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Can Text Messages Be Used as Evidence? And More Free Legal Advice – Free Joe 1/20/12

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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.

Danette: Can text messages be used as proof of a loan agreement?

Joe Escalante: A text message could be used as “evidence” of something but whether it “proves” the existence would be up to a trier of fact in the courtroom.
The problem with electronic messages is that they often require expensive expert testimony to establish their veracity. In small claims cases, however, a judge might just look at it like “that looks good to me” and accept it.

However, if there is a written agreement about the loan in the first place, it could have language in it excluding any writings or deals outside the contract as written.

Sharonda: Are there different child support standards if u have sole custody vs joint custody? I live in Fl and my ex lives in VA I had sole custody but because he wanted to lower his payments he filed for joint custody and was awarded it, 2 years ago, I thought this would benefit the children, but he never see his kids, and as a result my child support was decreased. What exactly is “joint” custody and can I go back to have the decision reversed seeing that he is not jointly involved in their lives?

Joe Escalante: You need to keep records of how little baby daddy visits. Then do what he did, petition the court for a change in the custody order based on the fact that you and the kid are not benefiting from the scam he pulled, because it is a scam.

Obby: If you loan money to someone and you HAVE a contract in place with payment due date but they can’t pay because they don’t have the funds, will taking them to small claims court do any good? Can a judge make a wage garnishment type of decision?

Joe Escalante: If it qualifies, $7,500 in damages or less, for an individual’s claim, a victory in small claims court will result in a judgment. That judgment can be used quite easily to obtain a wage garnishment.

Denise: where do i go to find out about a title to a car? & how can i take someones name off of the title??

Joe Escalante: If the title says “and / or,” then you can remove the other person yourself without permission at the DMV. If it just says “and” then you need the other party to sign the back of the title over to you. Then you take that to the DMV. If the other person refuses, maybe they like owning the car so they have a right to refuse signing it over to you. If you can’t find them, you could have them declared legally dead. But if that’s too drastic, perhaps a filing for declaratory relief or some other of judgment from a court would be necessary, which is just as drastic in many ways. Anyone out there have any experience with an “unlocatable” person on a title?

Brenda: Grandparent rights in NC ? Daughter has given up custody to the father of the child and paternal grandparents. Now daughter has married father of child and fighting custody with paternal grandparents. Maternal grandparents and extended family are not allowed contact with grandchild for reasons that it will disrupt the child more than it already is. Our concern is that we feel we can provide more family and support for the child but are not allowed a chance to speak in court because both parents and paternal grandparents are ‘protecting’ the child. Is there any way the maternal side of the family can intervene and get our chance to request visitation rights ?

Joe Escalante: According to § 50‑13.5. of the N.C. code, a grandparent can’t initiate a petition for visitation, but if the case reopens for some other reason, I think you can sneak in your two cents at that time. Without the father’s permission, everything is going to be tough. That is probably what the court is talking about when they say this could be disruptive.

Marti Ann: Can I purchase life insurance on someone without the person I am insuring knowing it & can I change a beneficiary on an existing policy without the person’s knowledge?

Joe Escalante: You can’t insure people without their cooperation, but you can change your beneficiaries without the beneficiaries’ knowledge. Also, you sell this story to the Discovery I.D. Channel if it gets interesting.

Tyrone: Hey Joe my question is why would someone get an llc as opossed to a C corp does one have a greater benefit for certain business models than others?

Joe Escalante: Generally, an LLC is easier to administer. There are rules about meetings and minutes, etc. Your tax pro will tell you any differences for you tax-wise.

Edy: Hi, my question is about short sales. My client’s ex-wife owns the condo but they are both on the mortgage. She is trying to short sale it and he needs to fill out papers. If they short sale it (40K under appraised value) will he be liable for the tax on that 40K with the IRS? What about if the lien holder reposesses the condo, would he still be liable for taxes on the “gain” ?

Joe Escalante: This is a question you need to ask your tax professional. It’s not really a legal question. Sorry.

