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Zachary
Zachary, Attorney
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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follow-up to I am seeking financial compensation from a major bank (due

Resolved Question:

Dear Zachary D. Norris,

Back on 8/16/2012, I requested that you follow up with me today to see if my issue was resolved. If I give you a positive rating for this follow-up, JustAnswer will pay you since it's included with my membership.

http://www.justanswer.com/law/71cbe-seeking-financial-compensation-major-bank-due.html
Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.
Hi,

Please let me know if there is anything further I can do for you.

-ZDN
Zachary, Attorney
Category: Legal
Satisfied Customers: 3821
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 18 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

The reason I wanted to deal with you exclusively was your great response to my original question.


In view of what you said, I contacted hundreds of attorneys (stayed clear of the large firms) no one will take my case - although there's potential for a lot of money - but they also feel there's WORK involved... On the other hand, I can't allow the entities that ruined my life to get away with it.... Can I present this case on my own? Can I find someone who'll help me with the complaint? What are the alternatives?


(I know the expression of those who act as their own lawyers...)


 

Expert:  Zachary replied 1 year ago.
Hi,

If no one will take your case on a contingency, this should give you pause and you need to rethink whether you truly have a strong case or not.

That being said, it is possible to present your own case. But based on what you've told me, this is not a simple negligence lawsuit for a personal injury. You are talking about a fraud claim against a bank. Banking lawyers are highly trained and usually cream of the crop. So representing yourself could present a lot of stress and in the end a big disappointment. Banking fraud also entails a lot of legal research and motion writing, which is not something that is a non-lawyer will generally be able to do. If you understand these cautionary warnings and still want to proceed, then drafting a complaint is not overly difficult.

Finding someone that will help you with the complaint might be something that legal aid would be able to do. Also, I can help you with it through this service, but you will have to remember that I'm not acting as your attorney. Also, we have to work around the fact that there is no real way for us to share documents over this service. Anything you want me to see must be typed in.

That being said, why don't you tell me exactly what your case is about, the facts that led you to believe there was banking fraud, and the amount of money in controversy. Then we can go forward from there.

-ZDN
Customer: replied 1 year ago.


Zachary, your services are invaluable!


 


So, 2 years ago, I was robbed by a trusted handy- man of all my possessions - including all credit-debit cards. the man "went- to-town" and charged 30-35 transactions. Walmart was the only store that acused me of writing a "bad-check", the bank (Desert Schools Federal Credit Union) never advised me by certified mail that there was a problem in the account. and although he charged in several Walmart stores- only one filed a complaint. I am in the financial industry (looking for a job) this kind of accusation would mark me unemployable. I went to court, and the judge dismissed it (I used their own documentation to prove it wasn't true...) But the stigma remained. all the employment applications ask if I was ever ACCUSED" of a crime (the answer is not as important) I can never work again! Both are guilty of that... Not to mention maligning my name in the community...(My husband's family has been here for several generations), although I know that's not as important here. also, the reason the bank didn't respond to the credit charges is that they were raiding the proceeds from a "book account" (I'm the writer) to cover their loses...


I value your opinion; what do you think?

Expert:  Zachary replied 1 year ago.
Thanks for your response. I'm going to need more information, but I want to see if I'm understanding your correctly. I'm going to state the facts as I understand and have questions after each statement:

1. 2 years ago you were robbed by a handy-man. The handy-man went on to commit identify theft and commercial fraud by fraudulently using your credit cards and drawing checks on your bank account.

a. How long after the actual theft did you report the theft to the police?

b. Was the thief caught and was there a guilty verdict found against him?

c. Why didn't you immediately report the stolen financial information to your credit card companies and your bank immediately.

d. How long between discovering the fraudulent charges and the hot checks did you contact the banks to notify them that the checks were stolen and were forged?

e. Have you ever spoken to anyone about expunging your record?

2. The bank never informed you by certified mail that there was a problem in the account.

a. Why do you think the bank has to notify you by certified mail?

b. Were you receiving regular mailed statements from the bank during the period of fraudulent activity?

