Bar Essay Cards For Oklahoma

Front 1

"What are the six steps an administrative agency must go through to adopt a new rule?"

Back 1

1) Propose 2) Adopt 3)Review 4)Final Adopt 5) Promulgate 6) Effective date (PARFourPlayEnd)

Front 2

"Describe the Propose stage"

Back 2

"a) Draft b)Publish in register for 30 day comment period c) public hearing > 30days after notice (or demand) d) request comment from impacted entities"

Front 3

"Describe the Adoption stage:"

Back 3

"a) Review comments b) adjust rule as needed c) adopt"

Front 4

Describe the review stage:

Back 4

a) send rule to gov and legislature (gov has 45 days or its vetoed/ legislature has 30 days or its passed)

Front 5

"Describe the Final Stage"

Back 5

"passes gov and legislature"

Front 6

"Describe the Promulgated stage:"

Back 6

"Within 30 days of final stage delivered to Sec. Of State for publication in the register"

Front 7

"How is the effective date determined"

Back 7

"Rule is effective 10 calendar days after publication unless a later date is specified or required."

Front 8

"What are the big 3 issues regarding judicial review of an agency ruling?"

Back 8

"1) right to review and proper court 2) Scope 3) Grounds for reversal"

Front 9

"Describe the right of review:"

Back 9

"appeal to the district court in the county where the effected person or property interest resides w/i 30 days of final order notification."

Front 10

"Describe the scope of the review:"

Back 10

1) not denovo reveiw but on the record without a jury.
2) court hears oral arguments and accepts written briefs
3) appeal to the OK Supreme Ct. is available

Front 11

"What are some grounds for a court to reverse agency action?"

Back 11

"1) clearly erroneous 2) unconstitutional 3) exceeds Agency authority 4)result of unlawful procedure 5)affected by other error of law 6)arbitrary or capricous."
[CURE - AA]

Front 12

"When is judicial review available?"

Back 12

"for agency final orders after the exaustion of administrative remedies."

Front 13

"What is the rational for the exaustion doctrine?"

Back 13

"1) permits full development of fact prior to judicial review. 2) gives the agency a chance to use legislatively delgated discretion 3)more efficient 4) constant resort to judicial review weakens the agency."

Front 14

"What are some exceptions to the exhaustion doctrine?"

Back 14

"1) Law is facially unconstitutional 2) clear lack of agency jurisdiction 3) futility in light of agency determination or commitment 4) exhaustion would cause appellant injury beyond the usual and ordinary costs and inconveniences."

Front 15

"Describe the 4 main parts of the OMA (Open Meetings Act)"

Back 15

"1) applies to all public bodies 2) Convenient time and place 3) Minutes be kept for public inspection 4)Willful violations of OMA renders action invalid."

Front 16

"Business Associations"

Back 16

"(intentionally left blank)"

Front 17

"Does OK law impose fiduciary duty on directors?"

Back 17

No, OK law requires duty of loyalty and care.

Front 18

"Describe duty of care"

Back 18

"the care of a resonably prudent person"

Front 19

"Describe duty of loyalty"

Back 19

"duty not to benefit from director's position at corporation's expense"

Front 20

"What is the penalty for violating the case law imposed duties of care and loyalty"

Back 20

"Directors who violate must forfeit profits and are liable to the corporation for damages."

Front 21

"How may a shareholder make a demand for inspection."

Back 21

"1) Written form 2) States a proper purpose 3) purpose is related to being a shareholder."

Front 22

"Can a corporation carry out acts beyond those stated in its certificate of incorporation?"

Back 22

These are know as ultra vires acts and are valid, but:
1) a shareholder or Atty General may seek to enjoin.
2) Directors or officers responsible are liable for damages incurred in these acts.

Front 23

"Describe the process for bringing a derivative shareholder action?"

Back 23

"Shareholders must 1) try to obtain relief from the Directors 2) must allege she owns shares and that they were aquired through operation of law (no purchased) 3) Must allege a demand was made on the Board (accoarding to #1) or give a reason why that demand should be excused."

Front 24

"What are the 5 Business Entities recognized in OK"

Back 24

"1)General Partnership 2) Limited Liability Partnership 3) Limited partnership 4) Limited liability Company 5) Corporation "

Front 25

"Describe GP"

Back 25

Default business association:
1) No writing necessary.
2) Equal partners unless otherwise agreed.
3) No taxes.
4) Partners are personally liable.

