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If Both Parties Don’t Sign a Contract, Is It Invalid? And More Legal Q&A – Free Joe 1/18/13

with 2 comments

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.

Paul: If a customer signs a contract, and pays the deposit, but a company neglects to sign the contract and provide a signed copy to the customer, can the customer claim the contract is invalid?

Joe Escalante: Did both parties sign the contract? I can’t tell from this story.

Paul: Company wrote this contract, customer signed the contract. As of the date of the event, the customer had paid a deposit as specified by the contract, but the company didn’t provide a signed contract to the customer before the event started.

Joe Escalante: If both parties act as if there is a contract, most courts will not require a signature of both parties, or even one party. A missing signature is not a smoking gun.

Jeri: My mother died last March. Am I responsible for outstanding bills, especially medical? I was her Power of Attorney.

Joe Escalante: You are not personally responsible. The estate is responsible. The probate process will put the creditors on notice that they can make claims on the estate for valid debts. If they are valid, the estate will have to pay them out of any assets it has. Probate will not be closed until these debts are adjudicated on way or the other.

Andrea: Hi I would like to know: Can a mortgage company stipulate to a mortgagee that they cannot rent out their house/property?

Joe Escalante: Some loans are for your principle residence. Some loans are for commercial buildings and income properties. So, yes.

Rita: A psychic ripped me off of $3000 and would not pay it back. I stopped my request the day after I sent the $.She is from LA. It has been a couple of years because I don’t have $ to pursue this. I live in WA. How can I go about this in the cheapest way? I believe I have another year left.? RMBC

Joe Escalante: Well if it is a breach of contract claim I believe the statute of limitations is 4 years, so if that’s your claim, yes. You have a year left. If you have decent evidence that she breached a contract, you could file a small claims action against her. If there’s fraud, that might be something for regular civil court, which is expensive to initiate. Or you can just go to one of her competitors in the dark arts and cast a spell on her.

Alfonzo: can and does someone go about filing a civil rigbts action for “due process violations” actually “pro se” ??

Joe Escalante: Everyone has a right to file civil rights lawsuits without an attorney or “pro se.” Each jurisdiction should have a “self help” department that will help you with the forms. The one in the Federal Court branch in Los Angeles is really good.

Anita: How long does a divorce drag on,My Bf is indian and he live s in india,he been tryn to divorce his ex fr god knows how long…apparently the mother llaw is some how involved and she been carrying out the divorce fr can he get out of it.wouldn’t it be qicker if he came to the states and had it anulled or something. ……

Joe Escalante: Sounds like a Bollywood nightmare. I say set it to music, come up with a couple dance numbers, and let’s shoot this thing. Being thousands of miles away isn’t going to speed the process along. I suggest the musical, just in case he’s bluffing and more drama is awaiting you in the 3rd act. Ask to see the papers if you really want to see how serious he is about the proceedings. Offer to help.

Stephanie: I was rear ended on Christmas eve at a red light. I spent 12 hours in the hospital with contractions pregnant with twins. Im ok, but The insurance company says they have 2 years to settle. The hospital gave me thirty days to pay my bill. How can I speed this along, I don’t have the extra money to cover this expense right now, and they won’t even call me back.

Joe Escalante: You need a good personal injury attorney. It sounds like you don’t have one. You don’t have to listen to the insurance company. You should have your own. Send me a facebook message and I’ll give you a recommendation for one that will make this easier for you and get you more compensation.

Noah: As a customer, if you know you have been excessively overcharged for a service, and have valid proof yet the company won’t do anything about it, is there anything/ or any right you have as a customer?

Joe Escalante: There are state and federal statutes governing price gouging in certain circumstances. There’s probably a consumer rights attorney in your area that would love take a look at your case. That’s what you need to search for “Consumer Rights Attorney.” Good luck.
Then there is always small claims court if you can’t get a lawyer to take your case.

Tim: Mr. Joe, I have a small service disabled veteran owned business. I employ trainers to present my product to my clients. Should I have them sign a non-compete and confidentiality agreement? How effective if so are these type agreements in deterring loss of proprietary material?

Joe Escalante: These kinds of agreements are enforceable only to the extent they are reasonable and do not deprive someone of their right to earn a living. Check out legalzoom’s documents in this area, and their Employer’s Guide. It’s vital info for someone in your situation.

Elaine: Landlord had her plumber guy come to my home unannounced. when he came he turned the water on in shower and said it sound like hair. he went and brought a snake to clear it out and took a minute to do. two weeks later the landlord and manager wanted me to pay this $50 dollar bill. I told her I did not initiated this visit from her plumber. then she said that all plumbing work is on rental agreement. i refuse to pay because I did not tell or alert her of any problem.

Joe Escalante: According to your facts, you don’t owe them $50.00. However, there could be something in the rental agreement that I haven’t read that could change my mind. It’s all very strange.

