February 2015 Bar Exam

Question 1

VA Civil Procedure

What is the Exclusive Subject Matter Jurisdiction of the General District Court?

Answer 1

Any civil cases such as tort or personal injury under 4,500 dollars exclusive of interest.

Question 2

Subject Matter Jurisdiction of the General District Court?

Answer 2

Exclusive subject matter jurisdiction for civil cases from 0 to 4,500 dollars. And concurrence jurisdiction with the circuit court for cases between 4,500 and 25k.

Exclusive of interest.

Civil Cases include, contract, tort, detinue, personal injury.

https://law.lis.virginia.gov/vacode/title16.1/chapter6/section16.1-77/

Question 3

Subject Matter Jurisdiction of the Circuit Court of VA.

Answer 3

All civil cases over 4,500 dollars, except for cases for claims to recover personal property

Question 4

ub

§ 17.1-513. Jurisdiction of circuit courts.

Answer 4

§ 17.1-513. Jurisdiction of circuit courts.
The circuit courts shall have jurisdiction of proceedings by quo warranto or information in the nature of quo warranto and to issue writs of mandamus, prohibition and certiorari to all inferior tribunals created or existing under the laws of the Commonwealth, and to issue writs of mandamus in all matters of proceedings arising from or pertaining to the action of the boards of supervisors or other governing bodies of the several counties for which such courts are respectively held or in other cases in which it may be necessary to prevent the failure of justice and in which mandamus may issue according to the principles of common law. They shall have appellate jurisdiction in all cases, civil and criminal, in which an appeal may, as provided by law, be taken from the judgment or proceedings of any inferior tribunal.

They shall have original and general jurisdiction of all civil cases, except cases upon claims to recover personal property or money not of greater value than $100, exclusive of interest, and except such cases as are assigned to some other tribunal; also in all cases for the recovery of fees in excess of $100; penalties or cases involving the right to levy and collect toll or taxes or the validity of an ordinance or bylaw of any corporation; and also, of all cases, civil or criminal, in which an appeal may be had to the Court of Appeals.

They shall have jurisdiction to hear motions filed for the purpose of modifying, dissolving, or extending a protective order pursuant to § 16.1-279.1 or 19.2-152.10 if the circuit court issued such order, unless the circuit court remanded the matter to the jurisdiction of the juvenile and domestic relations district court in accordance with § 16.1-297. They shall also have original jurisdiction of all indictments for felonies and of presentments, informations and indictments for misdemeanors. They shall also have jurisdiction for bail hearings pursuant to §§ 19.2-327.2:1 and 19.2-327.10:1.

Upon certification by the district court of any felony charge and ancillary misdemeanor charge or when an appeal of a conviction of an offense in district court is noted, jurisdiction as to such charges shall vest in the circuit court, unless such case is reopened pursuant to § 16.1-133.1; a final judgment, order, or decree is modified, vacated, or suspended pursuant to Supreme Court of Virginia Rule 1:1; or the appeal has been withdrawn in the district court within 10 days pursuant to § 16.1-133.

They shall have appellate jurisdiction of all cases, civil and criminal, in which an appeal, writ of error or supersedeas may, as provided by law, be taken to or allowed by such courts, or the judges thereof, from or to the judgment or proceedings of any inferior tribunal. They shall also have jurisdiction of all other matters, civil and criminal, made cognizable therein by law and when a motion to recover money is allowed in such tribunals, they may hear and determine the same, although it is to recover less than $100.

While a matter is pending in a circuit court, upon motion of the plaintiff seeking to decrease the amount of the claim to within the exclusive or concurrent jurisdiction of the general district court as described in subdivision 1 of § 16.1-77, the circuit court shall order transfer of the matter to the general district court that has jurisdiction over the amended amount of the claim without requiring that the case first be dismissed or that the plaintiff suffer a nonsuit, and the tolling of the applicable statutes of limitations governing the pending matter shall be unaffected by the transfer. Except for good cause shown, no such order of transfer shall issue unless the motion to amend and transfer is made at least 10 days before trial. The plaintiff shall pay filing and other fees as otherwise provided by law to the clerk of the court to which the case is transferred, and such clerk shall process the claim as if it were a new civil action. The plaintiff shall prepare and present the order of transfer to the transferring court for entry, after which time the case shall be removed from the pending docket of the transferring court and the order of transfer placed among its records. The plaintiff shall provide a certified copy of the transfer order to the receiving court.

