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Small Claims Fees, Wage Garnishments and More – Free Joe Friday 5/20/11

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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.

Mary Ann: My husband and I up and left our condo that we owned on Oct.2010. We were behind on our mtg. and HOA. My husband had tried to work out a payment plan with the HOA but they refused. My real estate agent had a buyer for a short sale but the turned it down. The HOA forclosed on the condo. Both our names were on the mtg.andHOA. My question is my husband passed away last week on Friday the 13th. Can the HOA and mtg. company have the courts put a freeze on the checking account. All i have in there is my husbands pension and soc.sec. checks deposited which i need for bills and my rent. I have asked legal aid about that happening and they said they never heard of it. Live in Florida

Joe Escalante: If your bank account is inaccessable, it sounds like perhaps the account was in your husband’s name only. If it was in your name, or both your names, it would transfer to you without going through probate. The only way the HOA or Bank can freeze you out of it is if they obtain a judgment in a court proceeding, then have that judgment enforced. This is a process.

You would have noticed. Or maybe there’s a direct deposit contract somewhere that you don’t know about. Talk to the probate court handling your husband’s estate. Very sorry for your loss.

Khushboo: Two questions for Joe: How does vesting option work in LLC ? How does change of share happens in LLC . For eg. We formed an LLC with two partners having 50% and 50% after which someone else joins who requires 20% of the share . How easy it would be be to go from 2 partners to 3 partner LLC?

Joe Escalante: It can be simple or complicated. If you guys transfer 10% each of your shares, that’s pretty simple. But if you are issuing new shares to give him 20% of the company, thereby dilluting the value of your shares, it’s complicated. Try the simple route instead of issuing new shares.

However, talk to a tax professional. Actually, it would be best to talk to a lawyer who handles stock transfers too, but I’m assuming you’re not into that since you’re asking a lawyer with a skull as an avitar, so at least talk to a tax pro to be aware of the consequences.

Sue: a question for Joe….I had my metal chimney replaced by a company 6 years ago. Now I just discovered that they had not done all that was in the estimate. On the bill stated that they resealed the flashing and did not replace the flashing as was stated in the estimate. This amounts to about a $600 overcharge. I took pictures and emailed the copies of the bill & estimate to them. After finally getting back to me they wanted to come out to do a cleaning and estimate for $175 and then they would correct any thing “on the spot”. I hesitatingly did make an appointment for that. I figured that if I didn’t let them do the cleaning they would never come out to look at the work they did. The first appointment they had to change, the second appointment I had to change. Now I am in that holding pattern where I am just waiting for them to return my call. I want to give them a chance to correct this but how they are doing business is not making me trust them.

sue in CT

Joe Escalante: I don’t think you have much of a case against them for the oversight and overcharge because so much time has passed. They could assert that you messed with their original install. And to be fair, people have a right to get on with their lives without worrying about chimney work from 6 years ago.

Courts don’t favor those who “sit on their rights.” So I would find a new chimney company that has better recommendations and start from scratch, chim chim cheree.

Stephanie: A question for Joe…we have a judgement against us for $11,304, at this time, they are garnishing my wages for $3,000 of that. Now, we find out that they have put a hold on our checking account for the full amount of $11,304. Can they do that, and if so, how is that possible? We live in MD. The garnishment for my wages went into effect before the hold on our checking account.

Joe Escalante: They can go after any assets. Money in the bank is a tasty asset. So, yes. They can do this once they have a valid judgment.

Stephanie: What I don’t understand is if the total judgement is 11,304 and they are already taking $3,000 of it from my wages, why can they still go after the whole amount from my account?

Joe Escalante: No only the balance of what is owed after the 3,000 is in their hands.

Michael: Im sure this is new territory : What can be done about Fb sites that are run by an individual, then they ban you from commmenting at their site ( I know their choice ) but then spread lies and mistruths about you up to including supposed stalking of other sites…I like to offer comments of help at other fb names of businesses or other people and been accused of stalking ( guess the word of choice these days ) yet all Im doing is nothing more then anyone else does…making comments. I think the person that runs a local site has contacted other businesses and told them not to hire me or even allow me to comment on their sites. Isnt this slander?

Joe Escalante: It might be libelous, because it’s written. Slander is technically for spoken insults, that are not true and make people spit on the ground when they hear them. Truth is a defense to these kinds of charges. Proving these things are not true is expensive, and sometimes reveals stuff that is true in the process, or embarrassing.

What I’m saying Michael is that you gotta move on. Try or or my favorite, Take a break from your usual routine, then maybe come back as someone else and get back to your offering of “comments to help.”

Jodi: I am trying to get divorced what are my right?

Joe Escalante: You have a right to get your grove on.

