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What Steps Do I Need to Take to Form an LLC? And More Free Legal Advice – Free Joe 11/4/11

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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.

Tamala: Hi Joe I am going through a divorce. My ex has the kids right now because I moved in with a friend and couldnt support them like I needed to so I left them with him until I got a stable place for them. I have been trying to keep in contact with my childern. I call almost everyday, I called on their birthdays, but my ex is refuseing to let me talk to them. What can I do? I am keeping a log for court to prove to them that I have been trying to be in their lives if just for now over the phone. He let me talk to them the 1st month and then after that nothing. Does he have the right to do that? How is it going to look on me when we go to court for me to get the childern back? Please help me my mind is just full of questions and just need some answers.

Joe Escalante: You are doing the right thing by documenting everything, but make sure you are are sending written requests (even by email) to see your children. It’s probably not good enough to just jot down a note that you called and asked to see them. You need to prevent him from going to court and testifying that you have not requested to see your children.
Speaking of court, that’s where you need to be. You need to demand custody and visitation rights that are part of a court order. That way if he violates the order, he’s in contempt of court. A lawyer is necessary to do this well, but if you can’t afford one, at least read up on how to do this yourself, or “pro se.” check out this info to get started:

Tamala: ok but im in different state and i have asked him to see the kids when they wasnt in school over summer. so how would tat work?

Joe Escalante: If you wont travel to the state where they live to enforce your rights as a parent, the court might think you’re not sincere about your desire to see them. That’s where you have to go to enforce your rights as a parent.

Grace: Hi Joe! I recently won something ($5k value) from a well-known company. I faxed and mailed the required consent forms, etc. – received an email that all forms were received (this was in July). I continue trying to follow-up with the company, but no one is responding. What can I do? Both I and the company are in CA.
thank you!

Joe Escalante: If the contest was phony, the State Attorney General usually wants to know about it. Call Kammy Harris’ office, let her know what’s going on. In general, a promise to give you a prize is not an enforeable contract, because it lacks consideration (fancy law school term), so essentially you have not suffered any damages, but if there is fraud, you might be able to prevail.

Kim: HI!!! Any Advice for a Wisconsinite, on Patent Searching for my Invention (it has already Qualified…)…? THANKS!!!

Joe Escalante: I’m so confused, what did it qualify for, and if it did, what are you searching for?

Kim: Oh, Sorry!!! I didn’t mean to be vague!!! My device met all 5 Criteria for being an Invention… Now I am wondering how to proceed to beginning the Patent Search. I had worked with a “Patent Agent” but am curious about what the actual Search entails and am very curious about cost. Thanks again.

Joe Escalante: I’m going to recommend a book. It will satisfy all your curiosities.

Laurie: Can a parent have his rights taken away if he has not seen his daughter in over a year and the step parents wants to adopt her?

Joe Escalante: Probably not without his permission, but you can get the process started by filing the necessary papers with the family court in the county for the child lives to “terminate parental rights.”

Akil: What steps do I need to take to form an LLC?

Joe Escalante: The first thing I would do, is talk to a tax professional to decide if that is the right way to go for your enterprise. If the answer is yes, meet with all the members of the LLC and convince them that you should do this through legalzoom instead of hiring an expensive flamboyant attorney like Joe Escalante. If all is agreed, click the link below and start the party:

LegalZoom: Here you go:

Liz: I was involved in an auto accident over a year ago in which I was seeing a chiropractor for services. The bill was filed under my insurance through an auto insurance company. Now mind you, its been about a year since I’ve went to see that chiro. for services and they are just now saying that “somethings not right with the bill”…it isn’t being payed by my auto insurance..but they said its almost in collections yet I’ve never once received a bill from them…can they send to me collections if I’m just now hearing about this bill, after its already been a year?

what can be done about this if my auto insurance doesn’t pay it for whatever reason??

Joe Escalante: The insurance company first has to agree that the expense is covered by their policy. If they don’t, you have to fight with them, but you are probably responsible for the bill in the mean time.
If the insurance company promised to pay the bill, and you relied on that promise, they are liable for the bill and any other damages. So start by asking the insurer why they didn’t pay. Also read up on the Fair Credit Reporting Act.