Question 5

Is there jury trial in General District Court?

Answer 5

No, statutory authority for a jury in GDC. Only the circuit court has the authority to conduct jury trial.

Question 6

When is a Circuit Court granted subject matter jurisdiction.

Answer 6

In civil cases were the amount is 100 dollars or more or more except when the usbject matter is assigned to some other tribunual.

Exclusive original jurisdiction to GDC for 0 to 4,500 dollars but the CC is given subject matter jurisdiction to hear appeals from the General District Court

Subject Matter Jurisdiction amounts over 4,500 with no ceiling.

Question 7

Appeals from the General District Court to the Circuit Court.

Answer 7

In regard to a final judgment in the General District Court, there is an appeal of right, if done within 10 days after the final judgment order.

The appeal shall be within the court that has jurisdiction

it will be heard de novo.

Question 8

§ 16.1-106. Appeals from courts not of record in civil cases.

Answer 8

A. From any order entered or judgment rendered in a court not of record in a civil case in which the matter in controversy is of greater value than $20, exclusive of interest, any attorney fees contracted for in the instrument, and costs, or when the case involves the constitutionality or validity of a statute of the Commonwealth, or of an ordinance or bylaw of a municipal corporation, or of the enforcement of rights and privileges conferred by the Virginia Freedom of Information Act (§ 2.2-3700 et seq.), or of a protective order pursuant to § 19.2-152.10, or of an action filed by a condominium unit owners’ association or unit owner pursuant to § 55.1-1959, or of an action filed by a property owners’ association or lot owner pursuant to § 55.1-1819, or from any order entered or judgment rendered in a general district court that alters, amends, overturns, or vacates any prior final order, there shall be an appeal of right, if taken within 10 days after such order or judgment, to a court of record. Such appeal shall be to a court of record having jurisdiction within the territory of the court from which the appeal is taken and shall be heard de novo.

Question 9

Partnership

What is required to create a General Partnership?

Answer 9

A written agreement is not required. Only an agreement between two or more persons to form and operate a business for profit as co-owners.

A general partnership is an association of two or more people who agree to form and operate a business for profit as co-owners.

A agreement to share profits triggers a presumption of a partnership.

Question 10

If profits and losses are not stated in partnership agreement, what is the default presumption.

Answer 10

the default presumption is that the profits are shared equally and the losses are shared like profits.

there is no presumption that it is required to have an agreement regarding the profits for there to be liable or there to be a partnership.

Question 11

Is a partner liable for the debts of her business?

Answer 11

Is, a partner is jointly and severally liable for the debts of the partnership.

In a general partnership, partners have the authority to bind the partnership in any agreement for the purpose of the businsess.

The act of one partner can bind the partnership and the rest of the partners.

Question 13

How does on create a limited partnership?

Answer 13

one must file the certificate of partnership with the Virginia State Corporation Commission and pay the required filing.

The certificate must state the name of the partnership and include the term limited partnership in some way.

LTD isn’t enough.

Question 14

When is a dissociated partner liable for the debts of the partnership and when is he not liable for the debts of the partnership?

Answer 14

Dissociation by expressed will trigger the dissolution of a at will partnership.

Upon dissolution, the partnership doesn’t immediately terminate. Rather the partnership enters a wind up phase. Wher the partnership is bounded by the act of the partner if it is appropirate for winding down the partnership business.

Alice act of borrowing themoney was appropriate for winding up the partnership

Dissociated partners can have lingering liable after their dissociation where teh partnership does not dissolve.

Question 15

Agency and VA Civil Procedure

Does there need to be an expressed written agreement for an agent to have authority to sign a contract on behalf of the principal?

