Good phrases to review on tuesday Flashcards
Class gift
A gift to a group of persons described collectively, typically by their relationship to a common ancestor.
The actuarial value of Husband’s interest is only $150,000. Would any amt distributed to him above that amount by Trustee, on termination of the trust, be a breach of FD?
No. If Bs consent. If trust beneficiaries properly terminate a trust, trust assets vest in them. After termination, the beneficiaries may themselves distribute trust assets in any manner they choose. They may also direct a trustee to distribute trust assets as their agent. A trustee who complies with such directions does not violate any fiduciary duty. S
Does a prenup bar a future gift in a will?
No, it prevents only involuntary transfers, it does not prevent a gift in a will.
Personal representative
Individual in decedent’s will that has priority from the court in overseeing the administration of the estate. Where will silent, the court will appoint a person granted priority under the governing statute if that person is otherwise qualified. Typically, surviving spouse is the individual w/ priority. UPC says surviving spouse has priority only if the spouse is a devisee of decedent.
Modifying a support award
Personal jx does not confer Subject matter jx over a child support modification. Under UIFSA, the state that has original jx has continuing exclusive jx unless all move out of state or all the parties consent to jx in the new state.
If a wife is served in state A when dropping kid off at ex-husbands house can he personally serve her for a divorce property dispute?
Yes. That state can exercise PJ over her because she was personally served in the state.
Propsective modification of child support order is avaliable only when petitioner can show:
sub change in cir.
Is a significant decrease in income a substantial change for the purpose of modification of a support award?
Yes. But when a parent seeks to modify a child support obligation because he has voluntarily reduced his income, a court will not modify the obligation based solely on the income loss. And some courts refuse to modify when the loss was voluntary.
Is a property distribution award in divorce modifiable?
No. not subject to post divorce modification. “the past can be ascertained”
Implied in fact contract What are some examples?
formed by manifestation of assent other than oral or written language (eg. by conduct). 1. Guy sits in barber’s chair and baber cuts his hair. 2. K between neighbor and landscaper, landscaper accidentally performs work on neighbors yard while neighbor looks on.
When there is a minor breach but substantial performance, can the non breaching party sue for breach of contract?
YES. Must still perform (obligation not discharged) but can sue for damages for any damages caused by the delay.
Are Miranda warnings required at Terry stops?
Nope. not an custodial interrogation.
is being a brick mason substantially similar to being a day laborer? If not, what can the guy recover?
No. The full K price.
Do all encumberances render title unmarketable?
No. Only ones that would subject the new owner to the risk of litigation
Accessions - Secured Credit - Priority Rule and Perfection
Accession = part of whole w/ SI
Perfected by NoLoCoT
SI in whole > SI in accession
Self help in accounts
C can notify in Signed Writing to account Ds to make payment to secured party rather than D.
Payment to D won’t discharge obligation.
Written notice of resale of collateral required unless:
collateral rapidly depleting.
Can you argue that debtor had duty to mitigate if secured party does not comply with Art 9 resale of collateral?
Yep. C can argue D had duty to mitigate + breached duty by not bidding @ sale.
If SI in $$, how do you perfect?
Only by possession
If collateral is real estate, where do you file UCC1?
Make a county filing where RE is located.
Does a debtor have to authorize a continuation statement?
No.
Priority Rules for Fixtures
1st in time between fixture and real estate filing.
Unless:
- PMSI in fixture, filed w/in 20 days after debtor receives rights in the collateral.
- If construction mortgage > PMSI in fixture.
When can LE commit Ameliorative waste?
- All remaindermen consent
or - SUB ∆ in neighborhood –> current use is useless
Defense to Common Development Scheme enforcement?
∆ in conditions
Charity exception applies to RAP when:
FSSEL to charity and EI to different charity
Rule of convenience
If silent, class closes when any member can demand possession, except Womb Rule
Do Co-Ts have a right of contribution for improvments made on the land?
No, but if partition, get credit for any improvement in property value or dimunition if results in loss
When lease expressly provides that T must repair. Can T end lease if destruction w/o Ts fault?
Yes.
What are you liable for if you remove a fixture?
