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Separating Personal Banking from Business Banking and More Free Legal Advice – Free Joe 10/4/11

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.

Liz: Im in desperate need of advice regarding my 20yr old disabled daughter and the laws of SSI in Jersey…I feel she is being taken advantage of, yet we cannot afford a lawyer who can help us and teach us to protect her. They say CS with combined my costs of her housing and living expenses she over qualifies…UGH…. why would her housing, etc be considered income to her, when i pay it cause i have no choice? We dont understand. Please help us….Desperate in NJ ty

Joe Escalante: that’s a very regional problem that would require local expertise. The problem is that when you find something on the web that seems like it would help, it turns out to be a law firm trolling for cases. I’ve checked these guys out, and as far as I can tell, it’s not a law firm, they are just trying to provide free services to help people with disabilities navigate through New Jersey’s system.

Michelle: Hi Joe! We have a website called We want to have promotional t-shirts made up, so we applied for a trademark to use Fruition Fitness on apparel. Now Fruit of the Loom is telling us we need to abandon the application even though we both seem to agree we will not interfere with their business. Did we even need to trademark Fruition Fitness? What, if anything, should we do? Thanks so much for any help!

Joe Escalante: Looks like you’ve opened a small can of worms. They probably have a guy they got from Home Depot’s parking lot that scours the trademark apps for anything with the word fruit in it and file an opposition. It doesn’t mean your trademark will be denied. It may be a pipe dream of Fruit Of The Loom’s.
You don’t need a registered trademark to do what you are doing. However, if someone steals your mark, you will be handicapped in your efforts to stop them without the force of a trademark.

Michelle: Haha…thanks Joe. So they keep telling me to abandon my application otherwise they will file a Notice of Opposition. Should I just let them and hope that it gets approved anyway?

Joe Escalante: That’s what I would do. But check with the trademark examiner on all the steps to fight the opposition to see if it could get to crazy or inexpensive. Shame on Fruit Of The Loom though. Trademark gluttony should not be rewarded. In this age of the internet, you might want to kindly tell FOTL that you intend to give them a public wedgey over this. It’s over reaching and abusive, arguably.

Joe Escalante: Wait. I’m still mad about this. It’s almost like extortion, in a way. They are going to cost you money unless you abandon your right to trademark protection. That’s why you should make them consider a public campaign against them. These are old fogies who don’t know what the internet can do to them.

Cathy: TUESDAY Question:
Hi Joe! Signed a short sale condo purchase contract with mine and sellers attny. Realtor calls me few days later stating bank denied offer & wants x you want to counter? I say no to counter(prop needed work & was not worth the crazy amt bank wanted). So, month ltr I recv my escrow deposit (after much phone tag w/ both attnys) along with a bill for svc from my lawyer.
I understand my attny does not work for free but is there a way I can recoup my attnys fees fm sellers attny as compensation? Thanks Joe! Cath

Joe Escalante: Whether you have a case or not would depend on whether you had certain and provable damages that were the fault of the other party.
Did you incurr legal expenses because you REASONABLY relied on the statements of actions of the other party?
Or was this just a good faith bargaining session where no one is on the hook?
This is what the court will look at. Does it make sense to force the bank to accept the offer you made, or pay your attorney fees if they want more for their property? I don’t know. Take this info and apply it to your facts and the answers should become clear.

Vickie: I started paying for a divorce 3-4 yrs ago, as I had the money, and never finished. Do lawyers give refunds or can I switch legal options?

Joe Escalante: If the lawyer did the work, a refund will not happen. If you paid a “non-refundable” retainer fee deposit, a refund will probably not happen. If there is no fee agreement, you could recover anything over $1,000 for unpaid work by suing him, maybe.

Mica: Question for Joe…I have my tax exempt resale certificate but have not used it to buy my inventory. Can I claim it on my quarterly taxes? If so, did I actually have to use the purchases, or can some of the items still be in inventory?

Joe Escalante: This is a tax question for your tax lady, or dude.

Roxanne: Hi Joe: I have a Federal school loan. The actual loan is paid off, but I am still paying interest. It seems like I will always owe, my federal and state income tax checks always taken and wages garnished for the interest. Is there anything that can be done or will I have this on me forever?

Joe Escalante: The only thing you can do is scour the paperwork for an error in the math. Otherwise, you are on the hook for all of the interest.

Ronak: The question is related to immigration. So here is the thing. I will be coming to US on F1 Visa (Student Visa) in January. Soon after reaching there, I would like set up a LLC. Am I legally allowed to do that, without any partners? (And yes, the nature of organization is related to the area of study only) Also, after finishing MS over there, can I work my own LLC that I have set up and obtain a H1 visa based on that? Please answer. Thanks so much.

Joe Escalante: You can start an LLC. Be very careful about working for it though. You will need H1 approval for the particular entity you want to work for.