Answer 15

No, VA does not require there to be a written authorization for an agent, even where the underlying contract falls under the statue of frauds.

Question 16

Actual Authority and Apparent Authority

Answer 16

Actual Authority is based on expressed or implied communications between the principal and the agent.

Apparent authority is any act by the agent apparently done with the ordinary course of business or business of a kind that binds the principal.

unless the agent had no authority and the other party had notice of this.

Question 17

In what circumstances is a principal bounded by the actions of his agent?

Answer 17

If that agent acts with actual or apparent authority.

Apparent authority is when the principal holds out the agent as having the apparently having the authority to make deals within the ordinary course of business and the other party has no notice or knowledge that the agent doesn’t have the authority.

actual authority is implied or expressly given by communictions from the principal.

Question 18

the Defense of Laches

Answer 18

It only applies to equitable claims. Aka, claims seeking equitable relief or preformance

• it only applies to equitable claims
• it is a discretionary call by the judge
• the judge should consider how much time has passed.
• the effect of the lapse of time on the other party’s ability to defend the claim.
• any loss of evidence of testimony due to the delay
• the circumstances of the particular case.

Question 19

statute of limitations for contract

Answer 19

is Five years.

Question 20

Condition Precedent

Answer 20

When the contactual condition was not satisfied, the performance is excused.

Question 21

When can Specific Preformance be granted

Answer 21

When money damages are not enough, the court may consider equitable relief such as specific performance if
* there is a valid contract between the parties that isn’t equitable
* specific performance is a practical form of relief in the circumstances
* there is mutual performance.

Question 22

VA Civil Procedure

What should be filed for the recovery of personal property?

Answer 22

An action in detinue

• That the party has an right to the property
• that the party has the right of immediate possesion
• that the property can be immediately identified
• tha the property has value
• and the defendant had possession before the filing of the action in detinue.

In the wedding ring scenario

the main dispute would be over whether he has right to the property and a right of immediate possession.

It was his dad’s ring and it was given as an advance gift in hopes of a marriage.

Marriage no longer goes through, then the person has a right of immediate possesion.

Question 23

What should be filed in an action for personal possession?

Answer 23

An action for detinue
* that the person had a right in the property
* a right of immediate possession
* that the property is identifiable
* that the property has value
* that the defendant had the property when the suit was filed.

Question 24

Heart Balm Act

Answer 24

No civil action shall lie or be maintained in the commonwealth for alienation of affection, breach of promise to marry, or criminal convesation upon which a cause of action arose

Question 25

Heart Balm Act and who gets the wedding ring if the marriage doesn’t go through.

Answer 25

Known as the “heart balm” statute, that code section bars civil actions for breach of promise to marry (along with civil actions for alienation of affection, criminal conversation and seduction). However, other courts held that the engagement ring could be recovered because the party seeking to recover the ring is not seeking damages due to a broken promise to marry, but rather is asking for the return of a conditional gift, the condition being the marriage. Therefore, these courts held, when the engagement breaks off, the condition is not satisfied and thus the gift (the ring) should be returned.

The Virginia Supreme Court resolved the circuit split in McGrath v. Dockendorf, Record No. 160262 (December 15, 2016). In this case, Mr. Dockendorf gave his fiancé Ms. McGrath a two-carat engagement ring worth approximately $26,000. The parties never married, and upon termination of their engagement Mr. Dockendorf asked Ms. McGrath to return the ring. She refused, and Mr. Dockendorf sued Ms. McGrath for return of the engagement ring. In the ensuing civil law suit, Ms. McGrath argued that Mr. Dockendorf’s claim was barred by Virginia’s heart balm statute.

The trial court ruled in Mr. Dockendorf’s favor, finding that his claim was not barred by Virginia Code § 8.01-220. The court further held that the gift of the ring from Mr. Dockendorf to Ms. McGrath was a conditional gift, that when their engagement broke off, the condition upon which the gift was made did not occur, and that Mr. Dockendorf could institute an action in detinue to recover the ring or its value.

