Feb 24 Flashcards
Arrearages will be assessed for court ordered awards or contractual obligations only (e.g. PSA)?
Both!
If PSA in court decree, then can one spouse reduce agreement orally?
No, must get new court order
How can you change spousal support?
Hardship by material change in circumstances
How to change child support?
Best interest of the child + material change in circumstances
Contempt of court is appropriate to
Enforce a direct court order
What punishment allowed with contempt of court?
Fines and incarceration if there’s been wilful disregard of authority of court
If there’s been mutual mistake (innocent omission or insertion of a material stipulation),
court will enforce terms of contract that parties actually intended
Are terms about real estate taxes covered by merger doctrine?
No, collateral to deed.
Under merger doctrine, does closing statement extinguish a purchase contract?
No.
Is a lawfully adopted zoning ordinance an “encumbrance” breaching covenant of free from encumbrances?
No
Encumbrance =
Physical intrusion or encroachment or superior title or interest in land, including a judgment lien
If judgment lien not enforced, can the B actually have damages?
No.
A principal is liable on instrument signed by
An agent or agents if authorized.
Accommodation party is a type of
Surety or one who guarantees debt of another who does not receive direct benefit from the instrument
Cosigner is presumed to be an
Accommodating party
Cosigner gets all the right sof the
Creditor
Alteration =
Unauthorized change that purports to modify obligation of a party
What does alteration do if not done fraudulently
obligor remains liable on original terms of obligation
What does alteration do if done fraudulently?
Discharges liability of the obligor
Forged signature - duties
Duty of reasonable care; must be reported to bank within 1 year of creation of instrument/issuance
Security interest enforceable once
Attached to collateral
Interest attaches to collateral when
1) value from creditor
2) debtor has rights to collateral (pledged rights)
3) necessary terms are in security agreement and agreement satisfies SOF OR secured party has possession of collateral
Contribution claim requirements:
- Negligence without involving moral turpitude
- Must have been liable to the plaintiff otherwise
SOL for injury arising from service contract for improvements to property and related contribution claims
5 years
Does personal knowledge about an adverse party create conflict of interest?
No, not if that adverse party was not a former client. No responsibilities to her as a “third person” or because of “personal interest” that might materially limit his obligations with the client.
And if personal knowledge not gained in confidence as confidential communications between L and C.
Cannot tell others you are disinterested in the matter/not disclose that you are the L. Why?
Cannot engage in conduct involving fraud, deceit, misrepresentation, dishonesty, which reflects adversely on L’s fitness to practice law.
Cannot use methods of obtaining evidence that violate legal rights of 3rd person
When dealing with unrepresented people, can’t tell them you’re disinterested when you’re the lawyer!
Rules about lawyer’s fees
- Must be reasonable
- If pre-paid, must be held in trust
- If withdrawn from trust, L must keep records as to how much he was withdrawing
- Obligated to refund any advance payment of fee that wasn’t earned
Requirements for when L terminates representation
- Must terminate if physical/mental condition materially impairs ability to represent
- If matter already before court, must withdraw with leave of court
- If physical/mental condition not so severe, cannot withdraw if would have material adverse effect on client
- Must give C copy of file, whether or not C still owes fees and costs
What docs must L give C if C asks for it when L withdraws?
Entire file except limited number of materials “intended only for internal use” (e.g. conflicts check)
Can L ever not respond to a lawful demand for info from a disciplinary authority?
No.
Exception: if info is confidential & L says so. Must be in service of representation, not to hide personal misdeeds
Duty of care to unknown trespassers
Nothing. Just don’t do wilful harm
Duty of care to known trespassers
Duty to warn or make safe
- Hidden
- Highly Dangerous
- Known
Duty of care to invitees
Warn/make safe
- Hidden
- Dangerous
- Concealed
- Known or should have known
Invitee =
Business purpose or members of the public
Life estate possessor can take all profits/fully enjoy land while it’s theirs?
Yes, need to pay property taxes too
Can’t commit waste, coz there are still remaindermen!
List of personal property incorporated if
- writing
- SIGNED BY T
- describes with reasonable certainty items and recipients
- referred to in will
Other things about a list disposing items
- can be altered at any time
- no significance apart from effect on dispositions
- Can be prepared before or after exeuction of will
Searches of dwelling presumptively unreasonable without warrant. Govt’s defenses
- Not a dwelling
- Consent
- Automobile exception
- officer safety
- community caretaker (safety of others)
6.Exigent circumstances (e.g. imminent destruction of evidence) - Probable cause
Plain view doctrine only applies if
lawfully there
plain view
Standing to object to research if
Occupier or guest of dwelling
Search incident to arrest lawful DEPENDING ON
Actual location of arrest
Defenses to search of car:
- I wasn’t there when arrested. So not a search incident to arrest
- I didn’t consent to the search
- Inventory search improper if impouding of vehicle improper (no probably evidence/consent)
When is copy of K (or another document) admissible?
- Copy must be authenticated
- Best evidence rule:
- Original not lost and not available
- Made in regular course of busines
- Person proffering it was custodian of the record/certificate that custodian has custody of the original
Judicial notice of what allowed?
- factual matter
- Not subject to reas dispute
So basiclaly,
either common knowledge or can be verified by reliable source (source not reasonably disputed)
Includes:
- Judicial or governors’ signatures
- laws of other states that you can look up