3. The bank did not respond to the credit charges and raided proceeds from a "book account".

a. What do you mean that they bank did not respond to the credit charges? How did you notify them?

b. What do you mean by "book account"?

c. Was your personal account linked at all to the "book account"?

d. In what state is the bank?

I look forward to hearing back from you.

-ZDN
Customer: replied 1 year ago.

1) As far as we know no checks were used - only credit/debit cards


a. as soon as I discovered it. But he worked in my house for a


while- so the exact time in unknown.



b. He was caught... but no charges todate as yet... they're waiting


for merchants to come forward- according to the police; I am


sure what that means. (Not high on the priority list...)


 


c. I did. I sent them a letter saying the cards were lost/stolen. In


turn, they cut off all access to my accounts, and refused to give


me any updates. Todate I get email notifications that my


account is available for "viewing"... But I can't access it. Nor


am I able to get a checking account in any other bank - makes


life difficult.


 


d. My letter to the bank is dated 2/7/2011, the complaint to the


County Attorney was in March of 2011.


 


e. No. Not sure how to go about it... Do I still have to declare


the charge on applications?


 


2) a. I did some research before I went to court.... something about


Rule 3. --- (I knew that even bank can't get away with


everything all the time...


 


b. NO! everything stopped. As I said, I still get emails about


statements I can't access. The first time I saw the statements


was when the County Attorney gave them to me as part of


"discovery"


 


3) a. I sent them a letter advising the the cards were missing.


 


b. when I wrote the book, I opened a separate account where


people wired proceeds to and called it the "book Account".


the bank used that account to compensate and reinburse


themselves for the loses on the regular account. Again, I didn't


know this since I didn't have statements. (I think that's also


the reason the bank's representative gave a sworn statement,


in court, that I wrote a bad-check, they didn't expect it to go


that far... regardless, it's fraud.)


 


c. No! The accounts were completely separate - for tax purposes.


 


d. We are all in the state of Arizona.


 


By the way... curiously, Walmart created a receipt with the time, date and check #... I have a certified time sheet that I worked at that time...


and the bank statements don't show any checks written. As you can see a lot of people went to great lengths for so little...

Expert:  Zachary replied 1 year ago.
OK,

One more thing before I launch into trying to untangle this mess with you.

What crime where you charged with?

-ZDN
Customer: replied 1 year ago.


Initially it was a Felony, than reduced to a Class 1 Misdemeanor, but everyone keeps telling me (including the judge) that these were


criminal charges

Expert:  Zachary replied 1 year ago.
I'm sorry, I think we are miscommunicating. The terms felony and misdeamenor are classification of a crime, but are not the actual crimes themselves. What specific crime did they charge you with? Do you still have the documentation for the charges and the fact that they were dropped?

Thanks,
ZDN
Customer: replied 1 year ago.


OK. they initially charged me with a felony - for issuing a bad check,


(I am looking at the summons now...)When the county attorney said I could get a fine and jail time I said that I wanted a lawyer, they responded that they reduced the charges to "Issuing a bad check, a class 1 misdemeanor" - and therefore I can't get a lawyer from the public defender. I just looked at all my documentation... they all state the same thing...

Expert:  Zachary replied 1 year ago.
This is what I don't understand. No checks were stolen, so what was the basis of the charge for issuing a bad check?

Regardless, what you need to do regarding your job application issue is have the record expunged. Then you can say on any application that you have never been charged with such an event.

Based on the facts you've stated, your claim against the bank is not for fraud. It is for breach of contract. Let's start out first with the fact that they offset their losses from the "book account". Unless this was a corporate account and set up as the property of a business entity rather than your personal business account, then unfortunately the bank had a right to offset their losses against it.

The Banking and Financial Division of the Arizona Revised Statutes says:

§ 6-557. Liens

A. A credit union has a lien on the share and deposit accounts and accumulated dividends of a member for any amount owed the credit union by the member and for any loan endorsed by the member. The credit union has a right of immediate setoff with respect to each share and deposit account on default of the owner of the account in an obligation owed to the credit union.