Laurie: My ex husband wants to give our home back to the bank. How do i let him know before he does that I will take him to court and get his wages garnished without having to fight with him or pay a lawyer to contact him. He wont listen to what I say. He needs something in writing but I dont have the money for a lawyer.

Joe Escalante: If you don’t get a lawyer on this, there will be no end to these kinds of issues. However, you don’t need a lawyer to write a letter to him, or his lawyer. You can do that, but it will probably suck.

Dennis: For two weeks now Wells Fargo Bank has refused to transfer my IRA Account to my Credit Union. Do I have to hire an Attorney to sue them to comply.

Joe Escalante: That sounds like a terrible idea. Let’s give it more time. Maybe a personal visit to a bank official would help as well.

Dennis: The bank is 5 hours away one of my reasons for wanting to move my account. The bank refuses to discuss the issue and tells me to call an 800 number that I can never get through on. I have spent hours on hold. My Credit Union has sent several request with no response.

Joe Escalante: Trust me, being involved with a lawsuit against a bank will be 1,000 times worse than anything you’re describing. Give it time.

Jairo: I let a friend borrow money a few years ago, and hes only paid me back about 10% of it. Is small claims still possible?

Joe Escalante: Yes it is. However, if he says it was a gift, and you have no proof otherwise, it will be tough to win. But if there is evidence of a loan, and you weren’t charging loan shark style interest, small claims can get you a judgment. A judgment needs to be enforced, which is also hard if the guy has no money, but you can get his wages at Pepboys or where works garnished and eventually you’ll get your cash. Good luck.

Alex: When dealing with divorces, if one party notifies the second that they will be filing for divorce, but the second party files the papers first, are there any rights the first party may have for their defense, especially if the second party is trying to take advantage of the situation? And secondly, when being served papers, don’t you yourself have to personally be given the legal papers and not given by a third party?

Joe Escalante: I don’t any advantage or disadvantage gained here. It all comes down to living expenses and ability to support. It’s all numbers.
Regarding service, there are a few different types of service that the court will accept. But if it is hand delivered, it must be by a person who is over 18 and NOT a party to the legal action.

Melissa: Can you tell me what are the different tax rules are for a contractor vs an employee? Or just the highlights for me – I am looking for a job and have been offered several contractor positions

Joe Escalante: You shouldn’t take tax advice from me, but in general if you are classified as an independent contractor, you will be responsible for paying your own income taxes and nothing will be withheld from your paychecks. If you are an employee, they withhold, and you apply for a refund at tax time, usually. However, you are either an independent contractor or not, but definition of your workplace scenario. They can’t decide you are one because they want to. There are objective standards like: 1. You choose your own hours. 2. You choose when you take a break. 3. You use your own tools.
This list is not exhaustive, but it is exhausting. Good luck.

Tracey: I had a credit card company send me a summons to appear. I went yesterday and they already got a judgement against me five months ago for the full amount. Apparently there was something in the paperwork that said if I did not respond in 30 days they could do that. My question is can I contact the lawyer or who? To find out about setting up payments? Or is it too late? Will they just attach my wages for whatver amount they want?

Marje: the first step is getting the judgement, then you have to appear for an asset exam. Which is what you went for yesterday I assume. You should have agreed to a pymt plan yesterday in court. Now they can attach bannk accounts, wages, 401k’s everything. You need to call the company and ask for a pymt plan in writing……..if you dont get them to agreein writing, they can take everything.

Joe Escalante: I don’t know what court you were in. Maybe it was small claims court and it’s just a simple judgment. If you feel you were not served properly you could go back to court to try to get the judgment vacated. While doing that, you could negotiate some kind of payment schedule to avoid garnishments. Your attempt to vacate the judgment might be the only leverage you have to get anything to go your way because Marje is right about the fact that they can do what they want with that judgment.

Shawn: Hey Joe,

I have a brother who I’ve had (several) verbal agreements with (witnessed by individuals willing to testify) regarding an automobile. The verbal agreement was that he could use the automobile, because he was without a car and needed to get back and forth to work. The agreement also comprised of titling the car back to its original owner, once the original owner (myself) has need for it. What are my options?

