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Bad Checks, Bad Contractors, and More Legal Advice – Free Joe Friday 7/15/11

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Every Friday, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss last week’s Free Joe Friday? Don’t worry. We’ve got it all right here.

Crystal: VA resident wrote me bad check and stopped payment in Mar 09. Then she came to my home (while I was away) and told my husband, with her parents by her side, that I stole one of her checks and forged. Attorney sent letter certified but she never accepted. Do I have to pay $1000′s to get back my $5000 that I borrowed to her in cash? Attorney’s also say slander case is difficult to prove.

Joe Escalante: The attorneys are right. Your best bet here is to file a case in small claims court against her, gather your evidence, and put it before the judge.

David: I registered a Trademark for my product’s name. Apparently I registered it as a logo mark. Does this protect the name also? Or just the logo style?

Tom: I just had that conversation with my attorney yesterday – If you have the name with the logo and registered it as a logo mark you are only protected on the logo which includes the name. So if someone just makes a small change to a logo similar to yours without registering the words you are not fully protected – you want to trademark the words – That is what my attorney is doing for me right now…

Joe Escalante: But remember, be prepared to prove that you have used the mark in interstate commerce. If there is a conflict, it is usage that governs trademark disputes, not who files first.

Pauline: i just read that they are gonna start charging for facebook? Is this true?? Is this legal???

Joe Escalante: I’m charging for facebook. Please send $100 per month to P.O. Box 3061, Seal Beach, CA if you are using Facebook.

No it’s not true Pauline, but it would be legal. It’s also a good way to figure out who to avoid talking to. If someone tells you this, don’t talk to them anymore.

Bob: what are the costs of trademarking AND patenting processes.

Joe Escalante: Well my friend. The govt. charges you $325 to file a trademark. Then your lawyer charges you $400 per hour to do it for you. Patents are more expensive and the lawyer is more expensive because he’s got to have an engineering background and stuff like that. A provisional patent is a $110 fee. That protects you for only a year. Then a real patent gets real expensive.
Both of these registrations are really good things to do with Legalzoom because it’s a lot cheaper and there’s a lot of help available to make sure you do it right. Click the link below and start lurking.

LegalZoom: Hi Bob! Provisional Patent:​rovisional-patents/provisi​onal-patents-overview.html

Yashica: If u buy a used car for 4600 and the salesman give u a warranty for 30 but the car been having minor issues that gets resolved a few weeks after purchasing the vehicle, and on the 31 day the transmission goes out, the salesman says oh well there us nothing I can do about it! Can I sue him? Plus he wrote the bill of sale for way less than I purchased the car for!

Joe Escalante: You can sue anyone you like. Small claims is pretty easy, but to win you would have to show that there was some kind of deceit. Or that the warranty contract is invalid for some other reason. Sometimes in small claims court, the judge just gets a sense that you’ve been burned and throws some money your way. But it’s a crap shoot. It’s more likely the judge will honor the written warranty and say that’s the “brakes.”

Laverne: What are the advantages of copyright on one’s legal name….

Joe Escalante: None. You cannot copyright a name. A copyright protects the creative expression of an idea, like a song or a play. You could trademark a name if it is identified by a product or service that is actually being used in commerce. That would only protect you from other people using your name in connection with the exact same product or service.

David: Another one. Bought a used car from a dealer. The vehicle had major electrical problems, like it was in a flood. Went back to the dealer and he said he had the same problem but thought they fixed it. Well, I have $1800 in bills from fixing the same problem. What is my recourse against the dealer?

Joe Escalante: It all depends on whether it was an “as is” sale or if there were express warranties. Or maybe there was deceit; if so, that is a tort. Small claims court could be the answer.

Livia: My husband and I just obtained legal Guardianship for his mother who is 1/3 owner in a vacation property with us. She may require long term nursing care. Want to protect the asset from Medicaid as much as possible. Can we be forced to sell since it is not a primary residence? If not, can Medicaid lein the property up to total spend or only up to the value of her portion? Can we buy her out and use that to spend down before medicaid kicks in? Is it advisable to get a third party temp guardian to oversee any buyout transaction?

