Jenna: Hi Joe: What is the time frame a defendant has to File a Motion to Vacate a Judgement and A motion for Relief of a Judgment. The cases were heard in court and both parties were present. They judgments were not by default. The Plaintiff prevailed in both.
Joe Escalante: That would depend on the jurisdiction and the local rules. Don’t be afraid to call the court clerk for the judge in your specific case directly and ask for deadline info.
Mary Ann: My husband passed away on Friday May 13th and he keeps getting medical bills in his name. I keep sending them back writing deceased and the date. I’m sure i read that Florida is a non comunal state and that i am not responsible for them. Am i correct.
Joe Escalante: Theoretically you are only responsible for community debts, but the creditors have a few options beyond suing the estate for payment of the debts before that money would go to you. They can seize communal bank accounts and try to attach other property you owned together.
Marsha: My divorce decree, from five years ago, stated we were to sell our home and split the equity. Soon afterwards, I moved out of the house. Then, the downward economy started and housing market plummeted. The house was on the market but never sold. Now, I would like to get my share of the equity, because my ex-husband still lives in the house. His mother passed away four months ago, and left a fairly good amount in her estate. He could afford to pay my share of equity from that. What can I do, without ruffling the family feathers?
Joe Escalante: Anything you do is going to ruffle feathers. The usual route in a situation like this is a court ordered forced partition sale. But if the house doesn’t sell, you get nothing. If he wasn’t cooperating with the sale, you could petition the court to change the order and give you cash. That would be up to the judge based on evidence you collect and present.
Thadd: This is a question for Free Joe Friday. I work with an indie film company. We were wondering about royalties and permissions. If we produced a script based on the story told in a song, would we need to pay royalties to the company who owns the song, and would we need to obtain permission before a public showing? Thank you for your time.
Joe Escalante: If it is truly based on a particular song, and that song has a valid copyright, the copyright owner would assert that you are creating what is called a derivative work. You need permission to exploit such a creation, even for festival exhibitions. There might be a few ways to get around this. Go to http://www.barelylegalradio.com/ and click “email joe” and we’ll get you on the radio program to go over it in detail. Listen to the show today at 11 am on www.indie1031.com PST. Or call the show live on Sunday night on KTLK am 1150 from 5 to 7 pm in L.A. 877-520-1150. That’s what we specialize in.
Mayra: Good day Mr. Escalante. I recently obtained and got my DBA registered thru you, LZ. Now, what is my next step to follow in regards to my DBA. I am not sure where to start. Thank you.
Joe Escalante: call the legalzoom people, that’s what they’re here for and they are friendly, and will know your specific circumstances. One thing I would do, is take your fancy DBA and get yourself a business bank account.
Beebert: I’m moving my LLC of which I am a sole member from Missouri to Texas. What is the most simple, inexpensive method of doing this?
Joe Escalante: Contact the secretary of state in the new state and ask them what the minimum requirements are for you to do business as an LLC in the new state. It’s different everywhere but they have the answers.
Beverly: I just started an LLC for my pet care business and I am the sole member. Is it best for me to be an employee of my LLC or can I be an independent contractor so as not to have to worry about taking taxes out and such. Just trying to figure out what is the most beneficial for a mid-year entity change (sole proprietorship to LLC) and for going forward. Thanks!
Joe Escalante: This is tax stuff, not really lawyer stuff. You should get yourself a good tax professional and discuss all this stuff with them. You will need a good tax person just as much as you need a good lawyer with a new business.
Beth: Not sure if your still taking questions? But a few years ago I had my car repoed after paying $433 a month on it for 4 years. I quit paying when I moved and the loan comapany Americredit wouldn’t send my title so I could license my car in Missouri (moved from Nebraska) I told them if they sent my title I would send them payment but not going to keep paying for a car I can’t drive because I can’t license it without the title. I took it to court but lost for failure to prosecute my attorney dropped the ball on it,, what can I do now about it?
Joe Escalante: This is a contract issue. I would have to read the contract to be able to answer it for you. I don’t know exactly what you agreed to. A lawyer would read the contract and determine whether it had been materially breached. Then you could theoretically sue for damages suffered as a result of the breach. Find out if your case was dismissed “without prejudice.” If so, you can refile. If it was dismissed “with prejudice,” you really lost.
