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Free Joe Friday 1/14/11 – Collecting Debts, Emergency Room Bills, 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.

Barry: Want to start a mens empowerment group at my church, bcause we may look outside 4 funds should we go 501c3, & how 2go about it?

Joe Escalante: You go guy! If the church will let you run it through their entity it will be a lot easier for you, but they may be suspect of you because you’re a man. I was faced with this recently as part of the Sons Of The American Legion. The main American Legion Post didn’t want us as part of their financial entity so we started a 501(c)3 corp with non profit status and we got our own checking account and raised our own funds and everyone was happy. And guess what? We did it though legalzoom. They were very helpful. That is what you guys should do, you poor dears. I hope you become empowered some day and do amazing things.

LegalZoom: Hey Barry, here’s the link to our non-profit service: http://www.legalzoom.com/non-profits/non-profit-corporation-overview.html

Jenna asks: I have a money judgment that I am presently collecting on as well as a promissory note that I am owed on (two different debtors). My question is: If I were to die before the debtors pay off the judgment and promissory note, do my sons have the right to pursue the balance of what is owed on these? I do have a trust and a will, but it makes no mention of the judgment or promissory note.

Joe Escalante: You should amend your will to include the debts owed to you which would be an asset of your estate. You can assign those assets to the trust. If the executor is diligent about going after those assets, your sons are more likely to recover them. They are part of your estate. That’s why a living trust is good. The trust owns the asset, not you, and the trust lives longer than you

Megan: If I’m doing a podcast for a company and they’re saying that they won’t be held liable if anything I say gets me sued (in the indemnification clause), how can I protect myself from losing everything if I say something that offends someone or some company? Should I start an LLC and sign this company’s contract as the LLC?

Joe Escalante: You could start one of these entities that protect your personal assets but if you’re not making a lot of money at this, you are going to be stuck with a minimum tax to pay in many states. In California this is $800 per year, even if you lost money. So you might want to get insurance instead and stay a sole proprietor.

Elaine: If I get a small claims judgement against me, and I was NOT served with papers about the hearing (although the judgement says I was served in person) what can I do? I moved to a different state before it says I was served, and can prove it. thank you

Joe Escalante: If the court said service was adequate, you would have to challenge that ruling. Ask the court if you can do that by mail because if you travel back there and show up, they might serve you in person. There are many ways to serve someone that satisfy the court even though they seem unfair, or not what you think is actual personal service. Or you could just pay the judgment. If you challenge the service and win, you are still going to end up in court fighting the thing. You can’t hide forever. Try to work it out with the plaintiff. This will haunt you.

Caleb: I’m doing booking and promotion for my band and I’d like to call my booking business something other than my LLC name. Do I need a DBA to call and introduce myself as working for a business without a registered name?

Joe Escalante: DBA’s provide protection for consumers. If you are doing business under some name you make up on the spot and you burn someone, how do they find you? They go to the county clerk’s office and say, “who the hell is this guy?” and the clerk searches the DBAs and finds you. If you’re not there, you might be registered with the state as a corp or LLC. If you’re not there, the consumer is burned. So the law says you have to have some way to allow people to know who you are. In your case, you are going to need a DBA for that new entity to comply with the law.

Michele: Question : My husband got a bill from a hospital emergency room …they charged him $505.00 for NYS Indigent I have asked over and over what this is and is it leagl .

Joe Escalante: I think you’re going to have to keep asking because I don’t know the circumstances as to why they put this assessment on his bill. If the emegency room can’t explain it, ask them why you should pay it.

Nikki: Question: How do you sue a business owner for a small claim (less than $5000) when they live in another state? Especially when the credit card company won’t reverse the payment to the business.

Joe Escalante: If the company does business in your state, you can file a claim against them in your state, even if they are headquatered in another state.

John asks: DOES LIVING TRUSTS PLUS REALLY PROTECT ASSETS?

Joe Escalante: From what I can gather, a “Living Trust Plus” is just some private attorney’s attempt to make his version of a trust sound like a whole new product. If any trust is created correctly, it will avoid putting assets through probate, among other things.

Keith: Left with some confusion last week, trying to straighten out my name from my birth cert which shows my bio dads name from the only name I ever knew. Can’t find anything abt any adoption, it was just assumed as they often were 50yrs ago. Drivers lic expired – having awful trouble renewing. All older relatives unable to help.

LegalZoom: Keith’s question from last week: http://www.facebook.com/permalink.php?story_fbid=487144848170&id=100000554671018

Joe Escalante: I don’t have much other than what I told you last week. That really tapped out my ideas on the subject. I would try to get a passport and see how that works.

Tamanika: Hey Joe,
When u make a settlement offer to a collection agency how low should you start with your offer if the bill is more than 2000.00? And isn’t it true that u have to get a written letter of acceptance from the agency or its not valid?

Joe Escalante: a written letter would be prudent. Without it, your deal with them is worthless. This is just me, but I would start out at 10 cents on the dollar. Why not?

Euline: Question?…I live in California. I am married. Can I make out a will for my half of our estate to go to my children and it be legal?

Joe Escalante: You can only leave them your personal assets. Jointly held assets would automatically transfer to your husband upon death. :)

Thomas: Ex has FULL custody of grankids. We talked about adoption is this a good idea.

Joe Escalante: I’m assuming you are talking about adopting those kids, if our ex adopts them, it will give them inheritance rights which is good for them, but bad for your ex’s other heirs. If he’s talking about adopting a 17 year old Vietnamese girl, that’s inappropriate.

Jen: Is there a statute of limitation on debt incurred due to a foreclosure? My sole income is SSDI (which I believe cannot be garnished) but what if, by some miracle, I go back to work in the distant future? Can I expect my wages to be garnished possibly?

Joe Escalante: God forbid you make a penny, but if you do, they will come after you. Statutes of limitations generally vary from state to state, but if you feel that it’s unfair to still have a garnishment hanging over your head you can file a motion to quash the writ of garnishment. Bankruptcy can also dispose of stuff like this if it comes to that, but let’s try to stay positive. Generally banks don’t go after the lost equity in a foreclosure, they just take the house. A court might sympathize with you if they are really going after the upside down part of the foreclosure.

Matt: do you have the forms to be put in as representative of an estate?

Joe Escalante: an executor? that is chosen by the deceased or the court if no will exists

Matt: there is a will and I am the executor chosen by my mother (deceased) but I am being told by the state of az that I still need to be put in as a rep. And there is no one contesting the will. It seems the state is trying to push the estate into probate. thank you

Joe Escalante: it has to go through probate unless it’s a living trust. I’m not familiar with these AZ forms.

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

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January 18th, 2011 at 11:46 am