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Suing the Penal System, Facebook Hacking, and More Free Joe Friday 4/15/2011

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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.

Ldy: I live in a Right to work state. Our business has been sold to an known individual who has shady business dealings around town. My manager is trying to do his job. but checks are unaccounted for and money that should be spent on stock is getting spent on other things. What we don’t know. Us (the employees) are very worried that payroll will not be met. If that is the case and we do not get paid, what are our rights in this situation?

Joe Escalante: You would have a few claims to rely on like breach of contract, unjust enrichment, all the way up to a violation of the 13th Amendment which supposedly did away with slavery but maybe not in your state. However, if they file bankruptcy you will just be stuck in a line of creditors trying to get whatever is left from their demise.

Rose: I had a contract with a well known hotel chain for an event. Because of sickness I never went through with the event and they charged my debit card 3000 which I didn’t have available.. The bank honored it, but the event was never held or not rescheduled. Are they entitled to that money? if not, what is my time frame in bringing a suit for the return of the money as the bank says I now owe them 3000$

Joe Escalante: The contract you signed may or may not be enforceable. It depends on several factors, the biggest of which is whether it’s fair or not according to customary business in that field. If it was a contract of adhesion, meaning the kind where one side drafts it and there’s no way to make changes (think rental car agreement) it is only enforceable to the extent it is fair. The venue can make all the rules they want, but if their contract is unenforceable, a court will order a different result. I don’t know the statue of limitations in your state, but you should send a letter to the venue demanding your deposit back then go to small claims if they don’t return a portion that seems fair to you. The court will decide if it is reasonable for the venue to take your entire deposit based on what they relied upon. If they really lost revenue from your cancellation, they’re probably entitled to some or all of your deposit. Good luck.

Patty: Workmans comp question..If I hurt my hands at work and have to have surgery on them, should I be covered? They say it is a pre-existing condition, but I say the work made them worse. Do I have any recourse at all?

Joe Escalante: Sounds like a matter of evidence. If you can establish that it is a fact your hands were injured at work, that would trigger workman’s comp. If they say it was a pre-existing condition, like that Kristen Wig character has on Saturday Night Live’s Lawrence Welk skit, they will have to have some reasonable basis for that. It could turn into a battle of experts. You can’t just accept their assertion. Try a consultation with a workman’s comp lawyer. We’ll provide a link below to help you find one.

LegalZoom: Hi Patty, here’s a link to our Attorney Connect service: http://attorneyconnect.legalzoom.com/

Avery: Where can i find a entertainment lawyer?

Joe Escalante: I have two suggestions. One is to ask your peers who have had some success who they use and get a personal recommendation, or use Legalzoom’s Attorney Connect service to check out a few. However, don’t be suckered into paying a bunch of money just because some guy is also Britney Spears’ lawyer or something. Every entertainment lawyer will find a way to take your money. But they all wont pay much attention to you.

LegalZoom: Hi Avery, Here’s a link to our Attorney Connect service: http://attorneyconnect.legalzoom.com/

Francisco: What legal recourse if any does one have against a mortgage lender/servicer for contacting the homeowner repeatedly attempting to collect a debt while in bankruptcy? This occurred a little over three years ago. Thank you.

Joe Escalante: There might be statute of limitations issue here. I’m not sure about your state, but there are attorneys that specialize in collection abuses. Search for “Debt harassment” attorneys in your area and try to find one that will give you a free consultation, or one that costs a lot, then don’t pay him, and enjoy the irony.

Carlos Honaker: Havent seen my wife since 2001 and have no clue where she is. im tryn to get married and need to know what to do

Joe Escalante: First, give the authorities access to your basement, just to clear the air. Then, go through the motions of filing for divorce, serving her last known address, etc. It varies from state to state, sometimes they want you to post the notice in the paper for a while. When the court is satisfied, it can proceed as an uncontested divorce, and you’re home free.

Katherine: whats the limit to sue a club for over serving a customer and them getting in a wreck and a dwi I am a mother and want to sue the club please  let me know?and thank you for your help too.

Joe Escalante: it varies from state to state so you should get a consultation with a lawyer in your area that has sued bars for serving drunk patrons. It’s fairly common.

Billy: Finished with a divorce, i have entitlement to part of a 401k, can and how can i get a “qudro” done without paying Attorney fees? Is it something I can do myself? What are the usual attorney fees? Thanks, Bill

Joe Escalante: Actually, it would have been better if th QDRO was part of the divorce decree. If there was no QDRO created as part of the divorce settlement, you would have to petition to amend it to do so. You could do this yourself, but it seems like there’s something wrong here. I would talk to a divorce attorney to understand why it wasn’t part of your divorce already.

Jeanne’: I am in debt somewhere in the neighborhood of 8 to 10 thousand dollars – mostly due to medical debt. Friends and family have been after me to file for bankruptcy I haven’t wanted to cuz I was raised you incur the debt you pay it. However, they have pointed out that because of my on-going medical needs the bills (between meds and appts and prescriptions averaging about 700 a month and which will continue to come in for the rest of my life. I am self-employed earning between 500 and 700 a month on average and have no insurance – can’t afford it. Yet, when I look into bankruptcy the lawyers want anywhere between 600 to 3000 mostly upfront to file?!?!? Well, how do I do this? And it takes a long time. Should i consider it and if so which of the two kinds? Is there anyway to avoid the legal fees in filing? Thanks so much

Joe Escalante: Whether to file is a personal decision, but many people file without an attorney, well maybe not many, but some do. It is possible. I would invest in a bankruptcy book from Nolo Press. Read it. Then make a decision. Their books are great.