On appeal, the Virginia Supreme Court affirmed the trial court’s ruling and distinguished between a claim in detinue and an action for breach of a promise to marry.

**The Supreme Court stated that “[b]reach of promise to marry suits were intended to broadly compensate a plaintiff for loss and humiliation of a broken engagement. In contrast, the object of a detinue action is to recover specific personal property and damages for its detention.” The Court further pointed out that the heart balm statute says nothing about the law of conditional gifts. Mr. Dockendorf did not file an action seeking damages based on upon Ms. McGrath’s breach of a promise to marry, but rather filed an action in detinue seeking recovery of the ring or its monetary value on a theory of conditional gift. Therefore, Mr. Dockendorf’s claim was not barred by Virginia’s heart balm statute.
**

Question 26

The Heart Balm Act

Answer 26

In a breach of a promise to marry, the engagement ring is recoverable because it is asking for the return of a conditional gift (being conditioned on the marriage) rather then being valid consideration for marriage.

Question 27

Heart Balm Act and the Statute of Frauds and the Action of detinue

Answer 27

The Supreme Court stated that “[b]reach of promise to marry suits were intended to broadly compensate a plaintiff for loss and humiliation of a broken engagement. In contrast, the object of a detinue action is to recover specific personal property and damages for its detention.” The Court further pointed out that the heart balm statute says nothing about the law of conditional gifts. Mr. Dockendorf did not file an action seeking damages based on upon Ms. McGrath’s breach of a promise to marry, but rather filed an action in detinue seeking recovery of the ring or its monetary value on a theory of conditional gift. Therefore, Mr. Dockendorf’s claim was not barred by Virginia’s heart balm statute

Aka, the Heart Balm Act applies to agreements that are under the statute of frauds or any consideration in promise of marriage. But not for conditional gifts. Those are recoverable under an action for Detinue.

Question 28

VA Statute of Frauds concerning Marriage.

MY LEGS

Answer 28

unless a promise or contract is in writing and signed by the party to be charged. No action shall be brought in these cases

any agreement made upon consideration of marriage.

Question 29

what is a bar against the statute of Frauds

Answer 29

If the party accepted the gift, then they are estopped from arguing that the agreement for the gift is blocked under the statute of frauds.

Question 30

Appealing a civil case from the circuit court.

the process

Answer 30

In order to perfect an appeal from the circuit court to a higher court. And it is a civil case, rather then a domestic case.

It will go by petition to the Supreme Court of VA.

He must file a notice of appeal to the clerk of the circuit court within 30 days of the final judgment

He must pay the bond to the Supreme Court of VA.

In that appeal, he must state whether he will include a transcript or a summary of the incident of the trial. and he must file a transcript within 60 days of the final order or a summary of the incident of the trial within 55 days.

With notice to counsel.

He must file his petition to appeal within 3 months of the entry of the final order of the circuit court.

Question 31

Federal Civil Procedure and UCC

When should a motion to remand be filed in Federal Court?

Answer 31

It should be filed within 30 days of removal.

Question 32

Requirements of Subject Matter Jurisdiction

Answer 32

Federal Question - Suit is based on a federal statute and not a federal defense

Diversity
- Diversity of Citizenship between the defendant and the Plaintiffs. The plaintiff’s citizenship is different from the Defendant (corporate citizenship is determined by its place of incorporation and its principal place of business (nerve center test) )
- the amount in controversy must exceed 75k

Question 33

The Meeting of Minds Requirement in the Formation of a Contract aka - the intention for Form a Contract.

Answer 33

The UCC requires very little to show that the meeting of minds requirement has been met to form a contract for the same of goods.

Meeting of minds is the meeting of mutual assent between the parties regarding the same terms, conditions, and subject matter. And outward consent.

Thus, the previous contract between the parties regarding furniture orders as well as the acceptance of 1,000 chairs is sufficient to establish that there wa a meeting of minds regarding the contract’s terms, subjects, and conditions - at least outwardly expressions by both parties.

Question 34

What is an exception to the Statute of Frauds in regards to Goods.

the specially manufactored goods exception.

