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Free Joe Friday 11/12/10 – Tenant Rights, Mistaken Identities, and More

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Every Friday, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss last week’s Free Joe Friday? Don’t worry. We’ve got it all right here.

Jim: How much of our income can a collection agency take in Washington St. if I only work 24 hours and my wife is on SSI disability?

Joe Escalante: If it’s like other jurisdictions, the court can garnish your wages to pay judgments but they cannot take so much that you can’t eat and live. If you think you’re not being left with enough to support your reasonable lifestyle, petition the court to have the amount reduced and bring evidence that you are being starved to death by this thing. Don’t show up fat with a bunch of bling in other words.

Crystal: If I have recently set up a corporation and I find someone else using the name that I have incorporated under, can I take action to have them stop using the name? Specifically on a website that allows you to sell handmade goods?

Joe Escalante: A corp name is not the same as a trademark. Trademark is governed by usage. Whoever is using the mark first will usually end up with control of the mark. It would be very easy to incorporate under a certain name, and not use it. The court doesn’t protect people who squat on names. They protect people who do things. That benefits society. So the answer is maybe, but if they were using it first, you have an uphill battle. Here’s some good advice, go straight to the Trademark section at legalzoom.com and get a trademark now that you’ve gone to all the trouble to incorporate. If you already have one, then you have a better shot against those other handy crafters.

But even if you have one, it’s just one piece of evidence, usage is still king. Why don’t you post a picture of some of your melted 7up bottles or whatever you make.

And remember, you have certain rights to your name just from using it without or before official registration. Registration just provides more benefits and evidence that you used it first.

Wanda has a follow-up on Crystal’s question: This was great advice Joe! thank you, about 5 years ago, I did the same thing that Crystal did only to have someone come behind me and steal the name.. I couldnt do anything.. this time I want to trademark my business but how do you trademark just your name. I thought a trademark was a symbol.

Joe Escalante: A trademark is whatever you use to differentiate your business from other businesses. It can be a symbol, or it can be just the title of the business. You aren’t compelled to use a symbol to differentiate your business from other businesses. it helps, but boring people have rights too. If someone steals your symbol AND your name, they would just be in more trouble.

From Shirl: Ok. My ex landlord accused me of owin ova $3000 n back rent n property damage win i decided 2 not renew my lease. It was determined by tidewater legal aid that i didnt owe anything but infact that she owes me my security deposit back (2 grand). Can/how do i go after her for that?

Joe Escalante: Hey Hey Hey Shirl! All First you send a letter asking for the money. Make a deadline, like 10 bidness days. If the money doesn’t show up, file a claim against your ex-landlord for the deposit plus court costs. Bring evidence to bolster your case. For a pleasant experience with the sometimes complicated world of small claims actions, have legalzoom help you though the process. They have a great Small Claims service. [LegalZoom no longer offers small claims service.]

Ricardo asks: I currently have more than one prototype and am planning on setting up a corporation for them; however, my question resides with what are the benefits of creating a corporation for each prototype under the parent and can this be done?

Joe Escalante: Easy turbo, that sounds like a lot of work. #1. check with your tax adviser when deciding stuff like this. Although it’s possible for a corporation to own another corporation I can’t see any legal benefits to justify it at the beginning of your enterprise, just a lot of expense.

Ricardo has a follow-up: I will look into that. I was thinking along the line of valuation and equity benefits.

Joe Escalante: Better answered by your tax adviser than me. Thanks.

Ron asks: The IRS has filed a tax lien on my property against someone with a similar name who I do not know. All my taxes are up to date and paid in full. They have the wrong guy.
What is the best way to handle this?

Joe Escalante: First of all, I’m shocked that there aren’t more Ronald K. Buffingtons because it’s such a stately name. So, if you have suffered any damages, I would call it a violation of your due process or something like that and get a lawyer that deals with the IRS and sue them for the damages, after politely asking for them to just send over the damages and a sincere apology.

If you haven’t suffered any quantifiable damages I would continue to work through the system to get the lien removed voluntarily by them. Will you get audited the rest of your life if you sue the IRS? Don’t be so cynical.

Lisa: Joe, Can my landlord use my security deposit towards the “free” month he gave new tenants. My exit letter from landlord says I am “financially relieved” of monthly rent at beginning of month, yet is not refunding my deposit because I broke the lease. He never lost one month of rent by me breaking the lease since I paid up until he found new tenants.

Joe Escalante: Lisa. This is interesting. Your landlord has a duty to mitigate any losses from people breaking leases. If the landlord could show that he had to offer the free month because you broke the lease and it’s your damn fault, it’s part of the damages for breaking the lease.

On the other hand, if you can prove that he really didn’t lose anything and the fee month was unnecessary, then you win. If you think you will win, bring your evidence to small claims court and see if the judge agrees. It’s very easy and legalzoom can help you through it with their small claims service. [LegalZoom no longer offers small claims service.]

