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How Do I Get A Customer to Pay a Past Due Invoice? And More Free Legal Advice – Free Joe 1/8/13

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

Kelly: I am an owner of a small business in AZ. In October I accepted a check from a business client for $5,100, which was returned NSF. After numerous attempts to contact the client, I sent the check to the county attorneys office to have them help us recover. The client has never responded. I’ve heard this same client is writing bad checks to other local vendors. How can this company remain in business? Is this not fraud? What legal options do I have?

Joe Escalante: This is what small claims court is for. It will cost you less than $100 to file, and you will receive a legal judgment against the client that you can use to get a lien property the client owns. It doesn’t guarantee you’ll get it, but it is the next step.

Paige: If a legal adult owes money for an outstanding bill, is it legal for a collection agency to call a senor parent, ask for the senor parents social security number and then set up automatic payments monthly from their checking account? The senior parent’s income relies solely on once a month checks from social security.

Joe Escalante: If the senior parent is not a co-signer on the debt, they cannot legally be bothered about the debts of another.

Sandra: Morning. Opinion needed. As briefly as possible…I am medical insurance policyholder for my family (in VA). In 09, someone on my policy went into rehab. Date of service was Aug 09. Huge upfront fee was paid in advance. I was told the provider would file all claims. Provider did not file claims in timely manner. I work for a state agency, and my employer contracted better rates from another ins co…and on 1/1/ ins changed. So, the above ref. provider tried to file in May of 10 …and by that time, I was no longer with the same ins co. After speaking to previous ins co…they said the provider waited too long to file HCFA 1500. Now here we are in 2013…and provider is now taking us to court for over $11k. I’ve contested the case, and now need to provide a “grounds of defense”. A friend suggest the “doctrine of latches”…but I am not well versed in this. What should I do? Do I need an attorney or can I fight this on my own? If I need to hire someone…I’ll need to take out a loan…just not sure how to go forth with this. Your opinions and help would be so appreciated.

Georgiana: I think if insurance missed statue of limitation, they are one who is responsible – but Sandy I think you will have to have attorney. Oh, problems never stops

Joe Escalante: I agree with Georgiana. The doctrine of laches prevents people from pursing claims after “sitting on their rights” for too long. If there’s a statute of limitations that has expired, this could be a defense. You need to at least consult with an attorney that specializes in insurance benefit litigation. Good luck.

Linda: Judge won’t sign my prepared QDRO because my ex husband is deceased. (He has to be deceased for me to be entitled to the money in question.) Union’s attorney says QDRO is in order. This QDRO is not for a pension, I am already receiving his pension. This QDRO is for an account in his credit union, like an annuity, but thru his union, IBEW. This has been over a year that I am working on getting this resolved. Crazy. Can you help?? Thank you.

Joe Escalante: Sitting here in my little hovel, I wouldn’t be able to get much done for you. Depending on how much is in the account, you may have to hire your own attorney to work on your behalf instead of relying on the Union’s attorney. At least get a consultation with an attorney that specializes in QDRO benefit recovery.

Jimmy: How can you esponge a felony charge in the state of Virginia?

Joe Escalante: Yes you can, but it’s hard to accomplish without an experienced criminal defense attorney working on your behalf. I would at least consult with one.
Here’s a link to the Virgina statute, but remember, your rights have to be weighed against the public’s right to live in a society with accurate criminal records.

Sandi: I’d like to put together a basic will..where do I start and can that be done on Legal zoom? Is it necessary to have a living trust and a last will? After I retire I want to sign my property and home over to my daughter. What is that called?

Joe Escalante: You sound like you need a living trust. That will keep the property from going into probate. I’m assuming you’re talking about real property and not your Talking View Master collection from the 1970s, or something like that. If you create your trust with Legalzoom, you will get a will as part of the package. The will covers things not in the trust, little things, etc. Click link below to get started:

LegalZoom: Here you go, Sandi:

Mark: was married back last june 11th and seperated in september. how should i file my taxes. my wife is from the philippines and dont have yet her SSN. i have no contact with her since september so how can i file my 2012 taxes

Joe Escalante: That’s a question for Gary the Tax Pro. He’s here on Thursdays. Good luck.

LegalZoom: Here are the details for Ask the Tax Pro, Mark:

Tamela: At what point do you give up on a law-suite? Your lawyer makes you feel like your wasting his time but other lawyers said it was a excellent case but current attorney may have dropped the ball on a lot of things?

