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Back Child Support, Time Shares, and More – Free Joe Friday 3/25/11

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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.

Genny: I have someone that owes me money but will not pay. I took out a loan for them and the payments come out of my account each month but he hasnt paid me in months. If I file a judgment against him, will it make a difference? I dont want to go through the process of paying for filing a judgment if it won’t make a difference. Please let me know what options I may have, if any, for getting paid.

Joe Escalante: If you file a claim against him and he is like most defendants in my courtroom, and yes I have a courtroom, he will just say that you gave him this money. Then you will say that you didn’t. Are you prepared for that? You will need evidence that he borrowed the money and you were relying on his repayment. If there is evidence, it might be worth seeking a judgment. if there isn’t, it will just lead to more frustration. :(

Lucia: A family member in NY has been paying a lawyers office on a medical judgement. The documents state that this judgement will expire in 2014. With all the interest charged and legal fees, the small amount they are paying each month, which is all they can afford, will they still be liable to continue to pay after that date in May of 2014? Will it come off of their credit report?

Joe Escalante: I’ve read this 3 times and I don’t get the exact scenario. Can you try again?

Lucia: A judgement was placed on a family member due to unpaid medical expenses. The lawyers office holding the judgement added court fees, and interested to the amount of the judgement; making it a lot larger then the original fee. He agreed to pay monthly on this amount, and has done so for the past 3 years faithfully. However, interest is still accruing, making the balance difficult to pay down. On pulling a credit report, it was stated that this judgement would remain on his report till May of 2014 unless otherwise satisfied. My question is, because the payments being made are small and interest is still being added on, there may very well still be a balance in May of 2014. Will he still have to pay on this judgement after that date?

Joe Escalante: It sounds like that would penalize the party that granted the extra time to pay the debt. I can’t see that being a equitable outcome that a court would acknowledge.

Lori: I live in Oregon, and my ex owes hundreds of thousands of dollars in back child support….my kids are both over 21, can I still do something about collecting? He lives in Washington.

Joe Escalante: Depends on what Oregon’s statute of limitations on the collection of back child support is. Many states consider a child support order the same as a judgment so back child support can be collected until the Statute of Limitations on a judgment expires. Some states say it’s not collectable after the kid becomes an adult. Check it out.

Lori: Can you suggest where I can find out the info for OR?

LegalZoom: Try the Oregon Department of Justice, Lori: http://www.doj.state.or.us/dcs/index.shtml

Patricia: I owned 97.5% of my company (an LLC taxed as a partnership 1065), my in-laws owned 2.5%. Two years ago I sold 51% interest to another person (including the inlaws 2.5%). I sent them a final K-1 and told them I would pay them their share of the purchase price, although I believed at the time they were just going to gift that small amount to me or my children. They are now trying to get K-1′s for the last two years from me, which of course there isn’t one for them. Do they have any recourse other than the amount of the purchase I still owe them? Thank you for your help!

Joe Escalante: Dear Patricia, if they feel there was fraud involved they could pursue punitive damages, on top of the actual damages of their share of the purchase amount. There may also be a breach of a fiduciary duty which could add other civil liabilities. There could also be criminal liability so try to clear this up as quick and as amicably as possible.

Theresa: I do have a legal question, not sure if anyone can help, but it’s worth a shot. I stupidly got married in 2002, then not even three weeks later he went to prison. We have not been together since then, and from what I have heard he’s locked up again. I am having one hell of a time to get him to sign the divorce papers, even still, is there any way that he can be forced to sign, or a way that it can be done with out him signing? I live in SC, he currently is in Fla. last I heard, and not due for release until some time in 2012.

Joe Escalante: I don’t have experience with prisoner divorces, but I don’t see how this is any different than a contested divorce since he wont sign the papers. So you get a court date. If he doesn’t show up, it would eventually lead to a default judgment. You are going to need a divorce attorney for this because it’s a bit complicated as you probably know by now.

Ben: A former client owes my company money for an aquarium I installed and performed scheduled maintenance on several times. The aquarium is inside a restaurant. He paid half of the initial cost of the aquarium but still owes me just over $1000. I terminated maintenance of the aquarium and sent him a certified letter demanding payment which was ignored. As I am a BBB accredited business I just filed a complaint with BBB last night and I intend to take him to small claims court if he stalls much longer. My question is can I enter his restaurant and repo the aquarium and installed equipment? Thank you in advance!

Joe Escalante: That kind of aquatic vigilanteism will probably get you in trouble, although it would be fun to watch. I would like a table near that if you do it. When a simple remedy for money damages is easily obtained, that’s what the law prefers, for obvious reason. It is much more civl, albeit less entertaining, for you to go to court and get a money judgment rather than become some kind of underwater repo man. Although that would be an awesome TV show.

