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Is That Facebook Post a Hoax? And More Legal Q&A – Free Joe 11/27/12

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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.

Alex: Question for Free Joe: To me, it seemed obvious that the Facebook copyright status was a hoax because it contained typos and an exclamation point. I figured that no genuine legal text would contain exclamation points. However, I don’t have a legal background so I am not sure if this is true. When, if ever, is it appropriate to use exclamation points in legal documents?

Joe Escalante: Great question Alex. I got this from people and I just felt sad for them. It really said and did nothing. If you create something, you have an inherent copyright in it. The courts determine over the years what is “minimally creative” and warranting copyright protection. Postings with typos, etc. will do nothing to change this.
The worst thing about this post was the so called “Berner” Convention. It’s really called the Berne Convention, which is a sick burn on anyone who posted this. If you did, take it down before Alex and I see it and mock you.

With respect to exclamation points in legal documents, exclamations, at this point in our nation’s history as inappropriate as smiley faces. But that could change as Carrie has just pointed out to me.

Tippy: I noticed Post-Nups (Post Marital Agreements) are gaining popularity. Are these legal, how can you know what you will gain or lose in a marriage?

Joe Escalante: Post-nups usually happen after a spouse has been caught doing something nasty, as a consolation for the nastiness. My experience is that if you have a pre-nup, or a post-nup agreement, you will use it. They are legal if properly drafted. You can know what you will gain or lose in a marriage if you have a thorough knowledge of your state’s community property laws. I wouldn’t get a pre-nup is I was a first time marriage candidate, but it wouldn’t hurt to consult with a family law attorney on the sly before you purchase a ring, or accept one, just so you know the reality of your state’s laws.

Francisco: Hi Joe! I recently applied for a clothing trademark for Being Relentless including our logo. After a few months, I was rejected based on the fact that there is already an exisiting brand: that specializes in cowboy specific clothing. They SOUND similiar but I feel I can make a case for an appeal based on the fact that my brand is instead geared more towards the general population and has nothing to do with his exclusive niche. I’ve been given 6 months to formulate an appeal. What’s your take on this?

Joe Escalante: I say “clothes is clothes.” You’re going to lose, but the good news is you are going to think of a better name and leave those cowboys in the dust.

Nicole: Is a property required to be surveyed before selling in the state of wi

Joe Escalante: No.

Kandice: I am in a position that my health may prevent me from keeping my job. Can I ‘voluntarily’ leave my job for health reasons (with a doctors reinforcement) and still draw umemployment in Arkansas?

Joe Escalante: Society has an interest in helping it’s citizens with disability payments. But society has no interest in letting people bypass the requirements by just quitting for health reasons and collecting unemployment. Otherwise, everyone who didn’t qualify for disability would just “quit for health reasons” and collect money from the state. That would never fly.

Loren: Hi Joe, Happy Holidays to you and yours.
Hopefully my old Entravision friend can help.
SCE had a power pole get knocked down due to a car accident and we lost power in the are for about 2600 homes, mine was one. Our Fridge in the garage had a motor burn out due to the power outage along with some other appliances, a surge protector and a night light, a GFI outlet and 1 Twin Circuit Breaker all bur
ned out . Though I am hoping the other appliances that are covered by an extended warranty will be repaired at no charge. The Fridge in the garage is out of warranty. I was told i can make a claim with SCE, but on their website it clearly says that they are not responsible for third party involvement with power interuption such as a car accident knocking down a power pole and losing power and not responsible for the third party damages related to such an incident. is this true, or do they have to approve my claim against them. I may have over $5000 in damages depending on the extended warranty covering the other appliances or not. Please advise as to my options. Thank you and as always nice talking with you!

Joe Escalante: Hi Loren,
From these facts, your remedy seems to lie with the person who caused the accident only. You should contact their insurance company. If they had no insurance, you can resort to your homeowner’s insurance. If you have none of that, you could file a small claims case against the person at fault in the accident. Southern California Edison can’t be responsible for 3rd party negligence or all our bills would be sky high. People do kinky things out there. We have to hold them accountable, not SCE, even though they have a monopoly and print money, essentially.

