July ’15

Question 1

Adverse possession

Answer 1

Must prove that possession was: (1) actual and visible; (2) exclusive; (3) continuous; and (4) hostile to the ownership rights of the owner, for a period of 15 years.

Question 2

When a creditor-debtor itself defaults to another creditor, the creditor may…

Answer 2

…notify the debtor (a letter about the default is sufficient) and demand payment be made to it rather than to the creditor-debtor. The debtor should comply.

Question 3

A purchaser from a thief…

Answer 3

…cannot be a bona fide purchaser.

Question 4

Where a seller of chattels did not have title, he has…

Answer 4

…breached his warranty as to title and the right to transfer it and if the chattels server as collateral for a security interest the collateral fails and the debtor is no longer liable. Further, the debtor can sue for breach of title warranty to recover payments made and incidental and consequential damages.

Question 5

Service of process hierarchy

Answer 5

1. Personal (or “actual”) service. 2.Substituted service. 3.Posted service.

Substituted service must be served: -At D’s usual abode -On member of D’s family who is both: At least 16 years old Not a guest or temporary sojourner by explaining the purpose of the service.

Posted service must: -Post a copy of process on D’s front door -Mail a copy of process to D-At least 10 days before taking default judgment-Explain to D that P may seek default judgment 10 days later (only in Circuit Court) -Certify to the clerk that mailing took place

Question 6

A bill of review…

Answer 6

…lies only to a final order in an equitable proceeding. Filed within six months of the entry of the final order.

A bill or review can be brought on either of two alternative grounds: [1] error of law apparent on the face of the record of the proceeding; and [2] newly discovered evidence.

If the bill of review is sought on the grounds of newly discovered evidence, leave of court to file the bill of review must be first obtained.

When seeking leave to file a bill or review on the grounds of newly discovered evidence, the moving party should allege, and be prepared to prove:
[i] what the evidence would be and attach affidavits of witnesses to support the allegations so the court can make a finding that all the elements are present. The elements are:
[a] the evidence was discovered after trial; and
[b] the evidence is material and on another trial should produce opposite results on the merits; and [c] the evidence is not cumulative, corroborative or collateral; and
[d] the evidence could not have been discovered with reasonable diligence before trial; and
[e] the evidence can be produced at a new trial.

[Community edit:

“As to equity causes of action only, a party can seek review of final decree for up to 6 months after entry. (This trumps the 21-day “breast of the court” rule.) With a bill or review, a party can file, without leave of court, to correct errors apparent on face of record. With leave of court, a party can file based on new evidence.”]

Question 7

Crime of attempt definition.

Answer 7

One who intends to commit a crime and commits a direct, but ineffectual act towards commission of the crime.

Abandonment is not a defense.

Question 8

Definition of robbery.

Answer 8

Robbery is the taking, with the intent to deprive the owner or custodian, permanently, of personal property, from his person or in his presence, against his will, by force, threat or intimidation.

Question 9

Definition of abduction

Answer 9

Abduction occurs when a person by force or intimidation seizes, takes, transports or detains another person with intent to deprive that person of liberty.

Jerry might defend against the charge by arguing that there is a certain amount of restraint inherent in the commission of robbery, and that here he did not restrain the teller any more than necessary to commit the robbery, and that such restraint of the teller was merely incidental to the robbery.

Question 10

A fundamental corporate change, like the sale of substantially all assets, requires:

Answer 10

1. Resolution by board at a valid meeting
2. Notice of special meeting (25-60 days in advance)
3. Approval by more than 2/3 of all shares entitled to vote. The articles may provide for different percentage, but not less than a majority
4. File notice with the state corporation commission

Exception where all shareholders approve.

Question 11

Purchasing assets of another corporation is…

Answer 11

…not a fundamental corporate change.

Question 12

A corporate director’s failure to do due diligence can be…

Answer 12

…a breach of their fiduciary duty of loyalty outside of protection from the business judgement rule.

Question 13

A loan from the corporation to a director ___ per se improper.

Answer 13

Is not.

Especially where approved of by disinterested directors.

Question 14

In federal court, D must file a response to a complaint within…

Answer 14

…21 days of service of process (starting the day after service).