MBE Flashcards
Larceny
Taking and carrying away the personal property of another by trespass with intent to permanently deprive.
Burglary
Breaking and entering the dwelling of another at night with intent to commit a felony therein
First Degree Murder
Typically defined by statute; killing another with either (a) deliberation or premeditation or (b) during the commission of an enumerated felony
Common Law Murder
Killing another with malice aforethought: (a) intent to kill; (b) intent to inflict great bodily harm; (c) reckless disregard for an unjustifiably high risk to human life [depraved heart]; or (d) intent to commit a felony
6A right to counsel
Applies to all critical stages of the prosecution and attaches to a specific offense upon initiation of criminal proceedings. Once attached, the police are prohibited from eliciting incriminating statements from D without the presence of counsel, unless D knowingly and voluntarily waives. The right applies to post-charge lineups and show ups, but does not apply to photo arrays.
Identifications: 14A DP
Identifications that are unnecessarily suggestive and present a substantial likelihood of misidentification violate the Due Process Clause. The identification must be extremely suggestive and the suggestiveness must have been initiated by the police. While show ups are unduly suggestive, they are a permissible identification method.
Marketable title
Reasonably free from doubt / unreasonable risk of litigation
It’s an implied covenant and the seller is only liable on it up until closing, after which the language of the deed controls
Earnest $
In a land sale contract, S will often require B to deposit earnest money in the event B defaults in performance. S can keep as liquidated damages so long as amount is reasonable
Theories under which seller can be liable for defects in existing building
- Misrepresentation
- Active concealment
- Failure to disclose (1-knows/should know; 2-latent; 3-serious)
General disclaimer won’t absolve seller
Inter vivos gift [deed] requires…
1-donative intent
2-delivery
3-acceptance
Deed formalities—requires…
1-writing
2-signed by grantor
3-reasonably identifies their parties and land
Void v voidable deeds
Void- will be set aside, even if property passed to BFP
Void when…forged; never delivered; fraud in factum [baseball autographs]
Voidable- will not be set aside, unless property has passed to BFP
Voidable when…minor-party executes; fraud; mistake; duress
Rules of construction for land description
Must give good lead
Hierarchy 1-natural monuments 2-artificial monuments 3-angles 4-distances 5-quantity
Avulsion v accretion
Avulsion—sudden change; does NOT change ownership
Accretion—slow change; does change ownership
Deeds—grounds for reformation
Misrepresentation
Scrivenor’s error
Mutual mistake
Deeds: delivery and acceptance
Delivery: intent to make deed presently effective; take back is not effective
Acceptance: presumed in most states
General warranty deed
1-seisin: title + possession
2-right to convey: title
3-against encumbrances
4-quiet enjoyment: won’t be disturbed in possession by lawful claim
5-warranty: will defend/compensate
6-further assurances: will perfect
Special warranty deed
Grantor not liable for defects that existed before the grantor was deeded the property
Estoppel by deed
Trigger: when S deeds property to A, which he does not own
What happens: if S later acquires property, he will lose against the grantee (title automatically inures in grantee). But, if S grants to A, then grants to B, B will prevail over A if B is a BFP
Shelter rule
A person who takes from a BFP will prevail against anyone whom the BFP would have prevailed against, even if the person has notice of the prior unrecorded transaction
Record notice
Deed is in chain of title, meaning that a searcher could reasonably find it
Effect of recording
Gives prospective subsequent grantees constructive notice; creates a presumption of valid delivery, but won’t validate an invalid deed
Recording protects BFPs
Ademption
[TESTATOR NO LONGER OWNS]
When property is devised in testator’s will, but TESTATOR NO LONGER OWNS it at the time of death, the gift fails
Exoneration
[PAYMENT FROM RESIDUARY ESTATE]
CL doctrine where devisee of specific property is entitled to have land exonerated by payment of liens and mortgages from the testator’s residuary estate
Lapse
[BENEFICIARY DIES BEFORE TESTATOR]
Occurs when beneficiary of a will dies b/f testator — at CL, gift fails, but now most states have anti-lapse statutes, which substitute the beneficiary’s descendants (e.g. dead guy’s son) for the beneficiary (so, the dead guy’s spouse will never get the gift)
Abatement
[REDUCTION OF GIFTS]
Reduction of gifts where estate assets are not sufficient to pay all claims against the estate and satisfy all devises and bequests
Gifts to specific devises and bequests will be abated last (meaning, abatement will first come from property passing by intestacy and the residual estate)
Mortgage
Debtor (mortgagor) signs note to lender (mortgagee). If debtor defaults, lender can foreclose on property through judicial foreclosure sale conducted by sheriff.
