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News and Events

Below are blog entries by our attorneys and new and pertinent law-related news items.

The Real and Personal Effect of Tort Reform

Robert Sneed - Monday, March 08, 2010
Please take a moment to look at the following video.  It is a very powerful and emotional look into the very real and dangerous effects of tort reform.  Sometimes we need to look beyond the talking heads on the Sunday morning talk shows and see how our laws affect real people.  We here at McConnell & Sneed are always striving to help our clients and show the human side of our laws and regulations.


WE THE PEOPLE from Georgia Justice on Vimeo.

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Basics of Georgia Foreclosure Law

Robert Sneed - Thursday, January 14, 2010

How are mortgage liens treated in Georgia?

Georgia is known as a title theory state where the property title remains in the hands of the lender until payment in full occurs for the underlying loan. The document that secures the title in Georgia is called a deed to secure debt but may also be referred to as a security deed. The instrument that represents the borrower’s personal promise to pay the loan is known as a promissory note.

How are Georgia mortgages foreclosed?

The primary method of foreclosure in Georgia involves what is known as non-judicial foreclosure. This type of foreclosure does not involve court action unless a deficiency is sought. When the deed to secure debt is initially signed it will usually contain a provision called a power of sale clause, which upon default allows sale of the property in order to satisfy the underlying loan. Georgia does not use the typical deed of trust where the trustee acts as a representative of the lender and/or is the holder of the deed of trust. Foreclosure sales will typically occur in the form of an auction at the courthouse. Because this is a non-judicial remedy, there are very stringent notice requirements and the legal documents are required to contain the power of sale language in order to use this type of foreclosure method.

Power of Sale Notice Requirements:

1. Prior to initiating a foreclosure, the lender must send a demand letter requesting the payment of all past due amounts, which gives the borrower ten (10) days to pay these amounts otherwise foreclosure proceedings will begin. If payment is made at this stage no attorney's fees are assessed.

2. The lender must then publish the notice of the scheduled foreclosure sale in the county newspaper in which the property is located for four (4) consecutive weeks before the sale. The borrower must also receive by certified mail notice at least fifteen (15) days before the date of the proposed sale.

3. Foreclosure sales must take place on the first Tuesday of each month (between 10AM and 4PM) at the courthouse. The trustee will auction the property to the highest bidder at the courthouse steps.

In Georgia, the lenders can also go to court in what is known as a judicial foreclosure proceeding where the court must issue a final judgment of foreclosure. If the deed of trust does not contain the power of sale language, or a standard mortgage is used, the lender usually must seek judicial foreclosure. The property is then sold as part of a publicly noticed sale. A complaint is filed in county court along with what is known a lis pendens. A lis pendens is a recorded document that provides public notice that the property is being foreclosed upon.

What are the legal instruments that establish a Georgia mortgage?

The documents are known as the deed to secure debt, promissory note, and in a commercial transaction, a security agreement. Sometimes the mortgage document is combined with the security agreement. Alternatively, a mortgage is filed to evidence the underlying debt and terms of repayment, which is set forth in the promissory note.

How long does it take to foreclose a property in Georgia?

Depending on the timing of the various required notices, it usually takes approximately 60-90 days to effectuate an uncontested non-judicial foreclosure. This process may be delayed if the borrower contests the action in court, seeks delays and adjournments of sales, or files for bankruptcy.

Is there a right of redemption in Georgia?

Once a deed under power of sale is issued to a successful bidder at the foreclosure sale, Georgia has no statutory right of redemption, which would allow a party whose property has been foreclosed to reclaim that property by making payment in full of the sum of the unpaid loan plus costs.

Are deficiency judgments permitted in Georgia?

Yes, a deficiency judgment may be obtained when a property in foreclosure is sold at a public sale for less than the loan amount that the underlying mortgage secures. The lender must seek a deficiency judgment within thirty (30) days after the foreclosure sale. The foreclosure sale must be confirmed.