Monica: Missed Court- first ticket in 53 yrs-I rec’d a $100 ticket for exp. tag. I’m in a manic depressive state and am extremely forgetful, so I missed the court date. I am sure there isa warrant for me. I have zero income, no hopes of of $100 in my pocket for a while. What do I do? I cannot reach anyone on the phone. I still cannot buy my tag ( now doubled). I am afraid to drive but I cannot find work without driving. HELP!

Joe Escalante: I can’t give you any other advice than not to drive that car while the tags are expired. Take a bus to the court, wait in liine, get a court date, show them some medical evidence of your condition and ask the judge to please dismiss the failure to appear based on your medical condition and to continue the date by which you will pay the fine or show proof of correction for the infraction. Ask for 3 mos.

Monica: Disability- My doctor recommdnded I file for disb SSI. So I did about a yeal ago. I retained council, as was advised. I have been thruall doctor visits requested by SS. My disb. has been requested to be retroactive from the day of my accident. What happens now? Is it true all apps are rejected the first time. Will the Sss Agency fight the retro pay? If so, do we go to court? Will the newgovt wanting all.dependant on Govt,will it process faster now?
Thank you!!

Joe Escalante: This question is beyond my expertise. But I think I kicked ass on the traffic ticket one. :)

Willie: My sister just recent passed away , she and I have a lot without a house it was my sister and my parents house and lot. I am the only son now after my sister death is this property should be mine she had no will and she has 2 sons and daughter that they think it is their property now. who should the property be ?

Joe Escalante: It all depends on who’s name is on the title. If you are on the title, or if she left it to you in a will, then you have an interest. If not, it passes to her heirs, which are most likely the kids, unless she has a spouse. If she has a spouse, and no will, it probably goes to the spouse. Sorry willie

John: Question for Joe: What are the legal ramifications of someone hacking into another individuals Facebook account? Is it a state or federal offense?

Joe Escalante: This area of the law is ever evolving but Federal laws are often used. A lot of states are passing more and more laws to deal with unauthorized access to personal info so you have many options in this area, but the law enforcement agencies are really bogged down and backlogged trying to play catch up. It’s hard to get them to pay attention to smaller incidents. You have to be persistent.

Aaron: Wife’s ex husband agreed through emails to claim kids every other year on taxes – this was 3 years ago. Now this year he is suing us for not following the divorce decree which states he claims them every year. Do the emails count in court as an agreement? And what do we need to do to get the decree changed to allow us to claim them every other year?

Joe Escalante: You need to petition the court to change the order. The emails could be good evidence of a written agreement that was being followed by both parties. If he challenges their authenticity, it gets dicey. You have to have them in your computer with the headers on them and stuff that proves you didn’t forge them at Kinko’s.

Debbie: My son is in jail and is having to fight off people daily.Hes been robbed,beat. And harrassed .we have had him put in PC unit to stay safe. IS IT POSSIBLE TO HAVE HIM MOVED TO Another jail to stay safe? This is a Tennessee State jail.

Joe Escalante: You need to find a lawyer that has sued the penal system in your state before. It’s an uphill battle, but they are required to do a reasonable job in protecting your son. If they fail due to their negligence, it’s a violation of his civil rights. This will be a tough uphill battle. Make sure you document all the harm he’s suffering and try to get a meeting with the warden.

Thomas: Wife and I are seperated for almost 6 years.. I am planning on filing for divorce very soon now. I have been paying her car insurance, which I had bought for her. I was screwed over by my daughter and her. I told her I was done paying even her insurance..I know it is not a very big deal. But the being taken advantage TICKED me off. I gave her extra money as I was working..Now only S.S. and a small disability from the Veterans. We were/are married almost 30 years. Do I have to worry about alimony.

Joe Escalante: This is a complicated situation. It varies from state to state. You need to check with a divorce attorney in your state. The date you “legally” separate has very specific consequences. A court may find it is unfair for her to not get alimony. Or maybe she owes you. I don’t know what she makes. Sorry, but it’s lawyer time. Good luck.

Carl: Doing taxes for Estate of deceased brother; tax year ends April 30. Received lump sum pension, about half withheld — need to file but they won’t have 1099s until next January. What can I do — Enclose copy of check stub showing with holdings?

Joe Escalante: This is a question for the tax lady in your life. :)

Linda: if you are married can you legally refinance a house without your spouses signature or knowledge?

Joe Escalante: You can’t do anything to encumber property without all the signatures of everyone on the title. However, in some states (like Texas) even if the house is your separate property it is illegal to encumber it (which I assume includes re-financing) if it is a homestead. So be careful.

Eli: I am 17. About to be 18. How do I copyright my “person”.

Joe Escalante:Don’t be silly Eli. You are misunderstanding the function of copyright law. My suggestion. is to listen to my weekly entertainment law radio show. it’s on right now here: http://www.indie1031.com/ You can call the show at 877-LAW-4777. If you can’t get through today call Sunday’s show on KTLK AM 1150 in Los Angeles from 5 to 7PM on Sundays. That number is 877-520-1150. If that doesn’t work, go to http://www.barelylegalradio.com/ and click “email joe” and we’ll record your question for a future show. Thanks Eli

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April 19th, 2011 at 7:37 am