Part III: Debtor-Creditor Relationships Flashcards
surety/guarantor
- Someone who agrees to be liable for someone else’s debt.
2. It’s like co-signing, and gives creditors another form of backup for the debt.
When is the surety liable for the debt?
Only after the debtor defaults.
Can there be more than one surety for a debt transaction?
Yes, there can be co-sureties.
Can either co-surety be held liable for the entire debt?
- No.
2. Once the debtor defaults, one cosurety can recover from the other cosurety the excess of their share they paid.
If the creditor releases cosurety 1, what is cosurety 2’s liability?
Cosurety 2 is still only liable for half the debt.
guaranty of collection
Surety is only liable if collection against primary debtor fails first.
Must the creditor disclose any known material facts to sureties before they sign the loan agreement?
Yes. If this is not done, the surety can use this a defense to repayment.
A surety cannot compel the creditor to either:
- collect from the principal debtor.
2. OR, proceed against the principal debtor’s collateral.
If a surety loses capacity…
he/she is no longer liable for the debt.
Must suretyship contracts be in writing?
According to the Statue of Frauds, yes.
types of estates
- fee simple
- fee simple defeasible
- life estate
fee simple
owner of estate has complete ownership for an unlimited duration
fee simple defeasible
ownership terminates upon the happening of a certain event and ownership goes back to a grantor or 3rd party
life estate
ownership is granted by a grantor subject to the tenant’s life, or the life of another party
tenancy in common
- Ownership held by 2+ people. Can be 50/50 or 33/67.
2. Tenants in common can sell, will, or mortgage their interests.
joint tenancy
- Ownership is held in equal shares by 2+ people.
- Joint tenancy requires unity in time, title, interest, and possession.
- Right of survivorship.
- If once tenant transfers an interest, they become tenants in common.
right of survivorship (joint tenancy)
When one tenant dies, their shares vests in the remaining tenants.
easement
right of a person to make limited use of another’s realty w/out taking anything from it or taking possession of it.
unrecorded easement
defect in marketable title to real property
fixture
- initially personal property.
2. Trade fixtures remain personal property.
personal property and fixutres
In general, once personal property is attached to realty, it becomes part of the realty and a fixture if the person who attached it wants it to be a fixture.
For a deed to be valid…
a description of the property must be included.
1. The price does not need to be included.
For a lease agreement to be valid…
A description of the property must be included.
1. The price does not need to be included.
Chapter 7 Bankruptcy
- liquidation bankruptcy.
- Allows voluntary or involuntary petitions.
- Means test for determining a debtor’s ability to pay back debts, as well as bankruptcy abuse.