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Corp vs. LLC, Retaliatory Evictions, and More Free Legal Advice – Free Joe Friday 10/7/11

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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.

Karina: I was employed as a contraact labor truck driver until I was dropped by the liabilty insurance of the person I was working for. At the time I was owed money for previous runs and this person has refused payment I have been in contact with this person by phone several times & told he would resolve the issue by next week (that was several weeks ago) & he is now ignorning my phone calls. Since Texas Workforce Commission doesn’t govern contract labor, what would be my next move to getting paid? Much appreciated.

Joe Escalante: If it qualifies for small claims court, that’s the next move. $10,000 is the Texas Small Claims maximum. If it’s more than that, you have to sue in a higher court, which requires a lawyer or tons of free time and initiative.

Elizabeth: My mother has full custody of my niece she is concerned that if something should happen to her or my father that my niece may not be cared for like she wants due to my nieces medical conditions … what can she do to make sure all the necessary precautions are taken care of

Joe Escalante: You should look into setting up a “special needs trust” sometimes called a “supplemental trust.” These are a bit complicated so get the assistance of a financial planner and or attorney in your area to pull it off correctly. Here’s a link to find one.

LegalZoom: Here you go, Elizabeth:

Patti: Did I hear that there’s a new law that requires cell phone companies to prorate the contract cancellation fees? How does that work, and does it apply to contracts that were already in place before the law was passed?

Joe Escalante: I don’t know about a law requring that but a couple years ago the major carriers started prorating the termination fees to avoid having the government require them to be more fair.

Suzanne: If I have a lease until Feb 2012 can the landlord serve me with a 30 day notice to vacate when I have never been late with the rent? If yes, do they have to compensate me in any way? If I broke the lease they would be able to sue me for the remaining months. Thanks!!!

Joe Escalante: According to your facts, your landlord has no legal means to remove you from your place until the lease is up. Save all the correspondence because if he makes something up now to try to evict you, you can assert “retaliatory eviction” as a defense. He would be retaliating for your lack of cooperation in his illegal scheme to get you out of the place.

Sherry: About 5 years ago I was told I was buying stock and was conned out of about $10,000.00. Is it too late to press charges and maybe get some of my money back? Later I found out this person had been to prison for fraud but is no longer on probation.

Joe Escalante: It varies from state to state, the statute of limitations on fraud doesn’t start tolling until the date you should have reasonably discovered the fraud.

Maryam: Can a business exist as partially a for-profit and partially a non-profit within the same entity?

Joe Escalante: It’s possible to start a company that is a “not for profit” entity this way, but it’s not possible for it to receive tax deductible donations unless it’s a separate 501 c 3.

Maryam: Ok… and do those donations include grants and individual contributions? (Thank you)

Joe Escalante: You can get donations from any body with any entity, but the donors will not get a tax deduction if you are not a proper 501 c 3. You will also have to pay taxes like a regular company if you are not a 501 c3.

Lisa & Jeff: I just retired from the military and just started working as a 1099 contractor, and I have been told it would be best to either become an S-Corp or LLC? What would be the best to help defer a lot of my upcoming self employment tax issues, and also give me the most amount of benefits for myself and my family?

Joe Escalante: Legally, you could do either one, but this is essentially a tax question that you should ask your tax pro.

Lisa & Jeff: Can you explain any of the tax differences or is that more for a tax attorney?

Joe Escalante: It varies by state, but generally with an LLC you may have the option to choose how you want to be taxed, like a corp or a partnership. It gets complicated and yes, you need to talk to a tax pro.

Dustin: I would like to add my father to my birth certificate but TX law has a provision that says both parents have to be present for this decision. I’m a legal adult but my mother is deceased now. What do I do?

Joe Escalante: I don’t know how the Texas Bureaucracy deals with that but I think you just have to persevere and keep telling people that wont let you accomplish this that your mother is deceased. Most people that answer the phone in agencies like you are dealing with just want to get rid of you so you have to keep trying.

Kurt: i have joint custody of my 8 year old son, both legal and physical. i also pay child support. should i still have to pay support if i hav e this arrangement? i live i PA. THANKS! (not sure if any more info is needed)

Joe Escalante: You have to pay whatever it says in your support decree. If you think it’s unfair because you take care of the kid 1/2 the time, your remedy is to petition the court for a change in the decree to reflect something more fair.

Dena: I have a friend who wants to payoff his home loan but the lender is a greedy, sneaky businessman and won’t accept his check. My friend cannot afford a lawyer but makes too much for any state assisted legal representation. It was a bad deal from the start and he just wants out, any advice for him?

Joe Escalante: The borrower and the lender must honor the terms of the agreement. If the terms allow early pay off, it must be honored. If he has enough to pay off a house loan, he has enough to consult with a lawyer about the terms of his lending agreement. That’s what I always say.

Debbie: My husband bought a condo in California 25 years ago, we’ve been married 18, but he never put my name on it. We paid it off and rent it out now as we bought a home 2years ago and used the condo HELOC for our 20% down on the house. I am liable for all of the debt, but if he dies, I will have to pay inheritance tax and capital gains and would have to probably sell both condo and house. Is there any way to avoid tax penalties with a will or living trust? Thank you for your help!

