalized against the spouse of its client on property which was awarded “free and clear” to the client’s ex-spouse pursuant to a judgment of divorce which was, as the Court pointed out, “signed” by a representative of Faupel’s firm.
Bad form, folks. The tactic didn’t work. Was this a last gasp effort at collecting its fees when the six year statute of limitations expired?
Stay very much away from this kind of thing.
If it doesn’t pass the smell test, don’t do it.
This case is an embarrassment to all of us.