Goldfarb v. Daitch

• Citation: 696 So.2d 1199
• Decision Date: 21 May 1997
• Docket Number: No. 96-2806,96-2806
• Parties: 22 Fla. L. Weekly D1273 Max A. GOLDFARB, Appellant, v. Marilyn Z. DAITCH, Appellee.
• Court: Florida District Court of Appeals

Page 1199

696 So.2d 1199

22 Fla. L. Weekly D1273

Max A. GOLDFARB, Appellant, v. Marilyn Z. DAITCH, Appellee.

No. 96-2806.

District Court of Appeal of Florida,

Third District.

May 21, 1997.

Rehearing Denied Aug. 6, 1997.

Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel and Elliot H. Scherker, Miami, and Alan T. Dimond, Miami, for appellant.

Gary S. Gostel, Miami, for appellee.

Before NESBITT, GODERICH and SORONDO, JJ.

NESBITT, Judge.

Appellant Goldfarb appeals an order of the trial court that, among other things, granted appellee Daitch's "Verified Emergency Motion to Vacate Order of Disbursement of Funds" filed pursuant to Florida Rule of Civil Procedure 1.540 and accompanying award of attorney's fees. Daitch agrees, with some minor exceptions, that the facts of the case are accurately set forth in Goldfarb's brief.

I.

Daitch was the defendant in an action filed by the Federal National Mortgage Association ^MA for foreclosure of a mortgage on her residence. A default and, ultimately, a final judgment of foreclosure, were entered against her. A clerk's sale was scheduled for August 14, 1996.

Caro Investments, Inc., was the high bidder at the sale and the clerk issued a certificate of sale on August 14. On August 16 the trial court, on Caro Investments' motion, assigned the bid to Claire Blanken. That same day, Goldfarb filed a motion as counsel for Daitch that sought disbursement of surplus funds in the court's registry. Argo Mortgage Corporation (Argo) filed a separate motion for disbursement of funds on August 26, 1996, advising the court that it was the second mortgage holder in place of First Union National Bank of Florida.

The trial court entered its order granting the motion to disburse on August 27, 1996. The order directed the clerk to disburse: (1) "[t]he amount due the plaintiff ^MA"; (2) "[t]he amount due to the second mortgage holder"; and "[t]he balance to Max A. Goldfarb, as attorney for Marilyn Daitch." The clerk issued a certificate of disbursement on August 27, for payments to FNMA, clerk's fees and documentary stamps. A check in the amount of $19,934.85 issued to counsel for FNMA on August 27.

Also on August 27, the clerk issued a certificate of title to Claire Blanken, whose address is identified on the certificate as "c/o Max Goldfarb" at Goldfarb's law office. On August 28, 1996, the trial court issued an amended disbursement order, providing that the sum of $33,699.41 should be disbursed to Argo, as second mortgage holder, rather than to First Union National Bank. The clerk issued a check in the amount of $58,705.74 to Goldfarb on August 29, 1996. A writ of possession was issued on August 29, to put Claire Blanken in possession of the property after 24 hours of posting a notice on the property.

On September 4, 1996, Gary S. Gostel, filed a notice of appearance on behalf of Daitch. Gostel also filed a "Verified Emergency Motion to Vacate Order of Disbursement of Funds."

The motion set forth the following recitation:

2. During the week of August 26, 1996, an individual appeared at Defendant's home and advised her that she no longer owned her home, had to vacate same, but if she signed papers in his possession an attempt would be made to reacquire the home on her behalf. Defendant recalls signing the paper but was not provided a copy of same. She is unaware of what she signed. The individual identified himself as an "investor."

3. ... [O]n or about August 29, 1996, said "investor" delivered to Defendant, at her residence, a check, payable to her in the sum of $39,137.16, on the account of M.A. Goldfarb....

4. Defendant has never met and/or discussed with M.A. Goldfarb any matters pertaining to this lawsuit and/or disbursement of any funds from the Court Registry, either in person or by telephone. M.A. Goldfarb has no authority to represent Defendant within these proceedings....

The motion further alleged that Daitch had been unaware of Goldfarb's motion to disburse or that Goldfarb "was purportedly representing her interests before the court." According to Gostel, one-third of the $58,705.74 was deducted from the surplus funds as a "contingency fee," such that Goldfarb "was paid the sum of $19,568.58 for filing a three (3) paragraph Motion and obtaining a court Order thereon, all without the knowledge and/or consent of his alleged client." Thus, the motion alleged that "a fraud has been perpetrated on this court" by Goldfarb and Daitch "has been denied her day in court by the misconduct of said counsel." Gostel sought an order directing Goldfarb to pay the sum of $19,568.58 to Daitch, along with costs and fees pursuant to Section 57.105, Florida Statutes (1995).