Joe Escalante: That’s a problem. You can ask another lawyer if they want to take over. Then you can ask your current lawyer if he wants to hand it over. Chances are, the lawyers telling you that it’s great are just being polite. It might suck and the one that really knows it is the one that has to deal with all the crap.

Sonia: Hello, I’m in florida… I worked for 8hrs (3pm to 11pm) on October, 2011 for a security company, but they only paid me from 3pm to 8pm, stating that’s how long that I’ve worked. There’s no clocking in on a time clock, you sign in and out on paper. Pay roll said that the paper shows that I signed for 5hrs instead of 8 hrs, but I know that I’d worked for 8hrs. Spoke payroll department several times last year between november and december about the issue, but they said that they would have to verify, and would call me back to let me know, but I haven’t heard anything and nothing has been done so far. What is my next step? Can I sue for more compensation? and what else can I sue for?

Joe Escalante: You could only sue in small claims court for the amount of your actual and provable damages. Here it sounds like that is 3 hours of security guard pay, and it doesn’t sound provable since you don’t have any proof, and they are going to come to court with their fancy records. I think you are screwed here. Sorry.

Shatima: 2 Questions:

Went to Court for a Speeding Ticket in GA, and the Officer did not show. They still proceeded with the case, and I had to accept Probation until I can pay the fine. Was the case supposed to be dismissed if the Officer did not show?
#2 Got a ticket for turn right on a red in the City of Atlanta. Went to Court, and they offered a “Program” in lieu of a higher fine. Again Officer not present, and I went to inquire about the “Program”. Turns out in this Fulton County Court, there is no “Program”, you just pay a reduced fee, and the charges will be removed. No reporting any where. Well, I paid the “Program Fee” of $100, on time, and they still reported it to the DMV. What to do??

Joe Escalante: #1. I’ve never heard of this. You should have the right to confront your accuser if you plead not guilty. #2. Police do not show up for arraignments. They only show up if you plead “not guilty” or “no contest” and a trial date is set. If you had a trial date, and the officer didn’t show up, and they had a trial anyway, your civil rights were violated. However, if you plead not guilty, and they offer you a program, the office doesn’t need to show up for that.

Karen: Hi Joe,
My brother is awaiting trail in Delaware and his girlfriend has start selling all of his belongings. Can she legally do this, things like his pick-up that have both names on the title, fishing poles and gear, golf clubs and everything else she can sell??

Joe Escalante: Selling things that don’t belong to you is called conversion and it’s a crime. However, if she sent notice to your brother to come and get his stuff, and he didn’t different states treat that differently in terms of when she can legally sell it. Selling a car without both owners names on the transfer document is also something that would vary by state. Contact the Delaware DMV and ask them if both names need to be on the transfer documents.

Catherine: What is the difference between trademark registration and trademark design registration? I’ve been told I should trademark the design of a product.

Joe Escalante: I’m not familiar with the term “trademark design registration.” Maybe they mean patent design registration. Here’s some stuff on design patents:

Mohammed: I have a question if you could. I rented a room in Spa and on the contract it says i have the full room to me. But when i paid the money, she started using the room and said no it’s shared room. She also used my equipment for other customers. I disputed the charge with my credit card company and now she is pissed and wants to go to court. The bank accepted my claim for the dispute because of the evidence i provided. What do you suggest me to do?
By the way, i’ve talked to few former tenant they all left her unhappy due to the “games” she played with everybody.

Your advice would be much appreciated.

Joe Escalante: If the dispute was accepted by the credit card company, you have the upper hand. She may take you to small claims court so just be prepared with evidence, or settle with her now for an amount you think is fair so that she gets something out of it. She evidently doesn’t deserve the full amount, but she should get something.

Denise: Can my finance leave the house to me in his will? My name is not on our house but I contributed to the purchase.

Joe Escalante: Yes he can. He might want to put it into a trust to avoid probate. But he could also add you to the title so that it passes to you automatically upon death.

Sinequa: Can a insurance company cancel your insurance over a neighbor tree?

Joe Escalante: I’d have to read the policy. And since I’d rather die, I have to advise you to make someone near you read it. But it’s not going to be fun so you might have to pay them.

Carlita: How can I incorporate all of my businesses into one large business? They are all different businesses but branded under my name…

Joe Escalante: Your instincts are right Carlita. This is really a tax issue. Have your tax pro come to your underground lair. Tell him what you want to do with all your businesses. He should have the answers that will result in the most favorable tax scenario. If he doesn’t, push the button that feeds him to the sharks, with the lasers.