Front 26

"Describe LP"

Back 26

1) Directed by general partners who are personally liable.
2) Limited partner is not liable [unless he causes damages by misleading others into thinking he is a general partner.]
3) Created by filing cert of limited partnership with Sec of State.

Front 27

"Describe LLC"

Back 27

1) Members get limmited liability
2) Is not taxed on its earnings unless it elects to be
3) Flexible management terms

Front 28

"Describe Corporation"

Back 28

1) managed by board of directors.
2) Taxed at entity and shareholder level.
3) File a certificate of incorporation with the secretary of state.
4) Shareholders not personally liable unless court pierces corporate veil.

Front 29

"Describe LLP"

Back 29

1) Like GP but partners are not liable for firm debts.
2) A statement of qualification must be filed with the secretary of state to form an LLP.
3)Must maintain 500K.

Front 30

"How do you merge entities into an LLC?"

Back 30

"1) an agreement or terms drafted 2) Board or partners pass resolution to let shareholders vote 3)cert of incorporation filed with Sec. Of State. 4) new articles of organization must be filed for the new entity"

Front 31

"How is ownership of an LLC accomplished?"

Back 31

"Sale of membership interest."

Front 32

"What happens to the successor entity after a merger?"

Back 32

"assumes all rights of the constituent firms."

Front 33

"How do members/shareholders vote on a merger"

Back 33

"majority rules, but minority stakeholders must be given the opportunity to cash out. Minorities may have the right to an assessment of the fair market value of their shares.

Front 34

"What is the downside to equal owners in an LLC or equal partners?"

Back 34

"Equal owners/partners may reach deadlock sine there is no majority owner/shareholder."

Front 35

Private Nuisance

Back 35

1) a substantial and unreasonable interference
2) with use or enjoyment of property
3) of the person who actually possess or has right of immediate possession to.
4) Must be offensive, inconvenient, or annoying to an average member of the community.
[Also, severity of the inflicted injury must outweigh utility of defendants conduct. Defendant conduct must be intentional, negligent, or subject to strict liability.]

Front 36

What are the elements of negligence

Back 36

1) Duty to Plaintiff 2) Breach 3)actual and proximate cause 4) Damages to plaintiff person or property

Front 37

Treaspass to land includes what elements?

Back 37

1) act of physical invasion of real property 2) intent 3)causation

Front 38

When is injunctive relief given for torts

Back 38

Will be granted when monetary damages are inadequate. A court will balance the "relative hardships" when deciding whether or not to grant an injunction, unless the conduct of the defendant has been willful, in which case the plaintiff will prevail.

Front 39

What are the elements of Defamation in OK?

Back 39

1) defamatory language 2) of an concerning the plaintiff 3) publication by defendant 4) damages 5) falsity of language 6)fault on the defendant's part

Front 40

What is Libel and what is it's significance?

Back 40

Defamatory statement set forth in written form. General damages are presumed in OK for libel on its face.

Front 41

What is the significance of a public figure?

Back 41

In addition to falsity plaintiff who is a public figure must establish malice to recover. ( a private person only proves negligence)

Front 42

Sovereign Immunity (in Oklahoma)

Back 42

Oklahoma has partially waived sovereign immunity for State and political subdivisions. 25K Single occurance property loss, 125K for other losses (175K for state or subdivision of greater than 300,000 population)

Front 43

republication of defamation

Back 43

republisher may be liable on the same general basis as the publisher. Not at fault if they reasonably rely on publisher.

Front 44

Primary Publisher

Back 44

a publication source (like a newspaper) that carries a defamatory message by another (like a reporter) will be viewed as a primary publisher.

Front 45

What are the elements of malicious interference with a contract or business?

Back 45

must prove:
1) business or contract right with which there was interference
2) interference was malicious, wrongful, and was not justified, privileged or excusable.
3)the interference was the proximate cause of damages.

Front 46

Corporate publication defense

Back 46

Publication in OK cannot be between agents of a corporation, must be outside the corporation.

Front 47

When may an OK employer be liable under Respondeat Superior?

Back 47

1) there is an employer-employee relationship with the tortfeasor 2) tortuous conduct occured w/i the scope of employment relationship.