Nolan: I am Executor of my mom’s Will in TX. My mother before she passed put property by real estate deed of trust to be used as collateral on a bank note I have. I was about to default on this note 240K. The bank called the note & I was able to sell the land my mom put up as collateral to pay it off. Now the siblings are suing me, saying it is my personal note. Where do I stand? Was it a legal debt of my mom’s?

Joe Escalante: Your siblings have a tough hill to climb because they will have to prove damages. If the bank could have foreclosed on the property to pay off the note, as your mother’s trust allowed, your siblings would have lost the value of the property anyway, unless it was sold for more than you owed on your note.

They could argue “unjust enrichment” if you benefited from the sale of property that would have gone to them. But since it would have been foreclosed upon, given your facts, it’s just tough to see how they were really harmed in the end. OK. I have a head ache now.

Lewis: My friend son has been locekd up for 9 years to confessing to a murder but was denied to see his lawyer at the time in Md. The prosecutor gave him a raw deal. What can he or she do to appeal the courts?

Joe Escalante: Check out these guys, http://www.innocenceproject.org/. They can point you in the right direction. They do great work.

Anni: i wont to get custudy of my 16 yr old niece from Indiana and move her to Wyoming where I live. Her father, which is my brother died in 2001 and the mother has lost rights to the state, my niece has been in foster care and is sepurated from all family members this hole time and has run out of any other foster home options. please help me start this process of giving her a loving and family surronding. thank u

Joe Escalante: You need to petition the court that is placing her into these foster homes for custody. Be prepared to supply evidence that it is in the best interest of the child in terms of her health, education, and welfare. When they come to examine your home, throw a sheet over the meth lab, or any other contraband you may have in the home. If you don’t have any such contraband, my apologies for even suggesting it, but it’s possible that this may help someone else. Not funny, I know.

DaResa: I am power of attorney over my uncle. But I also have healthcare proxy forms too. Do I need both or will one suffice?

Joe Escalante: Wow, I’m stumped. Let this serve as proof that I’m not making this stuff up. Ask the magic 8 ball again next week and I’ll try to have an answer. Thanks

Terrie: If a tenant is renting a home in CA, & the prop mgmt co tells her that in 13 days the house is going to foreclose & she must pay full rent & get reimbursed & move out by auction date, what can she do? This is happening to one of my employees & she’s going to be left w/ no way to save for a new deposit. Where can we find updated tenants rights that address these horrible situations?

Joe Escalante: a couple things, they probably have to give her 30 days notice. Legally, she’s probably going to be held liable for the cost of every day she spends there. The deposit dilemma is sad but it doesn’t have a real legal answer, she can only hope that the landlord has her deposit liquid and can give it to her early. But regarding help for this kind of stuff, click on this amazing link. http://lmgtfy.com/?q=California+tenant+rights

Other users responded with a few more tenant rights links.
From Joyce, for Texas tenants: http://www.txtenants.org/
From Lava: http://www.suite101.com/content/renters-rights-under-the-protecting-tenants-at-foreclosure-act-o-a242194

Daniel asks: Can an individual legally claim to be a contractor in texas while only using a dba as a “license” and performing jobs or outsourcing the jobs if they are under $10k per job? If multiple jobs on the same site total over that, can they be split onto multiple bills to ensure they don’t go over that 10k mark?

Joe Escalante: What is this, a state exam? I appreciate your confidence in me, but this is really just one lawyer sitting here and giving free legal advice. I don’t have access to that kind of detail in my tiny brain. Do you have anything less complicated like a D.U.I. or foreclosure issue? How about a violation of the Mann Act of 1910?

Hautecouture Bintabuhaleema: a drunk driver totalled my vehicle insurance paid off the remaining balance of my loan however I didn’t have gap coverage & now have 2 go back into a new car loan…can I sue the woman for additional money because 2 months before my car was hit I put 8k on my loan in an. Attempt 2 pay it off early now I’m deeper in debt….

Joe Escalante: Dear Hautecouture Bintabuhaleema , OK, this is the last one.
You have a right to be made whole by this boozy biatch. I don’t understand the question that much, and I really have to go, but I will tell you that you can only sue to be made whole on what you lost. If you have a good argument that you lost this extra amount and you wouldn’t be in this situation “but for” her booziness, you may recover it. It it’s unreasonable for a drunk to believe that she would be liable for this extra amount, the law protects the drunk from having to worry about such things. It’s hard enough to be a drunk these days.

Joe Escalante: OK, we’re done. To get more questions answered before next week, if they are somewhat showbiz related, go to Barely Legal Radio for info on how to participate in my radio versions of what I do here. Thanks everybody.

Get more info and all the details and fine print about Free Joe Fridays. And join us on Facebook this Friday at 10am PT for more Free Joe!

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November 16th, 2010 at 7:15 am