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Free Joe Friday 1/21/11 – Lemon Laws, Neighborly Disputes, and More

with 3 comments


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.

Neil: Joe, I created an LLC last year via LegalZoom, but have taken a F/T job and need to dissolve the business. How do I go about doing that?

Joe Escalante: You need to file something called “Articles of Dissolution.” If I were you, I would immediately do this through Legalzoom. Here’s the link. http://www.legalzoom.com/additional-business-services/articles-of-dissolution-corporation-llc.html

Paula wants to know: How do I know whether to create a Will or a Living Trust?

Joe Escalante: We get this question all the time so Legalzoom has prepared some excellent material on their site to answer this question. It all depends on what kind of assets you have and how they are owned, e.g., are they jointly held? etc. read on: http://www.legalzoom.com/wills-estate-planning/summary-compare-wills.html

Stephanie: What exactly is a lemon law and is there a statute of limitations on it? Can it be used to release you from debt on a junk vehicle that has been repo’d 3 years ago?

Joe Escalante: Most states have these laws to give consumers a remedy beyond their standard warranty if their car repeatedly fails despite attempts by the manufacturer or dealer to fix it. Lemon laws require diligence however, if you didn’t establish that the car was a lemon (according to your state’s standards, you probably sat on your rights too long and have lost them. There is also a Federal lemon law, but that’s not going to help you either. Good question though. :)

Mel: My mom passed away & her living trust specified that her estate be divided equally among 4 kids. It includes a rental property. One of my sibling has no desire to be part owner of the property & he agreed for us to buy out his share at a price below the appraised price. If we buy him out, his total share of the estate would be less than 25%. Would there be any future problem if my brother changes his mind?

Joe Escalante: As long as this is a proper transfer of property, e.g., in writing, and recorded with the proper agencies, it’s done. It’s valid. If it was way below market value, and you tricked him, and he didn’t know this, or if he’s only 8 or something, you could have problems. But if he’s a big boy, over 18, he will have to live with his decision.

David: How can we buy or transfer a residential small rental property in an LLC in Texas without causing the mortgage to be called in?

Joe Escalante: I don’t know how you could pull that off. Anyone else?

FB user Robert: With the recent foreclosure crisis, mtg servicing companies are not going to enforce a due on sale clause as long as the debt is being serviced. Definitely not in their best interest to f/c on a current note in this environment.

Jennifer: If you’re underwater on your mortgage and you want to try and rent the property out, do you think it’s a good idea — even if you can only recoup about 70% of your monthly expenses through rent? Paying the other 30% along with additional rent out of state at the moment still adds up to less than the current monthly mortgage being paid.

Joe Escalante: This sounds like a question for Dave Ramsey. Do you ever listen to him or read his stuff? It’s not really a legal question. Check with Dave!

Danette: What are some examples of successful will contestment?

Joe Escalante: Watch “The Will” on Discovery I.D. and you will find some great ones.

Guy: 11 family members have undivided interest in gas oil rights – if a couple will not sign a lease – do the other 9 owners have any options – property was received by will – in PA

Joe Escalante: I recetly had a case where one partner in a condo wanted to sell her interest so she could join a convent. The other partner, her sister, was against this so she wouldn’t agree to a sale. We threatened a “forced partition sale.” This might work for you. I believe Pennsylvania las supports forced partition sales. However, it’s expensive. The trick is to convince the stubborn partners that you are going to pursue a forced partition sale of the entire property if they don’t play nice. They might call your bluff, but you have few options here.

Sadie: My ex assaulted me & was arrested & put on 1yr probation in May 2010. A few weeks ago, he was arrested again for DUI w/ his 6 mo old son in the car. He is being charged with DUI & neglect of a dependent. His wife is working to have child support he pays to me modified, b/c he is probably going to do time. I have full custody, but I must confer w/ him for decisions re: her health, education and welfare. A parent that very obviously doesn’t make good decisions for himself doesn’t seem like the best person to have those rights. I feel like if the child support should be modified then the custody agreement would need modified as well. I am unemployed & not in a financial position to obtain counsel, & not receiving child support is making it worse. I have contacted a legal aid office and have an appt, but I’m not sure what all I should be asking or doing.