Front 48

What is a frolic

Back 48

a substantial departure from the employment while engaging in one's personal affairs. [ this is the term for employee behavior that will relieve an employer of vicarious liability.]

Front 49

When will the doctrine of "Negligence per se" apply?

Back 49

A statute proscribing certain conduct may create a duty of care that substitutes for a general duty of care if: 1) injury is of the type statute is designed to prevent 2) plaintiff is the class of persons intended to be protected by the statute.

Front 50

Describe comparative negligence in OK?

Back 50

A plaintiff, in Oklahoma, whose fault is no greater than the fault of all defendants is entitled to recover the amount of damages not attributable to her own fault

Front 51

What are the elements of Product Liablity in OK?

Back 51

1) strict duty owed by a commercial supplier [one who supplies product on more than intermittent basis]
2) breach - unreasonably dangerous condition
3) actual and proximate cause
4)damages

Front 52

What is the standard for a summary judgement in OK?

Back 52

1) No substantial controversy as to any material fact.
2) As a result the movant is entitled to Judgment as a matter of law[note this really belongs in Civil Procedure, but it shows up in some tort questions]

Front 53

Bankruptcy

Back 53

(this card intentionally left blank)

Front 54

When does the means test apply?

Back 54

When the party pursuing BR has an income greater than the median income for her area.

Front 55

What is the means test?

Back 55

Can the debtor afford to pay $6575 to $10,950 over 5 years if she can she should pay under Ch 13 instead of Ch 7.

Front 56

What is the special rule for consumer debts

Back 56

Consumer debts that are:

1) owed to a single creditor and
2) aggregate more than $550
3) for luxury goods or services
4) incurred within 90 days

are presumed non-dischargeable.

Front 57

What is a preference?

Back 57

1) the transfer of assets 2) on account of antecedent debt 3) during insolvency 4) that makes the transferee better off than an unsecured creditor in BR

Front 58

When is insolvency presumed?

Back 58

in the 90 days leading up to BR

Front 59

altering rights of Secured Claimints in BR?

Back 59

Rights of secured claimants can be altered in BR but there is an exception for a claim secured only by an interest in real property.

Front 60

Can a debtor leave off debts she does not want to discharge?

Back 60

NO, BR forms require the history of all debts under penalty of perjury. [note that after Bankruptcy, a debtor may reaffirm her responsibility to pay a debt if she wishes.]

Front 61

What happens to money in Trust funds and 401Ks when the account holder files for Bankruptcy?

Back 61

These are safe from creditors in Bankruptcy.

Front 62

Criminal law and procedure

Back 62

(blank)

Front 63

What is conspiracy?

Back 63

Conspiracy requires an agreement between two or more persons toward the commission of a crime.

Front 64

What is burglary?

Back 64

Burglary in the first degree is defined as:
1) breaking and entering
2) the dwellinghouse of another
3) in which at the time there is a human being
4) with the intent to commit a crime.

Front 65

What is Larceny?

Back 65

1)The taking of personal property
2) by fraud or stealth,
3) with the intent to deprive another of it.

Front 66

What is arson?

Back 66

Arson in the first degree is:
1) willfully and maliciously setting fire
a) to any inhabited building or
b) any building used as a habitation.

Front 67

What is murder?

Back 67

Murder is an intentional killing with malice aforethought. First degree murder in OK includes a killing that resulted from the commission of first degree burglary or arson.

Front 68

What is manslaughter?

Back 68

Murder is reduced to manslaughter in the first degree when defendant commits the killing under adequate provocation. First degree manslaughter also arises when defendant kills under the honest but mistaken belief that deadly force is justified. 2nd degree is all manslaughter that are not first degree (including killings by criminal negligence).

Front 69

Remedies

Back 69

[Intentionally blank]

Front 70

What kind of specific performance are courts likely to give in OK?

Back 70

Contracts not to do something [like compete] as opposed to forcing a defendant to perform on a services contract [could amount to involuntary servitude].

Front 71

When is specific performance available under the UCC?

Back 71

UCC applies to "goods moveable at time of sale." Specific performance is available where the goods are unique or in other proper circumstances.

Front 72

cover damages

Back 72

The diffence between a contractually promised price and the price a plaintiff actually spends due to defendant's breach.

Front 73

When is there grounds to issue a temporary restraining order?

Back 73

C&C that immediate or irreparable damage will result to the applicant before the adverse party can be heard.

