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Legal Business II > Ch 14 > Flashcards

Ch 14 Flashcards

0
Q

Lien

A

An encumbrance on (claim against) property to satisfy
Debt

or protect a claim from payment of debt

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1
Q

Default

A

Failure to observe a promise of discharge an obligation

Failure to pay debt when it is due

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2
Q

Mechanics lien

A

Statutory lien on real property of another, created to ensure
Payment for work performed and materials furnished

From repair or improvement of property (ex. Building)

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3
Q

Artisan’s lien

A

Security device created at common law

Through which creditor can recover payment from debtor
For labor and materials furnished for repair or improvement
Of personal property

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4
Q

Mechanics lien: homeowner refuses to pay house painter for job. What happens if the painter takes a mechanic’s lien against the property?

A

Painter is the lien holder and real property is burdened
With mechanics lien amount owed

If homeowner does not pay, property can be sold to satisfy
Debt as home owner receives notice of foreclosure

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5
Q

Artisans lien vs. mechanics lien, describe how the artisans lien differs

A

Artisans lien is possessory

Lien remains in existence as long as lien holder maintains
Possession and lien is terminated when possession is
Voluntarily surrendered

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6
Q

Artisan’s lien is possessory

A

Means lien holder ordinarily must have retained possession
Of property

And expressly/impliedly agreed to provide services for cash
Not credit basis

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7
Q

Similarity with artisans lien and mechanics lien

A

Modern statutes permit holder of artisans lien to foreclose
And sell property subject to lien to satisfy debt

Holder of lien must provide written notice to owner of property
Prior to foreclosure and sale

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8
Q

Attachment

A

Court ordered seizure and taking into custody property

Prior to securing a judgement for past due debt

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9
Q

Affidavit, how is it used by creditors

A

Written statement made under oath

Used by creditors stating debtor is in default and indicating
Statutory grounds that attachment is sought

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10
Q

Garnishment, 2) what law is it governed by?

A

Legal process used by creditor to collect debt by seizing
Property of debtor that is being held by 3rd party

such as wages from employer (garnishee)

2) Governed by state law

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11
Q

Creditors’ composition agreement

A

Agreement formed between debtor and his creditors
In which creditors agree to accept lesser sum owed
By debtor in full satisfaction of debt

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12
Q

Mortgage

A

Written instrument giving creditor an interest (lien on)

Debtor’s real property as security for payment of debt

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14
Q

Judicial lien: Writ of execution

A

Courts order issued after judgement had been entered
against debtor directing sheriff to seize and sell any of
Debtor’s non exempt real/personal property

Proceeds of sale used to pay off judgement, accrued interest
And costs of sale

Any surplus is paid to debtor

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15
Q

Mortgagee

A

Under mortgage agreement, the creditor who takes

Security interest in debtor’s property

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16
Q

Mortgagor

A

Under mortgage agreement, the debtor who gives creditor
Security interest in debtor’s property in return for a mortgage
Loan

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17
Q

Suretyship

A

Express contract where 3rd party to debtor-creditor
Relationship promises to be primarily responsible for
Debtor’s obligation

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18
Q

Surety

A

Person who agrees to be primarily responsible for debt
Of another

Ex. Cosigner on note

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19
Q

Guarantor

A

Person who agrees to satisfy the debt of another (the debtor)
Only after principal debtor defaults

The guarantor’s liability is secondary

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20
Q

Surety vs. guarantor contracts, how must they be presented?

A

Surety contracts can be oral and lender can seek to recover
Payment from surety even if original borrower isn’t in default

whereas guaranty must be written, also borrower must default
Before lender can seek payment from guarantor

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21
Q

Right of subrogation

A

Right of person to stand in place of another

Giving substituted party the same legal rights as the
Original party had

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22
Q

3 rights of surety

A

1 right of subrogation

2 right of reimbursement

3 right of contribution

23
Q

Right of reimbursement

A

Legal right of person to be repaid for costs Incurred on

behalf of another

24
Q

Right of contribution

A

Right of co-surety who pays more than her or his
Proportionate share on a debtor’s default to recover
Excess paid from other cosureties

25
Q

Co-surety AKA Joint surety

A

Person who assumes liability jointly with another surety

For payment of an obligation

26
Q

Homestead exemption

A

Law permitting debtor to retain the family home, either
In its entirety or up to specified $ amount

Free from claims of unsecured creditors or trustees in
Bankruptcy

27
Q

5 types of exempted personal property

A

1 household furniture up to specified $ amount
2 clothing, pictures, bible
3 vehicles (up to specified $ amount)
4 livestock, animals, pets
5 equipment debtor uses in business or trade

28
Q

2 goals of bankruptcy

A

1 protect debtor giving him/her a fresh start free from
creditor’s claims

2 ensure equitable treatment to creditors who are competing
For debtor’s assets

29
Q

Liquidation

A

Sale of non exempt assets of debtor and distribution
(made by trustee) of Proceeds to debtor’s creditors

