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Car Searched Without a Warrant, Considering Bankruptcy and More – Free Joe Friday 3/11/11

with 2 comments

Every Friday, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss last week’s Free Joe Friday? Don’t worry. We’ve got it all right here.

Angel: Under what circumstances can a cop search your car without a warrant?

Joe Escalante: Angel O, make no mistake, a Cop can always search your car without a warrant. However, if he doesn’t have “probably cause” then the evidence he recovers cannot be used against you in court. But he can still take it and crush it, or whatever, if it’s contraband. In a traffic stop, probable cause is usually something like smelling your skunk weed, boozie breath, or seeing stuff through the window.

Janice: My home has been broken into 3 times in less than 2 months. Am I able to move without notice and am I entitled to me full deposit back? Having lived here for 3 years and never signed another lease since moving in am I considered month to month?

Joe Escalante: You are probably month to month. You probably have to give notice except if it can be established the the landlord has breached the implied warranty of habitability. In this case the breach would have to do with security or lack of it. However, maybe you leave your door unlocked and have wads of cash visible through the window. I don’t know, that would mitigate the landlords responsibility. Regarding the deposit. That should not be used to offset rent if the warranty was breached, but the landlord will probably keep it and you’ll have to go to court to get it back.
Be prepared to prove that the landlord did not provide you with a safe place to live. Bring Evidence!!

Kenneth: Hi Joe, Thanks in advance for your invaluable assistance here.

My question is: I have been divorced for about 3 years. In the divorce mediation agreement, I was to be paid a certain $ for my equity stake in our residence, and my ex was to refinance the existing debt and pay off other debt that was in my name only. Nothing was ever done. I am currently going through the motions on a contempt charge regarding the agreement. Can I place a lien on the property for the outstanding amounts owed to me? Again thanks for your advice.

Joe Escalante: I think you need a judgment before you can get a lien. The judgment will come from the court proceedings. It sounds like you are doing what you are supposed to do to get to that point. Once you get a judgment, ask the court clerks how to do things to enforce it like the lien, and even seizing money in her bank accounts.

Vanessa: If you get your taxes done from a personal accountant, and you are not happy with the services, but they already completed the taxes without sending them into the government (meaning you have not approved them) can you legally back out of all of it and not pay them even though they have finished them?

Joe Escalante: If there’s a contract for services and the services were performed, you have to pay for the services. If you want to fight this in court you would have to assert that the performance of the services breached the contract because they were so bad. In the absence of a contract that guaranteed good service, there may be a breach of an implied warranty (that the services would be adequate) but be prepared to prove that in court.

Christina: If you’re considering bankruptcy, do you have to be a certain amount in debt?

Joe Escalante: I don’t know what the limits are in your state. You should actually have your situation analyzed by the people connected with LegalZoom. If it’s for just five dollars or something like that, I have that much on me, just ask.

LegalZoom: Here’s the link to our bankruptcy services, Christina:

Renee: Joe, I had a contract with a photographer to photograph, supply several photos in print and a disk with all the photo taken. The Photography company now has closed down after 55 years and I have received nothing. They say all they can give me is a Disk of the photos….no promised items listed in the contract (which is paid in full). This company is Incorporated, what are their legal liabilities to me?

Joe Escalante: Sounds like if they shut down they probably have debts bigger than the one owed to you. You should find out if they filed for bankruptcy. If they did, you can get put on the list of their creditors. Some will have priority over your debt. The Bankruptcy trustee is charged with selling off their assets and paying what debts he can, in order of priority. There’s probably little you can do other than getting on that list. Take the disk though, that wont hurt your case.

Roan: If you file a Chapter 7 bankruptcy, can you include all your federal student loans? Also, if you can include the loans in the bankruptcy, would you be able to return to school after a short while and get financial aid assistant?

Joe Escalante: I’ve never heard of a student loan that could be discharged in bankruptcy.

Joseph: If a us trustee objects to a 522f motion how can one counteract it being pro per?

Joe Escalante: If you are talking about a motion to avoid a lien, this is why bankruptcy attorneys exist and make a lot of money. Doing a bankruptcy pro per is admirable, and I’m impressed that you were able to file the motion, but when they reject stuff like that and it’s getting complicated, you have to go tiger blood on them. This is when you need an attorney.

Michael: If I purchase a new vehicle through my company can I deduct the entire value on my taxes

Joe Escalante: If you use it entirely for business, that’s usually the case. Otherwise it would be shenanigans. Consult your tax professional cuz I ain’t one.

Pete: My European History club would like to incorporate as a not-for-profit, possibly under 501 (C) 7. Under this title, would we be able to engage in retail trade if all of the proceeds were used towards COGS and to promote the goals of the organization? More specifically, we would like to sell t-shirts, music, and admission to events our club sponsors. Thanks in advance.

Joe Escalante: Your non-profit organization can sell things for a profit, as long as those profits are kept in the organization and not distributed to members. However, members that perform services for the non-profit like accounting, legal work, and cleaning toilets, can get a salary.

Roan: Hey Joe, thank you for replying so quickly. What criteria would you have to meet to get your student loans discharged in a Chapter 7 bankruptcy?

Joe Escalante: I don’t think that’s going to work at all Roan. I’ve never heard of it being allowed, in any state. If someone else knows any different, please post. But provide some sources too.

Guy: hello JOE, – MY SON RICHARD passed away last october and face book refuses to remove his page and chat – what can I do? some one else has hacked his page and removes any warnings I post and they have changed his information – I only got an email from face book that they would look into it

Joe Escalante: All you can do is go through their process and wait. There’s no way to beat these guys. They’ve got over 500,000,000 active users, many of them die every day and they have like 3 employees.