Front 74

What is required for a Temporary Injunction?

Back 74

1) substantial likelihood of prevailing on merrits 2) threatened with immediate injury 3) injury is irreparable 4)balance of hardships favors injunction 5) injunction will not harm public interest. [STIBI]

Front 75

What is required for a permanent injunction?

Back 75

1) tort is threatened 2) the legal remedy is inadequate 3) that a property right exists 4) the enforcement of the injunction is feasible 5)that the hardships are balanced in favor of injunction 6) no equitable defenses apply.
[TIP-FBE]

Front 76

Punitive damages for torts.

Back 76

reckless disregard 100,000, or actual damages

malice: 500,000 or double the actual damages or benefit defendant derived.

if both judge and jury find by clear and convincing evidence the defendant acted with malice and with reckless disregard for human life damages are unlimited.

Front 77

Factors for a jury to consider for punitives in OK

Back 77

1) seriousness of the hazzard to the public 2) profitability of the conduct 3) duration of the conduct 4) the attitude of the tortfeasor 5) number and level of authority involved.
[SPAND: Seriousness Profitability Attitude Number Duration]

Front 78

What are general damages in defamation per se ?

Back 78

presumed

Front 79

punitive damages in defamation per se

Back 79

for actual malice

Front 80

What is the OK rule on children born after the will?

Back 80

They take the same as they would in intestacy.

Front 81

Will and Trusts

Back 81

(blank)

Front 82

What happens if a beneficiary attests to a will?

Back 82

Her bequest is invalid unless:
1) supernumerary rule there are enough other attesters to make the invalid attester irrelevant
2) the attester would have been an intestacy taker. (can take the lesser of willed amount or intestacy amount).

Front 83

What does a divorced spouse take under testate succession?

Back 83

Nothing any bequest to a spouse that has since been divorced is revoked.

Front 84

What are the requirements of a valid Holographic will?

Back 84

1) Entirely in testators hand?
[surplussage may not be a problem if it does not relate to the will.]
2) Signed
3) Dated

Front 85

What are the requirements of an attested will.

Back 85

1) Writing
2) attestation - Two witnesses
3) Publication (saying this is my will)
4) subscription (signing at the end)
[WAPS]

Front 86

What is required for a valid will

Back 86

1) Testamentary intent
2) Testamentary capacity
3) Valid execution

Front 87

testamentary capacity

Back 87

To possess testamentary capacity the testator must understand:

1) the nature and extent of his property
2) the objects of his bounty
3) nature of the disposition being made

[he must give the NOD]

Front 88

What is the legal significance of undue influence?[where someone takes advantage of a certain relationship to improperly influence a testator.]

Back 88

if proven undue influence destroys testamentary intent.

Front 89

What is the significance of a Joint Tenancy on a bequest?

Back 89

Property held by a testator in joint tenancy with a survivor cannot be distributed. [ it belongs to the survivor ]

Front 90

How can children be excluded in a will.

Back 90

you must have a negative will in OK to exclude children

Front 91

Can an heir at law receive less in a will than he/she would take in intestacy?

Back 91

Yes, but the heir at law may challenge a will for that reason and take what she would take in intestacy. (this applies to children not spouses)

Front 92

Rules of Professional Conduct

Back 92

(blank)

Front 93

A lawyer who knows another lawyers violation of the RPC that raises substantial questions as to the lawyer's fitness honesty or trustworthiness . .

Back 93

has a duty to report the misconduct.

Front 94

What duties does a lawyer owe a client?

Back 94

Duty of diligence and competence.

Front 95

What is the duty of competance?

Back 95

lawyers must act with knowlege, skill, thoroughness, and reasonable preparation.

Front 96

when a specific RPC is not on point , lawyer should behave how?

Back 96

when a specific RPC is not on point , lawyer should act in a manner that promotes public confidence in the integrity and efficiency of the legal system.

Front 97

What is required to represent a client when a lawyer has represented another in a related matter?

Back 97

A lawyer who represents a client may not represent another client in the same or a substantially related matter unless the former client consents.

Front 98

Describe Duty of Confidentiality?

Back 98

A lawyer is forbidden from
1) using or revealing information
2) acquired in the representation of a client
3) against the client

Front 99

What constitutes practice of law w/o a license?

Back 99

No specific definition: what do lawyers usually do?

Front 100

What is the responsibility of a lawyer who supervises other employees?

