RESTITUTIONARY REMEDIES Flashcards
RESTITUTIONARY REMEDIES
DISGORGEMENT, SUBROGATION, INDEMNITY
CONSTRUCTIVE TRUST
Restitution equitable remedy - court ordered.
If the defendant used plaintiff property to get ownership of new property the plaintiff can get a constructive trust on the newly required property. Plaintiff must prove that the money stole from plaintiff was used to buy the new property.
You can get a constructive trust over any real or personal property.
Whatever its worth you can get the amount even if it goes up in value.
EQUITABLE LIEN
Restitution equitable remedy - court ordered.
If the defendant uses the property of the plaintiff to improve property that the defendant already owns than the plaintiff can get ownership of that property.
The interest in value does not go up you still get the amount that defendant stole.
Comingling rules
When money is taken from plaintiff and defendant puts the money into the bank account, and the defendant hasn’t withdrawn from the account.
Plaintiff has to be able to trace their money to the account.
Consious wrongdoer
Each state follows a different rule.
The defendant uses their own money first, which is the first money that is withdrawn.
Option Rule
Each state follows a different rule. This is the modern rule.
If the defendant embezzles $100 and puts it into the account and than deposits $100. And takes out $100 to gamble and turned it into $300, now $150 belongs to plaintiff. Why because the plaintiff gets half of what belongs in the bank acct.
This doesn’t apply to innocent wrongdoers only applied to consious wrongdoers.
First in First out
Each state follows a different rule.
Clayton rule
First money into the account is the first money withdrawn first.
Lowest intermediate balance rule
Each state follows a different rule.
If defendant steals $1000 from you and puts in $1000. Than takes all the money out to buy something and than gets paid and puts back in $1000. Plaintiff gets the lowest intermediate which is $0 because the money can not be traced because the money has already been spent and gone.
Subrogation
One person discharges an obligation for which another is liable and has to pay.
You step in and pay off another debt.
If d owes p $500 and there is a third party who pays plaintiff $500 to make sure plaintiff is paid off. Than 3rd party is liable for all debt d is liable for.
Accounting for profit
Any time their is tortious behavior and someone is benefiting from this behavior than you can…
Bona Fide Purchaser for value
No notice that the property was stolen.
Paid reasonable value for asset to third party which is the BFP.
Plaintiff can not get restitution from BFP b/c BFP did not have notice.
UNJUST ENRICHMENT/ QUASI- K
RESTITUTION MONEY JUDGMENT
“restore” return” or “give back
REPLEVIN
Asking from the O.P to give their item back - having to do with goods.
You can not state replevin from an innocent third party who purchased the goods.
