Adverse Possession
The Florida Supreme Court has ordered an 18-month suspension rather than the referee’s proposed one-year sit down.
The misconduct involved the sale of his marital home after his divorce
the family court ordered Marcellus and his ex-wife, Kellie Peterson Gudger, to either refinance the marital home into solely Marcellus’s name within thirty days of that hearing or sell the home. Although there was conflicting testimony at the final hearing before the referee, the referee found that Marcellus vacated the marital home sometime during the pendency of the divorce, and that the couple had arranged for sale of the home. Two days prior to the closing, after Gudger vacated the house and completed her portion of the paperwork for the sale of the home, Marcellus moved back into the home and refused to complete his portion of the paperwork; as a result, the sale fell through. Thereafter Marcellus refused to leave the home. After Marcellus reinhabited the home, he made several attempts to refinance the mortgage into his name alone. However, he was unable to do so based on his income.
He pursued a mortgage modification with the help of a friend with a notary who affixed his seal to the ex-wife’s forged signature
contrary to assertions by Marcellus and Francis, Gudger testified that neither Marcellus nor Francis called her regarding the modification application. She maintained that she never agreed to have Francis sign the modification application on her behalf. As a result of this action, Francis lost his notary commission in Florida. Ultimately, the mortgage modification application with the fraudulent signature was accepted and approved by the lender.
Foreclosure proceedings are pending with the ex-wife potentially on the hook.
In family court
The referee found that Marcellus remained in violation of several family court orders as of the date of the final hearing in this case. Specifically, the referee found that Marcellus had failed to pay the attorneys’ fees or fines ordered by the family court on September 24, 2013, July 1, 2014, and September 11, 2014. He also found that Marcellus remained in violation of the family court’s April 23, 2010, Final Order by remaining in the marital home and failing to refinance it out of Gudger’s name. Additionally, the referee found that Marcellus took actions to evade arrest on the writ of attachment, such as exchanging vehicles with his current wife so that he would not be found driving the vehicle described in the writ and avoiding his children’s activities for fear of being arrested.
Here the court rejected the attorney’s attacks on the findings below.
Sanction
With regard to the sanction, we disapprove the referee’s recommendation that Marcellus be suspended from the practice of law for one year, and instead suspend him for eighteen months. This Court’s scope of review in imposing discipline is broader than that afforded to the referee’s factual findings because, ultimately, it is the Court’s responsibility to order the appropriate sanction.
The forgery aspect made the misconduct more serious than cases where a one-year suspension had been imposed
unlike in Bischoff, Rosenberg, or Whitney, Marcellus submitted a mortgage modification application with a forged signature, despite having personally witnessed the forgery. Gudger discovered that her signature had been forged only after Marcellus failed to pay his mortgage and the bank filed suit to foreclose on the home; otherwise she would have never discovered Marcellus’s conduct. Gudger remained a defendant in the pending foreclosure action solely as a result of Marcellus’s misconduct. His conduct was entirely unbecoming of a lawyer, who is held within a position of trust and respect in our society, and cannot be tolerated. Although Marcellus committed this misconduct as a party to his own divorce, lawyers “do not cast aside the oath they take as an attorney or their professional responsibilities” just because they are litigants in personal matters.
(Mike Frisch)