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Is Your Primary Residence Exempt from Bankruptcy? And More Free Legal Advice – Free Joe 2/10/12

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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.

Candace: In a bankruptcy, can your primary residence be exempted and under what circumstances (i.e. which chapter filings)?

Joe Escalante: In Ch. 7, there are exemptions for your primary residence in some cases depending on your state. In the also popular Ch. 13, you can exempt even more assets as long as you’re making enough money to pay down certain debts.

Elvis: Happy Friday. I have a few questions based on my small educational business. If I wish to expand to multiple locations, IE. OC and North Los Angeles, and I have just a small business, would it be better that I start an LLC in addition to getting a business license for the new location? Should I also seriously seek business insurance in case of litigious customers? Thanks! :)

Joe Escalante: If you’re dealing with actual physical locations, you really need to protect your personal assets by setting up an LLC or at least getting some good liability insurance. Expanding a business is great but you are also expanding your risk so go slow and make sure you are protected along the way. I would recommend an LLC AND liability insurance. Talk to your tax pro about tax implications / advantages of an LLC or incorporating.

Lucy: I have a legal question pertaining to intellectual property. A story that I wrote and illustrated was stolen from my facebook page, sold, and then became a tv show. I know who the agent is that sold it to the network. In fact, that very agent attempted to sell another show that I wrote and wanted me to pay him for the service without revealing to me that he had already been successful with my other story! I have proof.

Joe Escalante: This gets complicated. It depends on how much was stolen. If just the “idea” was stolen, there’s little you can do but scream. An idea is not protectable. If it was more than that, let’s say your full creative expression of your idea that was stolen, this is copyright infringement. If it was registered, it’s easy to get a lawyer to go after the infringer, if it was not registered, it’s almost impossible without paying a fortune.
You could negotiate a settlement that gives you some credit on future episodes and a fee, in exchange for not causing trouble and agreeing to work with the agent or producer on future projects. Or you can go nuclear and file a federal lawsuit against all these people without an attorney using the District Court’s “pro se” clinic for self represented litigants.
But mostly, you should listen to my show because this is all we talk about. You can enter your question at and we’ll get it answered for you in more detail. Thanks. The show is on in 40 minutes, and live on Sunday too.

Gary: I put a past employer down for a for a job interview I had and someone who shouldn’t even had been involved trashed me and I didn’t get the job because of it. I was told this by the person I interviewed with. What can I do? Thank you, Gary

Joe Escalante: If someone says something about you that is not true and makes people disgusted by the thought of it, you have a defamation claim and could theoretically sue for damages. However, if the person can demonstrate that what they said was true, they have a 1st Amendment right to say such things, however rude they may be.

Dick: Is it possible to file a small claims action for “tortious interference with contract and advantageous relations” and if yes, is there a statute of limitations for doing so?

Joe Escalante: Tortious interference with contract and commercial advantage is what I think you mean. And yes, if you can show damages, you go in there and make your case. However, in small claims court, you don’t really make specific contract claims necessarily. You just tell the judge how you were harmed, whose fault it was, and what the damages are. The judge listens to both sides and makes a quick decision. Regarding the statute of limitations, it varies by state, e.g., I think it’s 3 years on New York, but don’t quote me. Google it.

Valaree: mom passed 3 years ago I brought a house but put it in my moms name now that shes gone what do I have to do to get the house put in my daughter’s name and the taxes for two years have to be done how can I do it if the house isnt in my name

Joe Escalante: It seems like you have not finalized the probate of your mom’s estate. If you had, that property would have passed according to her will, or in the absence of a will, through your state’s laws of intestate succession. Contact what is probably called the “probate attorney” in your county and get to the bottom of the probate issue.

Robin: Dad died first, stepmom died 10 years later. How is their paid-for Virginia home distributed to his sons and her step sons when no will is filed with the court?

Joe Escalante: That is handled by your state’s laws of intestate succession. In my state the property would have passed to stepmom. From stepmom it would have passed to her sons. His sons get nothing. If dad wanted the sons to get the property eventually, his best option would have been to place it in a trust to dictate how it would be distributed after his new wife passed. However, a lot of what he could have done with it would depend on how it was held, e.g. separate property, joint tenancy, tenants in common, etc.

Nikki: Hi Joe! What is the process a small business has to go through to hiring an intern? Non-Paid and paid. Thank you so much!

Joe Escalante: Non paid is against the pesky 13th Amendment, prohibiting slavery. Paid is the same as any employee, you are just electing to call them an “intern” for some internal reason.
Non-paid interns must, among other things, receive school credit for working, you can’t just buy a slave and call them an intern. Trust me, I tried, last time I was in Kyrgyzstan.

Kandi: Hi Joe, I’m wondering what I need to do to make my ex husband pay his court ordered alimony. He paid it for the first four years then lost his job. Is working now but told our daughter that I could just “sue” him to get him to pay it. It was for 15 years (32 year marriage). He is remarried. I live in Oregon and he lives in CA. So, I’m not sure how to make him pay it. In the divorce he got the house and I got the alimony. It’s what we both wanted. Now he has the house and I don’t have my alimony.

Joe Escalante: He’s in contempt of a court order. You need to go to the court that issued the order and file contempt proceedings.

Judy: Hello my name is Judy, married my husband in 10-4-89, lived together as husband and wife in 90-91 after he got out of jail, and been apart ever since he went back to jail in 92, what do i need to divorce his sorry butt!!

