Iqbal v. Patel et al

Filing 87

OPINION AND ORDER The court finds that Salems notice of lien is invalid because final judgment has not been entered in this matter. Therefore, there is no judgment for the lien to attach. The court STRIKES the Notice of Attorney Fees Retainer Lien DE 73 and GRANTS the Motion to Strike Salems Lien DE 82 . Signed by Magistrate Judge Andrew P Rodovich on 12/29/17. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MIR S. IQBAL,

)
)
Plaintiff,
)
)
v.
) Case No. 2:12-cv-56
)
TEJASKUMAR M. PATEL, WARREN
)
JOHNSON, and S-MART PETROLEUM,
)
INC., an Indiana corporation,
)
)
Defendants.
)
)
WARREN JOHNSON and S-MART
)
PETROLEUM, INC., an Indiana corporation, )
)
Counter Claimants,
)
)
v.
)
)
MIR S. IQBAL,
)
)
Counter Defendant.
)
OPINION AND ORDER
This matter is before the court on the Motion to Strike Salem’s Lien [DE 82] filed by the
plaintiff, Mir S. Iqbal, on November 20, 2017. For the following reasons, the motion is
GRANTED.
Background
Attorney Maurice Salem entered his appearance on behalf of the plaintiff, Mir S. Iqbal, in
this matter on February 3, 2012. On August 24, 2017, Salem filed a motion to withdraw as
attorney of record for Iqbal and attached a notice of retainer lien. Salem’s appearance was
withdrawn on August 28, 2017. Attorney Mark Lavery entered his appearance on behalf of Iqbal
on September 6, 2017.

The Notice of Attorney’s Fees Retainer Lien [DE 73] filed by Salem intended to give
notice to the court and the parties of the attorney fee’s retainer lien against Iqbal for any
settlement or award amount. Salem has alleged that Iqbal owes approximately $365,350.00 in
attorney’s fees. Iqbal’s motion has argued that Salem’s notice of lien is invalid, and therefore
that it be stricken. Salem filed a response in opposition on November 29, 2017.
Discussion
“There is no federal common law or statute providing for an attorney’s lien; federal
courts follow their forum state’s law.” Holly v. Rent-A-Center, No. IP 00-580-C-Y/F, 200 WL
1134536 at *1 (S.D. Ind. 2000). Indiana law recognizes two types of attorney’s liens: a
retaining lien and a charging lien. Holly v. Rent-A-Center, No. IP 00-580-C-Y/F, 200 WL
1134536 at *1. A retaining lien is the right of the attorney to retain possession of a client's
documents, money, or other property which comes into the hands of the attorney professionally,
until a general balance due to him for professional services is paid ... and exists as long as the
attorney retains possession of the subject matter. Wilson v. Sisters of St. Francis Health
Services Inc., 952 N.E.2d 793, 796 (Ind. Ct. App. 2011). A charging lien is the equitable right
of attorneys to have the fees and costs due to them for services in a suit secured out of the
judgment or recovery in that particular suit. Bennett v. NSR, Inc., 553 N.E.2d 881, 884 (Ind. Ct.
App. 1990). In most states, a charging lien rests entirely on statutes. Miller v. Up in Smoke, No.
1:09-CV-242, 2011 WL 3022402 at *2 (N.D. Ind., July 22, 2011).
Salem has filed a notice of attorney’s fees retainer lien. However, he has not indicated
what materials, if any, he is holding until he and Iqbal settle their fee dispute or Iqbal posts
adequate security for the payment of the fees. Further, Iqbal has argued that Salem’s “charging
lien” is invalid and should be stricken. Salem’s response did not correct Iqbal’s arguments,

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rather he cites Indiana Code § 33-43-4-2, which is construed as the charging lien statute.
Moreover, Salem has not provided any Indiana case law applicable to a retaining lien.
Therefore, the court will construe the notice of lien as a charging lien.
According to Indiana law, an attorney is entitled to lien if he files his intention to hold a
lien on the judgment “not later than sixty (60) days after the date the judgment is rendered.”
Indiana Code § 33-43-4-2. Prior to the Indiana Code’s amendment in 2004, cases interpreting
the previous version of this statute “were clear that an attorney had sixty days from the entry of
final judgment to enter his lien, and a lien filed before any judgment was rendered was not valid
because there was no judgment for which the lien could attach.” Clem v. Watts, 27 N.E.3d 789,
792 (Ind. Ct. App. 2015). Since 2004, Indiana courts have chosen to continue to read the
amended statute in the same way, finding that its “clear and unambiguous language contemplates
that a judgment must be recorded before a lien may be entered.” Clem, 27 N.E.3d at 792.
Iqbal has requested that Salem’s notice of lien be stricken. He has argued that “no lien
can be acquired before judgment.” Miller v. Up in Smoke, No. 1:09-CV-242, 2011 WL 3022402
at *3 (N.D. Ind., July 22, 2011) (quoting Olczak v. Marchelewicz, 98 Ind. App. 244, 188 N.E.
790, 792 (Ind. Ct. App 1934)). Moreover, an attorney is only entitled to a statutory lien for the
attorney fees on any “judgment rendered” in favor of the client and the “judgment” requirement
has been strictly enforced. Miller v. Up in Smoke, No. 1:09-CV-242, 2011 WL 3022402 at *3
(N.D. Ind., July 22, 2011).
The court finds that Salem’s notice of lien is invalid because final judgment has not
been entered in this matter. Therefore, there is no judgment for the lien to attach. The court
STRIKES the Notice of Attorney Fees Retainer Lien [DE 73] and GRANTS the Motion to
Strike Salem’s Lien [DE 82].

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ENTERED this 29th day of December, 2017.
/s/ Andrew P. Rodovich
United States Magistrate Judge

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