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Free Joe 3/8/13

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Heather: I have a question… If an employer’s payroll check is determined ‘lost in the mail’, is it the employee’s expense to pay the employer for the stop check fee ($35) so they can reissue a new check?

Joe Escalante: Most courts consider something mailed once it is deposited with the post office. It’s “reasonable” to believe they will deliver it. However, unless there is something in writing that dictates who pays stop fees when this happens, there’s no law to cover it. It’s a Mexican stand off, said the Mexican.

Lisa: I am looking to do a Revocable Trust so I can purchase NFA items, what are the requirements within the trust I need to make sure I have? Also how do I ensure that the items I put into the trust will pass to my minor children once they turn of age?

Joe Escalante: A trust is used to make sure stuff gets to your heirs without going through probate. If you choose a decent trustee to administer the trust, your stuff will go to them when you die. If the trust stipulates that they must be 18 to receive the stuff, the trustee will hang on to it until then. If they turn 18 when you are still alive, just hand it to them, but don’t muzzle them when you do it. Safety first. I’m assuming NFA means National Firearms Act when I make these jokes.

KC: I was wondering if Civil Code Section 45 (Libel) applies to a memorandum sent from one employee in an organization to another in regards to a third party (the one that might have been injured) ?

Joe Escalante: Defamation can occur if only one person hears a false and harmful statement, however, the amount of damages depends on if this memo is public or not. Damages will increase by the amount of people that hear the defamatory remarks.

Alex: What’s the cheapest way to effectively file for bankruptcy Chapter 7 in California ?

Joe Escalante: The cheapest way is to buy a book from Nolo Press and do it yourself. It’s not easy, but people do it.

Ragan: I own my own company. We send people out of town periodically for jobs that we have. If an employee quits while he is out of town, am I responsible for getting him back home? And do I have to pay him per diem for that day?

Joe Escalante: That would all depend on the deal you make with him. You can make a deal to handle these episodes any way you want. Without a deal, you will be governed by minimum standards of fairness dictated by case law and State Labor Commission regulations.

Roy: We have a survey neighbor does not he’s using one from when he owned our property which does not match our deed or easement can I represent myself if he sues don’t have the mint for lawyer

Joe Escalante: You have the right to represent yourself in court. However, if he has a fancy lawyer, it will be a special kind of hell you will go through.

Jeremiah: Me and a partner are staring an online ministry. We hope to be funded by Google AdSense revenue from our web traffic, and from donations from churches and people we meet out in mission fields. We are wondering what we should do to fulfill tax burdens if there are any. Should we incorporate? Start a non profit?

Joe Escalante: This is a good question for the Tax Pros who are here on Thursdays. In the meantime, please enjoy your theme song:

LegalZoom: Ask the Tax Pro details:

Lita: Can I obtain LLC in 2013 and use that status for tax filing for 2012?

Joe Escalante: That sounds like a question for the Tax Pros here on Thursdays. Until then, please enjoy the Ballad of Jeremiah Johnson. :

LegalZoom: Ask the Tax Pro details:

Julia: What should you do if you miss filing a year of corporate minutes?

Joe Escalante: If you are in the middle of some nasty litigation that could be a problem. Someone could use it to say your corporation is a scam. However, if that is not the case, you can take care of this stuff retroactively. Some people do it on the courthouse steps, as they say.

Mary Ellen: I own property in the area of the Marcellus shale cracking in Pennsylvania. Can I sell the property but still retain my mineral rights?

Joe Escalante: People do that all the time. Get a lawyer in your area familiar with splitting off mineral rights.

Shon: are living trusts with legal zoom really as good as hiring a lawyer?

Joe Escalante: It’s a balance test. And it depends on how complicated your estate is. I know many people who have created their trusts with Legalzoom and I can say those trusts that I have seen created are really as good as they would have been if a lawyer was used, or better, depending on the lawyer.

Enrique: How do I get my “rap shet” from the FBI..? it’s for a government job.

Joe Escalante: You do this by writing letters requesting copies of your file, if one exists, to the Federal Bureau of Investigation, 935 Pennsylvania Avenue, NW Washington, D.C. 20535-0001. Or you can try this place:

John: Can a friend of the court attorney be forced to comply with michigan law regarding passport withholding – which he justifies based on arrearages. Law states that passport can be released once payment arrangements are made.

