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Questions Answered by Michael R. Smith
1 Answer | Asked in Civil Rights, Health Care Law, Real Estate Law and Small Claims for Indiana on
Q: Can Medicaid take my house? Or anyone else?

I am joint owner of a house in Indiana via a quit claim deed that states "joint tenants with rights of survivorship". The other joint owner who is my grandma is now in a nursing home and has severe dementia. My aunt took power of attorney over her healthcare and has filed a lawsuit against me in my... Read more »

Michael R. Smith
Michael R. Smith answered on Sep 27, 2019

If the deed is to you and your grandmother as joint tenants with right to survivorship, you own half of the property (the house and lot) and your grandmother owns half of the property. That's called an undivided interest because each of you has equal rights to the entire property. Indiana law... Read more »

1 Answer | Asked in Contracts for Indiana on
Q: We have a contract to buy a home on contract. We have paid it off but the owner refuses to sign over deed. Next step?

We have overpaid the contractual asking price. The seller has taken out an extra mortgage on house. Is threatening to kick us out, If we don't keep paying her. How do we proceed with this and what rights do we have? Contract is signed buy us and the seller and is notarized.

Michael R. Smith
Michael R. Smith answered on Sep 10, 2019

You should consult an attorney for advice on exactly how you want to proceed, but I can give you some general information about this type of case and some of the options you may have. Let's take it a step at a time.

First, to kick you out the seller will need a court order. To do get a...
Read more »

1 Answer | Asked in Contracts for Indiana on
Q: 3 years left in my lease but I want out!

I signed a 5 year lease, my landlady is a friend. But if anything needs fixed she sends her son, who by the way is not licensed to do any of it. He usually will show up very late around 8 PM or later to fix things. I get up at 3 AM to go to work each day mind you. Some things that need fixed are... Read more »

Michael R. Smith
Michael R. Smith answered on Sep 9, 2019

I sometimes tell my business clients that they need a lawyer, an accountant, an insurance broker, and maybe a banker and that they should never trust one of them to do the job of another. I tell them I can't tell them what insurance policy to buy, and they shouldn't get their legal advice from... Read more »

1 Answer | Asked in Contracts and Real Estate Law for Indiana on
Q: For Indiana, what is the legal distinction between breach of contract and fraud?

My mother signed a land contract 12/5/2015 to purchase a certain property for $50,000. The contract is now completed, all monies have been paid and she is seeking the deed. Recently my mother has accepted an offer on the sale of the home. She called the seller at this time asking him to meet her at... Read more »

Michael R. Smith
Michael R. Smith answered on Sep 8, 2019

I'm not sure this is a matter for law enforcement. This sounds more like a civil matter than criminal fraud. There might or might not be a civil tort claim for fraud, but the fact that the seller had a lawyer contact your mother makes this sound more like a case of "seller's remorse" than fraud.... Read more »

1 Answer | Asked in Business Formation for Illinois on
Q: Hi, I have signed a partnership on an LLC with another partner 50/50 but we have not filed anything with the IRS.

Are these documents valid in court and am I still considered a legal partner?

Michael R. Smith
Michael R. Smith answered on Sep 8, 2019

To find out if the documents you've signed are valid and actually make you a member of the LLC or give you any interest in the LLC, you'll need to consult an Illinois business law attorney who will need to see the documents. However, no documents need to be filed with the IRS to create a limited... Read more »

1 Answer | Asked in Business Formation for New Mexico on
Q: Can two businesses use similar names?

A company called Aftermath, INC. contacted me saying we cannot use the word "aftermath" for my LLC. My LLC is called "Aftermath Cleanup Unit."They said they trademarked the word Aftermath. Is this possible? If so why did the Secretary of State grant me a business license with my company name?

Michael R. Smith
Michael R. Smith answered on Sep 4, 2019

Your question involves two different issues: trademarks and the names of entities.

First, let's talk about trademark rights. The essence of a trademark is to identify the source of goods or services. Trademark infringement occurs when one mark used in connection with goods or services...
Read more »

1 Answer | Asked in Business Formation for Illinois on
Q: Do I need to be a LLC or similar? As an independent contractor Process Server I want to protect myself, home, car etc.?

I use my own car and am paid 1099 in my own name. In case of an issue during the serve or an auto accident while working I want to protect my family, house, cars etc from litigation/responsibility.

Michael R. Smith
Michael R. Smith answered on Aug 21, 2019

As an Indiana attorney, I'm not familiar with Illinois rules governing process servers, so I can't tell you if there are any specific provisions of those rules that might affect the answer to your question. But I can answer your question as a general matter.

As long as the LLC is properly...
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1 Answer | Asked in Estate Planning for Indiana on
Q: How does a benificiary benifit from a revocable trust after death of grantor
Michael R. Smith
Michael R. Smith answered on Oct 17, 2014

You're probably talking about a so-called "living trust" which is revocable by the grantor until the grantor's death and then converts to an irrevocable trust. The answer to your question depends on the language of the trust instrument, probably called a declaration of trust or a trust agreement.... Read more »

1 Answer | Asked in Real Estate Law for Indiana on
Q: when buying a house for cash what fees are there
Michael R. Smith
Michael R. Smith answered on Oct 17, 2014

Even when my clients are buying a house for cash, I advise them to use a closing or settlement agent to handle the closing to make sure everything is done correctly, and I also advise them to obtain an owner's title insurance policy, which will likely require a survey to be performed. The usual... Read more »

1 Answer | Asked in Real Estate Law for Indiana on
Q: Can I do anything about a buyer who doesn't disclose financial information?