Joe: Question for joe. What’s the best way to set up a Prenuptial agreement before getting married? Thanks

Joe Escalante: I don’t think you’re going to come up with a document that’s any good unless you get an attorney to draft it, and both parties need different attorney in the process or you will have trouble enforcing it. I once heard a wise divorce attorney say that if you get a pre-nup, you will use it eventually. It’s the marriages that don’t have them that last. However, some people are not interested in long marriages or have too much at stake. There are many reasons to get them, and not get them. Good luck.

Tyler: Hey Joe, I was wondering if, in the case of a landlord/tenant agreement (lease), if sending a text message to the landlord giving a 30 day notice would satisfy the “written 30 day notice in order to get the deposit back”. The lease length (ie it was a 12 month lease and we were at 14 months and it did not autorenew, it went month-to-month) was satisfied, but they are holding the deposit since we did not send them a “letter” in the mail, but rather a text message. Thanks!

Joe Escalante: If I was the judge in small claims court, and the landlord admitted they read this text, I would rule in your favor. However, there might be something in your lease agreement that dictates how notice must be. In that case, if the landlord wants to enforce that provision, he’s going to win.

Yolanda: How long do you have to be married to a illegal immigrant before they can become a U.S citizen???

Joe Escalante: For illegal aliens it’s harder to get the process going. If you are getting a spouse here legally from a foreign country if could take 6 months to a year to get the green card, then 3 to 5 years for citizenship. Illegals have to wait longer to get the green card and permanent residency I believe so it’s going to add time to the process.
There’s a lot better info than this all over the internet so keep doing your research and consider hiring an immigration attorney.

Jawara: What LLC doesn’t need a trademark?

Joe Escalante: One that doesn’t care, or has a name so stupid that no one would want to infringe on it. Like Hepatitis Burgers.

Gayle: I’ve heard it is rather difficult to achieve — so I want to have everything I need in order before starting the process — where can I find a good comprehensive list of all the forms, records, etc. I need to assemble to prepare for applying for a 501c3?

Joe Escalante: It is a hassle. I used Legalzoom to do one for the Sons Of The American Legion. They gave me a book to ready up on it and guided me all the way through the process, and it was done. That’s my advice.

LegalZoom: Here’s a link, Gayle:

Candy: is there abandment laws in ohio my children father hasnt seen or talk to them in 16 months if so how do i get it started

Joe Escalante: You can petition the court to terminate his parental rights, but all he has to do is show up and say “just kidding” and his rights will not be terminated. His abandonment will affect his custody rights, but full termination is hard without his consent.

Brenda: I want to start a non-profit organization (501c3 educational based entity). How do I start the process (what are the steps, costs associated with this endeavor, where can a find FREE advice from a non-profit attorney to guide me through the steps)?

Joe Escalante: I don’t know where you can find any free advice but I recommend Legalzoom’s service in this area. They will get you through it.

Also, make sure you have a good tax pro involved. You probably wont need an attorney with LZ and the tax pro.

LegalZoom: Here’s the link, Brenda:

Mike: How do I go about putting a lien on someone’s mortgage to try and recoup money borrowed but not willing to repay?

Joe Escalante: First you need a judgment ordered by a court. So you have to file a lawsuit. Hopefully the amount can be covered by Small Claims Court.

Nicole: In Florida, when hiring an Indpendent Contractor, when it the best time and/or required time to disclose there will be a background check conducted? I am hiring a p/t admin assistant. Thanks!!

Joe Escalante: The laws concerning what you can gather in a background check vary from state to state. There are also federal laws at play. For example, checking conviction records is often OK, while checking arrest records is often a no no.
You need an employment attorney in your state to guide you through this to avoid problems, which could be big problems. When do you tell them? You should give them enough time to back out of the job if they don’t want certain things disclosed.

Tony: My mother-in-law was terminal with ALS, and wanted the ventilator turned off. The family was told she’d be given morphine, allowed to fall asleep, and then they would remove the breathing machine. THIS IS NOT HOW IT WENT DOWN. As the one nurse was administering the medicine, the OTHER was ALREADY disconnecting the ventilator, to the protests of family members! My MIL died awake and aware, and had a look of terror on her face. My family is mortified and horrified. This was my wife’s nightmare about this whole ordeal and it came true. Do we have a legal case against the hospital?

Joe Escalante: You need to have a consultation with a wrongful death attorney experienced in medical malpractice.

Carolyn: My daughter’s home was foreclosed on in 2010 (I have power of attorney). I engaged a real estate person to do a short sale for me but the mortgage company would not let him sell the property. Is it too late to find out if they owe my daughter money from the sale of the property?

Joe Escalante: The statute of limitations on something like that would vary from state to state. It’s probably not too late and worth a try. It should be easy to figure out.

Alicia: Can you give some examples of what would be considered a siginifcant change of circumstances in a Florida family court? Also, is there an age that that time-sharing can be based on the wants of the child? (We have 50/50 and my kids, especially my 11 year old, don’t care for it.) Thank you.