Answer 34

If the goods are specially manufactured, then the specially manufactured goods exception to the Statute of Frauds would apply.

Under this exception, goods that were specially manufactured by the manufactor and can’t be sold in the ordinary course of business and were made before the manufactor received the notice of repudiation .

then the manufactor can enforce the contract (which would not otherwise by valid under the Statute of Frauds.)

Question 35

Merchant’s Confirmatory Memo Exception to the statute of frauds,

Answer 35

If the contract is between merchants

(persons who deal in the goods of the kind sold or hold themselves having knowledge or particular skills in regards to his employment or business)

And within a reasonable time, one merchant sends a written confirmation of the contract that is sufficient to bind the opposing party

And the opposing party has reason to be aware of its content.

Then that would be sufficient to bind the other party unless objection is given within 10 days.

Question 36

Insufficent terms in a Contract for Goods under the UCC,

Statute of Frauds.

Answer 36

A writing is not insufficient because it omits or incorrect states a term agreed upon by the parties but it is not enforceable beyon the quanity of goods stated in the writing.

Question 37

Another exception to the statute of frauds is the admission of the party that the contract is held to be enforced against.

Answer 37

If the party against whom enforcement is sought admits that there is a contract in his testimony or in court, then the contract is enforceble by the stated goods in the contract
or by what has been accepted and paid for by both parties.

Question 38

§ 2-201. Formal Requirements; Statute of Frauds.

Answer 38

(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.

(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within 10 days after it is received.

(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable

(a) if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement; or
(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or
(c) with respect to goods for which payment has been made and accepted or which have been received and accepted (Sec. 2-606).

Question 39

Specially Manufactured Goods Exception to the Statue of Frauds

Answer 39

if the goods are specially manufactured by the party seeking enforcement and are not sellable in his ordinary course of business,

And the seller has made a substantial beginning on the contract before the notice of repudiation is received and it is reasonably indicated that these goods were specially maded for the party (breaching party)

then the contract is enforcable to the extent of the contract .

Question 40

Are electronic signatures and electronic communications valid signatures and valid forms of acceptance?

Answer 40

yes, under the Uniform electronic Transaction ACt.

Question 41

Statute of Frauds Formal Requirements

Answer 41

For a contract for the price of 500 or more, it must meet the requirements of the statute of frauds.

There must be some writing indicating that there is a contract for sale between the parties. and signed by the party against whom enforcement is sought.

A writing is not insufficient for missing or misstating a term but not enforceable beyond what is stated in the contract.

Question 42

Statute of frauds, Exceptions Merchant Confirmatory Memo

Answer 42

in a contract between two merchants.

If one merchant party, within a reasonable time, sends a writtten confirmatory memo that is sufficient to bind the other party and the other party receives the memo and has reason to know of its content.

then it will bind the other party to the contract unless an objection is made within 10 days after being received.

Question 43

Statute of frauds: Exception Specially Manufactured Goods Exception

Answer 43

If the contract involves specially manufactured goods that the manufactor made a substantial beginning on and were reasonably indicated to be made for the buyer.

And these goods can’t be sold within the ordinary course of business.

the contract is enforceable.

Question 44

Statute of Frauds: Exception regarding the admission of the party whom enforcement is sought.

Answer 44

if the party whom enforcement is sought admits to the contract, the contract is enforceable but limited to the goods stated in the contract. or what is been paid for and accepted.

Question 45

VA Civil Procedure and Evidence

Marital Privilege in VA LAW

Civil Procedure

Answer 45

Can a spouse testify against another spouse?

Yes, VA law permits a spouse to willingly testify against a spouse or former spouse at trial. And the spouse will be considered competence.

Can the spouse be compelled to testify against spouse on stand, over the other spouse’s objection? In regard to the other spouse’s drinking or actions, etc?

It depends on a few factors

• whether the spouses were married at the time and
• and whether the observations were communication and whether this communication were made with the intent to be confidential and protected by the marriage.