Joe Escalante: Each state handles Medicaid liens on property differently. A few don’t do them at all. However, since it is not her principal residence, it does not have much protection if the state decides it the asset should be used to offset the costs of her long term care. If they wanted to get aggressive, they could force a sale, but I think they’re more likely to just encumber the title so it can’t be sold until you pay them.

The state also gets her if she tries to sell it at below market rates to a relative or someone so be careful. You really need a lawyer experienced with this kind of estate planning in your state.

Denise: We remodeled our house. It will be one year in Sept. There are several things wrong. The contractor responds randomly (and only via text, which I have them all saved) I sent him a letter stating if our house is not complete by July 17th, 2011 we will take legal action. He is so angry (at us) at all the items that need repaired he said “what is it going to take for me to NEVER come back here after today” We were pretty thrown by that statement. We told him we have no idea. We’re not a contractor this is YOUR job. He suggested we hire all the different people and finish it ourselves. Can you suggest a lawyer (we are in Orange County, CA) or any type of resolution?

Thank you!

Joe Escalante: I would talk to a construction lawyer. It would be worth a consultation with a good one, even if you get charged for an hour. Try attorney connect for a good one in the O.C. Click the link below: Good luck.

LegalZoom: Here you go, Denise: http://attorneyconnect.leg​

Steve: I am looking for good, current info on the legal aspects of webcasting live music events. SO much conflicting information exists on the definitions of ownership and rights to the stream and royalties relating to webcasts based on material performed. Any help would be greatly appreciated.

Joe Escalante: You should call my radio show tomorrow night. We deal with that kind of stuff. In the meantime, to go legit, you have to work with Soundexchange:​ervice-provider/service-ho​me/ and read the stuff at Music Reports, inc. as well.​m/home.php Go to http://www.barelylegalradi​ for the info on my show tomorrow night.

Sharon: I reaffirmed my 1st & 2nd mortgage when I filed bankruptcy 3 years ago. (Bad advice). Now looking at relocating for work and need to sell. What is my financial liability if I sell with a short sale or let my house go into foreclosure? I live in Michigan.

Joe Escalante: I’m not sure I understand but let me take a stab at it. A short sale will depend on what the bank agrees to as part of the agreement to accept a short sale. Usually , it means you walk away from the home with no liability for the shortfall. If there’s a foreclosure, the bank has a right to go after you for the amount they lose in the transaction, but they rarely do this. Again, you walk away, but with worse credit implications than with the short sale.

Daniel: “How do I offer a shares of my company to select VIP employees without giving away too much equity here in the beginning so I can attract and keep key employees while we grow the business? Do you set up separate classes of stock just for them and who do I see about that?”

Joe Escalante: You can attach many different rights and restrictions to the kinds of shares you offer to accomplish your goals. You need to talk to two people. 1. is an attorney specializing in corporate share structure. 2. your tax professional.

Nathan: Photography is a big deal in dance clubs these days. You ask the person if they would like their picture taken, most say yes, then you upload their photo on your website for them to claim. Its consensual because you ask for their permission right before you take the photo. Since they dont sign anything can they go after the owner of the site if he uploads a photo they do not like? Do they have enough of a case to get money from this site?

Joe Escalante: Good question. It all depends on their expectation of privacy. If they’re dancing in public, they don’t have much. If you sell the pictures to others, for a profit, they could claim that they deserve compensation. Asking them in person is an evidentiary issue. Is it a valid release? Maybe, maybe not; depends on the proof. But release for what? Commercial use? Editorial use? Call my radio show and we’ll go over it. That’s what we do there. It’s on KTLK AM 1150 in Los Angeles from 5 to 7 PM on Sundays 877-520-1150 that’s pacific time. Or go to http://www.barelylegalradi​ and click “email joe” if you can’t ask the question on the radio show tomorrow night. Thanks.

Grady: I have been trying to get paid from a CA employer for three months, I worked virtually in Maine. Can I sue the employer in Maine in small claims court for the remaining balance, interest, and penalties under labor law? If so, what is the best way to serve papers in another state if you don’t know the employers home address and the mailing address is a PO Box? Also if judgement is passed can I put a lien on the business to collect or am I still just sitting here with a piece of paper stating I am owed?