Voluntary waste
Whats the important distinction between constructive eviction and breach of IWH?
Constructive eviction must leave, IWH dont have to leave (MR3)
When does statutory period run against future interest holders for AP?
When interest becomes possessory
Have to file suit to quiet title to:
- convey? T/F
- have marketable title? T/F
False.
True.
Will an adverse possessor will prevail over a subsequent BFP who complies with the recording act?
YES. Adverse possessor will prevail over a subsequent BFP who complies with the recording act because there is no document that the interest holder could record
Remedy for overuse/misuse of easement? for profit?
- owner of ST can get injunction, does not cancel easement
- Can be terminated through surcharge - misuse that overly burdens ST
Are licenses subject to SoF? are they alienable? what if the thing says “to heirs and assigns,” could that create a license?
No, no, no.
If transfer deed with oral condition, does the oral condition drop out? Can you validly deliver w/ escrow conditions?
Yes. but, yes.
Marketable title defects
FAZE
- Future interests w/o agreement
- AP unquieted
- Zoning violation
- Encumbrances (servitudes, mortgages) (NOT an easement that is beneficial, visible, or known)
Buyer bears risk between time of land sale K and close for what $$ amount:
Full K price, not just FMV!
Race notice
BFP when take + win to record.
Mortgage Priority
Dedication of Land for Public Use
- Dedication (SOW)
Submission of map/plot,
Open land for public use,
Written/oral statement of dedication
- Acceptance (FAM)
Formal resolution
Approval of map/plot
Maintenance or construction of improvements
Can be accepted @ any time unless revoked
constructive notice not required for public user to win
Does former testimony hearsay exception apply to testimony from grand jury?
No, no opp for cross.
Do you need PK for an admission of party opponent?
No.
No PK, no AI WM, can be opinion.
Are defamatory words hearsay?
No. VA LOF - not offered to prove the truth of the matter asserted
Public Records Exception to Hearsay
Public agency activity
Official investigation fact finding
Duty imposed by law
Past Recollection Recorded - when does it come into evidence as an exhibit?
APEx
Adverse Party, offers as Exhibit
PRISM
Privilege Asserted
Refusal to testify
Incapacity
Subpeona - no comply with
Memory - lack of
Legal Relevance Test
PV SuBO DUP
Methods to Prove Doc Author
HAKS
Handwriting,
Ancient Doc Rule,
Knowledge (Personal),
Solicited Reply Doctrine
Proof of Handwriting
JEL
jury, expert, lay
BER - Acceptable Excuse
PoE that excuse.
If excuse accept, can use COM.
Excuse = lost, destroy w/ BF, can’t get.
Preponderance of Evidence
Copy, Memory, Oral Testimony
Witness Competency
O + PK
Oath + PK
Expert W
H2J, Sci/Tech/SpecialK
3 permissible sources: TOP
Reliability: TRAP
Trial Record, Outside facts relied on by experts in field, PK
Testing Principles/Method, Rate of Error, Acceptance by experts in field, Peer Review
Is there FRE on privilege?
No. If FQ no, if DivJx, state law.
Judge decides what before case starts:
Judge puts on his CAP to decide
Competency
Admissibility (including hearsay)
Privilege
PIS as substantive evidence when:
Opp 4 cross: depo, testimony
Testimonial
Sworn, GIT, FAR
- Sworn testimony (grand jury, prior trial, prelim hearing)
- Statements to PO for gathering info (GIT)
- Forensic Analysis Reports (FAR) (Report w/ effect of accusing targeted person of criminal conduct is testimonial. If analyst who drafted is unavailable, there may be Constitutional violation.)
Waiver of Privilege
Not timely wavied, waived via K, intentionally tell 3rdP
Rescuer Liable if
- Inc RoH or
- Rely by π
Indemnity only when: (5)
V SKIM
- VicLib
- Supp in SPL - up the chain
- K promise to I
- Intent Tortf (can’t seek contribution)
- Multiple TFs
Claim for indemnification is a secondary action based on findings in the first
Transferred Intent applies only to
BAF T-LC
Battery, assault. false I, trespass to - land and chattels
Better arg for arrest is as a defense to intentional torts when
Crime more serious and ∆ directly observes crime
For false light, if matter of public interest, must show:
Actual malice.