Mary: Going on an extended trip and have put wills, done by Legal Zoom, by the way, insurance policies, and other important papers in one place for children to find if something happens on trip. I have added 1 child to my checking account and will add the other child to husbands account. Is there anything else we should do before we leave to protect assests?

Joe Escalante: This puts me in quite a spot mary Burns. It sounds like you’ve done more than 99% of other people who go on trips. Is the timer on for your sprinklers?

Eugene: My wife and I have owned a timeshare since 2003. We have used it some but not enough to continue to pay the maintenance fees every year. We want to get rid of it someway but are not sure of the best way to do this. We met with a rep from Direct Transfers and in order for them to dispose of the property for us they wanted $3495.00. We are not willing to pay someone to get rid of it. We realize it was a bad choice to purchase this but it was a lesson learned. We do not owe any money on this and have paid the maintenance fees yearly. Can we just give it back to the resort owner without a blemish on our credit rating or what other options do we have?

Joe Escalante: Well Eugene, the problem is that the company spends a lot of time trying to get rid of these things and they don’t want them coming back. If that company you went to believes the value is upside down, then the sellers probably really don’t want it back. However, it wont hurt to ask. Also, you might be able to find someone who wants to buy it from you. It sounds like a bargain.

Brenda: I have durable POA for my sister in law. She is now in a nursing home and we are selling her house for expenses. Once the house sells, her address will no longer match the one on the POA. Does this need to be amended, and how?

Joe Escalante: I can’t see how this is going to be a problem. There are other things to worry about.

Christy: Ok, here’s a question for you: My husband wants to take over my corporation. What is the best way to do so if I am incorporated in the state of Delaware, and what is the process for changing the name?

Joe Escalante: You would have to transfer all your shares to him.There are tax implications here so be sure to consult with your tax professional. If you are the sole owner it’s easier. However, if there are multiple owners you will need to follow the shareholders agreement closely. But this is basically going to be a tax puzzle to solve.

Changing the name is somewhat complicated. You need to amend your corporate documents, follow any proceedures dictated by the articles and you have to file with the Sec. of State.

Valerie: Should you copyright or trademark an acronym used for business purposes? can legal zoom help with that?

Joe Escalante: If it’s the name of a product, Trademarking it is possible. If it’s a business method, it could qualify for a patent. If it’s a cool poem or something, you might want to copyright the whole thing, but just an acronym doesn’t sound like it would qualify for copyright protection. However, this is a topic for my radio show which begins in 8 minutes or so on http://www.indie1031.com/. You can also call the program on Sunday night from 5 to 7 pm on KTLK in L.A. AM 1150 on your radio dial. or stream it at http://www.ktlkam1150.com/ Check out http://www.barelylegalradio.com/ for more details. Thanks.

John: if breathe at an accidnet is .01 over limit, but bloiod test comes back below..is the person considered DUI?

Joe Escalante: In California, which I assume is like many states, other than the roller bladers, even if you blow below the limit, you can be charged with DUI. It’s up to the jury to decide if you were guilty of the charge which is “Driving Under The Influence.” It doesn’t have to be at or above the .08 thing. Scary, right?

Jessica: I’m starting a graphic design company…should I just get a dba or do I need a llc? Also my logo should I get it copyrighted or trademarked?

Joe Escalante: Trademark for the logo. It identifies your company and differentiates it from other companies offering a similar service. Get a DBA right away, and incorporate or get an LLC when you start making money. Talk to your tax lady immediately. And listen to my radio show that deals mainly with intellectual property. It’s on right now, actually. http://www.indie1031.com/

Aida: Our city has taken legal action against us either a swath warrant for animal related code violations meanwhile our Mayor and city council have similar code enforcement reports yet nothing done to them. Please read local news story at www.TheAvocadoExpress.com. We filed battery charges against Shauna Clark city mgr in battery on our twin adopted 14 yr olds. This is retaliation, harassment, no equal rights plus has video of ex parte conversation of their attorney and hearing officer & they know we have it. We need a contingency lawyer or Pro Bono, HELP!

Sorry a couple if type O’s, they did a search warrant on us, council member and Mayor have same code violations. We had a biz license for our Llama Brew now won’t renew it!!

Joe Escalante: This is kind of a mess Aida. You need to slow down a bit if you want someone to take interest. Pick one thing you need help with and go with that. There’s too much information here. On a side note, have you seen the film “Wellness?” I loved it. You might too, or not. http://www.imdb.com/title/tt1171269/

Mike: Does Sarbanes Oxley protect whistleblowers in State/Local courts too, or just Federal?

Joe Escalante: Sarbanes Oxley, from my understanding, pertaines to publicly traded companies. I would think any cases involving this act would be under federal jurisdiction any way. There are state laws that protect whistle blowers for cases that are not under federal jurisdiction. However, this is not my specialty so take it with a grain of salt. :)

Brett: Under the 51% rule, can directors of the board for a non-profit 501(c)(3) corp receive benefits (insurance-medical/dental, fringe benefits, etc.) without being categorized as an ‘interested person’ for the company?