Joe Escalante: Only some states allow the kids to choose custodial parent (or the amount of time to spend) and I think Florida is not one of them, but I could be wrong. In general, the court will listen to the kid and take it into consideration.
Changes of circumstance usually have to do with changes in income, location of parents (like if father moves out of state), shacking up, allegations of abuse, arrests.

Bre: I told my apartment complex I was moving out on Jan 4th because my application for a townhouse was approved on Jan 3rd. So I moved all my stuff out and over to the townhouse and my apartment complex called and said since I didn’t tell them on January 1st I was moving out that I have to pay for all of February’s rent as well. Is that legal?

Joe Escalante: It depends on what your lease says. 30 days means 30 days usually. It doesn’t mean there is a trigger and it can be 30 days plus 28 days if you don’t do it on the magic day. However, read your lease carefully and ask them to explain to you where it says what they say it says. It sounds punitive and unreasonable. You give them 30 days notice. That’s what they need to prepare. It should make no difference which day of the week the notice is given as long as you give 30 days.

Bre: Yes. I agree with you. I had told them I gave them 30 days notice from Jan 4th until Feb 3rd but they said I needed to give 30 calendar days which sounds no different than 30 days. Is there anything I can do?

Joe Escalante: Don’t pay it. Keep accurate records of all your communications. Send them a letter that says this is an “extreme forfeiture, and completely unjustified and a violation all your state’s fair housing act. Because it is extreme and unfair, you look forward to having a court declare it as such and you will seek any and all punitive damages available to you.” or something like that.

The purpose of the 30 days notice provision is to provide them with enough time to prepare the apartment for next rental. If they can prove that they only rent apartments beginning on a certain day of the month, and provide a business rational for this that means something, they might have a case. However, I’m sure they rent out properties at all different times of the month.
You will probably have to go to small claims court to recover your security deposit, but I think you will win there, so hopefully they know this and will give up this bullying before then. Good luck.

Thomas: Parent died….sister refuses to produce will she says she has. She has been taking care of him for the past couple of years. what is my recourse.

Joe Escalante: The estate has to be probated. If she starts the process, you will get to look at the will. If she doesn’t, I would assume there is no will and petition the court to probate the estate as
“intestate” and appoint yourself as the administrator. Notify all interested parties. She will have the opportunity to present the will she’s hiding. If not, the state’s intestate succession laws will divide the property.

Karen: Can a woman in PA put anyones name on the birth certificate even if shes not sure who the father is?

Joe Escalante: She can. She might be liable for any damages for emotional distress or loss of consortium this causes.

DeeAnna: If you own a house and your kids are over 18, can you do a make it yourself Will kit?

Joe Escalante: Yes, but I would put that house in a trust myself. And I would use legalzoom’s will, or living trust, depending on what you decide.

LegalZoom: Here are the links to learn more, DeeAnna:

Ladaryl: What audio can be used without permission from the speaker… without committing copyright infringement?? Is there something/audio that can’t be copyrighted?? How long does copyrighting last, before it’s free for the public consumption?? Can I use a president’s speech in my work and sell it, copyright it into my art/works??

Joe Escalante: Works of federal employees in the scope of their employment cannot be copyrighted. However, the recording of the speach may belong to someone as a copyright. If it was recorded by Fox News, they own it. If you recorded it, you own it. Copyright’s generally last 70 years after the death of the creator or 95 years from creation if it was considered corporate authorship.

Anita: Joe, what do I need to trademark a recipe and how much does it cost?

Can I totally and legally, distance myself from my 2 children? How do I negate them? They are 25 and 28.

What is the best way to file a lawsuit which involves a doctor treating me and prescribing meds to me, a clinic treating me for 10 months, and an insurance company that had no clue this was happening until I informed them?

Joe Escalante: Recipes cannot be copyrighted. They are considered a list of ingredients, just a fact, no creativity. You could patent a formula in some cases.
Make a will that doesn’t leave anything to these brats and get a restraining order against them if they’re that awful.
Regarding your 3rd question. I’m out of here.

Candace: I have an abandoned car on private property in Maryland. I don’t have title to the car. I have filed a police report and returned the tags to DMV.
I want to get it towed as junk by a towing company. No towing company will take it because I don’t have title to the car and the police won’t help because it is not on public property. I cannot contact the car’s owner. Mail has been returned because no longer at the address listed at DMV. I’m at wit’s end on how to get it removed.

Joe Escalante: Move it to the street. You may earn a parking ticket, which would go to the owner. You may have to rent a tow truck to get it there, but at some point it may be worth it.

Linda: Is stopping payment on a rent check after you issued a 3 day pay or vacate illegal in California?

Joe Escalante: You either owe the rent or you don’t pursuant to the rental agreement.

LegalZoom: That’s a wrap for Free Joe. Join us next week for more free legal advice and have a great weekend!

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January 22nd, 2013 at 5:23 am