Joe Escalante: or back

Cathie: Does the prevailing party recoup the fees associated with taking someone to small claims court?

Joe Escalante: Great question. Finally. Generally, you can only recover attorneys fees if you are suing under a contract and there is a provision in the contract that allows for a prevailing party to recover attorney fees in the event of a dispute. For example, many leases provide for $500 for attorney fees in the event of a court action. I award them all the time from the bench in my role as substitute judge, for lack of a better term, even though there is a better term, and it’s called judge pro tem.

Court costs, which are usually a few hundred dollars, American, are almost always awarded to the prevailing party, IF they are asked for in the pleading.

Akilah: I have a question for FREEJOE… Not sure if you can answer but, if you make payment arrangements through a collection agency handling a defaulted student loan and they take your payment(via bank account) and two wEeks later proceed to take out garnishment through your payroll (which they confirmed would not be completed if they received payment)- do you have any legal rights to have it stopped or reported? I have proof of payment from bank.

Joe Escalante: Yes. this is abusive. You should report them for this. Dave Ramsey always has good info on this kind of stuff. Check out his radio show and web site. He’s your man.

Ashley: Is a notarized document between divorced parents enough if one gives custody of a kid to the other or do they have to go through the courts? If the one the court gave custody to (father), is giving custody to the other one (ex wife) and her bf is her income and thus will claim the child on taxes, can he w/o court papers since those two aren’t married?

Related, how can a step-parent be seen as a legal guardian? I’ve lived w/my step-kids longer than they lived with their biological mother and my state says I have to take away their father’s rights to have any of my own. that’s crap. the school acknowledges me at least.

Joe Escalante: part 1. You can change custody this way, without the court, but it won’t be enforceable. It’s a waste of time, just amend the court order. part 2. The bio mom would have to terminate her parental rights to give you legal custody. The bio mom has rights, she can delegate them to you for certain things like signing papers. Your husband can do this too. To be the “legal guardian” would involve something more permanent in most states. But this varies from state to state. You should talk to a family attorney in your area and collect all the documents you would need to act as a temporary guardian for all the things you are dealing with day to day.

Joe: Have a question for Joe this morning,

I’m looking to patent an invention idea I had just wondering what would be the steps I take to do so. And also what does it cost on average? Thanks so much

Joe Escalante: Provsional patents are cheap and qucik and preserve your rights in the invention for a year. legalzoom can help you with this. To do the actual patent requires a lawyer, and is much more expensive, but can help you with that too! see below.

LegalZoom: Here you go, Joe:

Mindy: I have joint custody but I’m domicile. Do I hv to tell their dad about me switching schools.

Joe Escalante: It would depend what is in the custody order. that has to be followed.

Benavidez: I am saving up to get the LLC, to start my own private home care business. I take care of one person right Now at a retirement facility and the company said I can’t come in the building without business liability insurance! I am self contracted as well.

Also I have been caring for her for three years, I can’t afford it right now. Can they do this? I am self employed and report any income to IRS. Mind you I only make $400.00 a month! I am a full time student. Hope you can help.

Joe Escalante: If it’s their property, they can bar any business activity going on there. You probably have a right to visit, but as a vendor, you have to play by their rules.

Anesha: I am starting a cake decorating business from my home and would like to register as LLC but I cannot afford it right now. I would though like to start using a name and obtain a tax id number. I know that if you register as LLC it covers the name and helps with taxes, what are the fall backs, if any, to just registering the name until I can register as an LLC?

Joe Escalante: Just get a DBA, and make sure you are insured against any liabiliies from poisonous macaroons, etc. Legalzoom’s DBA thing is the best way to go.

LegalZoom: Here’s a link to our DBA service, Anesha:

Christine: We owe the state back taxes and are making $50.00 a month payments and now they want all our personal information, bank accounts, credit card info, everything, is there anything, besides paying them off which we dont have, that we can do to keep our private matters private? We also pay $100.00 to Federal, we didn’t get the paper work in to them (in 5 days, been almost a month) and I’m concerned they can take what little money We have in the bank and or garnish our wages, we appreciate any help you can offer and thank you.

Joe Escalante: I don’t know any way to get out of what these IRS guys can do to you, other than by hiring a good tax attorney. Try Attorney Connect from Legalzoom to get a consultation with one. It’s your only hope, and they might not be able to do anything either, but it’s worth a phone call. see link below

LegalZoom: Here you go, Christine:

LegalZoom: That’s it for Free Joe Friday. Thanks for joining us and have a great weekend! Come back next week for more free legal advice: Don’t forget to check out the Barely Legal Radio w/ Joe Escalante Facebook page!

Get more info and all the details and fine print about Free Joe Fridays. And join us on Facebook next Friday at 10am PT for more Free Joe!

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