What statutes govern Georgia foreclosures?

The laws that govern Georgia foreclosures are found in of Georgia Code (O.C.G.A) O.C.G.A §44-14-162 et. seq. Actions to assert wrongful foreclosure for improper notice are referenced under O.C.G.A §9-11-65, and various notice requirements for Sheriff’s foreclosure sales are referenced under O.C.G.A. §9-13-140(a). 

If you seek legal assistance with respect to your home, please feel free to call the experts at McConnell & Sneed, LLC.
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The Dangers of Wearing Crocs

Robert Sneed - Monday, September 28, 2009
Those big, bold rubber clogs that come in bright colors and mold to the shape of your feet seem to be everywhere these days. The company that makes one kind of rubber clogs, Crocs, sold 6 million of them last year. However, in some online chat rooms and blogs, parents are sharing stories about kids having accidents while wearing the shoes. The problem has risen to the level of multiple lawsuits being filed against Crocs as a result of these incidents. In many of these incidents, including an incident involving a small boy at the Atlanta Hartsfield-Jackson International Airport, kids wearing Crocs have had their feet sucked into the side of escalators.

Some businesses have even posted warning signs near their escalators saying if you're wearing Crocs, be careful. But until recently, Crocs has been silent. Only with their newer shoes on the market can a person find warning labels on Crocs warning consumers of the dangers involved in wearing Crocs as normal everyday shoes. 
 
But recently, safety groups in the U.S. and Japan have issued warnings about soft-sided flexible clogs like Crocs and its imitators posing safety hazards to escalator riders. Typically, the shoe becomes entrapped when the rider is stepping on or off the escalator or standing too close to the side.

The Consumer Product Safety Commission reports that 77 escalator entrapment incidents have been reported since January 2006, half of which resulted in injury. All but two of the incidents involved soft-sided flexible clogs and slides such as Crocs. The CPSC doesn't reference the brand Crocs in its announcement but acknowledges that Crocs fall into the category of soft shoes they are warning about.

"This is a newer product on the market that poses a risk and we felt it was responsible to let consumers know," said CPSC spokesperson Julie Vallese. "It's not the shoe causing the injury but an unintentional risk when using an escalator."

In Japan, where 3.9 million pairs of Crocs were sold last year, the Trade Ministry asked the Colorado-based maker of Crocs to change the design of its shoes after receiving 65 complaints of Crocs and Crocs knockoffs becoming stuck in escalators between June and November of 2007. Most of the cases involved young children.

When asked about the entrapments, a Crocs spokesperson said, "Escalator safety is an issue we take very seriously. Safety experts say several factors can contribute to escalator accidents, including escalator design and maintenance, loose clothing or untied shoelaces, footwear and improper use."

Vallese says that the CPSC has warned about soft shoes and escalator safety in the past and felt it should renew its warning because of the number of incidents involving soft shoes and because now that the weather is warming more people are opting for lighter footwear.

Here are some general tips about escalator safety compiled from information offered by the CPSC:
  • Before climbing aboard, look to see where the emergency shutoff buttons are in case you need to stop the escalator. The buttons are usually at the top and bottom of each escalator and can be used to stop the escalator in an emergency.
  • Check the direction of the escalator before you take the first step.
  • To avoid the sides of steps where entrapment can occur, stand in the middle of the step. Always face forward and hold the handrail.
  • Step over the comb plate. Always pick up your feet and step carefully on or off the escalator. Never drag or slide your feet off the edge of the escalator.
  • Stay clear of moving parts. Keep your hands, feet and clothing clear of the side panels of the escalator. Remember: loose shoe laces, rubber boots and baggy clothes can get caught in the moving parts of the escalator. Make sure you have no dangling clothing or loose shoelaces that could get caught.
  • Always hold children's hands on escalators and do not permit children to sit or play on the steps.
  • Never walk up the down escalator or vice versa.
  • Do not bring children onto escalators in strollers, walkers or carts.
  • Stand upright. Never lean on the side of the escalator or sit on the stairs. Never ride on the handrail.
  • Do not run on an escalator.
  • Exit promptly from the escalator. Never stop, stand or play at an escalator landing; this can cause a dangerous pileup.
The attorneys at McConnell & Sneed have been instrumental in protecting the rights of children, including involvement in two such lawsuits against Crocs. The first lawsuit was filed in federal court in 2008, and recently settled for a confidential amount. 

