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As attorneys with a law firm which has a significant online presence, and as business lawyers who represent small and medium businesses, we are very much aware of the power of online reviews and/or ratings given by consumers. In fact, in this day and age, the positive or negative nature of a company’s reputation as declared by the internet can make or break your business.

For many businesses, it is almost impossible to avoid at least the occasional negative comment or even merely a lukewarm review. Many times, the information posted online is not accurate, or at least is presented out of context and/or incomplete. All businesses which encounter this face the same question: what can we do about this negative online review?   Hopefully, after you have had a bit of time to think about it, one of your next questions is: what should we do about this negative online review? We have developed a list of 5 key considerations and here is the second.

(2) Contacting the person who wrote the negative review. Be careful if you are contacting the person who made the negative review. While this can sometimes be effective, there are a number of reasons one should be hesitant to do this.

First, you have to consider whether you are going to be able to communicate politely and without expressed emotion, given the topic at issue and the likely hood that you feel wronged. Also, if the reviewer seems to have exaggerated or provided inaccurate information, how confident are you going to be that (s)he are going to respond to you in a reasonable fashion? Further, you always run the risk of the conversation not going well, or at least not going as planned. It’s even possible that you may think the conversation went well, but the complaining party did not appreciate it. This could result in the former customer updating/expanding the initial negative review.

We’re not suggesting that you should never reach out to a complaining customer or client. We’re emphasizing that if you are going to make contact with someone who has issued an online complaint against your business, make sure it’s done carefully and with some advance consideration. 

In some ways, as a trial lawyer, this makes me think of the debate within my profession about asking a judge to “Strike that from the record and instruct the jury to disregard it.” This objection and request happens all the time in trial (especially on TV, it seems). Many of us think that a jury being told to disregard the offending testimony/evidence will actually have the opposite effect – that information has been singled out for greater attention, and may end up being further cemented in the jurors’ minds. In other words, sometimes you are better of either ignoring such situations or handling them in a low-key manner as opposed to potentially aggravating the situation.

However you handle this – and hiring an attorney to deal with it is sometimes an option worth considering – be careful.

For many businesses, it is almost impossible to avoid at least the occasional negative comment or even merely a lukewarm review. Many times, the information posted online is not accurate, or at least is presented out of context and/or incomplete. All businesses which encounter this face the same question: what can we do about this negative online review?   Hopefully, after you have had a bit of time to think about it, one of your next questions is: what should we do about this negative online review? We have developed a list of 5 key considerations, and here is the first.

The answer to that question isn’t as straightforward as one may think.

Generally, there are two different paths to remove the former homeowner after being foreclosed upon: (1) formal eviction process, and (2) informal negotiations between former homeowner and new owner (usually the lender bank or the highest bidder at the foreclosure sale). The first option of formal eviction can be costly and requires additional involvement of the justice system. It is comparable to the process for evicting a tenant who has overstayed his/her welcome. The second route will generally take the form of the new owner making a monetary offer to the former owner in exchange for an agreement to vacate the premises peacefully and without causing any damage. This “cash for keys” option saves all parties from having to go through the hassle and costs of the eviction process.

Depending on the path chosen, a homeowner will be able to stay in his or her home for a short time period of perhaps a few weeks; others may continue to live in the foreclosed upon home for longer and even indefinite periods of time. Each case is different, and the length of time will depend on the laws of the state where the property is located, how aggressive the new owner is in ensuring the vacancy of the property, and any agreement entered into.

One of the most common questions that I and other lawyers in my firm are asked by borrowers is weather a foreclosure action will start or commence even if the borrower is supposedly being considered for a mortgage loan modification or other type of mortgage relief such as a forbearance plan, a short sale, or a deed in lieu of foreclosure. Of course a relevant and important follow up question is why lenders continue to foreclose even if a mortgage relief option is supposedly in the works.