We had a contract to sell our house. She didn't qualify for a loan. 2 weeks later she buys an even more expensive house. Can she legally withhold financial information to prevent the sale from proceeding?

Michael R. Smith
Michael R. Smith answered on Jul 19, 2014

If I understand correctly, you are a bit suspicious that the buyer may not have disclosed all of her financial information in applying for a loan precisly so she would not qualify and therefore could get out of the purchase agreement. A couple of thoughts....

Most purchase agreements that...
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1 Answer | Asked in Real Estate Law for Indiana on
Q: I signed a contract as the seller in Indiana. I now do not want to sell. What do I do?

It was signed 2 days ago. Have already asked buyer if they would reconsider. As of right now it doesn't look like they will.

Michael R. Smith
Michael R. Smith answered on Jul 8, 2014

This answer may be a bit late but. . . . based only on the facts you've given, and assuming the contract is valid and created a binding obligation for you to sell, it seems you have to possibilities: (1) Go through with the sale. (2) Try to negotiate a resolution with the buyer which will likely... Read more »

1 Answer | Asked in Landlord - Tenant for Indiana on
Q: My tenants lied about moving out if state to break lease - am I stuck?

They had just signed an 18 mo. lease (2nd lease) and then lied about accepting a job offer in DC and it would create a hardship if they couldn't get out of the lease. I just found out they never moved and just wanted out of the lease. Am I stuck without recourse?

Michael R. Smith
Michael R. Smith answered on Jul 8, 2014

Based only on the facts you've given, it appears that you likely have a claim against the former tenants for fraud. I recommend you see an attorney to discuss the facts in more detail and to discuss the remedies you might have available to you. Take a copy of the lease with you and copies of any... Read more »

1 Answer | Asked in Collections for Indiana on
Q: Are withholding taxes owed by a defunct C-corp that did business soley in Indiana owed by the officers of that corp?
Michael R. Smith
Michael R. Smith answered on Jul 8, 2014

Possibly. The Internal Revenue Code imposes liability for the failure to collect and pay withholding on "responsible persons." Responsible persons can include officers, directors, shareholders, and others. The test is not really the person's title but whether the he or she had a duty to account... Read more »

1 Answer | Asked in Business Law for Indiana on
Q: Can you own 2 different corporations in Indiana, example a hardware store and a cabinet store at the same time
Michael R. Smith
Michael R. Smith answered on Jun 27, 2014

Sure. The only reason I can think of that might prohibit it is if one or both of them are franchises, and the franchise agreement prohibits you from owning a competing business -- but even that seems unlikely in your example of a hardware store and a cabinet store.

2 Answers | Asked in Real Estate Law for Indiana on
Q: Can emails stating there is an agreement override the fact that you can't have a verbal agreement to buy a house?

I have several emails discussing that we took over the house and that the seller would write an agreement. This never happen and now she wants to change the agreement after we have paid on it for 2 years. Can I stop her from doing this?

Michael R. Smith
Michael R. Smith answered on May 16, 2014

I agree with Mr. Snyderman. In addition to the question of whether the email messages contain enough documentation of the essential terms, there can also be a question of whether the email messages are "signed."

However, the situation that you describe presents a slightly different...
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1 Answer | Asked in Real Estate Law for Indiana on
Q: My mom and i own 32 acres can she let anyone move on it without my permission
Michael R. Smith
Michael R. Smith answered on Apr 18, 2014

Yes. If land is owned jointly by two people (whether it's as joint tenants or tenants in common), each owner has the right to full use of the land. However, if the property is leased, each owner should get half the rent, regardless of which owner made the lease. And if there is a disagreement... Read more »

1 Answer | Asked in Real Estate Law for Indiana on
Q: My husband owned the house before we were married if he died will I still be able to own the home?
Michael R. Smith
Michael R. Smith answered on Apr 18, 2014

I assume nothing has been done so far and the house is still entirely in the husband's name. In that case, if the husband dies, the house will pass to his heirs either under his will, if he has one. If dies without a will, the house will pass to his heirs according to the rules of intestate... Read more »

1 Answer | Asked in Real Estate Law for Indiana on
Q: If a spouse dies and both names are on the house, do the surviving spouse automatically own the house
Michael R. Smith
Michael R. Smith answered on Apr 18, 2014

Yes, usually, but it depends on how the deed reads. Usually, if the house was bought during the marriage, the deed will give the married couple a "tenancy by the entirety." If they bought the house before they got married, the deed will usually give them a "joint tenancy." In either of those... Read more »

1 Answer | Asked in Real Estate Law for Indiana on
Q: What is the procedure to sell a house when a part owner does not want to sell in Indiana?

Mother sold house to her sons. One of the sons does not want to sell? Can we force him to sign the papers to sell house?

Michael R. Smith
Michael R. Smith answered on Apr 7, 2014

You should consult an attorney about filing a court petition to "partition" the property under Indiana Code 32-17-4.

1 Answer | Asked in Business Formation for Alabama on
Q: Does a very small church need to nonprofit incorporate?
Michael R. Smith
Michael R. Smith answered on Apr 7, 2014

Does a very small church NEED to incorporate? No. There are many small churches, and some large ones, that operate as unincorporated associations. However, I advise all my nonprofit clients, including churches, to incorporate. Although I can't speak specifically to Alabama law, in my experience... Read more »

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