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If I’m Sued, Are the Assets in My Family Trust Protected? And More Free Legal Advice – Free Joe 3/30/12

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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.

Sue: If someone sues me personally are assets in my family trust protected if i am the trustee?

Joe Escalante: That would dpend on the kind of trust it is and who the beneficiaries are. Irrevocable trusts are less likely to be ransacked, and if you’re not the beneficiary, it would be hard for a plaintiff to get at other people’s money to satisfy a judgment against you.

Tiffany: Can you stop a foreclosure on your house by declaring chapter 13 bankruptcy?

Joe Escalante: You may use a chapter 13 proceeding to save their home from foreclosure. The automatic stay stops the foreclosure proceeding as soon as the individual files the chapter 13 petition. You may then bring the past-due payments current over a reasonable period of time. Nevertheless, the debtor may still lose the home if the mortgage company completes the foreclosure sale under state law before the debtor files the petition. 11 U.S.C. § 1322(c). The debtor may also lose the home if he or she fails to make the regular mortgage payments that come due after the chapter 13 filing.

Yarvis: I’m pretty certain my union offers a very basic will. Have you heard of these type of wills being offered by unions or employers? Are they any good? I believe they are free and you know the old saying, you get what you pay for, would reccomend something like this?

Joe Escalante: I’d have to look at it. It could be the greatest will of all time. If it is the will writer’s union, it’s probably great. It’s a pretty important document so you don’t want to skimp. Look at the info on wills and trusts on legalzoom. That’s free to look at and then make a decision. They give customer support, which is nice, and their wills have been validated by the courts already.
If you have any real property, look into a trust as well. That will include what is called a “pour over will” that puts things not specifically mentioned in the trust, into the trust. If you have a complicated estate, consult with an estate planning lawyer for sure. Click the link below to get started.

LegalZoom: Here’s the link, Yarvis:

Emily: I live in the state of Washington and my apartment complex hasn’t fixed a flooding walk way, I’ve been asking about since last November. Can I break my lease and not have to pay the fees since its a safety hazard and they still haven’t fixed it?

Joe Escalante: Possibly, but they may drag you into court if they disagree with your interpretation of the lease agreement. You might try writing them a letter warning them that you will consider the lease terminated for breaching the warranty of habitability if they don’t fix the issue by a deadline that you set. At that point, you will claim that you are on a month to month while you search for new dwellings that wont break your neck next time there’s a drizzle, for shizzle.

Jenna: Hi Mr. Escalante,

My business partner and I want to start a business here in Texas and are stuck between deciding between an S Corp or LLC, which do you recommend and why? Thank you for your help, have a wonderful day!

Joe Escalante: From a legal standpoint, they will both give you protection for your personal assets, so the difference will probably be a tax issue. You should get a good tax pro on board with your business now because stuff like this will come up every week. Get a good one.

Rhonda: How do I know if I have been a victim of predatory lending, and what can I do about it??

Joe Escalante: Read your lending agreement and then compare its terms with your state’s usury laws, if your state has them. They govern what constitute’s predatory lending.

Jake: will filing an llc to buy my stocks with sufficiently protect them against litigation?

Joe Escalante: An LLC will theoretically put a shield between your business assets and your personal assets. If someone sues your LLC and wins, they can recover a judgment up to the amount your LLC can pay. They cannot go after your personal assets to satisfy a judgment. I hope this clears things up for you.

Born: I want to know if your right of privacy can be overstepped by your job??? Like example your posts on facebook-can they get you fired??

Joe Escalante: Without a contract, you can be fired for any reason that doesn’t violate your civil rights. Civil rights in this context relates to race, creed, sex, etc. If someone has pictures of them dancing like a skank on a table, and this is embarrassing for the employer, they might fire you. The question is, have they violated your civil rights by doing so? Must they continue to employ you? They have competing rights. It’s a question for the trier of fact in a lot of cases.
Your posts, if public, don’t really raise any privacy issues however.

London: What action can be taken against a services company that won’t stop spamming to promote themselves after repeated requests to do so, and repeatedly fails to provide the service for which it is contracted??

Joe Escalante: If a company doesn’t honor a valid contract, they face the possibility of being sued in court for breach of contract. Regarding spamming, check the statutes in your state that govern spam. Many states have implemented a process for dealing with spammers. They have to comply with the state, and even federal, regulations.

Scott: Joe.. We have a son in Beaver Pennsylvania, (Beaver County, Pa), and he has a almost 2 year old daughter that has lived with him for her whole life. There is a blank custody agreement between him and his ‘baby’s mamma’. He wants to better thier lives and move up here to Erie, Pa, (Erie County, Pa), with us. Is there a legal problem with him moving her out of the county she lives in now ? (His ‘baby’s mamma’ lives in Beaver County, but has no place to keep the child. She would always have access to the child here)..

Joe Escalante: If there’s nothing prohibiting it in the custody agreement, he can arguably move the child to where he lives for the time that he has custody, even if it’s in a different county. However, she has the right to petition the court to prevent it, and then the court will decide what is in the best interest of the child. So it’s best to get this all agreed to with the baby mama in advance to avoid this court process.

Josh: Joe,

Are there any legal issues and considerations in hosting online giveaways/sweepstakes in the United States? If so, what are the major ones and what type of lawyer should we consult? Thanks!

Joe Escalante: There’s a huge amount of legal crap to go through when you are doing a sweepstakes legitimately. It all varies by state, so you want a “sweepstakes attorney” in your state. Yes, that’s what they call themselves.

Can I sue my Mortgage lender for providing false info to HUD regarding a pending foreclosure?? I was approved for the EHLP Program (Emergency Homeowner Loan Program) but my lender has told HUD that they will not participate because the forclosure sale has already occurred but in reality it has been post poned. Now I have been disqualified from the program and basically have no recourse other than to file bankruptcy which I do not want to do.

Joe Escalante: Sounds complicated, but in general you can only recover provable and certain damages. Then you have to prove the lender caused those damages by doing something unlawful. It’s a a tough one.

Cathy: Thank you for being here :)
I went for a routine colonoscopy in May of last year.
I came home and hours later, was rushed to the ER , near death due to the doctor’s camera tearing my spleen !!!!!!! I was cut down the midsection to my belly button. I had to have a blood transfusion. I lost 35 lbs., now weighing 100 lbs.
I had to have an emergency Splenectomy and was sent home without a chest x-ray or blood test . I had come home with pneumonia and staph.
Can I bring a law suit against the physician who performed the colonoscopy and the hospital?
Thanks for reading this comment.

Joe Escalante: It sounds like there’s a malpractice claim in here somewhere. It’s very serious so consult with a medical malpractice attorney immediatley to protect your rights. Click the link below to find a good one. Good luck.

Linda: I have $25,000/00 in debt, I do not want to go bankrupt, what is the best option for me?

Joe Escalante: It depends on the debt. Some debts can be settled for less than the full amount. Some debts like student loans, will never go away. I reccommend joining the cult of Dave Ramsey for this kind of guidance. Google him.

LegalZoom: That’s it for Free Joe Friday! Come join us for more free legal advice during Free Joe Tuesday – starts at 10am PT. Have a great weekend!

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April 3rd, 2012 at 6:15 am