Unfortunately, in almost every circumstance, a mortgage lender/servicer such as Bank of America, Citibank, Chase, GMAC, and Wells Fargo will commence or continue foreclosure activities even while representatives of such loan servicers continue to tell the borrower that they are being considered for a modification, or even on the verge of receiving a final mortgage relief offer. Many of our clients have expressed that they feel as though the lender is dangling a carrot out in front of them with the one hand, while whipping them with the other. Many borrowers have expressed that they feel as though lenders are intentionally leading them on about the possibility of a mortgage relief option, just so the borrower is lulled into a false sense of security while the lender continues to foreclose.
I have one very important suggestion for you. I have handled numerous cases in which the mortgage lender or servicer has actually, from its standpoint, halted or even dismissed a foreclosure action but has either failed to communicate that to its foreclosure lawyers or to the borrower or the attorney for the borrower.  If you are facing foreclosure, be sure to attempt to have direct contact with the entities who are prosecuting the foreclosure, or have your attorney do the same if you are represented.  It is important to – as best as you can – make sure that you are as well informed as possible. Yes, of course, getting information out of these lenders is almost impossible at times, but it is important that you keep making the effort.

In order to be fair, we have to consider the reasons why mortgage loan lenders and servicers may continue to foreclose even though mortgage relief options are being considered.  As in almost all legal matters which involve opposing sides, one side may wish to impose pressure on the other in order to get what it wants.  From a strategical perspective, an attorney advising the lender may very well advise the lender to keep the pressure on for a number of reasons.  Since some borrowers are unable to comply with the terms of a mortgage relief opportunity, and others simply turn down opportunities for mortgage relief, the bank may be best served by continuing a foreclosure action until a mortgage relief option is finalized.  Keep in mind that the banks can typically take a situation to the very edge of a foreclosure sale yet not execute that sale if some final resolution short of foreclosure can be reached.

Let me make one final comment on this topic.  You should be aware that there are numerous prohibitions against foreclosure under certain circumstances.  These prohibitions may be found in federal law, state law, federal government program guidelines, court orders, court settlements, etc.  Further information on this specific topic will be provided in on our website, including pages which discuss prohibitions against foreclosure contained within the Making Home Affordable program.

McGrath & Spielberger, PLLC provides assistance to borrowers in need of mortgage relief services, such as mortgage loan modification, foreclosure negotiation, refinancing, and deed-in-lieu or other negotiated settlement resolutions.

1. provide stability in the secondary market for residential mortgages;
2. respond appropriately to the private capital market;
3. provide ongoing assistance to the secondary market for residential mortgages (including for lower income families); and
4. to promote access to mortgage credit.

Freddie Mac does not loan money to would-be property owners the way that banks do. Rather, it participates in the secondary mortgage market by purchasing mortgage loans and mortgage-related securities for investment and by issuing guaranteed mortgage-related securities. The secondary mortgage market consists of institutions engaged in buying and selling mortgages in the form of whole loans (i.e., mortgages that have not been securitized) and mortgage-related securities.

Due to the housing/mortgage crisis in America, Freddie Mac currently focuses on “meeting the urgent liquidity needs of the U.S. residential mortgage market, lowering costs for borrowers and supporting the recovery of the housing market and U.S. economy.” Specifically, Freddie Mac states that it is working toward reducing the number of foreclosures; making homeownership and rental housing more affordable; and helping families keep their homes.

McGrath & Spielberger, PLLC provides assistance to borrowers in need of mortgage relief services, such as mortgage loan modification, foreclosure negotiation, refinancing, and deed-in-lieu or other negotiated settlement resolutions. These professional services may include dealing with mortgage loans owned or securitized by Freddie Mac.

Fannie Mae does not originate loans or lend money directly to consumers in the primary mortgage market because Federal law prevents it from doing so. However, it does purchase mortgage loans and mortgage-related securities. In other words, while you can’t get a loan from Fannie Mae, Fannie Mae might end up owning your mortgage loan.

Fannie Mae also often securitizes mortgage loans originated by lenders into Fannie Mae mortgage-backed securities (called Fannie Mae MBS)  and makes other investments which are intended to increase the supply of affordable housing.

McGrath & Spielberger, PLLC provides assistance to borrowers in need of mortgage relief services, such as mortgage loan modification, foreclosure negotiation, refinancing, and deed-in-lieu or other negotiated settlement resolutions. These professional services may include dealing with mortgage loans owned or securitized by Fannie Mae.

Did Atticus Finch Commit Malpractice? Did he get his client killed?

BY JASON A. MCGRATH, Esquire

On November 21, 1935, Tom Robinson raped 19-year-old Mayella Violet Ewell. So said the Maycomb County, Alabama jury, as written by Harper Lee in the classic novel To Kill a Mockingbird. Despite an admirable defense by court-appointed attorney Atticus Finch, Tom Robinson was convicted and sentenced to death by a jury which was most definitely not made up of his peers.

