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America Invents Act and More Legal Q&A – Free Joe Tuesday 9/13/11

with 2 comments

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

Teralyn: Joe, so my LLC is now dissolving, we saw this coming from a mile away. Question: If a business declares that it has (simple #s) $100k in assets at the beginning of the dissolution, and in the time it takes to get to the END of the dissolution all those assets are lost because bills arent paid… are assets then re-declared as zero and it goes marked that no assets exist? I assume so, but the legal system isnt always sensible. Could the majority partner be held responsible in any way for his failure to respond to request for payment on the most important operating expenses?

Joe Escalante: If the majority partner violated the operating agreement, you have a breach of contract case against him. If he breached his fiduciary duty and misappropriated funds, assets, or acted negligently to the detriment of the LLC, he may also be liable for those damages his actions or inaction caused. However, that other stuff you are asking is for a tax professional, make sure you have the advice of a good one.

La Tecia: Is there any way of protecting myself and my business when I’ve hired someone overseas to build my website?

Joe Escalante: When the work is done, change all your passwords. You can have an employment agreement (with work for hire language so you own all your employee creates) and an NDA (non-disclosure), but if you have a dispute, getting jurisdiction over the person is going to be tough. Litigating over seas, even worse. I would avoid this.

Sabrina: I started a small production company in Ohio in order to have business insurance that would cover renting a warehouse to build sets for our small film. My question now is that, to be legal, what do I need to do in order to legally be able to sell tickets and merchandise; are there forms I have to fill out/sign to do this; how long does that take?

Joe Escalante: Business licenses are usually a local thing. You need one from the city, and sometimes from the county and state, depending on the activity. To do what you are doing, at least get is square with the city’s requirements for licensing. The State Board Of Equalization, or whichever entity in your state handles sales tax will want to collect on everything you sell. This stuff is all pretty quick. It’s just a matter of filing a form with the right agency and you’re good to go.
Starting without this stuff might subject you to a fine, but probably not a big one. Best to do it right away though, just in case your city doesn’t think your idea of art matches their’s.

Rose: how much does legal zoom charge for a provisional patent? and is this the best first step when you have an idea?

Joe Escalante: This is a great first step. As soon as your application is received you get a filing date so you can write “patent pending’ on your product. Pretty cool, but be careful, it will lapse in a year if you don’t get the process going for your actual patent. It’s $199 pluse filing fee.

Alice Jenny: Hi, Joe! I contacted EEOC re discriminatory treatment I received from my former employer. In trying to explain what happened, their intake person seemed disinterested, unprofessional and tried to “dismiss” my interview, before she allowed me to provide all the facts! She did state that I have the right to persue my grievences. So, I have (pending) a lawsuit against my former employer. EEOC sent out a document on my behalf, notifying them. I have no attorney and cannot pay for one. I am a laid-off teacher. Any suggestions on where I can get the legal help that I need? Please and thank you.

Joe Escalante: The Federal Govt. is the last place I would go for help. I believe anything that begins as a good cause, usually degenerates into a business at some point and then ends up as a racket. Try your state labor commission. They should be less bloated and more responsive. When googling self help stuff, use the term “pro-se” that means acting without an attorney. It’s easier to find helpful info if you refine your search in this way. Good luck.

Patrick: I’m starting up an LLC in the state of Alabama. Since the beginning, I’ve always planned on me being sole employer for tax purposes, but I’d like to “hire” a friend of mine to draft emails, give marketing consultations, etc. She’d be happy to volunteer her services, but I’d like to give her a little something for her services. Is there a way to retain my single-person LLC status, and avoid more complicated tax procedures, while still giving her a small amount? Would classifying her as an “independent contractor work?” She provides her services to other people, I would not control her actions during a set time period, and I would be paying her less than $600.

Thank you for any information!

Joe Escalante: Sounds like an independent contractor. Unless you transfer actual shares of you LLC to her, you will still be a single person LLC. Just write her checks as and i.c. and make sure your tax lady is on board with how you are paying it and declaring it.

Guillermo: If as an employee I was paid w2 and only got paid commission, and this commission was the end result of income received less related expenses including taxes and health insurance, does this qualify me as a partner to the company or simply an employee?

Joe Escalante: I don’t think so but I have a headache from reading the question.

Guillermo: One more… If I sell a product and finance it myself, could I pull out the product from the customers home if they fail to make the payments?

Joe Escalante: If you get a court order you can do that kind of stuff.
The court favors money damages however, so you’d have to explain why money damages wouldn’t suffice.

Brian: Hi! What can a person do about a former roommate forging my signature and taking my share of money from a security deposit?