THE HEARING

Daitch's testimony.

Daitch testified that she had not retained counsel in the foreclosure proceeding and that a default had been entered against her. She stated that she had been pulling into her driveway on the night of August 27, 1996, when two men "jumped out" of a car and told her that "they had purchased my house on the courthouse steps and they needed to talk to me about it." Daitch was "scared" because the men "were big and intimidating and one of them had a briefcase." She entered her house through the garage and then opened the front door to allow the men into the house. One of the men identified himself as Richard Benitez.

According to Daitch, she was told that the men "wanted to know if they could help me or let them try to help me re-acquire my house back, and I said would you come in." She described herself as "too frightened to do anything but" sign the documents that were given to her and that she had not read the documents "I was too frightened and my eyes would not focus at the time." She also said that the document had been "blank" and that she did not know what she had signed.

On cross-examination, Goldfarb introduced a power of attorney that bore Daitch's signature and the date of August 14, 1996. The document recites that Daitch constituted B.G. Gross and/or Jaime Gross as her attorney-in-fact, with specific authority: (1) "to employ an attorney to represent me in the foreclosure case ... to obtain any surplus funds"; and (2) to deduct one-third of the funds "as a non-refundable option ... for a 30 day period of purchase of property," with a payment of an additional $30,000.00 due upon exercise of the option. The house would be sold at a price of $130,000, and Gross would "take back a mortgage for the balance for 15 years at 12% interest." The document is signed by Benitez, William Bellow and the two attorneys-in-fact and is notarized by Benitez on August 14. Daitch testified that the document had been "blank" when she signed it.

According to Daitch, the two men returned two nights after she signed the document and gave her a check from Goldfarb in the amount of $39,137.16. A copy of the check was introduced into evidence; the check reflects that it is for "surplus funds less 1/3 fee for collection." Daitch signed a receipt for the check. On cross-examination, Goldfarb introduced the receipt, which reflects the following breakdown:

                       COLLECTION                      $58,705.74
                       Legal Fee                                     2,000.00
                                                                   ----------
                                                                   $56,705.74
                       B.G. Gross-                     $17,568.58
                       Option Money
                       YOUR OPTION                     $39,137.16
                

Daitch's signature appears underneath these figures.

She denied having had an attorney-client relationship with Goldfarb and testified that she had first become aware of his involvement when she received the check. Daitch testified that she had not been aware of the existence of the surplus funds prior to having received the check and that she had not engaged Goldfarb as her counsel. On cross-examination by Goldfarb, Daitch testified that she had been contacted by his paralegal, Ms. Hernandez, after August 27. In one of these conversations, Daitch told Ms. Hernandez to give her check to a friend who worked in the building in which Goldfarb maintained his offices, and Ms. Hernandez instructed her that the check would be hand-delivered because Daitch's signature was required to acknowledge receipt of the check.

Goldfarb's testimony.

The trial judge called Goldfarb as a witness. The examination commenced with the trial judge's directive to "explain to me, if you would, please, how you came to file a motion on behalf of this witness and retain [sic] surplus funds." Goldfarb responded:

Your Honor, on the 15th of August Jaime Gross, [B.G.] Gross, and William Bellow came to my office and asked me to represent Mrs. Daitch based on this Power of Attorney to obtain surplus funds that they ... had told her they were going to attempt to resell this house to her and that the surplus funds would [be] used as a deposit.

So based on this signed, notarized document ... I then filed a motion for the surplus funds.

Goldfarb had not met Daitch at the time he was engaged. He knew the Grosses, having represented them on prior occasions, but was not representing them in this transaction and did not then have any open matters in which he represented their interests. Goldfarb did not represent Claire Blanken, who had purchased the property.

The trial judge raised the subject of Goldfarb's fee. Goldfarb testified that his total fee had been $2000, which was not a contingency fee, and that he had disbursed $17,568 to B.G. Gross, for the option payment, according to the power of attorney agreement. Goldfarb showed a copy of the check to the trial judge, who admitted the check into evidence. The check is endorsed. Goldfarb explained that he had expected to represent Daitch in obtaining the surplus funds and "also to handle the closing in the event there was a closing."

Goldfarb further testified that he had left on vacation on August 30 and that his paralegal had acted to reschedule the hearing on Daitch's motion from...