The book strongly implies that Mr. Robinson was innocent, that the primary prosecution witnesses lied throughout the trial, and that it was only Mr. Finch’s valiant efforts and relationship with the community which caused the jury to hesitate at all before the unfair conviction. What if, however, Atticus in fact made a terrible mistake during trial which eliminated any small chance his client had of acquittal, any chance of avoiding death?

Although I’m a fairly voracious reader for pleasure, I’d never gotten around to reading To Kill a Mockingbird. However, one recent weekend, desperately in need of a break from contract review and liability analysis, I grabbed it from the coffee table where my wife had deposited it a few days earlier. I’d never read a review or summary of the book (nor have I yet), but was still vaguely aware that it featured a lawyer named Atticus, a rape or murder, and a racial controversy. This makes it even more unlikely that I ended up reading the book, as I tend to avoid stories about lawyers, who in books and movies are almost always far too perfectly successful, far too naive, or far too evil to be realistic.

I grew up in an environment very dissimilar to Maycomb; nobody would confuse south Florida with south Alabama. Now that I’ve moved to North Carolina, however, explorations of southern culture seem more appropriate. Plus at least half of those running for judgeships and other positions within the justice system here seem to claim To Kill a Mockingbird as their favorite book. Thus I came to read it, in three different sittings within 36 hours. I enjoyed it, but I was at first puzzled, and then dismayed at the way the trial went, and not just due to the unjust outcome. I’ve litigated many cases, including sex crimes, violent felonies, wrongful death cases, business controversies, mortgage disputes, etc., and I just couldn’t fathom what happened — or rather didn’t happen. What went wrong, Atticus?

Toward the end of the trial, the father of the alleged victim, a disreputable white man named Bob Ewell, took the stand after being called by the prosecution. He described what he witnessed the night of November 21, 1935 as he returned home from the woods. “[J]ust as I got to the fence I heard Mayella screamin’ like a stuck hog inside the house—.” Mr. Ewell went on to point to the defendant, Tom Robinson, who was seated next to his attorney, Atticus Finch, and to exclaim, “I run up to th’ window and I seen…I seen that black nigger yonder ruttin’ on my Mayella!” The language used and the events described caused a disturbance in the packed courtroom.

Minutes later, Mr. Ewell’s testimony continued with a question by the prosecutor. “Mr. Ewell, did you see the defendant having sexual intercourse with your daughter?” The witness answered with certainty, “Yes I did,” and then stated that he had a clear view of the room as his daughter was being raped by the defendant. Finally, the angry father confirmed, “I sawed who he was, all right.”

Upon cross-examination, Atticus Finch established several points, the key being that Mr. Ewell was left-handed. This was potentially relevant, as other evidence showed or implied that Mr. Ewell was a mean and perhaps abusive drunk, and that his daughter’s injuries were largely on her right side — and thus arguably inflicted by a left-handed attacker.

The next witness to be called was the alleged victim herself, Mayella Violet Ewell. Other than being a member of the unpopular Ewell family, there was no indication in the book that Mayella herself was particularly disliked. Rather, she was presented as a young woman born into an unfortunate situation; into a family with no means, no motivation, and no role models.

Mayella agreed that she’d peripherally known the defendant for years, as they were neighbors. She testified that on November 21, Tom Robinson had been walking by her home when she asked him to assist her in chopping an old piece of furniture up to be used as firewood. Instead of helping her as asked, however, he attacked and raped her. “[A]n ‘fore I knew it he was on me….He got me round the neck, cussin’ me an’ sayin’ dirt—I fought’n’hollered, but he had me round the neck. He hit me agin an’ agin—.” “Then what happened?” the young Ms. Ewell was asked. She replied, “I don’t remember too good, but the next thing I know Papa was in the room a’standin’ over me hollerin’ who done it, who done it? Then I sorta fainted an’ the next thing I knew Mr. Tate was pullin’ me up offa the floor and leadin’ me to the water bucket.” (Mr. Tate was the sheriff.)