Annie: I have an issue with my 2007 ford mustand . The gas pedal stuck while I was in major traffic .. Somehow I dodged the traffic and pulled to the side of the road but not before scarying the tar out of a lot of people and myself. I turned the car off and it quit. Ford said they cant find anything wrong but when I googled it there were many people with tthe same problem..

Joe Escalante: Keep your record of service. If it keeps happening, keep informing the manufacturer. Speak with their “re-call department.”

Amanda: I was just wondering what is the statute of limitations on medical malpractice in western New York? I’m sure it’s up by now if so is there anything else I can try for to make these people accountable for your actions? My mother’s death took place 11 years ago it was all in the hands of her pain management specialist and his office staff. To give you some background without writing a novel she had
a morphine pump installed after she was hurt at work and this pump would hold 6 months worth of morphine. She went for a refill one day then she came home and told me that quote unquote nurse poker three times instead of once to refill. I was the 1 that found her the next morning passed away and the autopsy report states her passing was due to heart attack and nothing was ever done about why she had a heart attack even though her pump was empty at the time of the report.

Joe Escalante: That S.O.L. is a cruelly short 2 1/2 years according to N.Y. C.P.L.R. § 214a.

Tim: I leased an office but needed to leave before the end of the Lease. In speaking with the Landlord he had another tenant that wanted our suite. I agreed to leave so he could re-let the suite. Now he is saying I owe for the remainder of the lease I did not occupy the suite. There was no agreement signed as to this arrangement. He is now threatening a lawsuit. I have proof the suite was occupied by the new tenant within 48 hours of us leaving. Do I have a legal obligation to pay the remainder of the lease?

Joe Escalante: This law varies by state. In my state if it’s a residential lease, even if you had a signed lease, he would be required to mitigate his damages by trying to re-occupy the property. However, commercial leases are different, and they also vary by state. My research shows that in Ohio, the courts decided in 2003 that there was no reason to exempt commercial leases from a duty to mitigate damages caused by a broken lease. You should make sure that this law has not been overturned, and send some info about it to this pesky land lord. In short, you should only be on the hook for the lease value of the property when it was unoccupied.

Michael: When operating under a non-profit fiscal sponsor (not agent), when funds come in, do they need to be endorsed to the sponsor or my organization, to be tax deductible for the donator?

Joe Escalante: My guess would be that to be safe, they would need to write the check to the sponsor, however, that’s just a guess. This a great question for Gary the Tax Guy on Thursday. Click below for info about him.

LegalZoom: Here’s the info for Thursday, Michael. Ask the Tax Pro starts at 11am PT and works just like Free Joe. Full details:

Deseda: If you started a LLC in texas can you run that business in colorado. Such as sub contract people to work jobs in a different state. We started it in Texas because that is where the job was now it has moved & need too kno what to do legally.

Joe Escalante: You can run that job legally in Colorado by following the Colorado Secretary of State’s requirements for “foreign corporations” doing business in that state. I have a Nevada Corp. I do business only in California, I just follow the rules. For example, there’s a minimum $800 State Income Tax.


Joe Escalante: Welcome to the Internet Antoinette. It’s usually not worth the trouble making them stop.

Daniela: What are the pros and cons of registering an LLC in Delaware vs NY (if the business is located in NY)?

Joe Escalante: I don’t see any legal advantage to a new Delaware corp if you are in N.Y.C. However, ask your tax pro to explain any tax consequences your decision might have.

D’Ele: What if you move into a place and find out it is infested with bugs, and the owner wont give your money back and says they will charge a month of rent to break the lease. moved in thursday and havent stayed one night because of problem. what to do????

Joe Escalante: It sounds like it may be a breach of the warranty of habitability implied in all leases. However, that is a fuzzy standard that can only really be settled by a judge. If you decide to move out, you could sue in small claims court for the security deposit that is withheld. However, you would need a lot of evidence that the place was truly “uninhabitable” and that you made requests in writing for it to be fixed, and it was not.
Your best bet might be to make a deal. “I’ll stay, if you pay for a professional inspection and fumigation. If not, I will sue you for my deposit, and use the fact that you refused this reasonable offer as evidence that you suck.”