Deed of Trust
Security interest in real estate: debtor (trustor) gives deed of trust to third party (trustee) who is closely connected with the lender. If debtor defaults, lender can instruct trustee to foreclose on the deed by sale. Non-judicial sale is allowed
Installment Land K
Security interest in land: Legal title only passes upon completion of all payments
Lender transfers mortgage
-transfer w/out note: states are split (some find transfer is void)
- transfer of note w/out mortgage: OK; two methods
1) separate written assignment
2) indorse + deliver. This method will give the transferee “holder in due course status,” which basically takes certain defenses off the table for the debtor (like failure of consideration, fraud in the inducement, waiver, estoppel)
What happens when lender transfers mortgage and the debtor pays the lender rather than the transferee?
If the lender transferred a non-negotiable note, then any payments debtor makes to lender are effective against the transferee—meaning the transferee can sue the lender for the money, until the debtor receives notice of the transfer
If the lender transfers a negotiable note (less common), then payments by the debtor to the lender are NOT effective against the transferee
Assumption agreement
If the grantee signs, then she is primarily liable on the mortgage, while the original mortgagor becomes secondarily liable as a surety
What is the effect of a grantee and a mortgagee modify the terms of a mortgage?
The original mortgagor is no longer liable!
Due on sale clause
If it exists, then lender can demand full payment from original mortgagor if she makes a transfer without the lender’s consent
Mortgage consumer protection
A lender can only offer loans to a residential mortgagor that are understandable and not unfair, deceptive, or abusive.
Choice of law: law of the state where property is governs the mortgage; lender’s choice of law clause that selects a state with less stringent foreclosure consumer protection law is generally void
Can a mortgagee take possession of property before foreclosure, where debtor is in default?
It depends!
Lien theory (majority): NO (mortgagee only has title upon foreclosure)
Title theory: yes (mortgagor only has title upon paying off mortgage)
- but, mortgagee might not want to take possession due to risk of liability
- if the property is a rental property and the mortgagee wants to collect rents, she can ask the court to appoint a receiver, which requires a showing that 1) mortgagor is insolvent 2) waste and 3) value of property is inadequate to secure the debt
Foreclosure
Sale of property to satisfy a debt
All states allow judicial sale
Some states allow non-judicial sale under power of sale
Foreclosure will destroy JUNIOR interests, NOT senior interests. But if the junior interest holder is not notified and included in the foreclosure sale, her interest is preserved.
Foreclosure: redemption
Equitable redemption
—some states allow for this; provides the mortgagor to redeem property PRIOR to foreclosure sale by making payment of amount due. If there is an acceleration clause, debtor must pay mortgage in full.
Statutory redemption
—some states allow for this; provides the mortgagor to redeem property AFTER foreclosure sale by making payment of amount due. Usually, statutes allow for a limited period of e.g., 6 months.
Priority
Priority is determined by the time that the mortgage was placed on the property—meaning first in time has priority.
Foreclosure: What are the six ways in which priority can be modified?
1-recording statute (eg, first mortgagee fails to record and second mortgagee records —> ME2 has priority)
2-subordination agreement
3-PMM. A PMM is where a lender provides funds for the debtor to purchase the property, in exchange for a mortgage. A PMM lender will have priority over PRIOR claims, but subsequent claims will have priority under recording statutes or subordination.