Ch 7 of Bankruptcy Code provides for liquidation bankruptcy
Proceedings

30
Q

Consumer debtor

A

Debtor whose Debts result primarily from purchases made primarily for personal, family Or household use

32
Q

Petition in bankruptcy

A

Document that is filed with bankruptcy court to initiate
Bankruptcy proceedings

Petition forms must be completed accurately, sworn to
Under oath and signed by debtor

33
Q

Voluntary bankruptcy

A

Debtor files the petition

34
Q

Involuntary bankruptcy

A

1 or more creditors file petition to force debtor into

Bankruptcy

35
Q

U.S. Trustee

A

Government official who performs certain administrative
Tasks that bankruptcy judge would otherwise have to
Perform

36
Q

Order for relief

A

Court’s grant of assistance to complainant

In bankruptcy proceedings, order relieves debtor of
Immediate obligation to pay debts listed in bankruptcy
Petition

37
Q

What 2 circumstances will make the debtor’s challenge fail when they challenge an involuntary petition?

A

1 debtor generally not paying debts as they come due

2 general receiver, custodian or assignee took possession
Of or was appointed to take charge of most/all debtors
property within 120 days before filing involuntary petition

38
Q

Discharge (in bankruptcy proceedings)

A

Extinction of debtor’s dischargeable debts, which relieves

Debtor of obligation to pay debts

42
Q

Writ of attachment

A

Courts order issued prior to trial to collect debt

Directs sheriff/public officer to seize non exempt property
Of debtor

If creditor prevails at trial, seized property can be sold to
Satisfy judgement

43
Q

Automatic stay

A

In bankruptcy proceedings, the suspension of virtually all
Litigation and other action of creditors against debtor

Stay is effective moment debtor files petition in court
(creditor can’t contact debtor by phone as well)

44
Q

Adequate protection doctrine

A

Protects secured creditors from losing their security as
Result of automatic stay

May petition bankruptcy court for relief of automatic stay

45
Q

Estate in property (in bankruptcy proceedings)

A

All debtor’s interests in property currently held wherever
Located, together with certain jointly owned property

Property transferred in transactions void able by the trustee,
Proceeds and profits from property of estate

And Certain property interests in which debtor becomes
Entitled to within 180 days after filing for bankruptcy

46
Q

What is excluded from the estate?

A

Employee benefit plan contributions

47
Q

Preference (in bankruptcy proceedings)

A

Property transfers or payments made by debtor that
Favor one creditor over others

Bankruptcy trustee is allowed to recover payments made
Both voluntarily and involuntarily to 1 creditor in preference
Over another

48
Q

Preferred creditor (in context of bankruptcy)

A

Creditor who has received preferential transfer from debtor

49
Q

What does a trustee do when he/she recovers property as a preference?

A

Trustee sells it and distributes proceeds to debtor’s creditors

50
Q

What happens when preferred creditor has sold property to an innocent 3rd party?

A

Trustee can’t recover property from innocent party

The preferred creditor can be held accountable for value
Of the property

51
Q

Limit on amount of property consumer-debtor can transfer before it is considered a preference?

A

$5,475

52
Q

Exceptions to discharge in bankruptcy

A

Court won’t discharge claims based on debtor’s willful or malicious conduct, fraud, larceny or embezzlement

Non dischargeable are divorce payments, taxes and usually
Student loans (unless undue hardship)
53
Q

Reaffirmation agreement

A

Voluntary agreement between debtor and creditor, where
Debtor voluntarily agrees to pay debt dischargeable in
Bankruptcy

To be enforceable agreement must be made before
Debtor is granted a discharge

54
Q

Workout

A

Out-of-court agreement btw/ debtor and creditors, where
Parties work out payment plan where debtor’s debts can be
Discharged

55
Q

Debtor in possession (DIP)

A

In chapter 11 bankruptcy proceedings: debtor who’s allowed
To continue in possession of estate in property (the business)

And continue business operations

56
Q

Reorganization plan

When is the plan accepted by a class of creditors?

A

Plan to conserve and administer debtor’s assets in hope
Of return to successful operation and solvency

When 2/3’s the class of creditors vote to approve it

57
Q

Cram down provision

A

Provision of bankruptcy code that allows court to confirm
Debtor’s ch. 11 reorganization plan even though only 1 class
Of creditors has accepted it

Court must demonstrate plan doesn’t discriminate against
Any creditors, thus is fair and equitable

58
Q

3 conditions of debtor’s repayment plan for individuals under chapter 13

A

1 future income is turned over to trustee

2 full payment through deferred cash payments of all claims
Entitled to priority (taxes)

3 identical treatment to all claims in particular class

Legal Business II (13 decks)

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