Back 100

A lawyer with direct supervisory authority over a non lawyer must make reasonable efforts to insure conduct is compatible with the professional obligation of a lawyer.

Front 101

Duty of fairness other lawyers

Back 101

A lawyer must not engage in conduct like
1) obstructing access to evidence,
2) knowing disobey any obligation,
3) make frivolous discovery requests.

Front 102

Duty of fairness to third parties

Back 102

1) Truthful in negotiations and
2) does not abuse their rights is gathering evidence.

Front 103

When may a lawyer accept compensation from a third party?

Back 103

1) Client consents 2) no interference w/ lawyer's professional judgment from the third party 3) information related to representation is protected by duty of confidentiality

Front 104

What is the rule regarding conflicts of interest?

Back 104

A lawyer may not represent a client
1) if it will be directly adverse to the interest of another client or
2) if there is a significant risk that the representation of the client will be materially limited by responsibilities to other clients.

Hint 104

Directly averse to
or materially limited by
another client

Front 105

When may a lawyer represent concurrent clients?

Back 105

1) believes can be competetant and diligent to each 2) not prohibited by law 3) no claims by one client against the other 4) clients consent in writing

Front 106

What are a lawyers obligations regarding a client who enters false testimony?

Back 106

Lawyer must not offer false testimony into evidence. Should press client to testify truthfully and withdraw if she won't.

Front 107

What is the rule regarding Fees?

Back 107

Fees must be communicated to a client, prefferably in writing before representation begins. If parties agree to a contignecy fee, it must be in writing and must state the mehtod for determingin the fee :
1) the percentatge that accrues to the lawyer 2) litigation and other expenses 3) wheter such fees are deducted before or after contingency fee is calculated. Lawyer should offer client an alternative payment method if a contingency fee is not in her best interest.

Front 108

What is the rule regarding communication with a third party?

Back 108

A lawyer may communicate with an unrepresented pary if he does not represent himself as disinterested. Laywer must make reasonable efforts to correct any misunderstanding that the unrepresented party has regarding the nature of the lawyer's role in the matter.

Front 109

What must a lawyer do if representation of a client will result in the violation of an RPC?

Back 109

withdraw

Front 110

May a lawyer state that he specializes?

Back 110

A layer may state that he practices in a specific area but may not call himself a specialist unless he has been certified by a state or private organization.

Front 111

How must a lawyer handle retainers?

Back 111

when a lawyer has fund sin which he and the client have an interest he must keep them in a separate account.

Front 112

May a lawyer partner with a non-lawyer?

Back 112

Lawyer may partner with a non-lawyer as long as none of the activities of the partnership involve the practice of law.

Front 113

If one lawyer in a firm would be disqualified from representing a client, what is the result for the other lawyers?

Back 113

they are disqualified too.

Front 114

What are the rules on advertising?

Back 114

Advertising cannot be misleading. Cannot create an expectation of certain results. (stating a spec dollar amount is not allowed)

Front 115

Can a lawyer prepare docs anonymously?

Back 115

No, OK Rules of Civil proc require a lawyer to sign the documents he prepares.

Front 116

Upon termination what must an atty do for the client?

Back 116

1) take reasonable steps to protect the client's interests 2) turn over documents to which the client is entitled

Front 117

Lawyer must do what with clients funds besides keeping them seperate?

Back 117

keep records

Front 118

What happens to client funds not used?

Back 118

must be returned to clients.

Front 119

Does the duty of confidentiality extend to physical items?

Back 119

no, if a client gives a lawyer an item, the lawyer must respond to a discovery request for the item.

Front 120

what is the rule on crimes the client has not committed?

Back 120

Lawyers may not counsel clients in behavior she knows is criminal or fraudulent.

Front 121

What is the rule regarding communication with a represented party?

Back 121

A lawyer may not speak to a represented party
about the subject of that representation
without permission from the person's atty.

Front 122

Secured Transactions

Back 122

(blank)

Front 123

Qualification for Ch 13 Br

Back 123

Less than 336,900 of unsecured debt and less than 1,010,650 of secured debt.

Front 124

Within 180 days of filing for BR what is required of a debtor?

Back 124

Briefing from approved counselor

Front 125

What elements satisfy the required briefing?