4-Modification (junior interest holder has priority over modification)
5-Optional future advance (junior holder has priority over optional advance)
6- subrogation (senior mortgage that is refinanced with new mortgage)
—how this works: L1, L2, L3; mortgagor refinances by getting $ from L3 to pay off mortgage from L1; L3 now has priority over L2
Foreclosure: proceeds of sale (hierarchy)
First to last
1-atty fees; costs of sale; court costs
2-principal + interest on foreclosed loan
3-junior lien holders
4-mortgagor
Marshaling
Trigger: debtor gets a mortgage secured by two properties A and B from L1, then gets a mortgage from L2 secured by B, then debtor defaults on L1
Rule: Where a mortgagor has defaulted on a mortgage secured by two properties, a junior interest holder can ask a court to marshal assets—i.e., have the foreclosure first on the property that does not have her subordinate interest.
Result: L2 can ask court to first conduct judicial sale on property A, such that property B will only be foreclosed if the first sale was insufficient to satisfy L1’s debt
What are the five possible ways that the harsh result of forfeiture can be avoided in the event of default of an installment land K?
1-equitable redemption
2-treat as mortgage (allows for judicial sale)
3-restitution
4-waiver (if debtor can show vendor has pattern of accepting late payments)
5-election of remedies (either damages or SP only)
Fixture: definition
Chattel brought onto real property that becomes so affixed to land that it loses its status as personal property, becoming part of real property.
If the chattel is incorporated into a structure: if it loses its identity, like a brick, it is a fixture; if it does not lose its identity, but removal would cause substantial damage, like plumbing, it is a fixture
Fixtures: common ownership case
Trigger: A owns property and brings chattel onto property; A then sells property to B; what chattel is B entitled to?
Rule: whether chattel is a fixture depends on the objective intent of the seller—did the seller objectively intend to make the chattel part of the property —> factors... —a) nature of article —b) damage if removed —c) adaptation to property —d) manner of attachment
Fixtures: constructive annexation
Chattel that is not physically attached (like a key) but is so uniquely adapted to real estate —> likely a fixture
Fixtures: divided ownership case
Trigger: T rents from L and brings chattel onto property
Accession: intent of annexor (tenant) to make chattel a permanent part of the real estate
Rule: absent a controlling agreement, T is presumed to not have the intent to permanently improve the property, so T can remove chattel so long as it does not cause substantial damage. T must remove chattel by end of the lease term and if damage is caused, T must pay for it.
Misc:
—life tenant’s representative can remove chattel after life tenant’s death
—someone who is trying to become an adverse possessor cannot remove fixtures
What possible theories are there for products liability?
1-strict liability 2-negligence 3-implied warranty of merchantability 4-implied warranty of fitness 5-express warranty 6-misrepresentation
Products Liability: SL
Plaintiff must show 1) D is a commercial supplier; 2) D produced or supplied a defective product; 3) actual and proximate cause; and 4) damages
Products liability: commercial supplier + who is duty owed to?
A commercial supplier is someone who is involved in putting a product into the stream of commerce. Commercial suppliers include manufacturers, assemblers, wholesalers, and retailers. Casual sellers do not count.
A commercial supplier owes a duty to all foreseeable plaintiffs (not just purchaser).
Products Liability: Defect
In either a strict liability or negligence action, plaintiff must show that the product is defective. A defect can include a manufacturing defect, a design defect, or an inadequate warning (treated as a design defect).
A manufacturing defect occurs when a product comes out differently and more dangerous from other products of the same line. Plaintiff must show that the product failed to perform as safely as an ordinary consumer would expect.
A design defect occurs when a product comes out the same as other products of the same line, but has a dangerous propensity. Plaintiff must show that a feasible alternative design existed—meaning there was a way to produce the product more safely without substantially altering utility or price.
A product has an inadequate warning when the manufacturer fails to adequately warn as to the risks involved with using the product that may NOT be apparent to users.
Products Liability: causation
Plaintiff must satisfy but for causation and show that the defect existed at the time it left D’s control. A court will presume that the defect existed at that time, I’d the product moved through the normal channels of distribution. Plaintiff can rely on res ipsa.
Plaintiff must show that the injury she suffered was foreseeable. An injury is foreseeable when it results from foreseeable misuse of a product.
If plaintiff is alleging an inadequate warning, she is entitled to a presumption that an adequate warning would have been read and heeded.
Products liability: damages under SL or negligence
Plaintiff must show personal injury or property damage. Mere pecuniary loss is not sufficient.
Products liability: negligence—breach
To prove breach, plaintiff must show defendant engaged in negligent conduct that lead to supplying a defective product.
