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Free Joe Friday 11/5/10 – Home Foreclosures, Stolen Trademarks, 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 fret. We’ve got it all right here.

Joe Escalante: Hi people. I’m here, we’re getting ready to answer your questions. Quick note that I wrote a groundbreaking blog about the new Phil Spector documentary and how they were able to use tons and tons of music without any permission or payment. check it out at www.barelylegalradio.com

Amanda: My husband and I want to hyphenate my daughter’s name here in Nebraska. My daughter’s father will object (he is not very involved but enough to have a say: pays child support and sees her once every 6 mos.) If we want add our last name through hyphening, what rights does he have to object and is it the judges final say? We are not looking to take rights away just add our name through the hyphening.

Joe Escalante: In most scenarios a father honoring a support order or agreement would have right to protest in a way that it would end up being decided by a judge if you guys couldn’t come to an agreement. Unless you’re going to add something cool to her name like Escalante I would pick a different hill to die on.

From Elvis: I’m hosting a variety of websites including some photo, media, blog, forum, and microblog sites that are free to the end-user. I’m looking for a TOS and Privacy that I can use and feel more protected/feel more confident in. Can you point me in the right direction? Thanks Big Joe. :)

Joe Escalante: You didn’t hear it from me, but what about cutting and pasting from sites that you aspire to be like? It doesn’t mean that they’re airtight, because you don’t know whether the person who drafted them just got fired, but it’s a good place to start. Have them looked over by an attorney and pay attention to your competition because they may make changes due to business conditions of which you are not aware and you could be left in the dust.

Is this an infringement? It depends on how much you take, but let’s just say copying and pasting was maybe not the right term to use. You should see what your competition is doing and be inspired to create similar works of your own. This will save you some cash instead of hiring an attorney to start from scratch. he would do the same thing by the way. he would just copy stuff. He’s lazy.

Jen: The short sale on my house in Illinois was not approved by the bank & I was informed that my property will be foreclosed on. I am wondering if I have the right to take the refrigerator? I intend to leave the other appliances. I’ve heard of a Cash for Keys program that may entitle me to money for not trashing the property and leaving it “broom clean.” Do you think the program would allow me to take my fridge?

Joe Escalante: Houses in my state are not required to come with a refrigerator so if it happened in California, you would be fine. You couldn’t take the stove or heater, but you could take the fridge. I don’t know what the rule is in Illinois but generally, the banks are more worried about you stealing the copper plumbing so I can’t imagine them coming after you for your crappy teal blue fridge from the 70s, if they get their property back w/o too much squatting.

I’ve sat on the bench for hundreds of these cases and I’ve never come across a bank that would care about the fridge. They just want you out. Cash for keys? I don’t know, could be a can of worms.

Jennifer: Joe, I’ve been divorced since May. The house I reside in is going into forclosure. My ex was very frivilous with $$ the last home equity he did the loan could only be done in his name, as I was a stay at home Mom. We paid $135k and owe $235k. My name is on the deed, not loan. Will I be expected to appear at court? How long do you think I have to live here? served papers Oct. 12. Chase is the lender. THANKS!

Joe Escalante: If the papers you were served with were an unlawful detainer action to remove any and all occupants of the house and if you don’t show up to contest it, expect marshals at your door step soon after to remove you, like within a few days. But, it often takes the bank a year or more these days to get to that point, especially if you are represented by one of those lawyers that likes to file frivolous lawsuits against banks that were nice enough to lend you money for your dream home.
I’ve seen people last for up to 2 years, paying nothing.

Terrie’s follow up from last week: When my silent partner puts in money to cover an expense, he puts “Loan” in the subject line of the check. Should I make him stop doing that? It indicates all the capital he’s given is a loan & to be paid back. If I pay it back as a loan, & he is reimbursed fully, does he keep his shares & still get 60% of future profits even tho we paid back all money he put in to earn his shares?

Joe Escalante: He keeps them Terrie. It’s OK for an owner to loan money to his company and get paid back. That wont affect his ownership. But you might want to send him a thank you note or something. If you want your shares back, you have to specifically buy them back from him.

Mark asks: Can I sue an ex friend who stole my company name even though I did not get it trademarked. But he went and Trademarked it ” Truth & Logic “

Joe Escalante: A registered trademark is just one piece of evidence in connection with who controls this name. Better evidence is who was actually using it in commerce. If you were using it and can prove that, this would trump his registration. And there are state causes of action you might be able to get him on like “unfair competition” and “unjust enrichment.” This would apply no matter how pretentious the name sounds.

John: wife moved to Florida 14 mo. ago and took our 3 children without my consent, i just got served with divorce papers from Florida today, my question, since i remained in the family home in Georgia,does the Florida court have jurisdiction over me?

Joe Escalante: You should challenge the court’s jurisdiction and make them litigate it near the family home. Courts don’t look favorably on parents that move their kids away from a biological parent unless you were beating them with the family Water Wiggle or something. If you don’t know what a Water Wiggle is, Google it. they make excellent weapons.

Water Wiggle is a registered trademark of the Whamo Corporation.

Celes asks: Joe, What Is The Best Law To Go Into In Law School?

Joe Escalante: Great question Celes. It depends on whether you are taking out loans to pay for the 3 years. If you are not, the happiest lawyers are the ones that work as District Attorneys fighting crime from 9 to abut 4:30. They LOVE their jobs. Public defenders claim to love their jobs but they are beat down by ungrateful clients that think they are inferior to private attorneys, which they are not. Other satisfying career tracks are F.B.I. or Cannon Lawyer for the Vatican.

However if you had to borrow a hundred thousand or so, now you have to be careful. You’d better be passionate about your field because you are going to be in a prison of debt and this leads to boozy liver. I tell people that are interested in show business to look into publishing issues facing the internet. That’s a frontier. Is a download a purchase or a license? Good question. Stuff like that is going to employ a lot of lawyers in the next few decades.

If you want a yacht, be a personal injury attorney, but personally, i’d rather stab myself in the organs and take a chance on what’s on the other side.

Darren: Why do we need so many lawyers in Cali? Can’t we get rid of most of them with tort reform?

Joe Escalante: Tort reform is one of those issues that has become political. It is viewed as benefiting big business over the little guy. California had a chance to make steps toward tort reform last Tuesday but it elected to go the other way. And the Trial Lawyers Association, now called the the “American Association For Justice” pours millions into candidates to prevent tort reform.

Some would say that if you hate lawyers, and you want tort reform to reduce lawsuit abuse, you have to elect Republicans and Tea Partiers. I will leave that up to you.

I have a question about a derivative work. I am a HUGE fan of Nintendo’s mascot Mario and I am interested in making a cartoon based off the series. I am fully aware that Mario and Mario-related objects are copyright Nintendo, and I do NOT believe in plagiarism. My cartoons feature some original characters, locations, and has a different feel than the games, and it’s not based on the original Mario cartoons.

Joe Escalante: Derivative works cannot be exploited without the consent of all contributors. You are going to get Donkey Konged by them. But if you want hints on how to navigate though this process, you can call my radio show and speak to me live about it. Go to http://www.barelylegalradio.com/ to see how you can participate. Click “email joe” when you get there for further info. Thanks.

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 9th, 2010 at 7:04 am