Please find the following video clip of a recent interview by Fox 5 News with Andrew Laskin, co-counsel on the Atlanta federal Crocs lawsuit regarding the dangers of Crocs.


Also, please find the following article from the Atlanta Journal and Constitution describing the settlement of the federal lawsuit against Crocs.

Atlanta Journal & Constitution, September 25, 2009

Should you ever find yourself in need of representation regarding any injury to a child, please contact us for a free initial consultation. 
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Overview of Trademark Law

Robert Sneed - Thursday, September 10, 2009
What is a trademark and how does one protect a trademark?

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies a source of goods and services and may also distinguish such goods and services from those of others.  When a mark identifies a service rather than a good it is termed more precisely a “service mark”.  Nonetheless, the term “trademark” is often used also to refer to both trademarks and service marks.  Finally, the term “mark” is also used collectively to refer to both trademarks and service marks.

Trademarks are protected on either a common law or statutory basis.  On a common law basis, trademarks are generally protected by merely using the mark in commerce prior in time to others.  In addition to common law protection, certain laws and statutes provide for trademark protection by way of registration of a trademark.  To register a trademark one is required to file a trademark application.  One may file an application on a state, national, or international basis, depending on the breadth of coverage needed for one’s business circumstances.  In this article, we briefly address the process of protecting a trademark only a federal basis.

With respect to federal trademark applications, trademark applications are filed with the United States Patent and Trademark Office (“USPTO”) and may be filed on either an intent-to-use (“ITU”) or actual basis.  An actual use application is filed when the trademark has actually been used in commerce.  An ITU application is filed when a trademark has not yet been used in commerce.  An ITU application requires the additional step of filing a document called a “Statement of Use” (“SOU”) within six (6) months of a Notice of Allowance (“NOA”).  The SOU identifies the first date of use of a trademark ever, and a first date of use of a trademark in commerce for each category of goods and services listed in the application.

Specimens of use to prove use in commerce are filed along with the SOU.  For service marks a specimen may be a website, advertisement, brochure, or other such evidence proving use of the mark in commerce in connection with the services listed in the application.   For goods, a specimen may be labeling, packaging, or other such evidence proving the mark being used in connection with the goods.  When filing an actual use application no SOU is necessary because specimens are submitted at the outset.

The USPTO uses the international system of categorizing the source of goods and services associated with a trademark. Each mark is filed within one or more categories of goods and services.  For each category of goods and services, one must provide examples of how the mark is being used as a trademark in direct connection with the goods and/or services you are marketing.  It should be clear to the trademark examiner from looking at the specimen that the mark is being used in direct connection with the goods and/or services being claimed.

In the prosecution phase of the filing, the USPTO trademark examiner will examine the mark and may or may not allow the mark to publish for registration.  If the trademark examiner has objections to registering the mark then he or she will issue an “office action” stating the objections to the application.  The objections must be addressed within the timeframe provided in the office action, generally six (6) months from the date of the office action.  If the objections are overcome, the mark will be published in the Trademark Gazette, a USPTO publication for trademarks, for a period of thirty (30) days.

During this period of time, others may try to object or extend the period of time to object to the mark if they believe they will be damaged as a result of the mark’s registration.  If there are objections then further proceedings, including proceedings before the Trademark Trial and Appeal Board (“TTAB”) may be initiated to resolve the outstanding issues.  On the other hand, if there are no objections the trademark will eventually register and the trademark application will receive a certificate of registration.  