Implied Warranty of Merchantability
- M in GoTK
- Product did not live up to ord purpose when sold
- AC/PC
- Damages - econ only fine
Defenses: ass risk, misuse - unreasonable, fail to give reasonable notice
Duties of P to A
Not FDs!
1 .Indemnity if loss in P-A Relation
2. Reasonable Comp
For ratification, principal must have:
P must have 1) KMF 2) Cap
Estoppel Theory of Liability
P creates app of E’or/E’ee relationship, 3rdP relies
Is there a SoF issue with an oral phsip agreement?
NO. Oral agree fine. No SoF issue.
Intent can be implied from conduct alone.
Duty of care in partnership
no gross neg or higher. gF + BIOP
can waive DoL in Pship if?
full disclosure =
all Ps consent or Pship agree amended
Pship agree can eliminate or alter DoL
Limited Liability Company
Hybrid between corporation and a partnership in which the owners “members” have limited liability as wells as the benefits of partnership tax treatment
pass thru taxation
Receipt of Stolen Property
Stolen @ time received
Knowledge
IPD
Can transferred intent apply to attempt?
No
For Accomplice Lib, does it matter if P convicted? Exceptions to AL
No, even @ common law.
Members of class protected by statute, necessary parties not provided for
At common law, did other party need to agree for valid solicitation offense?
Defense to solitication
No.
Solicitor could not be found guilty found guilty of the completed crime because of legislative intent to exempt her
Wharton Rule
Where two or more persons are necessary for the commission of the substantive offense (ex. adultery), there is no crime of conspiracy unless more parties participate
Continuing Trespass
Can be guilty of larceny if at time you take, you dont have IPD, but later decide to.
Does the embezzler have to get the benefit for embezzlement to apply?
No.
Breaking for burglary.
Can an owner commit burglary on own structure if rented and used as dwelling by someone else?
Can be actual (some force, however slight) or constructive (by fraud or threat)
Yes.
Where recognized, diminished capacity is limited to:
SI crimes.
Ownership of Prop in Marriage
Title NotD in EqDoP
Is a professional license MP?
Most jx: No, earning cap and professional license not typical prop. Not distributable, transferrable, or inheritable.
Minority of states: yes. Subject to equitable distribution. Could get % of license’s value, ususally as additional MP or alimony.
Alimony factors to consider
Dividing Property is Certainly Hard And Shitty. And Everyone Will be Pissed
Duration of marriage
Present income
Child support/custody
Health of parties
Source of income used to pay for MP
Age of parties
Education/earning capacity
Wifey responsibilities
Party’s ability to get future income
Child Custody Factors
BIOC. Discretion
1st Adjust 8-12 Children + Parents Wishes for Mental/Physical Health
Presumption of parentage
Assume dad if born in M, <300 days of Divorce, during V or Voidable M
rebut by CCE
Subscriptions
Written offer to buy stock from corp
Pre-incorp - IR for 6 months
Post-incorp - R until accepted by BoD
When can corporation restrict stock transfer?
For any reasonable purpose.
Examples: valid if SH must offer shares to corp 1st or require other persons to purchase the offered shares.
Absolute prohibition on transfer likely not valid bc not reasonable.
When is a share transfer restriction enforceable against a 3rdP?
Only if the restriction is conspicuously noted on the share certificates or purchaser otherwise knew of the restriction.
If not 3rdP can compel the transfer.
D&O Indemnification
Yes - if PoMoO
May - GF + BIOCorp
No - DoL violation
Director Voting
Need Q.
Resolution - need maj of Q.
Can break Q if leave.
Waiving Notice Defects - Shareholders
Actions are voidable unless waive E or I.
- E - in SW anytime
- I - attend mtg w/ no object
Corp not formed or SoS rejects
Partnership instead unless Personal liability unless unaware of failure:
DF or E
Conflicted Interest Transaction
KAM
I am not conflicted in how I feel about KAM.
D has
- *K**nowledge
- *A**pproves K
- *M**at’l Financial Benefit
Who does recovery go to in derivative suit? How can you settle derivative suit?