Whether are not this communication was intended to be protected by the marriage depends on whether the observations were made in public? and etc. or made in private.

More likely to be found that the communications was intended to be proteted by marital communications privilege if made in private. Rather then in public or be seen in public.

If the communications were made with the intent to be protected by the marriage and were made during the marriage, then the marital communications privilege does apply. Even after the end of the marriage.

Question 46

Rule 4:7 - Use of Depositions in Court Proceedings

Answer 46

The use of depositions at a trial, are admissible under the rules of evidence, as though witnesses are present against any party who was present or represented in the taking of the deposition or who had reasonable notice in accordance with any of the following provisions.

• in supporting an equitable claim
• for contradicting or impeaching a witness
• the deposition of a party who was a director or agent of a corporation may be used by adverse party
• the deposition of a witness who is dead or is outside of the 100 miles radius of the courthouse or is out of the commonwealth or is unable to attend due to age or illness, or the party offering deposition can’t find the witness or get him to court by sub poena.

Question 47

Rule 4:11 - Requests for Admission

Answer 47

In discovery, along with interrogatories, the party may serve a request for admission of facts to the opposing party.

Each of the matters in the admissions of fact must be answered within 21 days of receiving the request, or they would be admitted as conclusively established admissions unless the court permits withdraw or admendment of the admission.

https://casetext.com/rule/virginia-court-rules/virginia-rules-of-supreme-court/part-four-pretrial-procedures-dispositions-and-production-at-trial/rule-411-requests-for-admission

Question 48

§ 8.01-420. Depositions as basis for motion for summary judgment or to strike evidence.

Answer 48

§ 8.01-420. Depositions as basis for motion for summary judgment or to strike evidence.
A. Except as provided in subsections B and C, no motion for summary judgment or to strike the evidence shall be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the suit or action shall agree that such deposition may be so used. Notwithstanding the foregoing, requests for admissions for which the responses are submitted in support of a motion for summary judgment may be based in whole or in part upon any discovery depositions under Rule 4:5 and may include admitted facts learned or referenced in such a deposition, provided that any such request for admission shall not reference the deposition or require the party to admit that the deponent gave specific testimony.

B. Notwithstanding the provisions of subsection A, a motion for summary judgment seeking dismissal of any claim or demand for punitive damages may be sustained, as to the punitive damages claim or demand only, when based in whole or in part upon any discovery depositions under Rule 4:5. However, such a motion may not be based upon discovery depositions under Rule 4:5 with respect to any claim or demand for punitive damages based on the operation of a motor vehicle by a person while under the influence of alcohol, any narcotic drug, or any other self-administered intoxicant or drug.

Question 49

Depositions as a basis for Summary Judgment Motions is usually not allowed.

However, there is an exception. And this exception is.

Answer 49

A summary judgment motion that is based on the information discovered in a deposition may not be sustained unless all parties agree.

However, there is an exception for admitted facts learned or in reference to a deposition as long as the request for admission of fact does not make any reference to the deposition and the request for admission does not require the party admit that the deponent gave specific testimony.

Question 50

UCC - Secured Transactions

Attachment of a Security Interest

Answer 50

This establishes the right of a secured party over the collateral against the debtor

Requirements
- an authenticated security agreement between the debtor and the creditor evidenced by possession, by the debtor’s authentication of the agreement, or by control of the collateral.
- Value given by the secured party
- and debtor has rights in the collateral - aka possession.

The form of the authenticated Security Agreement must be evidenced by a record, it must be authenticed aka signed, and a description of the collateral must be included that reasonably identifies the collatearl by category or type.

Except for consumer goods.

Question 51

Perfection of a Security Interest

Answer 51

this protects the Secured Party’s interest in the Collateral Against Other Creditors/ third parties

• attachment and one of the Following
• filing in the proper place of the financiing statement (this needs to include a description the collateral and the names and addresses of debtor and creditor. )
• taking possession of the collateral
• taking control of the collateral
• automatic perfection of a PMSI in Consumer goods.
• temporary perfection of a security interest in the proceeds of the collateral.