The trademark application process generally takes about between twelve (12) to eighteen (18) months from start to finish. The exact time depends on many factors including the trademark examiner’s docket, whether any office actions are issued, and whether any objections are filed.

At McConnell & Sneed, we assist clients in trademark protection.  If you need assistance with protecting your trademark on a federal or state (Georgia/North Carolina only) basis, please contact us for assistance.

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Contract Law Basics

Robert Sneed - Friday, July 24, 2009

In the current difficult economic climate, contract disputes are on the rise, whether related to service contracts, the sale of goods, agreements for the purchase of homes or businesses, residential and commercial leases, employment agreements, partnership agreements and other business venture agreements.  Thus, it is more important than ever for the parties to a contract to understand the rights they have under a contract, as well as the obligations they have assumed.  As Atlanta business litigation and contract attorneys, McConnell & Sneed have significant experience in representing both individuals and businesses regarding contract disputes, whether seeking to enforce the contract rights of their clients or defending against claims that a contract was breached. 

Most simply, a contract is an agreement between two or more parties which defines the rights and obligations of the parties with respect to the matter at issue, such as the purchase of a home or the operation of a business.  Generally, in order for a contract to be created, one party must make an offer to do (or not do) something which the other party accepts, with something of value given to support the offer and acceptance.  

While many contracts are in writing (in fact, some kinds of contracts are required to be in writing), oral contracts may also be enforceable.  Also, depending on the type of contract, the law may impose certain duties on the parties even if the contract does not expressly address them or the parties never discussed them.  These are called “implied duties” and can have significant consequences for both parties.    

If a party fails to perform its obligations under a contract without a legal excuse, it is called a breach of contract.  Depending on the significance of the breach and the terms of the contract, it may excuse the non-breaching party’s obligation to perform under the contract.  Also, a party may commit an “anticipatory” breach of contract if, before they are due to perform, they indicate by words or actions that they do not intend to perform as required. 

Upon a breach of the contract by one party, the non-breaching party can pursue various remedies.  Generally, these remedies may include the following:    

(1)    Actual Damages - Money to put the non-breaching party in the position he/she expected to be in if the other party had fully performed as required.  In some circumstances, instead of being measured by such expectations, actual damages will be the amount expended by the non-breaching party in reliance on the contract or the amount required to restore the non-breaching party to the position he/she was in before the contract. 

(2)    Consequential and Incidental Damages – In addition to actual damages, money for losses caused by the breach that the parties, at the time of entering the contract, could have reasonably foreseen would arise in the event of a breach.

(3)    Attorneys’ Fees and Costs – Potentially recoverable if expressly provided for in the contract or if the breaching party acted in bad faith or was stubbornly litigious.

(4)    Liquidated Damages – Money damages agreed to by the parties in the contract that would be payable by the breaching party.  These provisions are not always enforceable, however, and must, among other requirements, be a reasonable estimate of the anticipated loss in the event of a breach.  

(5)    Specific Performance – A court order requiring a party to perform exactly as specified in the contract.  This remedy is generally unavailable, however, where a party can be compensated for the breach with money damages as described above.  The most common application of this remedy is in contracts for the sale of real estate or other unique property.

(6)    Rescission – The contract is canceled and both sides are excused from further performance.  The parties would then have the right to seek to be returned to their respective positions before the contract, which could require the restitution of any money or benefits advanced from one party to the other.

If you believe you have been harmed by a breach of contract, it is important to consult with an attorney to understand what remedies may be available to you.  Likewise, if you have been accused of breaching a contract, it is critical that you know what defenses you may have to any claimed liability and if you have any counterclaims for damages against the other party.  The attorneys at McConnell & Sneed have the knowledge and experience to advise you on these issues and will aggressively represent your interests in any contract dispute.