Corp. Only with court approval.
Preemptive Rights
Right to not dilute.
Don’t exist unless is AoC
Can only use if issuance for $$$$, not if for stock for employee comp
If own shares w/ VR but not higher class (Class B) –> no PR in shares issued w/ higher class (Class A) but no VR.
Voting Trust and Voting Agreement
- Voting Trust (10 yr max)
Written trust agreement, copy to corp, transfer legal title to T, OG SH get trust cert & retains rights but not voting - Voting Agreement
less cumbersome, just need signed writing.
Wind Up (Liquidation) Steps
Written notice - actual or newspaper
Gather assets
Convert assets to cash
pay creditors
distribute any remaining sums to SHs pro rata by shares unless there is a liquidation preference.
Waiver of DoL in LLC
Can waive in LLC, not in Corp. As long as not “manifestly unreasonable”
No WU in LLC unless? WU requires?
Unami agree. + notice to creditors which includes steps necessary to enforce their claims
Does there have to be an indep basis for each person searched, even if in same room?
Yes. But can detain during search.
Exclusionary Rule
- Q for judge or jury?
- Gov must establish admissibility by what standard?
- Can you testify at suppression hearing without later being admitted against?
Judge
PoE
Yes
6A Co-C Confessions
No unless
- Redact portion re other
- Confessor takes stand
- rebuttal of coercion
How does gov show harmless error?
Gov has burden to show BRD that harmless.
Once 6A R2C Attaches:
Any attempt to ION W = E
W = KIV
Illict incriminating response
Offense-related
No counsel or waiver
= Exclude
Waiver must be Knowing, Intell, Vol
Can immunized testimony be used to impeach?
No. involuntary.
If illegal arrest, can you still prosecute and detain?
Yes. No effect on this, but can suppress evidence seized during arrest.
Do you have to validate tips from anonymous informants?
Yes, VISA
Validate Independent Source, if Anonymous
Exigent Cir not applicable when:
- police create ExC or 2. crime = minor misdemeanor
Can a statement obtained in violation of MW be the basis of probable cause?
Yep.
You lose your 6A right to confront witnesses when:
You cause the witness to be unavaliable
Limitations on Warranties
Limit for I not E. Must be obvi.
Limit on remedies ok unless Uncon
1. Presume uncon - limit on PIR on CG
2. FEP
SoP on minor or incompetent?
SLM where SoP
If the president of a corporation is named as the deponent but doesn’t know information, how can he avoid the deposition?
Corp’s counsel should object to the deposition notice and move for a protective order exucsing the corporation’s president from appearing
Protective order - can be issued to prevent entire line of questioning. Can be used for depositions too. Usually ask for before deposition.
Dismissal w/ Prejudice
SID = VFJ on M
Settlement
Invol dismissal
Dismissal w/o prejudice
stipulation by parties, court says so.
Content of Jury Instruction is reviewed?
De Novo - question of law
Issue of whether to give jury instruction - standard of review
Abuse of Discretion
If no good cause and dont waive SoP, do you have to pay the fees?
Yes.
If removal by ∆ was improper, what do you do/
Request to remand to state ct
Discovery Sanctions
No reponse: merits sanctions + costs
Part reponse: Move to compel + for costs to bring motion. IF yes, get MS.
Which is the only discovery tool you can use before the 26f conference?
Requests to produce - can use 21 days after SoP
For class action DivJx - what do you look @ ?
- Diversity - only @ citizenship of rep
- AIC - REPs claim greater than $75k
U.S. citizen domiciled in Japan v CA. Diversity?
TX v Green Card Alien residing in TX. Diversity?
is DC a ‘state’?
No not citizen of state and not alien.
No. go to state ct.
yes.
How to assert work product privilege?
Must claim the protection expressly and describe the materials in detail in a privilege log that allows judge to determine whether the material is protected
Do you have to wait for a certain time after trial for execution of judgment?
Yes. Absent a court order, no execution of judgments is allowed for 30 days after entry except for injunctions or receiverships, which are not held up unless otherwise ordered by a court.
Remand order generally not appealable. T/F?
True.
Who has plenary power to spend for the general welfare?
Congress, president cant do shit about it