Carlos: I remember reading that if you produce a logo or design, you can mail the contents to yourself with a time and date stamped by post office and can hold up in court as proof of the day the design was created. As long as the envelope is not open. This would replace getting things copyrighted at a more affordable solution. Any truth to that?
Joe Escalante: Think about this Carlos. Can you mail yourself an UNSEALED envelope? I can. I just did. Next time Sesame Street creates a new puppet, I’m going to draw a picture of it, put it into my unsealed envelope, and hold it up in court. I will then dramatically reveal its contents to a round of courtroom gasps.
I’m going to be rich Carlos.
Registering a copyright is not very expensive, but believing that mailing something to yourself has any value could be very expensive.
[Editor's note: Check out this video from Joe too: Does a "Poor Man's" Copyright Work and Is It Legal?]
Nick: My former company gave me a budget to spend on part time help. The company paid them, I just approved the hours and the wages. They worked over their allotted hours (and went over budget), and now the company is charging me for their over paid wages. Do I need to pay the company back?
Joe Escalante: This would really require more info, but in general this would be governed by reasonableness. If a court would find it reasonable to hold you liable for the excess expenses, you could be on the hook. It would all center around the agreement. The court would look at the contract first. If there was no contract, it would look at all the evidence to see what would be reasonable for each party to rely on.
Teresa: I would like to know how its legal for Sprint to charge 10.00 extra dollars a month since July 2010 for G4 that we still don’t have? Per phone. I should be allowed to opt out.it should be a choice.especially since we don’t have it anyway and they have no idea when they will have it.fraud! Scam!as if I’m not paying them enough…Thanks,Teresa
Joe Escalante: The contract you signed probably allows them to do that. However, that contract is not necessarily enforceable. The only way to find out is to take them to small claims court and tell the judge your complaints. It happens all the time. Google “Contract of Adhesion” and trip out on that for a while.
Kia: Can you sue someone that intentionally and maliciously got you fired from your job? If so, could you sue for punitive damages?
Joe Escalante: I suppose you could sue for defamation and ask for punitive damages in addition to the provable certain damages, but it’s a tough expensive road. I don’t know the circumstances but maybe you could also sue for tortuous interference with a contract. These are both expensive propositions. Also, to prove a defamation case, you have to fight the defense of truth. That gets nasty in court. It could become a hot mess.
Kenneth: Hi Joe, In my divorce mediation agreement my ex was to pay debts of x dollars in return for her getting the house which had substantial equity. She never paid the debts, which were all in my name, and my credit has been ruined. I’m going for a contempt charge, but can I also sue for punitive damages? Thanks and have a great day.
Joe Escalante: You can try, but unless she did something pretty outrageous and malicious, it would be rare to get them. You would have to prove she did stuff just to cause you harm, and then prove the harm. If her defense is that she is lazy or incompetent, and there’s no other proof of anything else, I don’t think you’ll get them.
Maranda: Hi Joe, I was recently contacted by an attorneys office regarding an educational loan that I never used. I applied to a school, The College Network, and got denied. I never received an education or even got to start it. Now I am in a civil suit to get almost 10k of money I never received, used, or even knew about. i told the lawyers to go after The College Network to receive the monies back, because they are the ones who took them. What should I do? They arethreatening wage garnishment and penalization on my nursing license.?
Joe Escalante: Ask them to show you cancelled checks. If they file against you, you’re probably going to need to hire an attorney. You can cross claim against whoever cashed the checks, if anyone did.
The Christian Left: Hi Joe, to what extent can a 501(c)3 “be involved” in politics, and to what extent can they NOT be involved in politics?
Joe Escalante: My understanding is that it is OK if you are non partisan, e.g., “Get out the vote!” or something like that. You have to be getting out the vote of all parties, not just one. If your organization is called “The Christian Left” you probably aren’t going to qualify. However, what do I know? Here’s a link to what the IRS has to say about it: http://www.irs.gov/charities/charitable/article/0,,id=120703,00.html
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