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! ray-essay > !!!MBE WRONG > Flashcards

!!!MBE WRONG Flashcards

1
Q

Crim
Should court suppress?
- police and dog who knock door then smell marijuana

A

Yes unreasonable search. If dog comes with police to house

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2
Q

Property:

if there is recording statute AND subordination which prevails?

A

Subordination. If bank executes subordination with creditor. CREDITOR TAKES, EVEN THOUGH THERE IS RACE RECORDING STATUTE

Purchase money
Recording act statute
Subordination agreement

If Bank subordinates it’s agreement priority is for creditor

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3
Q

Crim Pro

Friend in car, standing?

A

No!

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4
Q

Con
Government displays plaque
City members want theirs displayed too! Who wins

A

Government/city

Government is speeking so it can convey

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5
Q

Crim

-theif is raided in another persons store, does he have standing

A

No way deny motion

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6
Q

Evidence

  • witness says “red shirt fight”
  • d witness says “yellow”
A

Impeachment

Not collateral

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7
Q

Civ Pro: can you aggregate money claims?

A

ALWAYZ YOU CAN AGGREGATE CLAIMS to make up money value, dont be fooled and pick no jdx over 5 k

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8
Q

Contracts: A woman owes a creditor 10k, the SOL HAS RUN OUT, does she have to pay?

a. yes bc in writing
b. prexisting duty

A

B. IN WRITING, SOL!!!!

A past obligation, such as payment of a debt, must be either in wiring OR show part performance to overcome the SOL defense.

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9
Q

Property: T at sufferance, chilling on property… landlord hasnt evicted her yet + neighbor slow blows onto property. Who can sue neighbor?

A

Tenant! even though she is at sufferance, need only ACTUAL or CONSTRUCTIVE possession of property.
T was still on property.

Tresspass requires p to show that d

(i) physically invaded ps property
(ii) intent to bring about the invasion
(iii) causation

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10
Q

Evidence: Marital priviledge

- divorce proceeding, wife is about to testify about what said to hubby during marriage, he says PRIVILEDGE

A

NO SPOUSAL PRIVILEDGE DOES NOT APPLY BETWEEN SPOUSES”

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11
Q

Civ Pro:

Buyer spends 1 mill obtaining ESI of D, its on harddrive. When must she disclose

A

as part of initial disclosures UNLESS undue burden or cost. Here, buyer already obtained copies… cant argue that

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12
Q

Property: are total restraints on alienation enforceable!?

- what if parties agree upon it?

A

NO NONONGONONONONONONOONONONO

UNENFORCEABLE EVEN IF AGREED

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13
Q

Property:

  • aunt drafts will to deed property to charity
  • nephew is an asshole and writes “full consideration on deed” makes aunt sign it.
  • charity brings suit to enjoin constructive trust, will it prevail?
A

NO BC HE IS BFP!

RULE: A deed is voidable if it was "My BF DUM"....
1. Minor (under 18) executed it 
or obtained through 
2. Breach of fiduciary duty
3. Fraud
4. Durress
5. Undue Influence
6. Mistake
Undue influence is present where (i) influence exerted on grantor, (ii) to over power her mind, (iii) the product of the influence is deed that would not have been executed)

Here, undue influence is present. BUT BUYER WAS UNAWARE– BFP! DEED IS GUCCI

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14
Q

Civ pro=
defendant wants to remove, but both from state b
if its FEDERAL CLAIM= REMOVAL IS OK

A

answer: defendant may remove federal claim to federal ct bc jdx over matter

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15
Q

Evidence:

  • Seperate lawsuits, driver and passenger in both.
  • at deposition driver testifies that she saw defendants care swerving.
  • then driver dissappears + no attempts to contact

should court admit deposition testimony over objection?

a. yes because prior dep
b. yes under formal hearsay
c. no bc its hearsay not within exception

A

C. NO ITS HEARSAY

ITS NOT FORMER TESTIMONY if d made NO effort to find that driver… she must be unavailable + he must find her.

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16
Q

Torts:
D sees house on fire, wants to help landowner, puts it out but cuts through fence

Is hiker liable for tresspass?

a. yes but liable for cut wire
b. no bc owner implicitely consented

A

b. implicit consent

17
Q

Civ Pro:

will fed court hear divorce case?

A

nope.

18
Q

Evidence: Criminal case
D provides alibi
witness wants to testify two days earlier he tried to strangle her at the same location

admissable?