Zahra: Hi. I’m operating my consulting services in one city and would like to offer my services across state lines? Do I need to apply for any foreign legal fees? [DC going into MD, VA, PA, FL, etc}

Joe Escalante: Not that I’m aware of. If you establish an office in any of these places, or contract employees, you might need a business license or to pay local taxes but it is legal to do business outside of your domicile across state lines.

Marvin: I will be fighting a ticket for the “Move Over Law” in Alabama next week. Is it smart to bring in copies of others State’s Photo’s of their Campaigns to alert the public when Alabama has done NOTHING to alert the public of the new law. Other State’s have had large & flashing sign’s etc etc & I have pics from the Web……any advice I did not know it was the law….Signed Dumb***

Joe Escalante: Actually, judges appreciate when you bring in evidence to a trial like that. Your defense is that a reasonable person would not know that the law existed. There’s nothing wrong with some evidence showing that other states agree with you, since they put out so much warning to alert their citizens. If the goal of the law is safety, the state has a duty to encourage compliance.
Otherwise, what is the goal? To bilk unwary citizens of fines and penalties?

Shannon: Q: My ex-husband co-signed an auto loan for our 18 yr old son, who paid $5000 of his own money as down payment. They had a falling out, son moved back with me, forbidden to take the car. Ex recently shipped the car to minor daughter living with me as a gift (I’m listed on shipping invoice), which I disapprove on several levels. Does son have any legal recourse for the down payment? The car sits at my house with no one driving it, as ex says only daughter has permission. Can I legally have it removed from my property?

Joe Escalante: This all depends on who is on the title, not who co-signed. I can’t see any reason why a co-signer could dictate who drives it. However, the title owner could. If your kid has insurance and he’s on the title, let him drive the car. And yes, if your kid paid $5,000. He has that much interest in the car. No one can just take that away because he’s a bad boy or anything like that.

Guy: my wife died 6 years ago , I never probated her will that left everything to me, she was sick with me as her caretaker during those years before – I paid all her bill that were left.- I never found a title to the mobile home that was hers, I now found the purchase order and the bank statement that she had paid for it and the state of penna SAYS THAT A TITLE WAS NOT NEEDED IN 1971 so no record – can I get a title in my name now or must I probate her will to do that.???

Joe Escalante: I don’t know about Pennsylvania’s 1971 rules, but in general, this estate needs to be probated to make any transfers legit. If the property was held jointly it can avoid probate, or if it was held in trust. But you can’t just wait it out and avoid probate. That will get messy for somebody at some point.

Abigail: Q: A rep from a company calls me with telemarketing. I ask them to put me on their “do not call” list and to stop calling me. They continue to call me. Can I sue the company for harassment?

Joe Escalante: Actually, if you can figure out who they are, and if your state has a remedy for this, you can. The Telephone Consumer Protection Act provides certain protections in this regard, and states have other various statutes covering it. You don’t really sue for “harassment” necessarily. You are reporting them for violating a statute and the statute should provide some fines or penalties, some of which would go to the victim.

Stacy: What can a grandmother do to see her g _child here in Fl?

Joe Escalante: Many states have made laws allowing grandparents visitation rights, but courts are not necessarily going along with it. I believe Florida is one of the states where the courts declared these laws unconstitutional. So, unless there is certain and provable harm you can establish before the court that the kid will suffer without your visits, you are out of luck. Sorry.

Ashlea: Ex landlord is going after a Bogus rent on the last month we lived there, and they kept the deposit. They say we owe for things done to the property that they never fixed(reseeding due to a garden).. we drove by there and saw it rented an the garden was still there.

Joe Escalante: This sounds like a case for small claims court. Each state has different rules about deposits and such. Show pictures of the garden. After you file, the landlord might come to his senses and make an offer. Good luck.

LegalZoom: That’s it for Free Joe Friday! Come join us next week for more free legal advice and have a great weekend! Check out Joe’s radio shows too–you can get the full schedule on the Free Joe tab:

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January 24th, 2012 at 5:21 am