Joe Escalante: I dont’ know about the 51% rule, but it’s possible for board members of a non profit to receive benefits if proceedures/ authoriziations are followed in the articles / bylaws. However, it’s tricky. Excessive benefits are a red flag and often litigated over.

Francisco: Can a mortgage lender be entitled to a deficiency claim against a homeowner if the homeowner is given the option by the lender of doing a short sale on the property after a mod denial whose 1st/2nd loans (same lender) were included in their BK7 3 years ago and not having made a single mortgage payment since then? Same question too if the homeowner decides to simply “walk away” since it was included in their BK7 or do a DIL of foreclosure as also offered by the lender?

Joe Escalante: If the lending agreement allows for the lender to go after the borrower for any deficiency, it’s their option. if there’s a short sale, the agreement should be to not go after any deficiency, otherwise, what’s the point of the short sale?

Renita: Good morning legal zoom family..i have a quick legal question this morning?.. I was fired form this job in 06′…i was denied my unemployment..so i appealed it & was granted my unemployment by tha unemployment judge but they never sent me no check..would i still b eligible for that money today?.. Just want to know cause its been buggin me ever since.. What do u think legal zoom can i fight for it or just chalk it up as a lost?..i’m in california..thank you & have a blessed day!

Joe Escalante: I don’t know what the satute of limitations would be for collecting on a judgment like this but you should get out a piece of paper and start calling the various departments, take good notes, and get to the bottom of it and get your money. :)

Trudy: If a person was granted so many days suspended when they were sentenced, but when they time is up with those days included, can the court just take them away and say it was a mistake? ty

Yet these days are still showing as suspended on the online docket.

Joe Escalante: I don’t understand the problem. If the sentence was suspended for those particular days, did you serve them or not? If not, what difference does it make that they are on the online docket.

Aquaman: in bankrupcy law they say fines 4 criminal cases r not dischargeble but what about cost of court

Joe Escalante: My understanding is that even court costs are not dischargeable.

Mark: Intellectual Property question what is the Best productive, yet inexpensive means of global registration, for my product/service?

Joe Escalante: There is no inexpensive way to globally do this kind of stuff in a complete and thorough manner. However, if you register your work in the u.s. it wll have some protection internationally by treaties. If you want to register a trademark or patent in a foreign territory, you have to hire local people and it’s expensive.

Andrew: What is the responsibility on my behalf for the financials when an investment is made in my project? Am i wholly responsible for reimbursement, or is it just an “investment”, meaning, they take a risk whether it sinks or swims?

Joe Escalante: It depends on your agreement with them. If you made no agreement, they’re more at risk, obviously, but there should be an agreement. The agreement will dictate whether the investments are “secured” interests for example. Also, iIf an investor feels deceived, he could come after you for that and maybe even sue you for puniitive damages. If there’s fraud involved, there could be criminal liability. All this would be dictated by their expectations, which as I said, would be outlined in the agreement.

Lanier: hey Joe question: Using phrases on a t shirt, how can I go about it. without being too costly? thanks

Joe Escalante: I like iron on letters. not too costly, but it gets the message out. If you are talking intellectual property, click “email joe” on my web site and give me a somewhat detailed version of the question and we’ll get it answered for the radio show. http://www.barelylegalradio.com/.

Debbie: My question is re: Non Contested divorce with children. everything re: Children is already complete thru the A.G… can Legal Zoom help with this even though re: children all is complete with a separate Cause number…. and how much will your fee be??????????????????

Joe Escalante: I think you need at least a consultation with a family law attorney. If you want a good one, Legalzoom can refer you to one. See the link below.

LegalZoom: Here you go, Debbie! http://attorneyconnect.legalzoom.com/

Jenna: If you own a home with a mortgage and also have sizeable debt to pay off, can you sell the home for the balance owed and then file a full bankruptcy against your debt to be free and clear with a fresh start?

Joe Escalante: I dont’ see the problem with selling your home and then filing bankruptcy as long as you report all your assets you end up with to the bankruptcy court. The things you have to watch out for are like paying off a debt to one person, and ignoring someone else, then filing a bankruptcy. In such a case, the court could go after that money you paid and put it back in the list of assets to be more fairly distributed.

Some people will pay off friends and leave others holding the bag, so all debts paid off in the prior 90 days ( or something like that) came be taken back by the court. This discourages shenanigans.

Keith: If I had a dispute with IRS (which I prevail), can I be penalized for subsequent returns for lateness as I had to wait until the case was settled? Also, didn’t get a chance to file LLC as a C Corp paperwork because of this

Joe Escalante: The IRS does whatever they want. The only way to fight them over things they’ve decided to do which seem unfair is with an experienced attorney.

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March 29th, 2011 at 6:54 am