Joe Escalante:

John: Are verbal ontracts legally binding in California

Joe Escalante: Yes. All you need is evidence of a deal. Offer, acceptance, and reasonable consideration (payment). Only in rare cases like real estate and copyright must it be in writing. However, writing is excellent evidence of a deal. Both parties acting as if there is a deal is also good evidence.

John: So if i had a deal to buy a boat and a car, made payments in good faith for nearly a year, and the guy suddenly says forget it – its all a non refundable deposit…I have grounds to sue

Joe Escalante: Yes, in that case, a writing wouldn’t be necessary. You have your testimony as to what the deal was, and you have evidence that “both parties were acting as if there was a deal.” That is as good as a writing in my book. Good luck.

Rosemarie: A colleague has abandoned cosmetics about a thousand dollar value ,have requested pick up for 4 months and ignored? When may I dispose items legally please?

Joe Escalante: There’s no hard and fast rule in these cases. It all depends on the “duty of care” a court would assign the “bailment.” In other words, what is fair? If you offered to hold them for her in exchange for some other favor, you would have a higher duty of care. If she threw them at your head, and then ran away and left them there, you would have a lower duty of care.

Shaq: What torts are associated with product liability?

Joe Escalante: What is this law school? Anything that is a civil wrong, caused by a product could be a tort in that area. The ones that come to mind are negligence and wrongful death based on defective product design or manufacture.

Genie: When and how will I be notified if foreclosure and how many days until I must vacate my home?

Joe Escalante: You get notified by mail from the bank if they are foreclosing on your home mortgage. They will give you a stated amount of time to vacate but few people pay attention to that. Unless you get an unlawful detainer action filed against you, you can stay there. When you get one, you go to court and file an answer and tell them you need a certain amount of time and see if the judge will give it to you.

Bianca: Hi Joe, I was reading my papers from LegalZoom and it states that I have to place an ad in a local paper to I assume to “announce my business” I live in NY, and formed an LLC I don’t really want to do it why is it a requirement? Thanks

Joe Escalante: An LLC is a faceless entity. To protect consumers, the Secretary of State requires some transparency like filing your real name with the state, and publicizing that you are going to do business under this fictitious business name. I agree it’s lame because who reads these? You’d be better off announcing it on Facebook, but that day will come. For now, you have to pay these otherwise worthless papers to announce it.

Ladaryl: First of all, Hope you’re having a fantastic Friday, Joe. :-D

Now, is there any kind of way one can get their record expunged, or sealed… (What’s the difference?) for free?? Is it really worth doing, will potential employers still see your felony?? Note: I currently reside in Arkansas. What’s the deal with “CORI” laws??

Thanks, in advance.

I ♥ LegalZoom.

Joe Escalante: Sealed would just hide the details of an arrest or conviction. Expungment would remove the felony from your record. You have to sit down with a criminal defense attorney to figure out how to do it in your state. Or you can call the Attorney General’s office and start bugging them about how to get the process started on your own. It can be done, but it’s an uphill battle. The state has to balance your interests against the public interest of knowing who the felons are in the state.

Eric: I am currently building a website for a non profit organization. In one section of this site we have videos posted that we get off of YouTube. Can I legally use these videos without having permission from the person who originally posted the video on YouTube.

Joe Escalante: If you are just embedding the videos into your site, you are just advertising the video and when people click it, they are actually watching it on Youtube, not your site, so that’s fine. That is what Youtube is for. If you rip the video from youtube, and re-post it so people are watching it on your site, that is a copyright infringement, so just don’t do that.

Anthony: How are salaries incorporated into Nonprofit orginazations?

Joe Escalante: They are an expense of the company, like paying for the trash to be taken out. They just have to be reasonable and competitive in the industry your are in.

Lou: Joe,
I have a city walking trail being developed right beside my home, 10 feet from my property line. Can I ask a judge to stop development until we have assurances fro£ the city that our privacy will be protected in basement living areas?

Joe Escalante: This would be done by filing an injunction against the city. People do it all the time.

Kyle: What is required to LLC a business? Is it expensive?

Joe Escalante: It’s expensive if you use an expensive lawyer. If you use Legalzoom, it’s going to be a lot less. Make sure you have a good tax pro on board to advise you if an LLC is right for you. If so, Legalzoom is an excellent way to get one completed.

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January 9th, 2014 at 2:56 pm

Posted in Free Joe