Manufacturing Defect against D-manufacturer: plaintiff can rely on res ipsa
Design Defect against D-manufacturer: plaintiff must show D knew or should have know of the danger of the product as designed.
If plaintiff is suing an intermediary for either manufacturing or design defect, the case for negligence is more difficult. An intermediary can satisfy its duty by making a cursory inspection.
Privacy torts
PDPF: public disclosure of private information, the disclosure of which would be highly offensive to a reasonable person
False light: publication resulting in attribution of views to plaintiff which she does not hold and a reasonable person would find highly offensive. For matters of public interest, a plaintiff must show actual malice (knowledge/reckless disregard).
Intrusion upon seclusion: prying or intruding into a private affairs that is highly offensive to a reasonable person
Name/Picture Appropriation: unauthorized use of plaintiff’s name or picture for commercial advantage
Are special damages (pecuniary loss) required for privacy torts?
No! Emotional distress is enough
CL defamation
Publication to a 3P of defamatory material of or concerning plaintiff + damages
Libel (print/radio/tv): presumed damages
Slander (oral): must prove special damages (pecuniary loss)
Slander per se: damages are presumed —> applies to defamatory statements in the context of a) loathsome disease b) business/profession c) chastity of a woman and d) accusations of guilt for crime
Publication must be made intentionally or negligently
Constitutional defamation
CL defamation (defamatory language, publication, of or concerning plaintiff, damage) + matter of public concern + falsity + fault by D
If plaintiff is a public figure, she must prove actual malice
If plaintiff is a private figure, she need only show D was negligent as to falsity
Robbery
Larceny + force
Taking and carrying away the personal property of another from the other’s person or presence, by force or intimidation, with intent to permanently deprive
Embezzlement
Fraudulent conversion of property of another for which the person was in lawful possession
Real covenant: definition
Written promise to do or not do something on land; the promise runs with the land at law
Real covenant: record notice
Under the modern recording statutes, a purchaser for value who does not have notice of the covenant (a BFP), takes free of the covenant
Horizontal privity
Promisor and promisee shared some interest in the land independent of the covenant (like a grantor-grantee or L-T relationship).
Vertical privity
For burden of real covenant to run, vertical privity requires a nexus between the covenantor and the successor and that the covenantor conveys the entire duration of her interest
Touch and concern
Affects the legal relationship of the parties and not merely as members of the community at large. The majority rule is that covenants to pay money run with the land when the money is to be used in a way connected with the land
Equitable servitude
Covenant that equity will enforce against the assignees of the burdened land who gave notice of it; burden runs if intent, T&C, and notice; benefit runs if intent, T&C
3 situations when contract rights cannot be assigned
1-would substantially change the obligor’s duty
2–assignment of future rights to future contracts
3-prohibited by law
3 situations in which contractual duties cannot be delegated
1-duties invoke personal skill, judgment, or special trust
2-delegation would change obligee’s expectancy
3-contractual restriction (“no assignment”)
3P beneficiary: when do an intended beneficiary’s rights vest?