The recourse you may have is the fact that the bank had cut-off your access to statements. This would likely be a breach of your contract with them. If they were not sending you written bank statements and were not also allowing you access to your bank statements, then there would be no way for you to find out that there was fraud on your account. Of course, the credit union would object that you could have simply come into the credit union's office and asked for a print out of your accounts and also spoken to someone directly about the fraud that was occurring on your account. A question in any case is whether you did all you could do to lessen your damages (a legal concept called "mitigation"). Simply seeing that you couldn't log into your accounts should have spurred you to action to go to the credit union and figure out what was going on. Generally, a bank/credit union is not responsible for monitoring your accounts for fraud. If there is a fraudulent transaction on your account the banking rules provide you with the right to dispute the transaction within 1 year. You are also under a duty to look for the fraudulent action on your account:

§ 47-4406. Customer's duty to discover and report unauthorized signature or alteration


A. A bank that sends or makes available to a customer a statement of account showing payment of items for the account shall either return or make available to the customer the items paid or provide information in the statement of account sufficient to allow the customer reasonably to identify the items paid. The statement of account provides sufficient information if the item is described by item number, amount and date of payment.

B. If the items are not returned to the customer, the person retaining the items shall either retain the items or, if the items are destroyed, maintain the capacity to furnish legible copies of the items until the expiration of seven years after receipt of the items. A customer may request an item from the bank that paid the item, and that bank must provide in a reasonable time either the item or, if the item has been destroyed or is not otherwise obtainable, a legible copy of the item.

C. If a bank sends or makes available a statement of account or items pursuant to subsection A of this section, the customer must exercise reasonable promptness in examining the statement or the items to determine whether any payment was not authorized because of an alteration of an item or because a purported signature by or on behalf of the customer was not authorized. If, based on the statement or items provided, the customer should reasonably have discovered the unauthorized payment, the customer must promptly notify the bank of the relevant facts.

D. If the bank proves that the customer failed, with respect to an item, to comply with the duties imposed on the customer by subsection C of this section, the customer is precluded from asserting against the bank:

1. The customer's unauthorized signature or any alteration on the item, if the bank also proves that it suffered a loss by reason of the failure; and

2. The customer's unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank if the payment was made before the bank received notice from the customer of the unauthorized signature or alteration and after the customer had been afforded a reasonable period of time, not exceeding thirty days, in which to examine the item or statement of account and notify the bank.

E. If subsection D of this section applies and the customer proves that the bank failed to exercise ordinary care in paying the item and that the failure substantially contributed to loss, the loss is allocated between the customer precluded and the bank asserting the preclusion according to the extent to which the failure of the customer to comply with subsection C of this section and the failure of the bank to exercise ordinary care contributed to the loss. If the customer proves that the bank did not pay the item in good faith, the preclusion under subsection D of this section does not apply.

F. Without regard to care or lack of care of either the customer or the bank, a customer who does not within one year after the statement or items are made available to the customer (subsection A of this section) discover and report the customer's unauthorized signature on or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration. If there is a preclusion under this subsection, the payor bank may not recover for breach of warranty under section 47-4208 with respect to the unauthorized signature or alteration to which the preclusion applies.



If the bank allowed withdrawals from the credit/debit card after you cancelled them when you found out it was stolen (you did do this right?), then the bank is liable under the Arizona payment systems laws and most likely under the obligations to you in the credit union membership agreement.

Again, the biggest problem with your claim is that you may not have acted in a timely manner. You have a duty to monitor your accounts. When the handy-man stole your card and started making unauthorized charges, you should have been monitoring your accounts to discover this fraudulent use and immediately reported it. If you were not able to access your accounts online, then you should have gone to the credit union and gotten access. These duties are imported on you by the Arizona banking statutes. You will have to overcome these objections in your claims.

The next problem you are having is that you are stating that you cannot find any attorney to take your case on contingency because they think it will be too much work. If you came to my office with this case, I would tell you the same. I would also feel that your likelihood of recovery in this situation is not very good because of the problems I related above.