Joe Escalante: Tell the legal aid people you would like help “petitioining the court for a change in the custody order.” You want to modifiy it to remove the requirement to consult your baby daddy for anything. Reason: He’s unfit to make such decisions due to his criminal activity which involves child neglect and endangerment. You should be able to make some progress with this without an attorney. Good luck!

Holly: If a neighbor’s tree falls in your yard and takes out your fence who is liable? Neighbors said it’s my fault for putting up a fence so close to their tree….! I put the fence up six inches back from the property line (per local rules). The neighbor is being a real jerk about this.

Joe Escalante: Most importantly, avoid a real problem with your neighbor, it’s the worst thing you can do for your family’s well being. Nothing is uglier than a dispute with a neigbor. But, you’re right, neighbor is being a jerk. Here’s the plan: Send a letter to your nieghbor telling your side and asking for their cooperation in fixing the fence. If they don’t respond positively, then you are going to get 2 or 3 estimates to fix the fence. Then you fix it. Then you send them the bill.
Then they don’t pay it. Then you file a small claims case against them to get them to pay it.
This will be ugly so along the way if you can demonstrate to the neigbor that they’re goiing lose by showing them some case law you may avoid at least the court part.
Why can’t all neighbors be like Jim Neighbors?

From Denise: We are required to obtain authorization from our property owner for any type of modification to the property. We communicate with the owner by email. He provides his approval through email. Is this considered legal and binding?

Joe Escalante: Yes. I can’t think of any reason a court would find this kind of communication invalid. However, if one party asserted fraud, experts would have to be called in to explain to the court how email works, etc. This seems small, but if it was a real big deal, you would need to have headers saved and technical things like that. So if you’re think you need to prove something concerning email, you have to save more than just a printed copy of it. Save it in your computer.

Terrie: Joe: It’s me again. I cant help but participate here. My mother is autistic, I am her oldest. She has 6 kids younger than me, much younger. 3 of them are autistic. I researched and found her all the money she is able to get, somewhere around $4k per month by the time I was done. But, I see her piddling it all away. She doesnt know they NEED couches and beds. She pays too much for certain foods etc. Anything I can do about it without making her look incapable of being a mother and getting her kids taken away?

Joe Escalante: As long as she is not declared unfit by the state, there’s nothing you can do. Maybe you should buy her a couch.

Terrie: I did. I went and got some second hand leather ones someone was selling. Thats the only reason she has couches :( It really is a goofy way to live but she doesnt know it. I was raised by my grandmother who made sure we had furniture. I am raising my 15yr sister, but moms got the other kids and its really just a battle trying to get her to do things that make no sense to her.

Any idea where I can get the California guidelines for being a “fit” or “unfit” parent? Is there a book that says what you MUST do to be a good parent?

Joe Escalante: You should contact the Department Of Child Services because it seems subjective according to case law. I don’t think you’ll get a clear answer. The courts look at each case and make a decision, but at some point, some social worker has to make a decision on whether to make a report. Ask the Department when they feel they need to step in.

June Ann: I got pulled into signing ,as a third party, for Bail bondsmens fees , 3K to 5K said I was to pay for, because I’m the oldest, and retired. Is this true, I don’t even know this person! I was with these girls, I knew one of them, they gave me a ride, stopped at bail place to get someone out, next thing I knew I was signing the papers, for them!!! as a third party. well that s that, now I’M being sued.

Joe Escalante: I would have to look at the document you signed. If you signed a contract to promise to pay if the guy turned fugitive, it is reasonable for them to come after you for it. However, is the contract valid and enforceable? Show it to a criminal defense attorney and see what they say. :)

David: I have been told it is a good idea to get your home put into a trust for your kids to make sure the banks can’t easily get it if you pass away. Is that true for the State of NC?