1-when she sues on the contract
2-when she manifests an intent to a promise in the manner requested by the parties
3-when she materially changes her position in justifiable reliance on the promise
Implied beneficiary of covenant
If a covenant in a subdivision is silent as to who holds its benefit, any neighbor in the subdivision will be entitled to enforce the covenant if a general scheme or plan existed at the time D purchased the lot
Defamation: qualified privileges
1-reporting on official proceeding
2-in interest of publisher
3-in interest of publication’s recipients
4-in interest of both publisher and recipients
Can be lost through abuse—actions outside the scope or if the D acted with actual malice
Organizational standing: elements
1-injury to members that gives them the right to sue on their own behalf
2-injury is related to the organization’s purpose
3-individual member participation is not required
3P standing
1-close relationship between claimant and 3P
2-obstacles to 3P raising her own rights
Pullman abstention
FC will abstain from hearing a case when 1) state law is uncertain and 2) the federal court’s constitutional holding would be rendered unnecessary by state court clarification
Younger abstention
FC will abstain from enjoining a pending criminal case absent prosecutorial bad faith or harassment
Applies to state civil enforcement proceedings too
AISG
SCOTUS will not take the case if the decision of the state’s highest court is supported by a state law rationale that is 1) independent of federal law and 2 adequate to sustain the result
Ripeness
1-fitness for judicial decision (unfit if based on contingent future events)
2-hardship to the parties of withholding court consideration (would party risk substantial hardship to provoke enforcement of the law)
Standing elements
1-injury in fact (particularized, concrete, non-speculative)
2-causation (fairly traceable)
3-redressability (likely that a favorable judicial decision would remedy the injury)
Pardon power
Does not apply to civil contempt or impeachment
Hierarchy of laws
1-constitution
2-treaties and fed law (if conflict, last in time)
3-executive agreements (b/n prez and foreign country, no senate consent req)
4-state law
Exception to executive privilege
Criminal case where a need for communication is demonstrated
Commerce clause
Congress can reg foreign and interstate commerce—specifically 1) channels, 2) instrumentalities, and 3) activities that have a substantial effect
Commerce clause: reg of INTRAstate commerce
Regulation must…
1-concern economic or commercial activity
2-there must be a rational basis on which Congress could conclude the activity, in aggregate, substantially affects INTERstate commerce
Property Power
Congress can dispose of and make rules for territories and federal properties
Congress’ ability to tax/reg of state local entities
Allowed if the tax/reg applies to both public and private sector. BUT, KEY EXCEPTION…
—Spending conditions: Congress can impose funding limitations on states concerning susbjrxfs that Congress does not have the power to regulate so long as the conditions…
(1) are clearly stated
(2) relate to purpose of problem
(3) are not unduly coercive (compulsion if withhold 10% of budget)
Counterclaims
Compulsory: same t/o
Permissive: unrelated and meets federal jurisdiction requirement
Compulsory joinder (indispensable party)
1) should A be joined?
—if either complete relief cannot be afforded or absentee’s interest would be impaired, then A should be joined, and got to step 2. If neither of these are true, no joinder problem
2) can A be joined?
—is A subject to service if process? If yes, then A is joined. If no, then go to step 3
3) can the action proceed inequity and good conscience without A?
—factors: prejudice; adequacy of judgment; ability to shape relief; availability of alternatives —> if yes, action proceeds, if not, party is INDISPENSABLE
Note: a joint tortfeasor subject to joint and several liability is not a person needed for just adjudication
Article IV P&I
State is prohibited from discriminating against non-residents concerning fundamental rights
FR = civil liberties and important commercial activities (right to earn a livelihood)
Does NOT apply to aliens or corporations
Defense: constitutional if substantial justification and there are no less restrictive means
14A P or I
States are. Prohibited from denying THEIR OWN citizens the privileges or immunities of national citizenship.
These include the right to interstate travel and the right to vote for federal officers, but does NOT include the bill of rights.
Does not apply to corporations
If a state regulation discriminates against out-of-staters, under what circumstances is it valid/invalid under the Dormant Commerce Clause? under Article IV P&I?
Dormant CC: valid only if…
—a) important non-economic state interest and no reasonable non-discriminatory alternatives
—b) market participant exception
—c) traditional state function exception
Art. IV P&I: invalid if state discriminates against non-resident persons (not aliens or corporations) regarding a fundamental right—civil liberties or important commercial activities (right to earn a livelihood), unless there is a substantial justification and no less restrictive means
If a state regulation does NOT discriminate against our-of-staters, but does unduly burdensome interstate commerce, when is it VALID?
Only if the state can show that the state’s interest outweighs the burden on interstate commerce. In making this determination courts consider the availability of less restrictive means.
If a state tax discriminates against interstate commerce it is invalid. What constitutional provisions are potentially at issue?
- Commerce Clause
- Art. IV P & I: this will be the better answer if the state tax discriminates against non-resident natural persons (not alien or corp) regarding a fundamental right
- EP clause: could be an issue if suspect class or fundamental rights is at issue
If a state tax does NOT discriminate against interstate commerce, when is it valid?
