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Can I Get a Restraining Order Without a Lawyer? And More Free Legal Advice – Free Joe 10/19/12

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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.

Darrell: Mr. Escalante,Thank you for answering my question on restraining orders on Tuesday. My question now is,do I need a layer to help me with filing a restraining order,or can I do it on my own,and how do I do so? I live in Iowa,so I know the rules are different state to state.

Joe Escalante: I sat in restraining order court for 3 hours yesterday. Only one of the 10 or so filings were done by an attorney. Only one other one was done by someone with an I.Q. of over 50, so I think you can handle it.

Carol: If your filing status is an llc owned by a sole proprietor, when should you file as a corporation as opposed to filing as an individual?

Joe Escalante: If you are speaking about filing taxes, only a tax pro should give you that advice, try Gary the tax guy here on Thursdays. Click the link below for more info.

LegalZoom: Here you go, Carol:

Tina: How do i file for bankruptcy? My bills are getting harder and harder to pay.

Joe Escalante: There are a few different types of bankruptcy categories. I would get a copy of the NOLO Press book on bankruptcy and read it. Then I would check out Legalzoom’s service in this area. Click below for more info:

LegalZoom: Here’s the link, Tina:

Jeffrey: In the state of Tennessee, what is the deadline for a annulment

Joe Escalante: I don’t know if they have a specific time limit, but if they do, it would be triggered by the date you found out about the circumstances to your annulment. Like 90 days from the day you found out she was a dude. If you waited longer, and then found out you just don’t like her/him, the court might say you waited too long. I hope that makes sense.

Mari: I’ve had my grandson since he was 4 MONTHS OLD AND HES 9 NOW WHAT DO I NEED TO DO TO ADOPT HIM

Joe Escalante: You go to the family court department in your county and file a petition to adopt the child. That will get the process started. You might want to read one of the Nolo Press books on the subject before you get started. Good luck.

Amazon: Hello! This question is for Joe. Hi Joe can you help me to understand why the building I live in keeps raising the rent every year, and claiming the rent only raises when it’s a “global raise”! This has been happening for the past three years, and it’s being raised by a lot? Thank you for any help

Joe Escalante: Rents are going up in many places because people are getting kicked out of their McMansions because they can’t pay the mortgage or don’t want to because their McMansion is upside down. This is flooding the market with renters, so prices will rise. If you don’t have a lease preventing a rise, and there is no rent control in your city, your landlord is free to charge whatever the market will bear. Global schmobal, he wants more money, and he’s got a legal right to try.

Shanette: My paycheck is getting garnished due to unpaid student loans. At the time they wanted me to pay I could not because I was doing temp work and needed all my money to go towards bills. The amounts I was willing to pay was never enough for them so now for the past 2yrs possibly 3 they’ve been garnishing my wages. I can barely make it. How can I stop this? How can I negotiate a payment price. Every time I attempt to do this, its never good enough for them. HELP?? I want to have kids etc., but with them garnishing my wages – its impossible to make ends meet let alone bring a child into this world that I could take solely take care of.

Joe Escalante: There is nothing you can do in this situation but try to work with them. They hold all the cards. Bankruptcy won’t dissolve it. If you get married, don’t tell him about it until he’s hooked.

KC: Can my college really kick me out of student gov for a suicide attempt when I’m bipolar (and that is a major symptom of being bipolar) and claim that I made a verbal resignation so I’m basically SOL? Even though I asked for ada accommodation for any statements made while trying to off myself. To me it seems like a huge eff ADA violation, oh and not to mention weeks prior the advisers told us not to talk about legal action against the food provider who is committing obvious anti-trust violations. I feel like I’ve been oppressed and retaliated for trying to do the right thing? Man bad Q,… but so how can I find a lawyer to rep this thing for me?

Joe Escalante: You would have to put up 10 to 30 thousand dollars to get a lawyer to start drafting complaints for a lawsuit of this type. You could prove me wrong by meeting with a bunch of plaintiff attorneys and getting their opinion, but I would drop it if I were you and concentrate on your studies. That’s my best advice.

Tina: Hi Joe,

I’ve got a potential rental issue, and need advice on how to proceed.

Last year I signed a 1-year lease at a new place in San Jose, CA because I know San Jose is rent controlled. The landlord gave me a discount for signing a 1-year lease, and a discount for being a single person. My lease is coming up for renewal, and I need to understand what my options are. Does the 8% cap apply t
o the discounted rent or to the market rate for the rent? Based on the property manager’s website, it looks like the current market rate is higher than it was last year. Also, I didn’t realize it at the time, but the rent discount applied to new move ins only. How would you advise I proceed?