Tom Robinson later testified, denied that he had committed any type of crime or improper action, and reluctantly explained that it was he who had fended off Mayella’s sudden advances. Atticus Finch demonstrated to the jury that Mr. Robinson had a particular physical impairment of his left arm and hand, which made it less likely that he could have carried out the attack as described. During closing arguments, Mr. Finch emphasized to the jury that the evidence of guilt was unreliable, and implored the jurors not to assume guilt merely because of the color of the defendant’s skin. He also commented, “Her father saw it, and the defendant has testified as to his remarks. What did her father do? We don’t know, but there is circumstantial evidence to indicate that Mayella Ewell was beaten savagely by someone who led almost exclusively with his left.” Despite Mr. Finch’s efforts, Tom Robinson was found guilty after perhaps six hours of jury deliberations.

At first, I expected Atticus to pounce on it during cross-examination of Mayella, for that would be what most lawyers would do. However, some lawyers (this writer being one of them) prefer not to emphasize such “gotcha!” testimony during cross, but rather save it for closing argument. (Why bring it up during cross, which only gives the opposition the opportunity to try to completely correct the problem or at least minimize the damage with additional evidence?) Thus, I thought “Ahhh, the wise Atticus Finch will keep this nugget in his pocket, polishing and savoring it until the moment is absolutely right, until the jury is hanging on his every word, his every motion. Of course!” Although it was one o’clock a.m. when I read this part of the book, I folded page 206 in order to mark it, the way I’d have asked a court reporter to mark a piece of testimony during a real trial. I then read through closing arguments before going to sleep, a sleep literally troubled by what turned out to be missing from Atticus’ closing argument.

The next morning, I explained my thinking to my wife. She looked at me, trying to determine if I was actually being clever (for a change) or if I mistakenly thought I was being clever. Eventually she nodded in agreement, and her face took an expression of slightly puzzled thoughtfulness as she subconsciously continued to nod her head ever so slightly up and down.

Perhaps some of you reading this knew where I was going before you read more than a sentence of two of this commentary. Others may have picked up on it a few hundred words ago, while some of you, appreciated readers, are still waiting to hear what, to me, seems a blatant and damning error by the esteemed Atticus Finch. Well, let’s get to it.

Bob Ewell testified very clearly that he saw Tom Robinson attacking and raping his daughter. Further, he then watched as Mr. Robinson, his long-time neighbor, exited the Ewell house and ran off. We have Mr. Ewell’s own words that he “sawed who it was” and we know that he pointed to the defendant when he exclaimed, from the witness stand, “I seen that black nigger yonder ruttin’ on my Mayella!” That’s a perfectly straight forward and positive, first person, eyewitness identification, offensive language notwithstanding.

However, what did Mayella Ewell testify regarding her father and his words and actions at the time of the alleged crime? She made a general statement that she didn’t “remember too good” what happened immediately after the rape, but then testified with specificity as to what she did remember. “[B]ut the next thing I know Papa was in the room a’standin’ over me hollerin’ who done it, who done it?” (emphasis added)

That question mark means everything here. The father, who testified so emphatically that he was an eyewitness to the defendant’s rape of his daughter, was reportedly yelling and asking that very daughter who had raped her. This could have been, should have been, the moment, or at least should have led to the moment of the trial. The “gotcha” moment, the “now we all know you’re a liar” moment, the “not even you, ever-suspect jurors, can now mess this up” moment. Yet somehow, it was not. Atticus Finch missed the key bit of testimony and its significance. The otherwise competent, even inspiring, country lawyer let his client down and, we may even feel, let us down.

The Finch’s neighbor, Miss Maudie, reflected that it was impressive that Atticus had at least given the all-white, biased jury reason to pause on its way to unfairly convicting the defendant. “And I thought to myself, well, we’re making a step – it’s just a baby step, but it’s a step.” Well said, but under further consideration, we may be left to wonder if that baby step could have or should have been a leap.

I still can’t decide if I like Atticus Finch more now than I would had he been better, had he pulled off the miracle. At least he wasn’t perfect, as we surely are not. I dare say we are no better than Mr. Finch was, and we should remain thankful for him, stunning error and all.

Jason A. McGrath, along with Attorney Jim Spielberger, owns McGrath & Spielberger, PLLC, a small firm with a large geographical reach.  He spent five years as a criminal prosecutor, followed by eight years as a litigator in a private firm in which he was a partner. Mr. McGrath now focuses on business law matters (including disputes), and mortgage dispute / foreclosure cases. The Firm overall also handles tax issues, estate planning matters, and various other types of cases.  ⏹

https://www.ncbar.gov/media/121077/journal-16-1.pdf#page=6&zoom=page-fit,-323,792