As a side note, there are several automotive parts on the vehicle itself that were purchased and owned (with receipt) by me, such as all four tires, the current alternator and several other necessary parts.

Joe Escalante: It sounds like a mess because if you loan someone a car, you wouldn’t normally transfer title to them. I can’t see anything here that would force him to transfer title back to you if he thinks it’s his car. If it qualifies for small claims court in your area, you could give that a shot and let him testify in front of the judge. You can bring your witnesses. If it doesn’t qualify for small claims, you’re in deep doo doo.

Winston: First off, I live iin Missouri. I get my tax statements in about this time every year. Every since I can remember, I have had some property of mine being grouped on my tax bills. I have looked up the law in Missouri, and it states that each property shall get an individual tax bill. Doesn’t show or state that owners that own houses in the same block or in the same subdivision will be grouped in that tax bill. When I pose this to the local Tax Auditor, they tell me it came down from the Missouri Tax Division to save money on the printing of the tax bills… How do I proceed in getting my tax bills printed separately??

Joe Escalante: If you are being penalized by something that these governing authorities are forcing you to do, it is a denial of due process and a violation of your civil rights. You need a civil rights attorney.

Audrey: Our company is licensed with the State of Illinois as a neighborhood beautification service, conducting building trash-outs; hauling debris, light landscaping, recycling, etc. Now, we are signed up with a light construction referral company for both residential and commercial properties, and would like to act as consultants, subcontracting home repair services, referring other contractors for work in this area for fee. 1. Do we have to be specifically licensed in home repair or carpentry. 2. How might we structure some type of contract that explicitly states that we are in no way liable for any work performed by these contractors that we refer?

Joe Escalante: To determine licensing requirements for stuff like that, it’s best to start with the city, then the county, then the state to see what’s required. To structure your contract for the utmost protection, you should consult with a lawyer experienced in construction law. The basic principles to focus on are waiver, and indemnification.
You want your customers to “waive” any liability against you and you want the contractors to “indemnify” you against any lawsuits that are the result of their bad work or negligence. You have to warn your customers that they must do their own due diligence to check out the contractors. You are just making connections.

Louis: i need to sue someone who worked on my lunch truck, he didnt finish the work plus he asked for more money, also my generator went missing, and he made me pay for a part that he didnt produce

Joe Escalante: You can go through small claims court if the amount you are attempting to recover qualifies. You can also contact the licensing board if he is licensed by the state for whatever he does to lunch trucks.

Jon: Bought a used car from a local dealer in April. Front axle went out & they replaced it because they had replaced it before they sold it. Now we’re on the 5th axle. They’ve replaced them all at no charge but it’s spent more time in the shop then with me. Also I worry about their ability to repair it correctly.
Do I have any options and were they obligated to disclose the initial repair before selling the vehicle?

Joe Escalante: This stuff varies from state to state but much of it would depend on the purchase agreement language. It sounds like they’ve done quite a bit. You could take them to small claims court if you feel that they haven’t done enough, and if the amount you are trying to recover qualifies. There are some federal standards for used car purchases. Check them out here:

Gilbert: Hey Joe,
my brother law owes 5k with hbc he wants negotiate for them to drop the payments down whats the best way to do it hes 3 months passed due

Joe Escalante: There’s no good way to do this. You just ask and see what they say. Sometimes they wont do anything unless you don’t pay for a long time, which hurts your credit score. But as Dave Ramsey says, who needs a good credit score? It only allows you to borrow more money, which sucks anyway. Good luck.

Adam: What would you recommend as far as patent/copyright for a new, small biz. What level of investment is recommend at these early stages? Cheers

Joe Escalante: Patent is for inventions, copyright is for creative expressions of your ideas, like drawing, and music. Check me out discussing the difference between copyright and trademark. This might help:

Melody: is there a legal way to evict a roomate?shes paying her rent but not her share of utilities and other costs?

Joe Escalante: Probably not grounds for eviction. You could only sue her in small claims to recover what she owes. Document it well.

LegalZoom: That’s it for Free Joe Friday! Thanks to Barely Legal Radio w/ Joe Escalante for helping out with legal advice and thanks to all of you for your great questions. Have a great weekend and come join us again next week for more Free Joe!

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November 8th, 2011 at 6:39 am