Nevertheless, since you can't find a contigency attorney and don't have the funds to pay an attorney by the hour or with a retainer, you still have recourse. You need to immediately file a complaint with the Arizona Department of Financial Institutions. The complaint form is at: http://www.azdfi.gov/Info/Forms/Complaint_form.pdf

It specifically references the credit union you are having problems with.

The next thing I would do if I were you would be to close my accounts with the credit union. Their failure to offer you any help in this situation is bad customer service.

Further, you need to really press the district/county attorney in charge of prosecuting crimes to prosecute this man for bank fraud and theft. If you haven't already reported it to the police and requested that charges be brought, then you need to do so immediately. Arizona has a Victim's Compensation Program which might help you get some payment for the amount taken from you if the state will prosecute the crime. You have a right to have crimes prosecuted, so you need to assert it and call the prosecuting attorney and harass them until they tell you they will arrest this guy and prosecute him.

In conclusion, you are in a really bad spot with this situation and I'm not sure that there is much that can be done to help you out if you can't hire an attorney. Your best option at this point is to make complaints to the State against the Credit Union and to press the prosecuting attorney to prosecute the case.

-ZDN
Customer: replied 1 year ago.


WOW! You know your stuff.


And I certainly appreciate the "dose" of reality; needless to say I made some mistakes, and I'd rather know everything up front than live with the expectation that any day now I'd find all the lawyers lined up in front of my house fighting for my case... thank you for that.


I will follow up with items you suggested.


One more question.... do I have any recourse vis-a-vis Walmart for filing a complaint about a fictional check?


 


Zachary, I don't know who the other lawyers are at 'justanswer" -


but you are a superb lawyer.Thanks for all your help

Expert:  Zachary replied 1 year ago.
Hi,

I'm touched by your response. Customers rarely appreciate when an lawyer on justanswer has to deliver some hard news. Usually the get angry at me for delivering the message. I think of it as my duty as a lawyer to give you an honest and thorough answer about the law. The fact that you appreciate it shows a lot about your character and also shows that you definitely did not deserve to have this happen to you. Thank you.

In regard to Wal-Mart, yes you do. A completely baseless criminal charge is not only defamatory but is also considered a malicious prosecution. The fact that you are in the financial industry means that a hot check claim is injurious to your reputation.

Here is a Arizona Supreme Court case which talks about it:
Sullivan v. Garland, 5 Ariz. 188, 188-192 (Ariz. 1897)
MALICIOUS PROSECUTION -- SLANDER AND LIBEL -- COMPLAINT -- SUFFICIENCY -- DUPLICITY -- MULTIFARIOUSNESS. -- A complaint that defendants made, presented, subscribed, and swore to before the justice of peace a criminal complaint in writing against plaintiff, wherein defendants falsely, maliciously, and without any reason or cause accused her of having committed a felony; that a warrant for plaintiff was issued by said justice, upon which she was arrested by the sheriff of said county and carried before said justice, by whom she was arraigned and examined upon said charges and was promptly discharged; that said accusation, complaint, and each and every allegation thereof were and are false, malicious, and without probable cause, states facts sufficient to constitute a cause of action for malicious prosecution, and is not subject to demurrer for duplicity and multifariousness in that it attempts to join a cause of action for malicious prosecution and an action for slander and libel.

HAWKINS, J., dissenting.

COUNSEL: E. J. Edwards, and John McGowan, for Appellants.

The complaint states facts sufficient to constitute a cause of action, and for the purpose of this demurrer these facts are admitted. A complaint always shows a cause of action when its averments of fact show (1) a primary or legal right belonging to plaintiff, (2) an infringement of such right by defendant, and (3) damage in consequence to plaintiff. Pomeroy on Code Remedies, sec. 549.

In injuries to character--i. e. malicious prosecution, libel, and slander--the first element, the legal right, is presumed (Cooley on Torts, pp. 31, 225), and hence need not be alleged. Bliss on Code Pleading, sec. 175.