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New Domain Names

Robert Sneed - Wednesday, July 22, 2009
Here at McConnell & Sneed, we are always striving to provide our clients and potential clients with more ways to access us and to learn about various legal issues.  As a part of this attempt to educate and help the public, we have obtained four new internet domain names that all direct to our website.  Now when people search for these specific terms, people will be able to contact us for either help or information.  The new domain names are:
Hopefully, in the future we will be able to obtain additional domain names that relate to other areas of law that our attorneys practice.  As always, we are there to answer any questions you may have and, as always, all initial consultations are free of charge.
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Paper Shredder Safety Alert

Robert Sneed - Friday, July 10, 2009
In our personal injury law practice in Atlanta, Georgia, we see many traumatic injury cases.  Recently, McConnell & Sneed was hired to represent the interests of a four year old child whose hand and fingers were severely mutilated in a home shredder. Sadly, she lost parts of three of her fingers.

With the ominous rise in identity theft cases, more and more people have been purchasing paper shredders for their homes.  But recent studies show that these paper shredders can lead to finger injuries, mutilations, lacerations -- and even amputations -- in young children.

The U.S. Consumer Product Safety Commission (CPSC) recently investigated home paper shredder injuries. Their research shows that 22 (71 percent) of the 31 home paper shredder injuries were to children under 12 years of age.  Over half of those injuries involved children under 3 years of age.

As recently discussed on parents.com, children like to imitate adult behavior, and using a paper shredder is no exception.  Since most paper shredders were originally built for office use, they do not include child-safety components.  THE CPSC assessed that a home paper shredder's opening (where paper is inserted) ranges from 13 to 16.5 inches, allowing easy access for a toddler's little fingers.  And every one of these machines potentially allowed a child's fingers to reach through to the cutting blades.  In addition, most of these shredders do not include on/off buttons and instead are automatically activated when papers (or fingers) are placed in the opening.  Researchers concluded the article with a call to manufacturers to redesign the shredders to make them safer for children and to display clear warnings directly on the machines

The CPSC offers the following safety tips -- to protect both parents and children -- for your home paper shredder:
  • Never allow children to operate paper shredders, even under adult supervision.  Paper shredders can pull childrens' fingers into the shredder mechanism
  • Place the paper shredder in an area less accessible to children.
  • Unplug the paper shredder power cord when the shredder is not in use.
  • Do not place hands or fingers in the shredder opening.
  • Do not operate a paper shredder while wearing loose fitting clothing that may enter the shredder opening.
  • Keep hair and items, such as a tie or long necklace, away from the shredder opening.
The United States Consumer Product Safety Commission recently issued the following Paper Shredder Safety Alert:


Paper Shredder Safety Alert

Consumer model paper shredders are growing in popularity. The U.S. Consumer Product Safety Commission (CPSC) wants you and your family to be safe if you have a paper shredder. From January 2000 through September 2005, CPSC received 50 reports of incidents involving finger amputations, lacerations, and other finger injuries from paper shredders. The majority of injuries were to young children under age 5.

Young children are interested in imitating adult activities, and children may try to activate the shredder when an adult is not present. This puts children at risk of injury.

Injuries can occur even when an adult is supervising a child. Children’s fingers can be pulled into the paper shredding mechanism if they don’t let the paper go.

Never allow children to operate a paper shredder, even under adult supervision. Injuries can still occur. The pull force of the shredder can draw a child’s fingers into the shredding mechanism.



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Doggie Doors Combined with Crawling Kids and Toddlers Can Lead to Serious Personal Injuries and Death

Robert Sneed - Friday, June 26, 2009

Many families with pet dogs install doggie doors to allow easy access for dogs to go in and out of a house or patio area. Doggie doors are very convenient. Doggie doors can also be dangerous in that small children / toddlers get out of house through the doggie door. Once out of the house, small children / toddlers have been known to suffer serious personal injuries and death from pools, ponds, and other dangers outside of the house. In August 2006, Matthew Ranfone got out of a doggie door from his Orlando home and was found floating face down in the family pool. He died later from drowning related injuries. Carol Ranone, Matthew's mother, has launched a website to get the word out about the dangers of pet doors / doggie doors and small children atwww.petacessdangers.org. We recommend that all dog owners who are parents of small children or who have small children in their home to take a look at the website. The safety of small children / toddlers is much more important than the mere convenience of a doggie door. Safeguard your home to the best of your ability to protect children who live or visit your home.