Joe Escalante: You can file for divorce and he can be served while he’s incarcerated. He may not contest it, but if I was him, I’d contest the heck out of it just to get some fresh air on the way to the courthouse for each hearing. This is best handled by an attorney, but since he probably has only toothpaste, Top Ramen, and keestered bottles of pruno for assets, you might want to try it yourself. Read this book:

Carolyn: My husband and I are seperated. He was a federalemployee and has the basic federal health insurance. It is my understandingthat I would have had to be on his insurance plan 5 yrs. before he retired in order to have the insurance if we divorce and he remarries. Is this correct?

Joe Escalante: I would have to look at the policy to determine this. Sorry.

Julie: My question involves landlord discrimination. Can a landlord give some tenants favorable access after a no trespassing order ? Several tennants have children who have been given a no tresspassing order due to a violent confrontation and were given second and in some cases 3 chances to follow house and community rules in order to lift the tresspassing order. Is it legal to show favortism ? What can i do to have a no trespassing order recinded ?
Wanda: Hi there! My grandson got married in nov. 2011. the girl he married has some prett6y enormous doctor and hospital bills from like 2 or 3 years prior. Swhe has no job and has not had one in a whle. The question I have is can she file bankruptcy without includung him in the info? They need help desperately.

Joe Escalante: This sounds like a local law enforcement issue. If a court ordered such a thing, you can petition the court to rescind it.

Wanda: Hi there! My grandson got married in nov. 2011. the girl he married has some prett6y enormous doctor and hospital bills from like 2 or 3 years prior. Swhe has no job and has not had one in a whle. The question I have is can she file bankruptcy without includung him in the info? They need help desperately.

Joe Escalante: She can file bankruptcy individually to discharge separate debts from before the marriage. The creditors may protest, but this is what bankruptcy court is for. She can’t claim she’s not married and the creditors will try to go after joint property to pay their claims, but again, this is what the process is for.

Anita: Hi, Joe! I’m a 66 year old single woman on a fixed income (Medicare). I have a house in IN going into forclosure soon. I live in IN in a rental with a room mate. I am paying to keep the electricity and heat on to keep the pipes from breaking in the house I own. It was on the market for 90 days April- June 2011 (which qualifies me for Deed in Lieu of Forclosure) but didn’t sell. The realtor said at the end of our transaction that the bank would not agree to our only offer (low ball), and there are at least two liens against it. I am in deep credit card debt but pay my rent and utilities on time faithfully. I do not use any credit cards now, but pay with my bank debit/credit? card. I have no savings, and everything I have is in my checking account. I own my car outright, but it is a 1999 minivan withlow milage. I know that I need to declare bankruptcy and have one county small claims court summons on the 14th of February and one county Superior court summons on March 20th.I cannot pay the claims and as I understand it my Medicare checks cannot be touched for these claims. The house is the only thing that I have that can be taken to pay my debts to my creditors. I don’t know how to proceed at this point! Can you outline the steps I need to take to stop the phonecalls and procede with the court summons and the bankruptcy if I qualify? Please be specific and answer ASAP! Do I need to appear at the February 14th small claims court? Thanks!

Joe Escalante: You should get your bankruptcy initiated. That will require an attorney or a lot of diligence and self help. try this book: Regarding the court cases, if you have no defense and are planning to declare bankruptcy, it won’t matter much either way if you show up to the court dates. They will enter default judgments against you that can be discharged by bankruptcy. However, it would be better to file first and notify the court.

Renee: Joe, I am starting my own business and I would like to know if I have to trademark the tag line/slogan for my business or if it is okay to use it freely as long as it is not being used by another company?

Lisa Marie: I have a similar question, if my “phrase” is to appear on the front of my product, can it also be used as my business name, as in “so and so productions” Would I then also need a trademark?

Joe Escalante: You can trademark a phrase in association with a product or service. If you think it’s something that others may try to use to confuse the public and trade off your good name, you should get it protected by trademark registration.
However, this is not free. If you just use it, you have some protections inherent generated just by the usage. If you use it in interstate commerce, you will obtain federal protection, but if not registered it is harder to stop infringers .

Lisa Marie: Just trademark it as your business name.

Lauren: I have a question! I have a contested divorce in California and I am at the point where I need to write a judgment. The attchment forms don’t seem to fit for the situation- the judge ruled we are jointly liable for a debt to my father and there is no agreement on how to pay it. Are there sample judgments out there filled out that I can look at to help me, or any other tips? It’s just this last set of forms then this will finally be done. It has dragged on for five years now, much too long….

Joe Escalante: I don’t know of any sample judgments off hand but this is what attorneys get paid to do. There are pro se self help organizations that might have some but I’m sure you’ve looked for them already, but if not, try here:

Greg: Is it legal for a subcontractor who is a 1099 employee 2 1099 the people he hires…..

Joe Escalante: I’m not a tax expert, but if the sub hires people and pays them, I don’t see any other way.

Deborah: Deborah Hines I broke my hip last year and my 23 yr old son came to help me out since he was not working. I was served papers saying I was being sued for downloading illegally movies on my laptop (my IP address) is there anything I can do. I had no idea what was going on – he since has moved back to Texas and here I am being asked to settle for 3500.. yikes

Joe Escalante: Yes, there are things you can do to fight these people. We cover this on my radio show, so please put more details about the people suing you in my contact section at and we’ll help you out.

Richard: When is it advisable for a sole-prop to incorporate? My accountant has little experience in my area. Sounds like more tax reporting than I prefer.

Joe Escalante: This is tax stuff, so I would get a better tax pro on your side if you are serious about this business.

LegalZoom: Thanks for joining us for Free Joe Friday! Have a great weekend and be sure to join us next week for more free legal advice from Joe:

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February 14th, 2012 at 2:56 pm