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Is Giving a Bad Job Reference Against the Law? And More Free Legal Advice – 3/9/12

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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.

Laura: Hello Joe. Thank-you for your time. In the state of Iowa, as an employer, if I get a reference call from another employer regarding a potential hire for them, what can I legally tell them, especially if I want to save them the heartache of hiring a bad employee?

Joe Escalante: This is a tricky one. You have the right to tell the truth and not be punished for it by a civil lawsuit. Someone can file one, but you will win if what you said is true. Truth is a defense. However, no good deed goes unpunished and if the guy was a jerk at work, he might be a litigious jerk and drag you into court so tread lightly.

Jean: if some had charges on me for theft from a credit card ,,,,and the charges were dropped,,,Can I sue him for defamation,,,or the agony of the stress of court and lawyer, and the judge,,,feeling so horrible !

Joe Escalante: You would have to prove that the allegations were untrue. He has a First Amendment right to say things that are true, even if they cause agony. Charges are dropped for a variety of reasons, many of which do not establish innocence.

Bonnie: Is it still seller’s responsibility on a short sale to provide and install smoke detectors and CO detectors?

Joe Escalante: I’m going to say yes. I don’t know what state you’re in, but the law requiring this kind of stuff is designed to protect the buyer. I don’t think the type of seller would make the babies that live in the house any less deserving of protection from deadly carbon monoxide poisoning or smoke inhalation.

Myron: Hi, I live in NJ. I traveled to Dc and my vehicle got several photo violations for speeding. I was never pulled over. I was given a court date, but the court system split the citations then scheduled me two days in a row. I sent a letter to reschedule and requested to have my matter addressed on the same day because I am not a resident. They claimed that I never responded, can they place a collection on my credit?

Joe Escalante: Not if you can prove that you responded. Things fall through the cracks, if you keep records and copies of stuff you send and TAKE NAMES, you should always be able to overcome the occasional incompetence of government functionaries.

Annabelle: Hello Atty.Joe,
My question is about Real Estate,me and my cousin has a property which is our loan is greater than the value of the property,we had been trying to modify our 1st and 2nd loan yet no banks or lender can do anything ,when we thought of a short sale,some people say that it will erase our 2nd loan automatically,is that true? Our credit are both iexcellent yet it seems that these banks want us to do poor or miss payments before they will give us attention. Do you have some advice? Thank you for a chance to ask a professional in legal field.. Annabelle Arroyo .

Joe Escalante: It depends on who lent you the money for your 2nd loan. If it was the same bank, it could all be wrapped up in one transaction. If it’s a different institution, they will understandably want their money. And yes, it seems they wont even pay attention to you until you miss a year’s worth of payments. That’s why so many people just stop, save the money, and walk away a year or two later. Is it ethical? I don’t know, but people do it.

Joie: I have been trying to get the VA pension for my 84 year-old mother for over a year. My father was in both WWII and Korea. The claim is active but I have been told that they are considered on a priority basis. I explained that she has enough money for the rest home she is in for one more month. She is facing eviction…which is what the VA requires according to their guidelines. Can you help us expedite this claim? My mother has Alzheimer’s and is requiring more and more care. Thank you

Joe Escalante: Not a lot I can do from here but I would speak to someone at the link posted below. They seem to have a lot of resources for people in your situation. Other than that, the normal procedure would be to hire an attorney specializing in Vet benefits, but that’s expensive.

Cathy: I filed bankruptcy in February, 2010 and was discharged in Sacramento Superior Court in August, 2010. We used a local Sacramento bankruptcy lawyer. During our application we reaffirmed our (2) truck leases that we wanted to keep out of bankruptcy. We signed the reaffiirmation papers, the bank which held our loans, Ally, agreed and signed them and we sent them back to our lawyer for filing with the court. We checked my husband’s credit score this week and found that both trucks were listed as included in our bankruptcy. We contacted Ally and they said that our lawyer never filed with the court the reaffirmation agreement, so therefore even though we have since paid off in full the one truck and are close to paying off in full the second truck it will stay listed as included in bankruptcy and we will not get credit for paying off both trucks. My question is my lawyer says it is not his fault that Ally was responsible for filing the reaffirmation agreement, even though the letter Ally sent to my lawyer stated he needed to file it with the court. My lawyer wants more money to file this Reaffirmation Agreement electronically (we already paid him $2,000!). I say it was his fault and he should now file it without charging me additional fees. Who was responsible for filing this Reaffirmation Agreement! I feel it should have been my lawyer since he filed all the paperwork and not a Creditor! I’m tired of going between Ally and my lawyer to get this rectified, so my husband’s credit score will rise! Thank you!

Joe Escalante: I agree with you that he should fix this up for free. However, $2,000 is not an enormous amount of money to pay a lawyer, even for bad work, so it’s not insulting that he wants more. I wouldn’t walk across the street for that. Wait. Yes I would
No one likes bad work, but it’s worse when you pay 20k for it. A malpractice suit is out of the question, not enough at stake, but you might be able to file the thing your self as a “pro se” litigant and rid yourself of this jackass. Next time check out Legalzoom’s bankruptcy services and Legal Plans. Good luck.

LegalZoom: Here are those links, Cathy:

Albert: Joe, I started an LLC and I read somewhere that being a single member and sole owner of an LLC is not a good idea. This source suggested that I give away 2% of the company to ensure I am protected against loss of personal goods in a potential lawsuit… Thoughts?