Joe Escalante: With that kind of property, you should have a good tax professional that you consult with every year at least. If the title to the property is listed a “joint tenancy” it will pass to you automatically upon the death of your spouse. It will not have to go through probate. You could arrange this with a trust as well. Talk to your tax pro and change the deeds if they don’t already reflect joint tenancy.

Craig: Q. Can you help me get money from the people who told me They would not steal my ideas but did..they made the products “Easy Feet” after i gave it to them, they made it in china and moved it just as they said they would, they promised me 5%. How can I make them pay me?

Joe Escalante: If you have a contract, you take to court over it. If you don’t have a contract, you have a story about how you would be wealthy if you just had a contract.

John: I have received my Patent Pending status (thank you) – what next? Does the patent just “happen” – or does it wait til I actually start manufacturing? Do I resubmit?

Joe Escalante: Johnny La Rue. The provisional patent you have obtained is great for marking the point at which you control the invention. However, to enjoy the protection of a full patent, you must file the actual patent application, which is different from the provisional patent application or you will lose all your protection.
A full patent application is hard to complete on your own. Most people use patent attorneys for this. It can be done however. A good place to start is with the Nolo Press book:

Diane: My husband had open heart surgery in June 2011. They moved him to a room the next day, during the night he was overdosed on pain meds…the next morning the nurse had to “reservse” him because they could not wake or get any response from him. They rushed him back to CVICU, put him on a breathing machine, brain scan machine along with lots of other machines, IVs, etc. where he lay for the next 9 or so days. The surgeon admitted to my family that he was overdosed and that was the reason he had to remain in CVICU.

They moved him to a room for part of one day then back to CVICU. His throat and vocal cords were so swollen he could not breathe and the ENT had him moved back to CVICR and gave steroids to help the swelling. He was moved back to a room for several days til they were sure he could go home. After getting home he kept falling and wound back in the hospital for another week because he still was not able to be released to go home.
They injured his vocal cords so severly while putting the tube in his throat the 2nd time that he still, after lots of meds and visits to the ENT (at our expense), cannot speak or breathe normally.

Do we have a case for a law suit, if so, who do we sue, surgeon, hospital, etc???

Joe Escalante: You need a consultation with a medical malpractice attorney. Save copies of all correspondence and make sure you can verify the admissions of mistakes that you are talking about. Click the link below to find a good advocate for you.

LegalZoom: Here you go, Diane:

Michael: is it illegal for a job to make you pay back a short dwar or regester?

Joe Escalante: In some cases yes, in some cases no, but it varies from state to state. If you exhibited willful negligence in your activity, the company may have the right to recover what you lost. However, if it is just a routine error, the court would probably look at it as a cost of business.
They can fire you for losing a penny though, so be careful and think it through. If they ask you to pay back a small sum, it might be worth it to keep your job, but get a receipt and have them put in writing what it was for. That may come in handy later if you are fired for something.

Michael: can a person establish a 501c3 with a foreign national as director, while living in national homeland?

Joe Escalante: Qualifications for board members vary by state, but I can’t find any that exclude foreign nationals specifically.

Joanna: My Father’s will divided his monthly oil royalties into two residual trusts.. children & grandchildren. My sister and I received ours at Mother’s passing, as we were past the age of 50, as the will stated. My youngest will be 30 in January, and the GC trust will be dissolved and distributed between my two sons. My eldest,40, owes the I.R.S. a lot of money for failure to file taxes for years. He has been making payments. Will the I.R.S. take his monthly direct deposits? I recall something in Daddy’s will that said the money was not to be taken for debts owed. I’m afraid he screwed himself by his stupidity. Also, can I state in my will that if one of my children pass after my death that their percentage of my oil royalties go to the other son and not the deceased’ wife or children? I know this sounds harsh, but I would rather if both my children pass that it go to my sister’s kids.

Joe Escalante: The IRS probably has a settlement document with your son. In that document it should address whether they will take from any sources like this. There was probably a deal signed to keep him out of jail. Look at that deal.
You can do whatever you want with your residuals unless they are governed by terms of a trust that is still in effect.

Tedra: Joe … I’m lost. My husband and I argued a lot and he was tired of it and threw in the towel. He knew exactly how I was before the marriage and I haven’t changed. We have been married for just over 2 years and we have a 20-month-old son but he refuses to leave our appt. We just moved in here 2 months ago after being foreclosed on from me laid off for 2 years. We cannot move out since he won’t take financial responsibility for the appt. He has stopped helping with any bills and anything for his son and is still here. How do I get him to leave without putting myself so far in debt that I’ll never get out?

Joe Escalante: Since it’s past the deadline, you get this kind of advice:
Monsignor Josemaria says in his book The Way, “Don’t say that’s the way I am, it’s my character. It’s not your character, it’s your lack of character.”
If he’s on the lease, and you are still married, you can’t get rid of him. It’s his place. But legally, you could leave, but if you are on the lease, the land lord is not going to let you off of it.

Jack: what can you do if the restaurant youre working for closes suddenly and you are owed unpaid wages and the employers just keep blowing you off?

Joe Escalante: State Labor Commission complaint is in order.

LegalZoom: That’s a wrap for Free Joe Friday! Thanks to you for joining us and of course to Joe Escalante of Barely Legal Radio w/ Joe Escalante for all his helpful advice. Come join us next week for more free legal advice and have a great weekend!

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October 11th, 2011 at 5:49 am