Martha: What type of buisness do you need to establish to seperate you banking from your buisness banking ?

Joe Escalante: You need what ever your bank tells you that you need to open up a business checking account. Most bands will allow one with a simple D.B.A. (available through Legalzoom, btw).
Some banks make you jump through more hoops. If they do, switch banks I say.

Chris: If an attorney has submitted a substitution of attorney to the courts and is NO longer the defendants/plaintiff’s attorney…Can that attorney contact you with a threatening email (California)?

Joe Escalante: That depends, if he’s threatening to send your unpaid account to collections, then probably yes. If he’s threatening to punch your face, or ruin your case, then no.

Tina Marie: Hi Joe – My daughter was wrongfully terminated from a WAWA store in Philly twice. The 1st time she had a hearing and got her job back and all back pay. The 2nd time the lady who was supposed to hold the hearing had and emergency and the meeting was cancelled. This was in July – we have phone records where many many calls were made and NEVER returned to reschedule the meeting. When she finally called back she said it was “past the grievance period time” to this day we are still trying to get a hold of their LEGAL TEAM to see what can be done. Any advise?

Joe Escalante: The buzz words you need to start throwing around is the denial of “due process.” She has a right to due process, it was denied. If the state denies you due process and causes harm, they are liable for the damages. A civil rights or employment attorney in your area might take this case, so try to get a consultation with one.

If they wont take your case, you can threaten to sue the agency yourself. The buzz words for that are “pro se” meaning suing without an attorney.

Andres: Is a NDA necessary when you want to share a software idea? What is the best way to do this with out causing an unnecessary friction but still want to protect yourself from somebody running off with your idea? Can you patent software?

Joe Escalante: Patents for software are tricky. You might try to copyright the software instead, to protect people from making copies of it without authorization. That doesn’t protect you from someone making the product without “copying” the software, but it’s something. An NDA is perfectly reasonable to present to someone working in this arena. If it causes friction, it may be a red flag about the person objecting.

Julie: I own a commercial building that is now 7 mths behind so it will forclose soon..possible loss after theysell $5,000 or less….and I have $40,000 in credit cards ..i dont own a house but I wanna do bankrupcy when the forcloser goes thru..what is the best way to start fresh..?.chapter 13 or 7?..and I have no income ..i live off of child support and randomly selling things…

Joe Escalante: If you want to keep the property, you must do 13. You need income though because you have to pay the bankruptcy trustee a regular amount to avoid losing the property.
7 is easier, but you will lose your property.

Reni: If my landlord rented us a 1500 sq. ft house for $1250/mth BUT 400 sq. ft. of it is an add on family room with no permanent heat, can we get back some of our rent for the last three years? In CO it is illegal to rent/sell a house with sq. footage that has no permanent heating system.

Joe Escalante: To sue you need to show damages. If you have damages, you can sue for them. He can be fined, you can get out of a lease, but I don’t see a windfall coming your way unless you can prove damages. A more clever attorney might be able to figure something out though.

Cindy: Hi Joe, How can you get legal power of attorney over someone who is unable to give verbal or written permission? My dad has Alzheimer’s and my Mom needs to have POA in order to tend to some financial matters. Do we have to get it from a lawyer or does the one on LegalZoom suffice? Thanks!!!

Joe Escalante: You need to go to court for this one I’m afraid. It’s too late to take advantage of the wonder of legalzoom in this case. You need a court ordered conservatorship based on mental incapacitation

Thomas: My girl friend did a title loan on her Jeep for repairs and they charged her 85% interest on the loan. Are there laws against charging that much interest in Arizona.

Joe Escalante: Here’s the Arizona statute: 44-1201. Rate of interest for loan or indebtedness; interest on judgments

A. Interest on any loan, indebtedness, judgment or other obligation shall be at the rate of ten per cent per annum, unless a different rate is contracted for in writing, in which event any rate of interest may be agreed to.

This means that you need to read the contract. If you agreed to it in writing, it’s legal. You could file a civil claim that you did not understand the agreement or it is unenforceable as a contract of adhesion, but the title loan co. did not break the law.

It may sound bad, but the idea is that you should be free to contract in this way, otherwise, loan sharks start lending money and breaking legs.

Sheila: How do you file and declair a common law marriage when one partner is incarcerated in Texas?

Joe Escalante: If you qualify for common law marriage in Texas, you could record a form prescribed by the Bureau of Vital Statistics which is available at your county clerk’s office. Try the county where he’s living, if you call that living. :)

LegalZoom: That’s a wrap for Free Joe Tuesday! Thanks to Joe from Barely Legal Radio w/ Joe Escalante for joining us to answer your questions. Come back and join us on Friday for more free legal advice—see you then!

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October 6th, 2011 at 5:45 am