Back 125

1) opportunities for credit counselling, assistance in budget analysis 2)Debtor files cert of completion 3) debtor files plan if available

Front 126

How is a security interest perfected

Back 126

To perfect a security interest, the item must be filed with the county clerk,[ a repossession within 90 days of BR will be a preference otherwise.]

Front 127

SOL on Fraudulent transfers?

Back 127

may be voided up to 4 years after under OK law

Front 128

What should a bank do before making a loan to a domicillary of several states?

Back 128

should check UCC tax lien records in all relevant states as to the collateral for the loan.

Front 129

What is required on a security agreement to protect the lender?

Back 129

Sec Agreement must be 1)signed 2) recorded. [lender should also get an after aquired property clause].

Front 130

What happens when a promissory note is executed?

Back 130

1) loan is memorialized 2) all makers must sign

Front 131

How is an interest in an account perfected?

Back 131

file a statement with Sec of State
1) in state of primary residence of account holder for individuals
2) organization (incorporation) for corporations

[BEST idea - get added to the bank account as a co-signer if possible]

Front 132

Can a :"doing business as" name be listed on financing statements?

Back 132

No, REgistered organizations must use their registered names on financing statements.

Front 133

What is required of trusts for identifications purposes?

Back 133

Must include: Trust name as on instrument or the name of the settlor of the trust and enough info to distinguish the trust from others of the same settlor.

Front 134

Proffits as collateral

Back 134

Financing statement must mention the land a profit is taken from as well as the profit [i.e. timber] and filed with the county where a mortgage on the land would be filed (normally where real property is located)

Front 135

What is inventory

Back 135

products consumed in the ordinary course of business

Front 136

When taking a security interest in Inventory, what may be required if the debtor is a corporation?

Back 136

May have to be described in specificity if the debtor is a corporation.
[BEST - get a security interest or possession of the stock of the corporation]

Front 137

What is a guarantee?

Back 137

the promise to answer for the debt of another.

Front 138

what is a continuing guarantee?

Back 138

guarantee relating to
1. future liability
2. of a principal
3. under successive transactions

Front 139

What is the significance of a guarentee executed contemporaneously with principal obligation.

Back 139

It requires no consideration [this is huge]. If a guarentee is obtained after a loan is given and no additional consideration is given, it is unenforceable for lack of consideration.

Front 140

What instrument secures an interest against future debt? [ie if I let you borrow more money after the car is paid off, the car secures that money too]

Back 140

advance clause

Front 141

How is a foreclosure sale conducted in OK?

Back 141

1) set date
2) inform parties [ debtor and other secured creditors]
3) commercially reasonable: method manner time place)

Front 142

How is an interest in General Intangibles perfected?

Back 142

perfected by filing security agreement in the office of the county clerk.

Front 143

Oklahoma's homestead exemption?

Back 143

1) acre within any city or town
2)owned and occupied as a residence only OR
3) used only for residence and business purposes where business takes up no more than 25% of the square footage of residence.

[if more than 25% of square footage used as a business than exemption is $5000]

Front 144

When are a business and a person one and the same under the law for the purpose of Bankruptcy?

Back 144

Only if a business is a sole proprietorship is a business and a person one and the same under the law for the purpose of Bankruptcy

Front 145

Sales (Contracts - UCC)

Back 145

(blank)

Front 146

Perfect tender rule?

Back 146

Anything less than exactly what was requested [perfect tender] is breach of contract.

[more practical to consider a best effort to be a counter offer]

Front 147

Duty of seller to mitigate damages for wrongfully rejected goods?

Back 147

seller can recover the contract price for goods wrongfully rejected if and only if she is unable to resell, otherwise [if no reasonable effort to resell] she can only get market price.

Front 148

What damages are available to sellers under the UCC article II?

Back 148

Incidental damages [ payed for storage] but not consequential damages [ lost my best customer while I messed around with you]

Front 149

What is the effect of a merger clause? [ie "This writing constitutes a complete experession of our agreement"]

Back 149

keeps verbal express warranties out of evidence, beacause it makes the writing a complete and final expression of terms thereby limmitied the parole evidence avaiable

Front 150

implied warranty of merchantablity [applies to who and requires what?]

Back 150

a seller who deals in goods of the kind impliedly warrants that they are fit for ordinary use.

Hint 150

Merchant warrants for ordinary use

Front 151

what about mixed contracts of goods and services?

Back 151

UCC will apply if the predominate article is goods.