If it does not unduly burden interstate commerce—state must show…
—1) substantial nexus to taxing state (has the business availed itself of the privileges of conducting biz in the state? Note: physical presence is NOT required)
—2) fair apportionment: rational formula (needs to be based on the extent of taxable activity; if person is subject to double tax (from two states) then invalid)
—3) fair relationship: connection b/n the tax and the services provided by the state [airport enplaning example]
When are doing biz taxes valid?
1-substantial nexus
2-non-discriminators
3-fairly apportioned
4-fairly related
Validity of use tax
Valid, unless it is higher than the sales tax
Validity of sales tax
Valid if substantial nexus and fair apportionment
Validity of taxes on commodities in interstate transit
INVALID!
Validity of taxes on instrumentalities used to transport goods interstate
Valid if 1) instrumentality has taxable situs in the state (contacts: look for substantial physical presence) and 2) fair apportionment (tax fairly captures extent of physical presence)
Contract clause
STATES cannot enact LAWS that RETROACTIVELY and SUBSTANTIALLY impair K rights
Test for private Ks: invalid if retroactively and substantially impairs private K rights, unless (1) important and legitimate public purpose and (2) reasonably and narrowly tailored means of promoting that interest
Test for public Ks: same, but stricter scrutiny, esp. if it reduces the contractual obligations of the state
Does the K clause apply to the federal government?
No!!
Ex post facto clauses
Apply to state laws and federal laws
State/fed cannot pass LAWS that RETROACTIVELY alter CRIMINAL offense or punishment in a SUBSTANTIALLY PREJUDICIAL manner for purpose of punishing someone for past activity
Examples that run afoul of the clauses:
—law that criminalizes conduct that was innocent when committed
—law that enhances punishment relative to what was prescribed for the act when done
—law that reduces the evidence required to convict from what was required when act was done
COURTS are constrained by DP clause
Bill of attainder
Applies to state and fed
Laws that punish individuals without trial are unconstitutional
Discovery: experts
If party intends to have expert testify she must disclose voluntarily. That expert must provide a report if the expert has been retained to testify or expert-employee’s duties regularly involve giving expert testimony. If no report is required, party must disclose ID, subject matter of expected testimony, and summary of facts/opinions.
If consulting expert—someone retained in anticipation of litigation but not expected to testify—then that expert is NOT DISCOVERABLE, unless the requesting party can show exceptional circumstances that would make it impracticable for the party to obtain facts/opinions on the same subject by other means
Does equitable redemption allow JUNIOR HOLDERS, in addition to mortgagor, the ability to pay balance on mortgage prior to foreclosure?
Yes!
Assault (Criminal)
Either…
(i) attempted battery; or
(ii) intentional creation of reasonable apprehension in the mind of the victim of imminent bodily harm
Stop & Frisk
Stop: Reasonable & articulable suspicion that criminal activity is afoot
Frisk: Reasonable belief that suspect is armed and dangerous. Limited to pat down of outer layer of clothing. But if police, based on plain feel, believe item is weapon/contraband, that is grounds for arrest.
What crimes does transferred intent apply to?
Homicide; battery; arson
Petty v. serious offense and why it matters procedurally
Serious = 6+ month potential incarceration
State can set its own jury trial requirements for petty offenses
Do federal and state criminal cases require unanimous juries?
Yes
Where charges can be tried in a single trial, but ∆ consents to having 2 separate trials, can there still be a double jeopardy violation?
No!
∆ is in a cell with undercover informant; ∆ is ignorant of informant’s identity; ∆ makes incriminating statement; Miranda issue?
No! Undercover officer does not need to give Miranda warnings before asking questions that might elicit an incriminating response b/c concerns of police-dominated atmosphere are absent
Foundation for Past Recollection Recorded
1) W forgets and memory cannot be refreshed
2) W made: made/prepared under W’s direction
3) PK: W had PJ of facts in record at one time
4) Fresh: recorded at time when events were fresh in W’s mind
5) Accurate: accurately reflects W’s knowledge
Specialized relevance: pleas
What's covered... ––withdrawn guilty pleas ––nolo pleas ––offers to plead guilty ––evidence of statements made in negotiating pleas
What’s the effect…
––inadmissible against the ∆ who made the plea or participated in the plea discussions
What does NOT fall within the scope of the rule….
––ACCEPTED guilty pleas
––non-participants
