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Questions Answered by Michael Ray Smith
2 Answers | Asked in Criminal Law, Personal Injury, Civil Litigation and Libel & Slander for Indiana on
Q: I just got a notice from the plaintiff for a deposition. A hearing for a motion to dismiss is scheduled. Do I go anyway

It is a civil tort case. The plaintiff served me by publication and I have yet to see his original complaint, yet still just got sent a notice for deposition. The plaintiff even included costs of deposition. Do I have to go? There’s a hearing for a motion to dismiss scheduled and the courts... View More

Michael Ray Smith
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Michael Ray Smith
answered on Mar 1, 2022

I agree with Mr. Candiano. I’ll add that your attorney might decide to reach out to opposing counsel to negotiate a later date for the deposition, after the court rules on the motion to dismiss. However, as did Mr. Candiano, I’ll emphasize you should discuss it with your attorney. I’m... View More

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3 Answers | Asked in Business Formation, Business Law and Real Estate Law for Florida on
Q: Do I need to put each of my corporate leases into separate LLC for asset protection?

I have started a short term rental business and I am trying to scale.

Michael Ray Smith
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Michael Ray Smith
answered on Feb 26, 2022

I agree with my colleague that separating real estate holdings into different LLCs is generally a good idea to protect each property from any liability that might arise from another property. It is important to manage each LLC as if it is truly a separate entity in order to prevent a court from... View More

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1 Answer | Asked in Business Formation and Trademark for Massachusetts on
Q: Do I have to get a license to use the Red Sox B Service Mark in order to use it as a small part of my business name/logo

The Red Sox ‘B’ Service Mark, while used almost exclusively by the Boston Red Sox, is more closely aligned with representing the city of Boston as a whole… my business name utilizes the term BOSSTOWN, and I would like to use the ‘B’ Service Mark for the B in BOSSTOWN. The two businesses... View More

Michael Ray Smith
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Michael Ray Smith
answered on Feb 12, 2022

I see that you posted your question not only under Business Formation but also under Trademark. That's good because you need the advice of an intellectual property lawyer, someone who practices trademark law regularly. There are a number of factors to consider. Depending on the answers, the... View More

1 Answer | Asked in Civil Litigation for Indiana on
Q: Where can find Indiana statutes regarding vicarious liability in civil law?
Michael Ray Smith
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Michael Ray Smith
answered on Feb 11, 2022

There are all sorts of types of vicarious liability, so there's not one single answer, but most law on vicarious liability is case law, not statutory. That means the principles have been established by written, published decisiohns appellate courts -- in Indiana, the Indiana Court of Appeals... View More

1 Answer | Asked in Landlord - Tenant for Indiana on
Q: I live in Indiana. I am renting a house through a property management company. The owner of the property sold the home.

The new owner is with a different property management company. Do I have to remain in the lease

Michael Ray Smith
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Michael Ray Smith
answered on Feb 11, 2022

It depends on what the lease says...but probably.

1 Answer | Asked in Business Formation on
Q: Does a business have to be incorporated in the state in which it operates? What is the benefit or cons?

I created a LLC in Wyoming (based on a suggestion, for some reason). However I will be doing 100% of my business in Ohio. I am working on registering my business with the OH Sec of State and am super confused. They said I essentially had three options: 1) File as Foreign LLC in OH, keep LLC in WY.... View More

Michael Ray Smith
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Michael Ray Smith
answered on Feb 10, 2022

As always, answers to these questions should not be considered legal advice, and that applies to this question even more than usual because it cuts across state lines, and most lawyers are admitted in only one or a few states. Me, I'm admitted only in Indiana. So -- this is not legal advice... View More

1 Answer | Asked in Criminal Law and Appeals / Appellate Law for Indiana on
Q: What's does transmitted for transfer (supreme court) mean
Michael Ray Smith
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Michael Ray Smith
answered on Feb 6, 2022

I'm not sure what "transmitted for transfer" means, but the process after the Indiana Court of Appeals renders a decision is that a party who doesn't like the Court of Appeals decision can file a petition to transfer the case to the Indiana Supreme Court. The party asking for... View More

2 Answers | Asked in Tax Law, Business Formation, Business Law and Trademark for Indiana on
Q: Does an online apparel brand, w booth at local fairs need to register as a retail merchant? Or just add sales tax?

It will be sourced through print on demand, so I will not personally be fulfilling the orders, except at the occasional booth set up at a local fair/farmers market. The sales goal is greater than the threshold for collecting tax. It is a sole proprietorship. A trademark application will be... View More

Michael Ray Smith
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Michael Ray Smith
answered on Feb 2, 2022

Kudos for thinking about sales tax.

The business (whether a sole proprietor, LLC, corporation, however the business is organized and operated) needs to obtain a Registered Retail Merchant's Certificate to collect and remit sales tax. You will first need a tax ID for the business. If...
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1 Answer | Asked in Contracts, Business Formation and Business Law for Indiana on
Q: My dad was the sole owner of an llc. He has since passed away. Do we restructure or start a new one?
Michael Ray Smith
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Michael Ray Smith
answered on Jan 16, 2022

A single member LLC is dissolved unless, within 90 days of the member's death, the deceased member's personal representative takes action to designate at least one new member. If an attorney was hired to handle the probate estate, talk to that attorney about it, or contact a lawyer... View More

1 Answer | Asked in Business Formation on
Q: Is a shareholder liable to conflict of interest if he is not a director?

There is a shareholder in my company decided to start up a new company that is a total reflection of my company. However he did not disclose this company, I found out my accident in social media.

Michael Ray Smith
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Michael Ray Smith
answered on Oct 20, 2019

That’s a very interesting question. A partner in a partnership has a fiduciary duty that would be breached by that sort of act, but generally shareholders of a corporation

do not owe each other that sort of fiduciary duty. However, in some states the shareholders in closely held...
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2 Answers | Asked in Estate Planning for Indiana on
Q: We live in Indiana and wish to do a transfer on death deed We are husband and wife ownership
Michael Ray Smith
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Michael Ray Smith
answered on Oct 20, 2019

You can search for a lawyer by clicking on "Find a Lawyer" at the top of the page. If you wish to contact our firm, you can click on my name to get our contact information.

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1 Answer | Asked in Estate Planning for Indiana on
Q: We live in Indiana and my wife and I wish to add beneficiaries on our house How is that done?
Michael Ray Smith
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Michael Ray Smith
answered on Oct 20, 2019

Your question leaves out a lot of information that a lawyer will need to give you definitive advice, but the first thing that comes to mind as something that may meet your goals is a transfer-on-death deed.

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... View More

Michael Ray Smith
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Michael Ray 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... View 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 Ray Smith
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Michael Ray 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...
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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... View More

Michael Ray Smith
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Michael Ray 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... View 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... View More

Michael Ray Smith
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Michael Ray 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... View 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 Ray Smith
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Michael Ray 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... View 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 Ray Smith
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Michael Ray 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...
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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 Ray Smith
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Michael Ray 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...
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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 Ray Smith
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Michael Ray 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... View More

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