Flo: Is it a good idea to do a stretch IRA for the grandkids. Will they still need to do a RMD?

Joe Escalante: This is basically a tax question Flo. I think you should ask Gary here on Thursday.

LegalZoom: Here are the details, Flo:

Judy: I’d love to know more about B Corps and what is involved and how the set-up would differ from an S Corp.

Joe Escalante: There’s plenty of information on B-Corps all over the internet. They can’t be formed in all states. Good luck with that.

David: Joe, I have a concept for a physical product targeting child care safety. It’s basically merging an obvious existing technology/approach with another (engineering) existing technology for exponential convenience. I am a web designer and marketer so that part I have covered (sales, art marketing), the question is: At what point is a device ‘patentable’ if that’s a word. How ‘complex’ does an idea / product have to be for it be considered proprietary, strictly in the physical goods market? Thanks in advance LegalZoom!

Joe Escalante: It has to be novel, non-obvious, and useful. You can receive patents for improvements to existing products, so it seems like it is time for you to at least get a provisional patent, and I would go ahead and pay for a consultation with a patent attorney. I know a good one if you need help. Send me a facebook message and I will introduce you to one at Knobbe Martin in Orange County.

Laura: I have been on long term disablity from work since 11/10. I received a letter stating I was termanated from my job. I am still off work as doctor won’t release me. What can I do if anything?

Joe Escalante: Speak to the state labor commissioner’s office and explain it to them. You can start there if you feel you were wrongfully terminated.

Alex: My boss is deducting money from my check claiming j owe it for product needing to be fixed on repairs I’ve done throuh the company. I’m in LA county California. Isn’t it illegal For this and can’t I do anything? She’s taken $100 from my check and says she’s going to take another $100.

Joe Escalante: It sounds fishy, but not enough to hire a lawyer and get all crazy over. So you are left with a couple options. #1. Call the state labor commissioner’s office and tell them what’s happening. #2. Do a bunch of on line research to see what statutes if any she’s violating. #3. Try to get a free consultation with a labor attorney once you’ve done #1 and #2 and it seems you have a case.

Charlene: Is it legal for a business in Florida to take out half hour lunch even if you don’t get it? My boss said it is Florida law that they have to take 1/2 out for lunch whether taken or not!

Joe Escalante: That’s a great question for the person that answers the phone at the state labor commissioner’s office. They will tell you how your state feels about that and let you know how to file an complaint.

Brooklyn: What paper work do I need to export clothing from another country to sell wholesale and or retail.
Working from my home.

Joe Escalante: You import from other countries, and export from the country you are in. I don’t know what you mean though. Your state and local government will want you to get re-sellers licenses and permits but this varies all over the country so I don’t know exactly what you will need. You need to hang out with others who are legally doing this and figure out what they have. That would be my first step.

Roxie: When should you write a will?

Joe Escalante: When you have a nickle. or anything of value that you want to give someone when you die.

Drake: How difficult is it for a man to get partial custody of his child? I know most of the time the man is only given a couple of weekends a month, which is obviously unfair. The child has a right to be close to both parents unless one of the parents do not want to be involved, which is not so in this case.

Joe Escalante: If you’re a stand up guy, and you sound like one, you will be awarded the custody rights that the court feels are in the best interest of the child. All courts recognize that a father is important in a child’s life so you should be OK if you petition the court for shared custody.

Stanley: I have a contract on a small house that was supposed to close in October of 2012. I am now on my sixth extention and have been told because of title issues if may take 6 months or so to close. If I refuse to give them any more extentions will I get my earnest money back ($1000), and how long should it take to get it back? I have another house I am looking at but do not want to loose my deposit on this fiasco. (P.S. Realtor refuses to answer my emails or voicemails about this issue.)

Joe Escalante: You need to get a real estate attorney to write them a letter requesting the return of the money for the reasons stated. However, that will cost about $500.

Deborah: Do you need a lawyer for a living will and how do you put your home in trust to family members and what does it mean?

Joe Escalante: People do this every day through Legalzoom without an attorney and it works great. Click below.

and it’s a living trust you want. A living will is a medical directive, technically.

LegalZoom: Here’s the link, Deborah:

Bill: Is it possible to file bankruptcy on a second mortgage for my severely underwater home?