Front 152

When is an advertisement an offer?

Back 152

If it is a clear and definite expression an ad may be an offer.

Front 153

When is an offer irrevokable under the UCC?

Back 153

1) signed writing
2) promises to remain open for no longer than 3 months

Front 154

describe acceptance under the UCC

Back 154

an offeree may accept an offer any reasonable way

Front 155

When is a settlement binding?

Back 155

If a settlement for a disputed claim is supported by consideration, it is binding.

Front 156

Commercial Paper (note: this subject appears to be no longer tested but there are some good definitions here]

Back 156

(blank)

Front 157

What is required in an Oklahoma Replevin action petition?

Back 157

1) Verified (description of personal property)
2) allege value
3) allege not taken by state (subject of taxes or judgement)
4)prayer for immediate relief

Front 158

describe a lender's duty under the theory of impairment of collateral.

Back 158

a bank has a duty to accomodate parties to preserve collateral [ may arrise when a co-signer asks a bank to secure collateral against an insolvent primary ]

Front 159

What is required in an OKlahoma Quiet title action petition?

Back 159

1) allege facts in support of claim to real property 2) attach copy of deed (if available)

Front 160

describe accellaration?

Back 160

if a secured creditor reasonably suspects insolvency, she may move to protect her assets [possibly by seizing assets or by demanding full payment for an outstanding debt]

Front 161

what is a maker?

Back 161

a primarily liable party who signs (co-signs) a security document.

Front 162

what is the holding of Pain v. Packard?

Back 162

surety may require creditor to procede against principal where doing so would lighten surety's load. [relates to impairment of collateral]

Front 163

Civil Procedure

Back 163

(blank)

Front 164

How is an action properly commenced in OK?

Back 164

Filing a PETITION with the court

Front 165

How is proper personal service of process upon a defendant accomplished?

Back 165

1) Delivery of a Petition and Summons (issued by clerk upon filing of a petition)
2) by a sheriff, process server, or a person specially appointed
3) upon an individual. or someone 15 years or older who resides at that person's residence.

Front 166

How is proper service of process by mail upon a defendant accomplished?

Back 166

1) Certified mail
2) with return receipt requested
3) delivery restricted to addressee

Front 167

What if process by mail is refused?

Back 167

Plaintiff must notify defendant by first class mail a notice that default judgment will be entered if she fails to appear 10 days prior to requesting entry of default judgment.

Front 168

Of what state is a corporation a citizen?

Back 168

Corporation has duel citizenship under FRCP, State of incorporation and state of location.

Front 169

What the requirements for federal court jurisdiction?

Back 169

Personal Jurisdiction, and Subject matter jurisdiction

Front 170

What are the limmits of Fed court personal jurisdiction in OK?

Back 170

Same as state court so "any grounds consistent with the Constitution of the US" or "minimum contacts" with Oklahoma

Front 171

What is minimum contacts?

Back 171

Defendant knew or should have known that its activities could give rise to liability in a state?

Front 172

Where is venue proper in Oklahoma State courts/Fed courts

Back 172

Venue is decided on a District/County by District/County basis. Venue is proper in a Dist/County where any defendant resides if all defendants reside in the same state. Venue is proper in any county where a substantial part of the activities giving rise to the claims occurred.

Front 173

Describe Subject matter jurisdiction in Oklahoma Courts

Back 173

OK State courts are courts of general SMJ and can hear almost any kind of case.

Front 174

Describe SMJ in Fed Courts?

Back 174

Federal courts can exercise SMJ on two grounds 1) Diversity of Citizenship 2) Federal Question

Front 175

What are the requirements for Diversity of Citizenship Jurisdiction?

Back 175

1) complete diversity - no two opposing parties are from the same state
2) amount in question is greater than $75K

Front 176

What is the rule on disclosing insurance?

Back 176

w/i 14 days of initial discovery conference, defendant must disclose any insurers who may be liable. If the do not, ptf may move to compell and for sanctions.

Front 177

What must a motion to compell allege?

Back 177

that movant has in good faith conferred with party to secure info without court action.

Front 178

In federal court what is required modify the scheduling order?

Back 178

leave of the court for good cause. [ deadline could not be met despite movant's dilligence]

Front 179

What is the statute of limitations for personal injury claims in OK?

Back 179

two years othe date the cause of action accrued.