Joe Escalante: You can punch him in the face, or take him to court. Punching will land you in jail so I would send a letter demanding the money back with a 2 week deadline. If you don’t get it, file a small claims action. You can show the evidence of the forgery at trial and it will help your case. Should the guy go to jail? Yes. Will the police take a report and pay attention to you? No. My advice is to make more money or move to a worse neighborhood and live alone next time.

David: If a $20,000 deposit is made on a $75,000 contract but the remainder is not not paid. Is the deposit lost or would the business that got the $20K as a deposit required to return the deposit? The contract was signed but an email with the individual running the company emailing that a $30K deposit will give us access to the product so we can make money with it and a phone call had him agree that $20K is all it takes. I have the wire receipt.

Joe Escalante: I appreciate your attempt to make this brief, but it’s hard to understand. It would all be determined by the language of the contract, as it relates to the return of the deposit if either party fails to perform.

Kimberlee: Welcome Joe and thanks for your time.
If I set up a company, LLC and all that stuff in my name alone can I add an owner at any time I want.

Joe Escalante: Yes. You can do this by transfering shares to that person, you might also need to file new articles of organization if they are going to be a manager.

Janet: Are there jurisdictional requirements to file bankruptcy. For example, can you move from one state to another and then immediately file bankruptcy?

Bret: i have been out of work for to long! about to loose everything what can i do from getting everything shut of and loosing my house?

Joe Escalante: it takes a long time to evict someone if you are the owner. If you are a renter, you will be out on your but within a month unless you have a solid reason to stay without paying rent. Be careful of scam artists that ask for $1,500 and say they will prevent a foreclosure. Sometimes they do NOTHING. If you go this route, meet a few, and ask for referrals. All they can really do is prevent the inevitable, and they do this usually by filing a frivolous lawsuit against the people that lent you money.

Leigh: Hey Joe, nice to meet you! I have a question: I am a reporter investigating a probable homicide case in Florida. The suspect has been on FB writing/taunting the deceased’s family members and other who support her. He has even posted the name and address of one of the supporters’ minor child’s school and has been spamming posts in our public forum. What can we do legally?
I have tried contacting FB .. no response, we have blocked him but he uses fake names to get onto the pages. I have kept all copy… what can we do legally?

Joe Escalante: Try filing a restraining order against him from coming near the child who’s info he posts. That sounds dangerous. Then slide in extra language to keep him from posting on f.b. about the case. Getting cops to pay attention to postings is impossible. Buy you have a right to at least apply for the restraining order. The parent of the child will have to cooperate.

Alex: Afternoon, Joe!

I’ve got questions about the America Invents Act. I’ve been hearing a lot about moving from a “first to invent” to a “first to file” system, and I think I understand the ramifications of that. I’m wondering, though, how important in the intellectual property prosecution and protection process, will things like signed dated notebooks be? I mean, if the rights of an invention are now going to be assigned to whoever gets to the patent office first, is it still important at all to prove that you hatched the idea on a specific date?


Joe Escalante: Great question. If it’s a race to register, what good is the notebook? I hope we don’t go this route, but if we do, I would still keep the notebook because it would be evidence that might help in other areas. If the information to create the product was taken illegally, or as a result of a breach of an NDA or something like that, the notebook would be good evidence to establish liability under a state claim, even though the patent might be granted by the Feds.

Mary: Is there any way I can get my house back at 3225 Devon Ln. Mound, Mn. I never signed the sale papers, and was almost held in contempt of court for moving back in with my daughter when ex moved out with …Fast move, The flipper of the home …

Joe Escalante: There are dozens of papers to sign, it would depend on which papers you are talking about. If you other party acted reasonably in reliance on your actions, and they suffered damages because of it, you will be liable for those damages.

Matt: A friend of mine wants to start a cake bar. Kind of a desserts and cocktails place. What does she need to do for licensing and certifications, etc?

Joe Escalante: This is all local. You have to talk to the city for licensing and the state for booze licenses. Health department is going to want to get involved as well, but the city will tell you all that.

Lachance: I have a PM who took over my rental the end of March, everyone told me it is great and you will get your money on time!! In the past few months I have never received my rent on time, usually a month behind, and now they owe 2 1/2 months rent and are moving out as of today — I am meeting with them and the PM, do I still have to pay them their deposit back even if they owe me rent? Also, do I have to pay the PM their $ since they really have not done what they said they would do? Thanks

Joe Escalante: Whether or not you have to pay the property manager will be governed by the agreement you have with them. If it requires certain things to get paid, and the certain things aren’t done, you have an argument. You do not have to pay the security deposit back to a tenant who owes you more than the security deposit for back rent. You can sue in small claims (depending on the amount) for the back rent not covered by the deposit, and other damage that was supposed to be covered by the deposit.