Jane: Hi Joe, My mother is in her 80′s and was in pretty good health until a mild stroke a couple of years ago. She is now not able to drive and moves slowly and also has a touch of dementia. Several years ago she took out a reverse mortgage so that she could get out from under a $500 a month mortgage and supplement her social security. It was good for positive cash flow, and the house has gone down in value over the years, so in that sense it was a smart move. However, I am wondering what to do now that she needs more care. Can she get out of the reverse mortgage without having to pay it off? What if she needs a nursing home or assisted living home? Is she stuck staying in her own house with only distant family to care for her?

Joe Escalante: IF the house is worth less than when the reverse mortgage was initiated, I can’t see why they would let her out of it without adjusting it to her detriment.

Bishop-Elect Frank: My wife was involved in an auto accident two years ago and sustained two broken vertebrae and is now totally disabled. We are in the process of suing the other, at fault, driver’s insurance. What kind of settlement offer should we be expecting? The accident happened in PA and we reside in NJ.

Joe Escalante: Sorry about the accident Bishop-Elect I don’t’ know what kind of offer you will get, but what you are entitled to is to be made whole. That means compensation for property damage, medical bills and pain/suffering which is often calculated by a formula based on the amount of medical bills you have. You might also be entitled to compensation for lack of earning power.

You should have an experienced personal injury attorney on your side. In this case that would be better than relying on your insurance company to handle it. Regarding the offer. They will probably just offer to pay the bills and you’ll have to fight for the p & S and loss of income.

Mark: Hello, Joe. I work as an independent contractor for an at-home company. Because I was putting more than 40 ours per week, they requested that I form my own company so that there was no issues with the Department of Labor. I formed an LLC and began billing them from that in August. My question is: Do I fill out one tax return for everything or do I need to fill out one just for myself and another for the LLC? And are there any easy tax breaks I should look for with the LLC return? I am its only employee.

Joe Escalante: These are all tax questions Mark. You gotta ask a tax person. Personally, I have a few corps but I also file as a married guy too. That’s where I declare the income that the corps pay me, as well as other income I get from other sources that are not the corps.

Terrie: Joe, if my business partner has 60% stock and I have 40, exactly what is the best way to handle a disagreement about how profits should be spent?  It’s an llc, and its an insurance agency. I am the 40 and he’s the 60. I’m licensed by doi and he isn’t. Sometimes, I do know best, and to let him call the shots in some cases is a very bad idea. What can I do in a time punch to say, “too bad, doing it my way”. Example: is like to offer a staff member a pay raise to compete with another job offer they have. He says no. I’m gonna do it anyway but what can he REALLY do to me for that?

Joe Escalante: This kind of stuff should be enumerated in the LLC’s articles of incorporation (or articles of organization). If it doesn’t say what the rules are there regarding this stuff, you need to re-write them for clarity. If one member is writing checks for raises to the other’s objections, there could be a civil lawsuit for misappropriation of corporate funds or something like that. Check your articles and see what they say about these kinds of decisions.

Meesg: Who reads your will when you die ?

Joe Escalante: The best thing to do is have a famous actor do it, like Wilford Brimley. In reality, all interested parties should be provided with a copy of will by the estate’s executor, or the probate court, for them to read. If you want Wilford Brilmley to read your will, leave some property to him, and he will definitely read it, though probably not out loud.

Renee: Hi Joe! Want would be the first steps to filing a do-it yourself divorce in Thomas County< GA?

Joe Escalante: Legalzoom baby, legalzoom. They deal with all the states, even ones like Georgia. At least check it out. If the divorce becomes contested however, it’s going to get more complicated.

Arthur: If I have an “idea” for an invention, isn’t that “idea” my “intellectual property” and therefore copywriteable???

Joe Escalante: No. Ideas are not protectable. Only the creative expression of an idea, or detailed plans for an invention that is unique and non-obvious are protectable. These are the topics of my radio show, one of which has just begun on and later today, 2 PM PST on Radio Weezer.
Also, I do a live 2 hour show on KTLK in Los Angeles. That’s 1150 AM on your dial. You can call today’s show at 877-LAW-4777 or Sunday live at 877-520-1150. Give me a call Arturo and we’ll discuss it.

LegalZoom: You can also check out a video of Joe talking about copyrights and trademarks here:

Katrina: I want to know what recourse I have if any ,when someone makes a complaint against me to DCFS. I feel I am a good parent and the complaint is unfounded. I am in the state of TN.

Joe Escalante: Well if the complaint was false and you can prove that the person complaining new it was false, you may have a civil claim against them. Otherwise, you have to use whatever system is in place in your county to rebut claims made like this against you. Good luck!!!

Christine: Joe, when it comes to a living trust, can my husband still access our joint accounts if it’s listed as a trust in my name only? It haven’t had a notary sign off on the paperwork yet. I’m 43, my husband is also, and I told him that I’m frustrated with his procrastination when it comes to a will/living trust. He’s okay with me having this trust.

Joe Escalante: If it’s a joint account, it will pass to your husband when you die without going through probate or anything, so yes there’s nothing anyone could do to keep him from it. He will always have access to it whether you are dead or alive, or a hostage of Somali Pirates in the Indian Ocean.

Valerie: Hi Joe, I have a (real estate) client going through a divorce with child custody issues. Her soon to be ex is a drug addict with a mile-long rap sheet, who sends my client threatening emails, etc. What can she do to ensure the best custody situation for her children, i.e. prevent them from being exposed to this unfit parent  in CA?

Joe Escalante: She needs a good family law attorney. She’s got to do that asap. My lady will provide a link so she can check out ones connected with this fine organization. Good luck!

LegalZoom: Hi Valerie. Here’s a link to our Attorney Connect service:

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March 16th, 2011 at 2:41 pm