A

yes- mimic

it would be admissable to show that the d used the same method to attempt to kill the victim

19
Q

Evidence:
offer to pay medical expenses + ___

what is that called? admission or factual admission

A

admissable as ADMISSION by owner that he left bar drunk

20
Q

Evidence:
if d and co felon are in custody questioned, and d confesses but co felon sits there silently…

b. admissable bc statement of participent in crime
c. inadmissable bc under the circumstances there is no duty to respond

A

b. inadmissable bc there is no duty to respond

think of fairness!!!

803(d), provides an exception to hearsay rule- adoption by silence. The elements for adoption by silence is that

(i) d heard incriminating statement
(ii) d had opportunity to respond and remained silent
(iii) incriminating statement was such that an innocent person wold deny

However, there are issues that arise with adoption by silence after arrest. silence after arrest is too ambigious to have probative value.

provides that a statement by third party, such as employee or cofelony

21
Q

Evidence:
Plaintiff sues manufacturer for injuries suffered to neck and back when he called orthepedist to testify, “I was standing on top of ladder when i fell”

a. yes because made for medical purposes
b. no bc not made to physician

A

b. yes because it was made for purposes of medical treatment.

803 4 does not require treatment to be made to treating phhysician. admits statements made to doctor for purposes of diagnosis too

22
Q

Evidence:
Bus crash. P says he was injured, bus says he wasnt.
P wants to show medical examiners note
Medical examiner is dead.

a. yes because made for medical purposes
b. inadmissable hearsay

A

Inadmissable.

Even though its relevant, there was no opportunity to cross!

23
Q

Evidence

Strategy for Medical Statement/Hearsay

A
  1. was it made for medical purposes to any treating physician?
  2. was there opportunity for cross?
24
Q

Crim:

Defendant sees stolen gun on his table at home– decides to sell it. Can he be convicted of larc?

A

Yes. Larceny is the trespassory taking posession of anothers property with the intent to permanetly deprive.

YOU DONT NEED TO KNOW WHOS IT IS

25
Q

Evidence:
Medical records can be ___ in double hearsay situations?
When?

A

Business records, so long as they relate to p’s treatment

26
Q

Contracts:

if it is an option= payment + keep open for 27 days + later says never mind i terminate! when does it close

A

(d) on jan 25, when the 25 day option expired

THE END OF THOSE 27 days
rejection doesnt change it..

27
Q

Evidence: Impeachment

- can we impeach with record arrest of felony?

A

no. not RECORD.. must be ACTUAL

28
Q

Evidence: Impeachment

- can you impeach with conviction of robbery, that has been pardoned

A

no. not if it was PARDONED

29
Q

Contract

What is the formula for determining lost profits German car

A

K price - what cost to purchase car from manufacturer

30
Q

IIED:

Wife sees hubby punched by bouncer can she recover iied if bouncer doesn’t know wife is watching ?

A

No! Bouncer must act reckless and know wife is watching

31
Q

Con:

Can state tax fed gov?

A

Yes if not taking them directly, but taxing lines ok if not indirect and non discriminatory.

32
Q

Assignments

A

Revocable-gratuitous
Not revocable- for value

Gratituirous revocable if 
“Dan”
Assignor die, 
assignment subsequent, 
notice 
-uncle fo bank pay me instead I’d notice

Irrevocable/not allowed to assign if in
writing
Personal service- materially alter duty (star)

33
Q

Clause prohibiting assignment

Valid?

A

Yes but can’t

  1. Assign right to payment
    - painter can’t assign right to be paid to bank: damages
34
Q

Assignment most important rule

A

If d assigns to wife, assignor stands in shoes of assignee and takes subject to any claims or defenses.
- owner can bring suit against wife for defense counter claim

Notice: if notice is given before payment then ur fucked
- provision- then assigns to paint house then tells obligor about assignment… obligor paints painter

bank wins bc assignment provision is invalid nullifying and obligor got notice before payment so now he has to bank too!

35
Q

Assignment notice

A

If notice by painter about bank to obligor-assignment is binding bank can come after obligor

If notice by bank to obligor, modification ok if assignee did not fully perform

36
Q

Discharge:

Impossibility

A

Impossibility: discharges both persons duties

-subject matter destroyed
House burns down and that house was in k

-applies NOT when building destroyed
Does apply if repairing existing building

37
Q
  1. Shiptment contract rol?

2. Delivery contract?

A

Shiptment: SOC

  • rol to b when delivered to carrier.
  • we can sue carrier if lost

Delivery: Risk of loss to buyer upon actual delivery..
-can’t use impossibility defense!!

! ray-essay (16 decks)

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