Joe Escalante: Nonsense.

Jeffrey: Hey Joe; I never heard back from Phil Knight re fight night? Do you think he’s worried?

Joe Escalante: He’s upstairs. Get out of the house, quick.

Karen: My ex husband owns the house I am still living in. He owes more than it’s worth, but he wants to let me buy it for half of that. can we do this? I can pay him, but I want the house in my name.

Joe Escalante: Someone has to assume the loan. It’s the bank’s home really, not his. Pretend you’re the banker, and ask yourself, does this plan make any sense?

Dustin: I have a friend in florida and she wants to know how much can you go on a bounced check before it is a felony? she bounced a couple and is worried. thanks like what is the limit there before it is a felony.

Joe Escalante: The felony part comes in when it can be determined that you were trying to defraud someone. Like if you never plan to pay for a car, but you write a check that you know is bad, and you leave with the car. That is a possible felony regardless of how much the check was for.

John: Good day … If a notary is asked to provide documents, i.e. Last Will and Testament, can this be considered practicing law? I am asked often, but defer due to the grey area.

Joe Escalante: That would depend on the set of facts. If he gives legal advice and he isn’t a lawyer, it’s UPL.

Robbyn: Employer don’t want to give FMLA cause been off on workers comp. Don’t want to put spouse back on books even though he has abt 900 hrs sick time Can they do this?

Joe Escalante: That’s tricky. It would depend on the facts and applicable case law. You need to consult with a wage and hours attorney in your area. Try one from Attorney Connect, if they take the case on contingency, you probably have a winner.

LegalZoom: Here you go, Robbyn:

Shavonda: Road Rage question…If someone comes out in front of you and you hit the side of their car (or wherever) can you be held liable for the damages?

Joe Escalante: It depends, if you could have avoided them, but you hit them due to your road rage, you are liable for damages and perhaps assault with a deadly weapon.

Kenneth: Can the state of Missouri take the funds from a not for profit private corporation if they no longer have required annual meetings proper notification of such meetings or minutes of these meetings? This is a Homes Association.

Joe Escalante: If they have a minimum tax, and it’s not being paid, they can do a lot of things with your money. However, not having meetings etc usually associated with losing the corporation’s personal liability shield. A plaintiff might sue individual members claiming the corp status was a sham, since formalities were not followed.

Robbyn: One more question. Is there any downside to using Legal Zoom to do a irrevocable trust, pourover will, financial and medical POW and other associated doc’s rather than going to a regular attorney and having them do it?

Joe Escalante: That depends on the facts and your background. Some people work better the Legalzoom way and saving a ton of money and figuring out how to do things yourself. Others need their hand held, or have complicated circumstances that require an attorney.
With Legalzoom’s Personal Legal Adviser service, people can get both. They buy the documents, and then get as much legal advice as they need from the PLA service.

LegalZoom: Here’s a link to our Personal Legal Plans, Robbyn:

Emmanuel: why can I find a decet l blank copy of a living wil that I can fill out and get authorized? Is there a website that I can go to?

Joe Escalante: Legalzoom’s is like $30. Do you really need to risk going lower than that?

LegalZoom: Actually, Emmanuel, it’s $39. But still:

Cindy: wanting a divorce, but husband is on long term care and i am unemployed, he does not support me…i live with my daughter. Am i entitled to his income which is $2300 a month.

Joe Escalante: This is determined in the following way. You file for divorce and present what you need for support. Your husband files an answer and gives his 2 cents. Then the court determines what is fair and in the best interest of any children involved.

Scotty: how do you file perjury charges against someone??? and does the trial have to be over before you can do it or can you do it during??

Joe Escalante: You cannot do it unless you are the District Attorney or local equivalent. You can sue someone civilly for any damages they may have caused, but perjury itself is for the criminal courts.

Kathy: Would like to know where to get easiest free printable divorce forms for Oregon no children.

Joe Escalante: Divorce packages here are $299. You can read up on divorce by getting one of those Nolo Press books with the cute dog on the cover and try to do it yourself, but it’s not a cake walk.

Marcos: Quick question, are students that work exempt from taxes in ARIZONA?

Joe Escalante: No. But I’m not really a tax expert.

Vern: If someone chooses to lose their license for a year and refuses the breathalyzer and blood test is there still a chance for DUI and/or jail time if no citation

Joe Escalante: Yes.

Darin: hey Joe i have a very good question for you and this is a 2 part question. we all know bullying has become a major issue in today’s society i know some state have various law on bullying but iam not sure if they are being enforced enough what needs to be done in order for law enforcement to crack down on bullying and make it a series crime and now part 2 if a child is bullied to the point to where they commit sucide do you think the bully should be charged with murder? thank you for your time on this 2 part question

Joe Escalante: I’m for relying on laws that we have instead of making new ones for things we already know are wrong and illegal. Politicians like it for photo ops, but I’m not sure if it’s worth it. A lot of laws that come about by sensational news stories end up being written with unconstitutional language charged with emotion.

LegalZoom: That’s it for Free Joe! Next week, LegalZoom and Joe will be at SXSW in Austin, TX! Wanna meet Joe in person, register to win a sweet Ernie Ball Music Man Sterling bass, and get free music and entertainment biz advice? Come see us!

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March 11th, 2012 at 10:10 am