Joe Escalante: You can file bankruptcy to protect yourself from most any debt, other than a few exceptions like taxes and student loans. Click below and get some help.

LegalZoom: Here’s the link, Bill:

Angelina: My mother has passed, siblings want to auction every thing. I would like my mother’s clothes, how can I get them?

Joe Escalante: You can petition the court to set them aside for you if the siblings force you to do that. In fact, you could make a lot of trouble during the probate process so they should just give you the clothes to avoid the problems.

Ashley: I have a 7 year old son and myself and the father are no longer together. We have been split over a year now and agreed to alternating weeks with my son so he would have him for one week then i would have the next so on and so forth. He recently found out that i am in a relationship and engaged to be married and does not want my son around my future husband for selfish reasons like them bonding. my question is if he begins to not adhere to our current schedule with my son what can i do as far as filing for sole or joint custody. i dont want to take him away from his father but i fear his father does not have the same respect for me and i want to make sure in the process of this my son is not forbidden to see either parent and we have a fair and law abiding agreement that he will have to follow. what steps do i need to take?

Joe Escalante: You need to get a court ordered custody agreement. Go to the self help center in your county’s family law court and get started.

Ben: Joe Escalante,

Registered LLC through LZ in the state of PA.
We are building the business right now so not “receiving profits” do I need to worry about book keeping for expenses/ money i put in the company?
Do I need to worry about taxes at this point?

Joe Escalante: Yes, especially if your state requires a minimum tax for LLCs like mine does. Talk to Gary here on Thursday. He’s the tax expert. Good luck.

LegalZoom: Here are the details, Ben:

Cherie: My son wants to adopt his stepdaughter. The birth father, whose name is not on the birth certificate, is out of the country. What can they do to facilitate the adoption? Can she use his name while the adoption is pending?

Joe Escalante: If the guy is not in the country, he’s not going to be able to object to any names used by the kid. However, only the court can terminate the parental rights to allow for the adoption. You can petition the court to do that, and you should.

Cherie: Thank you and they will when they raise the $1,000 they need to proceed in SC. Should they petition the courts before hand for the name change? Could they do that now?

Joe Escalante: They could but the court might not grant it since only one parent is present. It’s likely that it would be denied officially. I’d rather not have that on file if I were you.

Karen: what do i do to get temp custody of my 6yr old her dad gets out of jail april 2013

Joe Escalante: You go to the family law court in the county where the child lives and you petition the court for custody.

Nissa: if i married someone who was still legally married; were we really married?

Joe Escalante: No. You could get that sh*t annulled.

Iva: Can a salon owner forbid me from promoting to my clients that I got while working at the salon. She had us an agreement according to Georgia law but the salon is in mass.

Joe Escalante: These agreements are not always enforceable, but they are governed by state laws, so you need to show it to an attorney in the state where someone is seeking to have it enforced.

Jesse: My question is concerning ownership of a deceased homeowner that did not leave a will. What is the process for a heir to obtain ownership?

Joe Escalante: This property must go through probate to see if any creditors deserve any of it. Then it will pass according to the state laws of intestate succession. In other words, after a long process, what is left of the estate will pass to the spouse if any, then to the kids, if any, then to some local kinfolk rules.

Ritch: My son would like to come live with me … at what age can he decide which parent to live with???

Joe Escalante: This varies by state. Some states don’t let the kids decide, some do.

MDL: I have a friend who has been seeking a divorce for the last couple of yrs. The other party refuse to sign. Can it be done without a signature?

Joe Escalante: Yes. The non-cooperating person gets served with notice of a hearing. If they don’t show up, it’s a default divorce. This is the usual way, however each state is different in how to go about this.

Alvaro: For Attorney, Joe Escalante, Can an internet Domain Name ( associated with and endorsed under contract by a high profile celebrity Olympic athlete and a product for sale, constitute a “Trade Mark” worldwide? And if it does, in theory can anyone else who uses that name in commerce be infringing on the Trade Mark?

Joe Escalante: Because this domain name is so distinct and associated with a particular individual, it should qualify for trademark protection. That will give teeth to any attempts to prevent others from using similar domain names to “free ride” on the good will and fame of Ana Gabriela.

LegalZoom: Joe will be back on Friday to answer more of your legal questions! Join us then:

If you’ve already posted your question, hang tight. Joe’s still working on them and will answer as many of them as he can. :)

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January 10th, 2013 at 4:07 pm