Front 180

Describe relation back in OK?

Back 180

if a case is filed befor the SOL runs, a new claim may be added after the SOL runs if the added claim is base upon the conduct set forth in the petition.

Front 181

Family Law

Back 181

(blank)

Front 182

Jurisdiction for dissolution of marriage

Back 182

To file for divorce in Oklahoma a plaintiff must be a resident for 6 months and intend ( for 6 months) to remain.

Front 183

Venue

Back 183

Venue is proper in any county where the plaintiff has resided for the previous 30 days, or in any county where the defendant currently resides.

Front 184

Jurisdiction over child custody

Back 184

OK has embraced the UCCJEA which gives jurisdiction to a child's "home state."

Front 185

how is the "home state" defined under the UCCJEA

Back 185

state where the child and one parent have resided for at least 6 months prior to custody proceedings.

Front 186

Legal separation petition Jurisdiction

Back 186

petition may be brought in the county where either party is a resident at the time of filing. there is no 30 day residency requirement when filing a petition for legal separation.

Front 187

Jurisdiction over marital property

Back 187

in order to adjudicate property division an OK court must have PJ over the owner.
Due process must be satisfied

The long arm statute can be used if necessary.

Front 188

How can the due process requirement be satisfied as to an out of state defendant?

Back 188

1) prove def consented to OK Jurisdiction
2) Serve def in OK
3) Prove defendant has "minimum contacts"

Front 189

What is marital property?

Back 189

property acquired during the marriage due to the joint industry of the spouses. All property acquired during the course of the marriage is presumed marital.

Front 190

Marital property division?

Back 190

Property is divided EQUITABLY, which is not necessarily equally. equitable concerns include
1) custody of children expenses
2) contribution of each spouse
3) economic fault

Front 191

What is the rule regarding title used on the bar examination?

Back 191

Even if the property is titled in a certain party or parties name(s), a court will equitably divide only if marital.

Front 192

How is child custody determined?

Back 192

The paramount concern in a child custody case is the best interest of the child.
Factors include:
1) which parent will insure contact with the other parent
2) ability of parents to love nurture and provide
3) moral transgressions that affect the child
4) any foreseeable risk of harm to the child
5) any other factor affecting the child's best interest
[preference of the child if child is 12 or older]

[Contact-Ability-Morality-Risk-Affecting]

Front 193

What should a petition for divorce contain?

Back 193

1) allege marriage
2) grounds for dissolution of marriage
3) Jurisdictional and venue grounds
4) Parties have (or do not) children
5) affidavit verifying petition is true

Front 194

What are the factors courts use in determining when one party will pay alimony?

Back 194

spouse's need arising from the marriage, and ability of the other spouse to pay.

1) Accustomed standard of living
2) property division
3) age health opportunity for employment and earning capacity
4) age of children and cartaking needs
5) contribution to payor spouse's earning potential
6) duration of the marriage
[APE-CED Accustomed Property Educaion - Children Earning Marriage]

Front 195

If DHS takes custody who gets notice?

Back 195

1) parents/guardians
2) indian tribe where appropriate

Front 196

What is required for a joint tenancy?

Back 196

Unity of Time title possession and interest.

Front 197

When is a deed holder entitled to reformation?

Back 197

Reformation is proper only when there is a prior valid agreement between two parties and the writing fails to conform to that agreement as a result of
1) mutual mistake or
2) fraud

Front 198

When a buyer advances money to a builder what is created in Oklahoma?

Back 198

A lien on the materials is vested in the buyer.

Front 199

How is a defective deed cured in OK?

Back 199

Under Oklahomas nonjudicial marketable title procedures act (NMTPA) this remedy may be sought by requesting a curative instrument and serving notice on the adverse party with 30 days.

Front 200

What is the priority of a mechanic's lien?

Back 200

It has priority over all liens arising after the work is done.

Front 201

Under NMTPA, what allows a plaintiff to recover damages?

Back 201

i) judgment could have been accomplished with curative instrument
ii)adverse party failed to comply with reasonable cause.

Front 202

Describe race notice in Oklahoma?

Back 202

Subsequent bonified purchaser for value (bfp) who records first prevails.

Front 203

Malicious prosecution

Back 203

1) institution of criminal procedings by the defendant
2) for an improper purpose and without probable cause
3) which terminates favorably for the plaintiff
4) and causes plaintiff damages.