You can read more about the dangers of doggie doors at Pet Doors and Crawling Kids Can Be a Deadly Combination.
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New Faces and New Office!

Robert Sneed - Wednesday, May 27, 2009
We at McConnell & Sneed, LLC are in the middle of an exciting time.  

We are very proud to welcome Joe Coomes as a partner in the firm.  As described in detail on his Attorney Bio page, Joe comes to us with a great deal of complex business and real estate litigation experience.  Joe has worked for several very well-known and respected law firms before deciding to join McConnell & Sneed as a partner.  Joe's background provides the firm with an additional level of civil expertise that further allows us to provide our clients with a broad range of legal representation.  Steve and I are both very excited about what Joe adds to the firm and we are very proud to call him our partner.

We are also very happy to announce the addition of Candice Harris to the team as a Legal Assistant.  Candice brings a new perspective to the firm and has quickly become an indispensable member of our team.  We are confident that Candice will be a valuable member of our firm for a long time to come.

Finally, with the addition of Joe and Candice detailed above, the firm needed additional office space.  On May 4, 2009, we moved to a larger office literally right across the street from our old office.  We are now located in the Tower Place 100 building in Buckhead, home to many respectable lawyers and law firms, as well as other Atlanta mainstays such as Buckhead Coalition, Inc. and Solomon Brothers Fine Jewelry.  We are very excited about the move and welcome anyone to stop by to say hello.

Best Regards,
Rob Sneed
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Effectiveness of MRIs in Diagnosing Spinal Problems

Robert Sneed - Friday, January 02, 2009

There is extensive literature documenting that spinal imaging is essentially worthless for anything but showing what is causing the radiculopathy after the clinical diagnosis of radiculopathy has been made.

 Of the two causes for 98% of the patients with chronic headaches, neck and/or upper back pain (facet joint or discogenic pain), an MRI, CT or myelogram is incapable of distinguishing asymptomatic patients from those with pain.

It almost exclusively distinguishes 15 year olds from 40 year olds because the aging changes that are medically called spondylosis and inaccurately referred to as degenerative changes NEVER cause pain.
 
They may predispose a patient to an injury that causes pain, but they don't cause it (thus, you have an "eggshell skull" case).
 
The disc ages in two ways:
 
The center part of the disc (the nucleus) has no blood supply and gets its nutrition from the cartilage on the vertebral endplates above and below each disc.
 
As the person goes beyond the mid teens (autopsies during Viet Nam showed the disc degeneration had already begun by the late teens), the nucleus that is initially 80% water gradually dries out and gets chunky.
 
Also as we age, the disc anulus gets small tears and loses structural integrity after any one of the countless twisting movements we make in life.
 
Neither of these changes causes pain, and there is extensive scientific literature (some of it award winning) proving it's correct.
 
At the same time the boney spine builds up perfectly normal bone on top of other perfectly normal bone.
 
Bone spurs are examples of this.
 
Unless the buildup is extensive enough to narrow the central spinal canal where the spinal cord (in the neck or mid back) or cauda equina (in the low back) is enclosed and can be compressed, the central buildup is irrelevant.
 
Similarly, if it happens to a sufficient degree laterally to compress the neuroforamen where a nerve root exits (the narrowing can be the result of a combination of bone buildup and disc compression and/or bulging) and causes a radiculopathy it would be significant but without a radiculopathy it is not.
 
The page of polysyllabic discussion on the MRI report is an accurate description of these changes but could be summarized with "normal for age" and be just as accurate and helpful.
 
The long and detailed reports typically change neither the diagnosis or the treatment.
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