Joe Escalante: Why would the bank get it? Generally, a trust would keep the house from going though probate so that it would directly pass to your heirs. Theoretically, that saves time and money, but if the bank has right to “get it” for some reason, like maybe everyone forgot to pay the mortgage every month, the bank is going to “get it” whether it’s in a trust or passes through a will, or even if you die intestate. (without a will)

Question from David: I am thinking of doing an LLC for a side firearms instruction business I have? Do these really shield/reduce personal liability?

Joe Escalante: That’s some risky business David. You would be wise to get at least the personal asset protection available from an LLC or corp. You should get a lot of insurance too. These entities are good for sheilding you from personal liability if they are filed and maintained properly. If they are not, someone can “pierce the corporate veil” and go after your personal assets. If you do a decent job with the paperwork, this is unlikely.

Natalia: The question for Joe Re: trademark application: if the trademark US office reply for trademark application was that the trademark will most likely be rejected on the ground of likeness, are there many chances to prove the opposite? Would you refer any of the cases in support of the trademark approval when the names were alike?
Thank you in advance!

Joe Escalante: Talk to the examiner. They are pretty accessable. You can challenge their decisions, but it can get expensive. And, trademark registration is just evidence that someone in the government thinks you deserve protection. You can still use your name without it, but you are exposed to some legal action against you from who ever they think has a mark that prevented your registration. One thing you could do is talk to that other entity and see if they object to your mark. Maybe they dont?
You should call my show on Sunday at 5 PM to 7 PM on KTLK AM 1150 in L.A. 877-520-1150 and give me more info and we’ll come up with some better options. That show deals primarily with questions like this. For more info see http://www.barelylegalradio.com/ Thanks.

Elizabeth: My son is an animator and cartoonist. When he creates a new character or screen play, he makes an extra copy of his work, puts it in an envelope, writes the character or screen play name on the envelope, and mails it to himself as a cheap way of protecting his work (postmark provides the date on the sealed envelope). I know it isn’t a true copyright, but would it hold up in court?

Joe Escalante: No. What’s to stop me from mailing empty and unsealed envelopes to myself all day, then putting your sons characters in them a few years from now if one becomes successful. Then I dramatically pull it out in court and have your son open it, only to find his character was apparently mailed by me, to me, several years prior. Muahahahahaha. I win.
It’s very easy to register one work, or several works at a time the proper way with the copyright office. Tell your son to listen to my radio show. We talk about this stuff every week. For more info go to http://www.barelylegalradio.com/. Thanks.

Sean: Joe, do I reduce my exposure by putting rental property in an LLC?

Joe Escalante: Yes Sean. If it’s filed correctly and maintained properly it acts as a sheild against personal liability for actions that were done as part of the business of the LLC. If someone sues from an injury at the property, they sue the LLC, and not you. However, the court could “pierce the corporate veil” if there was fraud or criminal activity on your part, so it’s not an absolute shield, but it’s a pretty good one if done right.

Ian: Good question and I tried to get an answer to the same a few months back. Does Legal Zoom provide the proper service to move a rental property into an LLC? I opened my LLC with Legal Zoom so hopefully I can leverage existing paperwork/service.

Joe Escalante: Legalzoom provides Real Estate Deed Transfer documents and you need to change the deed if you are transfering property from one owner to an LLC, which would technically be a new owner. Try going through the process here and see if it works for you. It’s easy to get someone on the phone here to help you though it. http://www.legalzoom.com/real-estate-deed-transfer/real-estate-deed-transfer-overview.html

Kenneth: I recently started an LLC via LegalZoom. What is the best way to account for me adding ‘contributions’ of cash into my company bank account to cover the initial company expenses before my company starts to generate its own income. And, will my company be accountable at tax time to pay taxes on the contributions as though they were income to the company? Thank you…

Joe Escalante: That is a pure tax question so I’m going pass on answering it. Too bad there’s not a taxzoom.com. talk to your tax lady!

Bob: I have revokable trust. Do I have to make a new one if I move to a different state?

Joe Escalante: Normally, placing property in a trust avoids the need to do anything when someone dies because the trust doesn’t die, it’s living. So death doesn’t affect it much. However, it would be a good idea to consult an experienced attorney or estate planning professional in your new state to see what rules might effect you if you die there. :)

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January 25th, 2011 at 7:16 am