Joe Escalante: Talk to the Labor Commission in Maine about filing a claim against your the employer. Small claims case is possible, even with a p.o. box, but start with labor commission.

Bernadette: call the Labor Board in CA and file a complaint..they will get it for you

Lydia: Also contact the Department of Fair Employment – they were very helpful to me in a dispute between me in CA and work in Maine…

Tom: Hey Joe – How’s it going! Is it better just to incorporate or establish your business in the state you live vs. setting it up in Delaware or Nevada? I live in Illinois and the fee for setting up an LLC is ridiculous and if I don’t set it up here the state then considers you a “foreign” corporation and you end up getting taxed regardless. So is there a true advantage to incorporating out of state vs. where you live anymore? I will have an online auction style business that will do business nationally.

Joe Escalante: I live in CA, I have a corp in Nevada. I get no benefit from this. You will not either. Delaware has some advantages, but they’re aren’t worth it for a small start up. Make it easy on yourself and do it where you live. You can also just be a sole propietor with insurance to protect your personal assets until you get things going. Talk to your tax pro about this. Good luck.

Shaun: Joe, I have the paper work from legal zoom for a name change that happened some 30+ years ago so that it can be redone. We are having to do this because we cannot find the original court document and we need to get all of our records straight under one name. My question is that in the legal zoom documentation it has a space for the Attorney’s name and his ID #. So there is no way for me to do this on my own without an attorney and end up paying him a fee?

Joe Escalante: There’s a space for an attorney’s name on a lot of things in life, you don’t always have to fill it in. Call my friends at Customer Care at 800-962-7490. They will tighten it up for you.

Ana: Hi Joe, so glad your here to try & help us all out. I recently married, but during our engagement we found out my now husband had a child on the way. All is good & he has gone to court & settled monies & visiting rites. However, court advised 15-2 hr supervised visits before we could have his boy on our own 2xs a month & so on. He had approximately 5 visits & since then it has been not so good. He has not been able to see his child but if coarse the boy is still receiving his due payment. Child’s mother is being difficultt (he is only 19 months old) & we both want to move on with this. Please, we need your advice on how to proceed. Money is tight & we have been told to just go back to court. Joe, what is your advice.? Thank you, Desperate in Texas!

Joe Escalante: You can petition the court for what you want the terms of the visitations to be like. You need to document as thoroughly as possible the problems you’re having satisfying the current order. Then you petition to have it changed based on that evidence. This can be done without a lawyer if you are diligent.

Steve: Joe, in a trademark…we specified a rectangle as the spape, however some new application turn our logo icon into a square…will this cause problems for us or should we modify our trademark application to include the square shape? Thanks a ton for any feedback!!!

Joe Escalante: There’s still some wording here I don’t understand, but the trademark examiners will get on the phone with you and help you with stuff like this. Make them earn their $325.

Janna: Good Morning, this is a great idea and am thankful for free advice-how do I clear up my credit report by myself, I have an 8 yr old bankruptcy and would like to re-establish a credit line. Thanks again,

Joe Escalante: Credit repair isn’t really a legal issue so I usually refer people to Dave Ramsey. He’s a must read/hear if you’ve had credit and debt problems in the past. He will save you, and can make you wealthy in the future.​home/

Kirsten: Hi Joe! Thanks for all your help in the past, I have another legal question: apparently google is debating if this is comedy or porn. (i do improv, these are from a friends improv sketch show at UCB LA, and my dog is in this). it’s fair that there is a line, but is this crossing it? why does google care and how can they enforce anything?

Joe Escalante: Print out the terms of service for having a youtube account. Read it. You will be the first person to read it, but it probably says in there that they can do whatever they want as long as they treat everybody equally, etc. Although this is funny, I wouldn’t put it past them to rain on your funny parade and take it down because there’s something way creepy going on here. It’s new territory for sure. My stomach feels weird.
Realistically, google could say they don’t want anything funny on their site and have it taken down for that.

LegalZoom: That’s it for Free Joe Friday, everyone. Thanks for joining us and have a great weekend! Be sure to check the Barely Legal Radio w/ Joe Escalante Facebook page and get the schedule of Joe’s radio shows over on the Free Joe tab:

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July 19th, 2011 at 6:49 am