Sharee: My father passed in 2005, his wife requested my original birth certificate for issues with property etc. Now she claims to not have it. She lives in puerto rico and haven’t been able to do anything about this. Can she use my birth certificate without my consent?

Joe Escalante: Not legally, you are vulnerable to identity theft as a result of this. Go to and see if that works for you. I would get some extra protection. Sounds shady.

Julie: if my husband goes to jail for a white collar crime I won’t disclose here….am I obligated to keep his children in the same state he is incarcerated in, or can I move out of state? Is he entitled to visitation at the jail?

Joe Escalante: This would depend on the judge and other circumstances but it would be hard to imagine you being punished for this. They guy can’t even vote anymore.

Dorothy: Joe, is there a free way to obtain legal criminal assistance/support for a case that I am initiating? The DA will prosecute the person but I would benefit from having a lawyer help me navigate the process. Thank you.

Joe Escalante: I can’t imagine it. Free legal advice is rare and when it is available, it goes to people who have no one to prosecute their case for them. You have a D.A. You don’t need another lawyer. If you want one, you’re going to have to pay for one most likely.

Michelle: I am planning to open a mobile food truck/catering company in Iowa. I know I need to be licensed in each county of operation, but I am unsure about insurance. Do you know if this is required? I have read on many forums about owners of mobile food kitchens being required to have a $1 million insurance policy. Any clarification you could offer would be fantastic! Thanks in advance!

Joe Escalante: There is probably a licensing agency for mobile food trucks in your county. If they require this insurance for a license, you need it, if not, you don’t need it until someone tells you that you need it. Talk to your city as well. Good luck.

Louis: Hey Free Joe, I want to start a non profit to do 2 things – stimulate senior citizens minds by teaching and playing all types of games with them and to provide forensic mortgage document examinations for free to those who cannot afford it and are losing their homes in foreclosure . . . nationwide! How do i legally raise money so i can pay your fee on . . . not so free Wensday thru Monday! lol

Joe Escalante: It all sounds perfectly legit. If you get your 501 c 3 done through legalzoom, it comes with a sweet book from Nolo Press called “How To Form A Non Profit Corp.” Or get this book first and then decide, but my advice is to go with legal zoom’s product for this.

Deborah: How do school district police n there tickets become or why r they handled thru the county? Is legal representation needed if the parent feels our rights weren’t handled correctly? Ty!

Joe Escalante: School District police are governed by different agencies in different areas according to local rules and customs. If you think your civil rights were violated, you can make a stink about it but that wouldn’t go very far without a good lawyer. Talk to a couple civil rights attorneys and see what they think of your case.

Denise: a question: my father lives in a Assisted Living home,cause of my older sister stealing his money, mental abusing him, and now my younger sisters have power of attorney but my niece (my older sisters daughter) with no Driver’s License will go pick him up and take him places… how can we stop her from doing this????

Joe Escalante: That’s a tough one. She’s violating the law but it would be tough to get the cops to do anything about it. You should at least attempt to file a report. Have all the dates and times she did this with you when you attempt to file but be prepared for them to kick you out the door you came in through.

Linda: I asked the question last week about our grandson being prescribed a medicine that contains peanut by his primary care physician who should know better as it is in his records that he is allergic to peanuts. Your answer was looked like we had possibility of a strong malpractice suit. Since been told by another lawyer that since our grandson noticed the meds had this ingredient and didn’t take it, no harm no foul, hence no injury, no suit. This infuriates me, in other words, since he didn’t die, oh well, doctor off the hook!! nice

Joe Escalante: He’s right, I was assuming you had an injury. You can only sue for certain and provable damages. You have none. It’s not about what the doctor did, you are free to report him to his licensing agency. The issue here is what should the courts do about situations where no one has suffered any damages. Society has determined that the courts should do nothing in these cases. Courts can’t even handle all the cases that have actual damages, so this is probably the best system.

Eric: Joe. Is it possible to get employed as a paralegal with a Criminal Justice degree or should I get a graduate certiuficate in paralegal studies?

Joe Escalante: I have no idea on this one, sorry.

Frank: Procedure in the rules concerning legal against a medical doctor, who we feel fail to properly diagnose a stroke??

Joe Escalante: You get a consultation with a medical malpractice attorney, if you can find one that believes you have a case, then you have a case. If not, you don’t.

Darin: Joe I have a ? For you I’m a criminal justice student and I just learned. That its against the law for employeers to talk down to there employees like a drill sgt would talk to recuits. What law is this under I’m gonna do some research on it

Joe Escalante: Check out “hostile work environment,” maggot.

LegalZoom: That’s a wrap for Free Joe Tuesday! Thanks for your questions and of course to Joe for joining us. Have a great weekend and we’ll see you back here on Friday for more free legal advice!

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