Florida Bar Questions Flashcards
Under UCC Article 9, does a secured party have the right to repossess collateral upon default by the debtor?
Yes, repossession can typically be done without prior notice or court involvement, as long as there is no breach of the peace (conducted peacefully). Under the UCC, a secured party has the right to repossess collateral upon default and sell it in a commercially reasonable manner to satisfy the debt.
In Florida, can the Court reform the terms of a trust’s governing instrument, even if unambiguous, to conform the terms to the grantor’s intention? If yes, why, if no, why?
Yes, if it is proved by clear and convincing evidence that the grantor’s intent and the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement.
Under Article 9, for attachment of a security interest, what three requirements must be met?
(1) value given by the secured party, and
(2) the debtor has rights in the collateral,
(3) the debtor must authenticate the security agreement to show the debtor’s intent to encumber the collateral.
What does PMSI stand for?
Purchase money security interest. NOTE that a “PMSI” requires the purchase of a Consumer Good!
Florida’s Revised Limited Liability Company Act (effective 2014) eliminated what provision?
The provision allowing a creditor to bring an action for judicial dissolution if the creditor had an unsatisfied judgment and the limited liability company was insolvent..
An LLC must notify dissenting members within how many days of approval of the merger?
10 Days
Can directors remove corporate officers with or without good cause?
Yes..
In a limited partnership, does a partner have apparent authority to make purchases and bind the partnership after dissolution?
Yes,
What constitutes the subject matter jurisdiction for courts in Florida?
The Supreme Court has limited jurisdiction with appeals both in some cases as
a matter of right and in other cases discretionary. Unless a case falls within the
exclusive jurisdiction of the Supreme Court, appeals from the circuit court in cases
that are final are heard by the district court of appeals.
County courts will hear cases not exceeding $50,000. How is this amount
calculated?
The jurisdictional amount may include punitive damages and interest when part
of the cause of action as well as attorneys’ fees when provided by contract or statute.
Aggregation of claims is allowable to reach the jurisdictional amount in a class-
action lawsuit.
What is the doctrine of primary agency jurisdiction?
Occasionally, a party will seek to invoke the original jurisdiction of a trial court
by asserting an issue that is beyond ordinary experience of judges and juries. If an
administrative agency possesses special competence over that issue, the trial court
should refrain from exercising jurisdiction until the agency has had an opportunity to
rule on the issue.
How is personal jurisdiction analyzed in Florida?
In addition to the constitutional requirements (such as minimum contacts
between the defendant and Florida) personal jurisdiction may be founded upon the
following: defendant’s presence in Florida when served with process; general
appearance without timely objection; consent; domicile in Florida; incorporation in
Florida; place of business in Florida; substantial activity in Florida; or pursuant to
Florida’s long-arm statute.
When will a corporation be subject to personal jurisdiction in Florida?
A corporation will be subject to personal jurisdiction if it is incorporated in
Florida, or if it engages in substantial business activity in Florida. As always, in
addition to the specific rules set forth in Florida, the constitutional requirements of
minimum contacts between the corporation and Florida must also be satisfied.
What are the consequences of personal jurisdiction over a defendant?
A decision rendered by a court that has personal jurisdiction is res judicata and
is entitled to full faith and credit in other states. The decision also imposes a personal
obligation upon the party.
What are the requirements of service of process in Florida?
A defendant must be served (with a summons issued by the clerk of court)
within 120 days of commencement of the action unless good cause or excusable
neglect is shown. In an amended complaint that adds a new party, the 120 period will
begin upon entry of an order granting leave to amend.
Who may serve process?
Personal service may be made by the sheriff, a special process server appointed
by the sheriff, or a person over the age of 18 who is appointed and is not interested in
the outcome of the case. A return of process must be signed by the process server
and filed with the court; an affidavit of service is required when not effected by the
sheriff or deputy.
Who may be served?
Personal service may be made by personal delivery or by delivery to any person
15 years of age or older residing at the defendant’s usual place of abode. Substitute
service may be made by delivery to the spouse of the person to be served at any
place in the county if the action is not between the spouses and they reside together.
It may also be made to an agent authorized to receive process.