Question 52

PMSI or Purchase Money Security Interest

Answer 52

The secured party sells goods to the debtor and takes a security interest in the good

or the secured party loans money to the debtor to enable him to purchase a certain good, and that loan is used by the buyer to acquire the specific collateral and the creditor takes a security interest in that good.

Question 53

a statutory lien on the growing crops and other personal property located on the land?

Answer 53

Agricultural Lien

Question 54

What is a Argicultural Lien?

Answer 54

agricultural lien
As established in UCC §9 102-5, an agricultural lien is a lien placed on farm products like farm equipment or livestock that secures payment or performance in exchange for a loan of land, goods, or money. These loans allow farmers to produce the next season of crops/raise the next season of livestock and are therefore essential to the agriculture industry. In the event of non-payment on these loans, the agricultural lien allows the creditors to take possession of the farmer’s farm products.

Question 55

What is needed to prefect a Argicultural lien?

Answer 55

the secured party need to file a financing statement as required by the UCC.

Question 56

How can debter redeem his collateral?

Answer 56

He may redeem it only by tendering the entire balance owed on the loan plus expenses of repossession.

Timing of the notice of the sale by repossessing creditor must be reasonable which is a question of fact.

Question 57

The protection provided by a tenancy by Entirety?

Answer 57

It prevents any of the personal creditors of just on tenant to claim the estate by entirety.

immune to the reach of a creditor of only one spouse.

Question 58

Federal Civil Procedure

What is needed for a signed declaration?

Answer 58

It needs to be signed and state the I declare under the penalty of perjury that the foregoing is true and correct.

This is sufficent.

Question 59

Subject matter jurisdiction: Federal Question

Answer 59

where the plaintiff claim is based on an issue of federal law. The plaintiff doesn’t need to cite a specific statute for federal question jurisdiction, but he must plead sufficient facts to establish jurisdiction.

If she stated that it was for adverse employment discrimination then she would have a claim even if she didn’t state Title VII of Civil Rights ACs.

But she didn’t so no Federal Jurisdiction.

Question 60

Subject Matter Jurisdiction.

Answer 60

there must be complete diversity between the Plaintiff and the defendant. the plaintiff must have a different citizenship then the defendant.

And the amount in controversy must exceed 75k

the individual citizenship is determined by his physical presence and his intent to remain

Corporation citizenship is determined by its domicile and principal place of business.

the court will accept the plaintiff’s assertion of damages unless it is a legal certainity that it is incorrect.

Question 61

Wills and Estates

The Requirements for a properly executed will.

Answer 61

It must be in writing and signed by the testator or by some other person for the testator in his presence.

A will not wholly in the testator’s presence must acknowledged by the testator within the sight of two competence witnesses who signed as well.

Even if he didn’t sign in the presence of the competence witnesses as long as he acknowledge his signature in front of the two witnesses that would be sufficient for the court to find that the will was properly authenticated.

Question 62

What is the test for testamentary capacity

Answer 62

The proponent of the will must prove that the will has been executed with testamentary intent by the testator

After this is done, the contestant must overcome this presumption.

the testator must be 18 years old
Testamentary intent is the indication that the testator has the intent that the document be the final distribution of his property. AS in present intent not future intent.

The mere appointment of a guardian for an individual is not prima facie evidence of lack of testamentary capacity. The evidence of such is not enough tp rebut the preiumption of capacity or shift the burden to the proponent of the will.

In regard to testamentary capacity
- it must be shown that the testator understands the bounds of his bounty
- the recipients of his bounty
- hat he is capable of forming an orderly plan concerning the disposition of property.
- and understand that disposition is made by a will.

Question 63

If the nephews were to lose the will contest, then the assets would be distributed according to the will.

Answer 63

Usually, when a devisee under a class gift dies and as long as he is a descendant of the grandparent of the testator, then his children can inherit his share by representation per stirpes.

Unless there is a contrary intent in the will

For instance, if the will contains of survivorship, then the antilapse statute does not apply.

If the nephews win, the property passes by intestacy.