MEE practice rules Flashcards
what must a secured party do before disposing of collateral on default
- send debtor + secondary obligor(s) reasonable authenticated notification of disposition
- does not apply to collateral that is perishable, quickly declining in value, or is of a type customarily sold on a recognized market
when may a court modify the terms of a trust under common law
- unanticipated change of circs occurs
- which defeats the existing purpose(s) of the trust
when may a court modify the terms of a trust under the trust act thingy
- unanticipated change of circs
- defeats existing purpose(s) of the trust
- modification may not harm anyone with a valid interest (e.g., remaindermen) in the trust
cy pres
when no longer possible to fulfill bequest to charity b/c charity no longer exists, court will attempt to substitute a similar charity with similar objectives to receive the gift
when will most courts find a defendant acted knowingly
- defendant is aware of a high probability of a fact’s existence &
- defendant deliberately avoids learning the truth
- a few jurisdictions require actual knowledge
what is not considered a “false statement”
commercial puffery
what does an attorney who presents a pleading to a court certify
to best of knowledge, information, and belief:
(1) doc not presented for improper purposes
(2) claims, ds, & other legal contentions warranted by existing law or non-frivolous arguments about law
(3) factual contentions have evidentiary support or will likely after reasonable opp for investigation/discovery
(4) denials of factual contentions are either warranted on evidence or reasonably based on belief or lack of info
what happens if court finds representations attorney certifies by presenting pleadings untrue
it has discretion to impose sanctions on the party or the party’s attorney
what is required for sanctions to be ordered
due process
- notice to offending party
- opportunity to be heard
under safe harbor rule, what must a party do before filing motion for sanctions
- serve motion upon opposing party
- provide the opposing party with 21 days to withdraw or correct the offending pleading
court’s discretion in imposing sanctions
significant
What is the extent of sanctions a court will impose (I.e., the standard)
what would be sufficient to deter repetition of the conduct or comparable conduct by others
reqs of order imposing sanctions
describe sanctioned conduct and explain the basis for sanctions
what can a requesting party do if a party fails to make an admission and it is later proved the matter is true
move that the party who failed to admit pay the reasonable expenses, including attorney’s fees, incurred in making that proof.
upon whom may a court impose sanctions
any attorney, law firm, or party that violated Rule 11 or is responsible for the violation
when are settlement agreements made during the divorce process generally valid
if voluntarily made
when may settlement agreements made during the divorce process be set aside
if it is found to be substantially unfair due to fraud, overreaching, or duress
potentially significant factor for substantive and procedural unfairness of settlement agreements made during the divorce process, in some states
lack of independent counsel for each party
if one ex-spouse had an attorney and the other didn’t in contemplation of the divorce settlement agreement
ex-spouse with attorney may be found to have had a fiduciary duty to spouse who did not have counsel
how does fault-based divorce figure into property distribution
- ml: eliminated from consideration in many states, at least wrt matters not related to the parties’ finances
- some states restrict the use of adultery claims to determining alimony while other states consider adultery for fault only when egregious
- consideration given if dissipation of assets or other financial misconduct by one spouse
how are professional degrees/licenses dealt with during property distribution in divorce?
most states hold they are not property interests subject to equitable distribution
alimony considerations
- parties respective financial resources and needs
- contributions each has made to the marital relationship (financially, care in the home)
- duration of marriage
alimony is highly discretionary
reimbursement alimony
some states require consideration of one spouse’s support for the other’s education or training and may mandate reimbursement for such contributions or may order rehabilitative alimony (e.g., when the other spouse quits school to support)
can a codicil republish a document that is not a valid will?
by most accounts, no. Some states probate statutes allow a court the power to validate a will not executed in accordance with the statute of wills if the evidence is clear and convincing that the testator intended the document to be a will.
what can republication of a will do
cure defects that might otherwise affect the validity of bequests made under a will
incorporation by reference
a writing that is not valid as a will (i.e., unattested), but is in existence when a will is executed, maybe incorped by ref into the will if:
1. will manifest an intent to incorp the writing
2. writing to be incorped is identified with reasonable certainty
Can the word “republish” be used to incorp by reference?
No; it is a term of art that has legal consequences
slayer statute
- murderers often barred from inheriting under slayer statute
- only apply when heir killed decedent whose estate is at issue