Can service be made at a private mailbox?
If the only address discoverable through public records for a person is a
private mailbox, substitute service may be made on that person by leaving a copy of
the process with the individual in charge of the private mailbox if the server
determines that the person to be served maintains a private mailbox in that location.
How is a minor or incompetent served?
Personal service may be made upon a minor or incompetent’s legal guardian.
If there is no legal guardian, then service may be made upon a minor’s parent, or
upon the person who has care and custody of the incompetent.
How are sole proprietorships, corporations, partnerships, and nonresidents
served?
Personal service upon a sole proprietorship may be made at the place of
business during business hours by serving the person in charge after two attempts to
serve the owner of the business have been made. Upon a corporation, first there
should be an attempt to serve the president or vice president.
Q13: Is service by publication allowable?
It is allowable when the defendant is outside of Florida or cannot be found for
personal service after a diligent search in the state. The plaintiff must file an affidavit
that the defendant is over the age of 18 and that the defendant’s residence is
unknown or is outside of Florida or that the defendant resides in Florida but has been
absent for 60 days.
Q14: What are the rules regarding venue in Florida?
A14: Venue exists in the county where the defendant resides (if multiple defendants,
then the county in which any defendant resides) at the time the action is commenced,
where the cause of action arose, or where property that is the subject of the litigation
is located.
Are there specific rules regarding venue for corporations and partnerships?
A domestic corporation resides in any county in which it has or usually keeps
an office. A foreign corporation doing business in Florida resides in any county in
which it has an agent or other representative. A partnership resides in any county
designated by the secretary of state as the location of its principal office or in the
county residence of any partner or member.
What is the “home venue privilege”?
This is a rule that specifies venue in a suit against the state or an agency or
subdivision of the state. Venue is generally proper only in the county in which the
state, agency, or subdivision maintains its principal headquarters. Courts
Q17: Are there any exceptions to the general venue rules?
There are a few to keep in mind. An action directly involving real estate must
be brought in the county where the real estate is located. Also, the parties may
stipulate venue by contract.
Who may be served?
Personal service may be made by personal delivery or by delivery to any person
15 years of age or older residing at the defendant’s usual place of abode. Substitute
service may be made by delivery to the spouse of the person to be served at any
place in the county if the action is not between the spouses and they reside together.
How is personal jurisdiction analyzed in Florida?
In addition to the constitutional requirements (such as minimum contacts
between the defendant and Florida) personal jurisdiction may be founded upon the
following: defendant’s presence in Florida when served with process; general
appearance without timely objection; consent; domicile in Florida; incorporation in
Florida; place of business in Florida; substantial activity in Florida; or pursuant to
Florida’s long-arm statute.
When will a corporation be subject to personal jurisdiction in Florida?
A corporation will be subject to personal jurisdiction if it is incorporated in
Florida, or if it engages in substantial business activity in Florida. As always, in
addition to the specific rules set forth in Florida, the constitutional requirements of
minimum contacts between the corporation and Florida must also be satisfied.
What are the consequences of personal jurisdiction over a defendant?
A decision rendered by a court that has personal jurisdiction is res judicata and
is entitled to full faith and credit in other states. The decision also imposes a personal
obligation upon the party.
What are the requirements of service of process in Florida?
A defendant must be served (with a summons issued by the clerk of court)
within 120 days of commencement of the action unless good cause or excusable
neglect is shown. In an amended complaint that adds a new party, the 120 period will
begin upon entry of an order granting leave to amend.
Who may serve process?
Personal service may be made by the sheriff, a special process server appointed
by the sheriff, or a person over the age of 18 who is appointed and is not interested in
the outcome of the case. A return of process must be signed by the process server
and filed with the court; an affidavit of service is required when not effected by the
sheriff or deputy.
Q9: Who may be served?
Personal service may be made by personal delivery or by delivery to any person
15 years of age or older residing at the defendant’s usual place of abode. Substitute
service may be made by delivery to the spouse of the person to be served at any
place in the county if the action is not between the spouses and they reside together.
Can service be made at a private mailbox?
If the only address discoverable through public records for a person is a
private mailbox, substitute service may be made on that person by leaving a copy of
the process with the individual in charge of the private mailbox if the server
determines that the person to be served maintains a private mailbox in that location.