The complaint sets up a cause of action for malicious prosecution, the only essentials of which are, (1) the institution of such prosecution by defendant against plaintiff, (2) its termination before bringing the civil action therefor, (3) that the prosecution was without probable cause, (4) that it was malicious, (5) unless the words are objectionable per se, resulting damage [**2] to the present plaintiff. This complaint contains all these elements, although an averment of damages was unnecessary, the words being actionable per se.

By demurring on the merits for the insufficiency of facts, defendants waived their formal objection of misjoinder set up in special demurrer. Rev. Stats. Ariz. 1887, par. 734.

This complaint is not double; it sets up only one cause of action; it shows only one primary or legal right of plaintiff,--viz., the right of character (reputation or good name),--and but one violation of this right,--to wit, said malicious prosecution. Bliss on Code Pleading, secs. 453, 455, 456, 457.

And even if the complaint did set up a cause of action for malicious prosecution and one for libel, still it would not be demurrable on account of such joinder; since these torts are exactly of the same nature, admitting of the same kind of proof and relief. Martin v. Mattison, 8 Abb. Pr. 3; Hill v. Vreeland, 18 Abb. Pr. 182; Hargon v. Purdy, 93 Ky. 424, 20 S. W. 432.

The issuance of the warrant by a justice of the peace in the prosecution complained of constitutes no adjudication or proof of the existence of probable cause. Sayler v. Briggs, [**3] 4 Met. 421; Brooks v. Bradford, 4 Colo. App. 410, 36 Pac. 303; Cardival v. Smith, 109 Mass. 158, 12 Am. Rep. 582; Burkett v. Lanata, 15 La. Ann. 337.

The complaint states that the defendant corporation instituted the prosecution by one of its agents, thus showing how it acted. But it is always sufficient in pleading the acts of a corporation simply to allege that the corporation entered into the contract, or committed the tort, as the case may be, on the principle that "Evidence should not be pleaded." Bliss on Code Pleading, secs. 206, 207, 208, 209; Rogers v. City, 13 Wis. 613; Page v. Boyd, 11 How. Pr. 415; Allen v. Patterson, 3 Seld. 476.

Pleadings should state generally what was done. It is the province of the evidence to show particularly how it was done. People v. Ryder, 11 N. Y. 433; Green v. Palmer, 15 Cal. 411, 76 Am. Dec. 492.

The defendant corporation was and is capable of instituting the malicious prosecution complained of, or of doing any other tort. Rev. Stats. Ariz. 1887, pars. 232, 233; Jordan v. Alabama etc. R. R. Co., 74 Ala. 85, 49 Am. Rep. 800; Vance v. Erie Ry. Co., 32 N. J. L. 334, 90 Am. Dec. 665; Goodspeed v. Bank, 32 Conn. 530; Roe v. Railroad [**4] Co., 7 Ex. 36; Wheeler etc. Mfg. Co. v. Boyce, 36 Kan. 350, 59 Am. Rep. 571, 13 Pac. 609.

There is a legal unity of principal and agent, as well in respect of torts as of rightful acts of the agent, done within the scope of the employment. Railroad Co. v. Bailey, 40 Miss. 450.

And corporations are as liable for torts so committed as an individual acting on his own account. Baltimore etc. R. R. Co. v. Fifth Baptist Church, 108 U.S. 317,XXXXX Rep. 719; Jordan v. Alabama etc. R. R. Co., 74 Ala. 85, 49 Am. Rep. 800; Boogher v. Life Assn., 75 Mo. 319, 42 Am. Rep. 413; Iron Mt. Bank v. Merchants' Bank, 4 Mo. App. 505.

The discharge of appellant by the justice of the peace was a sufficient termination of the prosecution to enable her to maintain this action. Sayler v. Briggs, 4 Met. 421; Brooks v. Bradford, 4 Colo. App. 410, 36 Pac. 303; Cardival v. Smith, 109 Mass. 158, 12 Am. Rep. 582; Burkett v. Lanata, 15 La. Ann. 337; Driggs v. Burton, 44 Vt. 124; Swensgaard v. David, 33 Minn. 368, 32 N. W. 543; Zebley v. Storrey,XXXXX 478, 12 Atl. 569.