Thanks in advance

Joe Escalante: I would wait until I get the new rent figure, see what they are basing it on by doing the math. If it’s based on the market rent, you can ask them to base it on the lower number. If they refuse, you should do the math for the year and see if it is worth fighting over.


Joe Escalante: There are a few scenarios where this would be legal, and a few where it would be trespassing. It depends on the facts and the wording of the lease agreement.

Stacy: I share a house with myx husbandand both our names on on the paper work for owning it. We had took out a construction loan on it and is currently still being paid. We are now divorsed and the living arrangements are not working out so he now says he is giving me the house and I can take over the note also bills he is walking away from and filing bankrupsy 7. I want to keep my home its all I have and im worried it will affect me loosing it. My credit is also bad now ,so is there anything I can do to protect my self from loosing my home?

Joe Escalante: This gets really complicated but if the Bankruptcy Trustee believes that the house could be sold for enough to pay some debts, he could force the sale, and you are out. You need to speak with a bankruptcy attorney if you want to battle this kind of thing.

Ed: The state of Alabama is about to vote on HR60, a bill prohibiting mandatory health insurance imposed on its citizens. How can this be legal?

Joe Escalante: They will probably rely on the pesky Commerce Clause of the U.S. Constitution, for starters.

Jeffrey: Good Morning Joe! I always appreciate your advice. 1) How difficult is it to prove a cause of action for Restraint of Trade, Unfair Competition and Collusion? 2) Any special discovery allowances? 3) Do you have to go out of business to prove damages? 4) Lanham Act? 5) Ever do any pro bono work? THX

Joe Escalante: If you have a good anti-trust lawyer, it is not that difficult to prove the elements of a violation, but it’s expensive and Joe is not interested. Thanks Jeffrey.

Cia: is it legal to sue someone for loss of affection in the state of Arizona?

Joe Escalante: Arizona does indeed recognize the “Loss Of Consortium” cause of action. Good luck.

Jonathan: Question for JOE:
My wife and I run an independent college admissions consulting practice. We were thinking about adding SAT prep/tutoring as one of our services, but we weren’t sure if we’d be facing any legal hurdles given the fact that she used to work for a major test prep company as an SAT instructor (spent 7 years with them, and left the company in 2007). If she were to incorporate SAT prep into our business, obviously her approach & techniques would be similar (if not identical in some aspects) to that of her old company, so we weren’t sure if we’d be opening up a legal can of worms. Can you advise?

Joe Escalante: This area is very competitive. If they are threatened by her competition, they may get nasty and sue even if they don’t have a good case. Look at this video, and follow this case on the Internet, it’s crazy:

Chasity: Hey Joe I was out the other night and I have a right to bear arms well I was leave a bar didn’t have no drinks and two guy try to attack me so I pulled out my gun and told them. If they cone any closer I would shoot .well cops was called and they said I was In the wrong .pls help what is the wright way

Joe Escalante: If you can establish that you had a reasonable belief that the threat justified brandishing a gun, and the option of fleeing was not reasonable, you were in the right. It will depend on how anti-gun the authorities are in that town. Generally, they want you to use the gun as a last resort, not just to fend off unwanted suitors.

Julie: My 17 year old son has autism and I’ve heard for years that getting a conservatorship would be a good idea once he turns 18. What are the chances both my ex and myself will be appointed conservators? I have had full physical custody for over 16 years and he has had very little involvment in his day to day life.

Joe Escalante: You have a very good chance. You just need to file a petition with the family court in your county. I would read up on what the court looks for in a conservator and start building your case.

Lynn: I went to my boss and told him I would be going through some problems adjusting to some new medications for my mental disorders…he told me everything would be alright and no one would say one thing to me about it not to worry. two days latter…trumped up reasons were brought against me and I was terminated. I was the consistent
highest producer in the division and can confirm that. I filed for disablity and won right up to the day of my termination. i would like to take suit against this company for discriminating against me for my disability… can I?

Joe Escalante: Yes you can. I would file a claim against them with the State Labor Commissioner, and get a consultation with an experienced employment discrimination attorney.

However, if you cannot get an attorney to take the case, you have to face the fact that it might not be a winnable one. Good luck.

LegalZoom: That’s a wrap for Free Joe Friday! More legal Q&A coming up next week. Have a great weekend!

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October 23rd, 2012 at 6:10 am