United States District Court, N.D. Indiana, Hammond Division
MIR S. IQBAL, Plaintiff,
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,
MIR S. IQBAL, Counter Defendant.
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
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.
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 Salem's appearance was withdrawn on August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.
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.
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).
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, 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.
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
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).
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 ...