Mark: i have been seperated from my wife since sept 6. she is here from the philippines. we were married june 11th and everything was going well. then in september it went down hill. one main reason his her aunt controls what she does. i havnt even slept with my wife once. she has told me the other men are better looking then me. what are my rights to aleast and try and talk to her but her aunt controls her to much. she is suppose to be getting her green card but has to have an interview first. what if i dont go with her? if she does file for devorce do i have to sign? i dont believe in devorce. please advise me

Joe Escalante: I don’t believe in divorce either, but since this is not a real marriage, and has not been consummated, a divorce is not necessary. You should file papers to have it annulled. An annulled marriage never took place. You would of course be free to court her further and take it slow this time around. If you marry her again, it could be based on a more thorough understanding on her part as to what marriage means. Read up on annulment:

Bud: Hello Mr.Joe…..ok.I attempted suicide due to depression as one of my diagnosis anyway…..and multiple personalities and out of 30 seroquel i woke up in jail… all i remember is going to sleep and awaking in jail where i sat for 3 months…..question…how did i end up with a felony when i dont remember how i even arrived to the jail……am i stuck with this charge?

Bud: oh i forgot to add….i go to court in little rock on the 3 Or 4Th..i will reassre today.and i cant at the present afford an attorney…thank you for responding.

Joe Escalante: If you can’t afford an attorney, and are charged with a felony, the court will provide an attorney. This guy will build a defense for you based on your medical issues. You only need to cooperate in your defense.

Wes: should I have legal help filing out an application for clemancy, (pardon) for the state of California?

Joe Escalante: Yes. Your chances are better with a good criminal law attorney who has had success with this process in the past.

Paul: What’s the best way to set up a fitness business, DBA, Sole prop, LLC?

Joe Escalante: Your tax pro is the one to best answer this. Usually I tell small businesses that a sole proprietorship with insurance will be good enough to get started. Then you can move to an LLC. But talk to your tax advisor for sure.

Rachel: What are the best legal steps to take a TV Show treatment to television producers?

Joe Escalante: Make sure it is minimally creative enough to even qualify for copyright protection. You cannot copyright an idea, only the creative expression of an idea. If it is fleshed out enough to warrant protection, file for it with the copyright office. You can use Legalzoom to help. If it’s just an idea, you will be lucky if you can get a meeting because the studios have heard everything and if they have already been pitched that idea, they don’t want you to sue them if they were already planning on making it.
The only way to get real protection is to have an element in the show that makes you indispensable. An example of this would be the fact that are the “credible insider” without whom the reality show cannot be made, or a signed letter of intent from Brad Pitt to host or star in the project.

Catherine: I have an extreme amount of debt and now just found out that Oregon SNAP program(food stamps) want me to pay them back because of a situation that occured. I was wondering since I was already in the head for needing to file bankruptcy because of losing my job and have exhausted all unemployment. Can I claim my issue in the filing of bankruptcy?

Joe Escalante: I know of no government debts that can be cleared from bankruptcy. They’re on to that trick.

Tami: Good morning. I have a question for you. My step son is trying to move in with us in our apartment. However, the landlord What’s his birth certificate and my husband is not named as the father on the birth certificate. There is no father named on the birth certificate. Do you know where I would go to get proof of the DNA test that was taken in California ? Or maybe another form of identification that might work? Thank you for your time.

Tami: Or how else would she go about putting his name on the birth certificate if she lives out of state?

Joe Escalante: In my state you go to the Department of Public Health and Vital Records and you apply to amend the document there. DNA? I have no idea.

Susan: hell’o my daughter helped her boyfriend get a van and she traded her car for a down payment and transfered her tag to it , they are no longer together, and we need to know how to get the tag or her name off the van the company that financed the van will not take her name off and it’s ruinning her credit and he will not refinance it and will not give her tag to her, they also put his name on her tag that was tranfered from her car to the van ?

Joe Escalante: She has a debt with the lender. Only the lending document will contain the answers on how to satisfy the debt.

LegalZoom: That’s a wrap for today’s legal Q&A. Joe will be back on Friday with more free legal advice–join us then:

In the meantime, check out Joe’s radio shows (schedule and call-in numbers at the above link) for more helpful advice and “Like” Barely Legal Radio w/ Joe Escalante.

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November 29th, 2012 at 6:13 am