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Getting Your Stuff Back From an Ex, Suing Your Mechanic, and More – Free Joe Friday 1/28/11

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.

Candice: I have been trying for over a year to get my stuff from my ex and I have even had cops and court help me and my ex would tell them that he has to go through everything then he would give me my stuff and they believe him. Is there anything I can do to get my stuff and what do I do if he got rid of it?

Joe Escalante: If he got rid of it, it’s called conversion. You can sue him for the value, but that’s not fun. Keep good records of how diligent you are in trying to get your stuff back. Send written requests detailing all your property in his possession. If you go in front of a judge, that will be very powerful evidence, especially if he doesn’t respond in writing that to contest your specific claims.
Once you file something in court, even if it’s small claims of under 5 or 7.5 k., he will immediately give you the stuff, I would predict. He wont want to go in front of a judge faced with the repeated requests to return the property if you’ve done it right.

other than that, a new, bigger boyfriend may help move things along.

Candy: My husband and I have been seperated for close to 2 years now and we never talk because it always turns into him wanting money from me. I sent him divorce papers and when I tried calling him the phone was disconnected. How would I know if he got the papers and if he threw them away without even signing. Is there another way I can get a divorce without going through him? We live in different states and he is so childish.

Joe Escalante: You need to perfect service in order to get a valid divorce. If you have proof of service and the deadbeat doesn’t show up, you can still finalize a divorce. If you are having trouble serving him, hire the marshall or other law enforcement agency in your area that serve people. It’s not that expensive and it’s very effective. Sometimes the person getting served mouths off and gets a billy club to the face. Most people in a divorce would like that outcome.

Marilyn: can I sue a Mecanic that sold me a salvage car with out telling me

Joe Escalante: Good question. Laws governing auto sales vary from state to state. Many states require sellers to disclose if the car was salvaged while owned by the seller. It gets complicated as to what constitutes a “salvage” so you really have to check the law in your state. Chances are, this mechanic broke the law and you might be entitled to damages or rescision.

Marilyn: what is rescision

Joe Escalante: Rescision is a contract remedy to “undo” a transaction.

Sally: I am waiting for my sons ashes to be sent to me…long story but losing a child is a mother’s nightmare no matter what their age or circumstances. Seems the USPS has lost my sons cremains….it is being tracked now….my question: If they never find them, can I sue for compensation….this is a nightmare

Joe Escalante: Sorry for your loss Sally. But you will have a tough time winning a lawsuit against the Fed. Govt. Although Federal Tort Claims Act, which was enacted to help some people in the 40s sue the govt. for a plane that crashed into the Empire State building, Section 2680(b) of the FTCA forecloses “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.”

Kim: Hi Joe, I live in Oregon, Several years ago I began purchasing 1 acre of land from my father for $1000.00. He gave me a notarized bill of sale and said that he had lost the deed and needed to get another one. He died in 2001 before he had a chance to get the deed taken care of. So the property is still in his name although I have been paying the taxes all these years. What I’d like to know is how can I get that property put in my name. He didn’t mention the property in his will.

Joe Escalante: Paying taxes is the key. If you are paying taxes on it, and no one else is, and you have the bill of sale, you are going to end up as the owner. Just be persistant with the land records office in your county or state to get a new deed issued.

Can a 85 yr old women have Humana HMO as a primary and United AARP as a secondary insurance? Trying to fix my mothers affairs and I’m not sure she can have both????

Joe Escalante: I gotta tell you Linda, I just don’t know. :(

Patrick: I habe a competitor that continues to use my biz name in ads (Myrtle Beach Movers). I have a SC service mark from the sec of state’s office in SC, but he uses my name anyway. He calls himself “Best MBMovers.” Can’t afford an attorney to sue his LLC. Others use it also on the internet search engines. How to stop them. Can’t spare cash for a trademark from the USPTO yet.

Joe Escalante: In the parlance of trademark protection, your mark is what we call “descriptive.” It just describes your product in general terms so it’s hard to get protection for it. It’s like having a business called “Edible Food.” All food is edible. If one guy decided to claim that anyone else describing their food as edible was violating his mark, we’d have problems.
If you want protection, you have to come up with a mark that is not merely descriptive, like Unicorn Movers. Why don’t you call your company Unicorn Movers? that’s what we all want to know.
Your competitors name is pretty unimaginative too, but is deserving of more protection than yours arguably because it’s a tad unique.” Best MB” is arguably kind of a nick name, and not really descriptive. Sorry. Dont’ sue this guy, just be better than “best.”

Rose: Hello Mr. Escalante.. How do I file a whistleblower’s claim..
There is a company that is defrauding the government..

Joe Escalante: Check out form 211 from www.irs.gov, if it applies to your blowing of said whistle mail it to:

Internal Revenue Service
Whistleblower Office
SE:WO
1111 Constitution Ave., NW
Washington, D.C. 20224

Chantay: Is it an extensive process to set up an LLC, and does this provide protection if you are a landlord?

Joe Escalante: Creating an LLC to own and rent property is one of the most common reasons for establishing such an entity. Benefits include personal liability protection and tax savings. Make sure you are aware of tax consequences like your state’s minimum tax for corporate activity. In my state it’s $800 whether I make any money or not. But an LLC is generally a great way to own and rent property. Do it with Legalzoom of course. :)

Shannon: Joe I’m on social security disability. I’d like to start a home business that I can work when my health allows me. Will this hurt my benefits?

Joe Escalante: There should be some earnings limits in your disability papers that tell you how much is too much to earn and till receive benefits.

Denise: If we place signs around our business such as… {please watch children, we are not responsible for accidents} {watch your step} etc,. Does that minimize our liability? Does it help us in any way?

Joe Escalante: It helps do two things. #1 it decreases your responsibility in theory and this will help you in court. It makes you look like you care. that’s good. #2, it will prevent some people from suing you after an accident. They will think “well, they had signs up, so….”
However, if you are negligent, no signs will sheild you from liability completely. But they are not a waste of time. Basically, a jury will ultimately decide what your responsibilites are, but the signs will help.

Gary: I m needing a will 4 myself that can not be changed by anyone even my wife. Is that possable?

Joe Escalante: That’s how all wills work. No one can change them except for you. Congratulations!

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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February 1st, 2011 at 6:49 am