Even though this complaint should be demurrable as to the defendant corporation, the demurrer cannot be sustained as [**5] to both defendants. Makepeace v. Davis. 27 Ind. 352; Turner v. Bank, 26 Iowa, 562; Webster v. Tibbits, 19 Wis. 438; Railroad Co. v. Schuyler, 17 N. Y. 592; Goncelier v. Foret, 4 Minn. 13; People v. City of New York, 28 Barb. 240; Phillips v. Hagadon, 12 How. Pr. 17; Christian v. Croker, 25 Ark. 327.

C. E. Moorman, and William H. Barnes, for Appellees.

The dismissal by the justice is not such a termination of a criminal prosecution as is sufficient to establish want of probable cause. Israel v. Brooks, 23 Ill. 526; Thorpe v. Balliett, 25 Ill. 300; Blalock v. Randall, 76 Ill. 224.

The issuance of the warrant by the justice constitute probable cause under the Penal Code. Rev. Stats. Ariz. par. 1272, Pen. Code; Ball v. Rawle, 93 Cal. 222,XXXXX Rep. 174, 28 Pac. 937; Walker v. Martin, 43 Ill. 508; Stewart v. Sonnebon, 98 U.S. 119; Hahn v. Schmidt, 64 Cal. 284, 30 Pac. 818.

JUDGES: Bethune, J. Baker, C. J., concurs. Hawkins, J., dissenting.

OPINION BY: BETHUNE

OPINION

[*188] The facts are stated in the opinion.

[*191] BETHUNE, J.--This is an action for damages for a malicious prosecution alleged by appellants to have been instituted by appellees against Nellie A. Sullivan, [**6] one of appellants, and the wife of appellant Patrick Sullivan. The amended complaint states: "That at Solomonville, in said county, on or about the 30th day of January, 1895, defendants made, presented, subscribed, and swore to [said corporation did so by its agents] before W. J. Parks, justice of the peace of said county, a criminal complaint in writing against plaintiff Nellie A. Sullivan, in which complaint defendants falsely, maliciously, and without any reason or cause accused her of having committed a felony." That a warrant for the arrest of said Nellie A. Sullivan was issued by said justice, upon which she was arrested by the sheriff of said county, and carried before said justice, by whom she was arraigned and examined upon said charges, and was promptly and fully discharged of and from said charge and accusations by said justice. "That said accusation, complaint, and each and every allegation thereof were and are false, malicious, and without probable cause." The complaint was demurred to on the ground that it does not state facts sufficient to constitute a [*192] cause of action, and for duplicity and multifariousness in that it attempts to join a cause of action [**7] for malicious prosecution and an action for slander and libel. The demurrer was sustained by the court below, and judgment given for defendants.

We think the complaint contains all of the essential elements of a complaint in an action for malicious prosecution, and does not join any other cause of action therewith, and that the lower court erred in sustaining the demurrer. The judgment is reversed, and the cause remanded.

Baker, C. J., concurs.

DISSENT BY: HAWKINS

Sullivan v. Garland, 5 Ariz. 188, 188-192 (Ariz. 1897)
Customer: replied 1 year ago.


Zachary, if you keep this up I'll be practicing law in no time.... (although the law schools are in no danger of that happening...)


 


I'm finally benefiting from my Columbia education - I actually understand the rulings you posted here. I was practically hyperventilating as they so closely apply to what happened to me... since I'm unemployed, I have time to follow up. I'd like to proceed with this... can we "talk" again next time your "on call"? (do you know when that might be?)

Expert:  Zachary replied 1 year ago.
We can certainly talk.

You can request me by finding my profile (ZDNlaw) and put your question in the question box on that page. Also put my name at the top of the question so no other expert picks it up.

that will send me a notification that you have requested me when I next log on, and I'll address your question then.

Best Regards,
ZDN
Zachary, Attorney
Category: Legal
Satisfied Customers: 3821
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 18 other Legal Specialists are ready to help you

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