How is a minor or incompetent served?
Personal service may be made upon a minor or incompetent’s legal guardian.
If there is no legal guardian, then service may be made upon a minor’s parent, or
upon the person who has care and custody of the incompetent.
How are sole proprietorships, corporations, partnerships, and nonresidents
served?
Personal service upon a sole proprietorship may be made at the place of
business during business hours by serving the person in charge after two attempts to
serve the owner of the business have been made. Upon a corporation, first there
should be an attempt to serve the president or vice president.
Is service by publication allowable?
It is allowable when the defendant is outside of Florida or cannot be found for
personal service after a diligent search in the state. The plaintiff must file an affidavit
that the defendant is over the age of 18 and that the defendant’s residence is
unknown or is outside of Florida or that the defendant resides in Florida but has been
absent for 60 days.
What are the rules regarding venue in Florida?
Venue exists in the county where the defendant resides (if multiple defendants,
then the county in which any defendant resides) at the time the action is commenced,
where the cause of action arose, or where property that is the subject of the litigation
is located.
Are there specific rules regarding venue for corporations and partnerships?
A domestic corporation resides in any county in which it has or usually keeps
an office. A foreign corporation doing business in Florida resides in any county in
which it has an agent or other representative.
What is the “home venue privilege”?
This is a rule that specifies venue in a suit against the state or an agency or
subdivision of the state. Venue is generally proper only in the county in which the
state, agency, or subdivision maintains its principal headquarters.
Are there any exceptions to the general venue rules?
There are a few to keep in mind. An action directly involving real estate must
be brought in the county where the real estate is located. Also, the parties may
stipulate venue by contract.
How might a party raise the issue of improper venue?
It must be raised by the defendant in his first response to the complaint;
otherwise, it is waived. A change of venue is available to either party if a fair trial is
What is forum non conveniens?
The court, on defendant’s motion within 60 days of service of process, may
dismiss a cause of action on motion of forum non conveniens if it finds another
jurisdiction would be more convenient. There are some requirements here, though:
the court must determine that an adequate forum exists and that factors favor the
alternative forum over the forum chosen by plaintiff.
What are the recognized pleadings in Florida?
There are seven and they are the following: complaint; answer; reply; third-
party complaint; answer to third-party complaint; answer to counterclaim; and
answer to cross-claim. Since Florida is a fact-pleading jurisdiction, facts rather than
evidence or conclusions must be pleaded.
What is a claim for relief?
A claim for relief contains a short, plain statement of the grounds for
jurisdiction and of the ultimate facts showing that the pleader is entitled to relief. It
also contains a demand for judgment.
When might a party move for a more definite statement or move to strike a
pleading?
A party will move for a more definite statement if the party cannot respond to
a pleading because it is vague or ambiguous. This motion must be made prior to
responding to the pleading, and the motion must point out the defects in the
pleading.
What is a motion for judgment on the pleadings?
A party may believe that a claim lacks legal sufficiency and in that case the
party may move for judgment on the pleadings after the pleadings are closed but not
so late as to delay trial.
Which defenses may be made in a motion prior to answering the complaint?
The following may be made at the option of the pleader by a pre-answer
motion: lack of jurisdiction over the subject matter; lack of jurisdiction over the
person; improper venue; insufficiency of process; insufficiency of service of process;
failure to state a cause of action upon which relief can be granted; and failure to join
an indispensable party.
What are the requirements when answering a complaint?
An answer admits or denies the allegations contained in the claim for relief
and the failure to deny an allegation is an admission thereof. General denials (as
opposed to denying each claim specifically) are allowable but they are not favored in
Florida.
Is a reply to the answer required?
Only if the answer contains an affirmative defense that the opposing party
wishes to avoid. A reply must be filed within 20 days after service of the answer.
Are amendments to pleadings allowable in Florida?
A pleading may be amended once before a responsive pleading is served, or if
no responsive pleading is required, within 20 days of service of the pleading sought
to be amended. After the first, all other amendments can be made only with the
written consent of all adverse parties or by leave of court which shall be given in the
interest of justice.
