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64 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Agency - Creation
Creating an agency relationship is as easy as ABCD. |
ASSENT (usually requires mutuality)
BENEFIT conferred upon principal CONTROL of agent by principal DURING and within scope of agent's employment |
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Civil Procedure - Personal Jurisdiction acrostic
My Parents Frequently Forgot to Read Children's Stories |
minimum contacts
purposeful availment foreseeable defendant fair play and substantial justice relatedness of contact convenience state's interest |
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Civil Procedure - Challenging The Complaint
Defendant PICT VALID reasons to challenge the complaint. |
PLEADINGS
INSUFFICIENCY CLAIM TRIABLE VENUE ALLEGATIONS LACK INDISPENSABLE DEFINITE |
motion for judgment on the PLEADINGS
INSUFFICIENCY of process (motion to dismiss) failure to state a CLAIM (motion to dismiss) no TRIABLE issue of material fact exists as a matter of law (motion for summary judgment) improper VENUE (motion to transfer) ALLEGATIONS that are irrelevant, impertinent, scandalous (motion to strike) LACK of jurisdiction over subject matter or person (motion to dismiss) failure to join INDISPENSABLE party (motion to dismiss) motion for more DEFINITE statement of claim against defendant |
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Civil Procedure - long-arm jurisdiction over tortious conduct
long-arm jurisdiction extends to non-resident tortious DEER |
DERIVES revenue
ENGAGES in conduct EXPECTS consequences REGULARLY solicits |
derives substantial revenues from goods used/consumed or services rendered in-state
engages in persistent course of conduct in-state expects (or reasonably should expect) that tortious acts would have consequences in-state AND defendant derives substantial revenues from interstate/int'l business regularly solicits in-state business |
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Civil Procedure - reasons to grant Motion to Dismiss
In SIDEBAR, Plaintiff Finally admitted the claim should be dismissed. |
SoF
INFANCY/INCOMPETENCY DISCHARGED ESTOPPEL BARRED ARBITRATION RELEASE PAYMENT FAILURE to state a claim |
STATUTE of Frauds
INFANCY or incompetency subject matter of claim DISCHARGED in bankruptcy proceeding ESTOPPEL (collateral estoppel or res judicata) claim BARRED by statute of limitations ARBITRATION and award RELEASE from claim by plaintiff PAYMENT by defendant FAILURE to state a claim upon which relief can be granted |
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Civil Procedure - Provisional Remedies
When a LIAR tells a LIE, the COP will FIND CJ because he's a SLOB. |
LIAR - the four provisional remedies
LIE - reasons to grant preliminary injunction COP - procedural requirements FIND CJ - extraordinary circumstances needed to get order of attachment SLOB - lis pendens requirements |
LIAR:
LIS pendens preliminary INJUNCTION order of ATTACHMENT appointment of RECEIVER (harsh, requires bond) LIE: LIKELIHOOD of plaintiff's success IRREPARABLE injury ($ does not suffice) EQUITABLE balance of hardships COP: CLEAR & CONVINCING evidence of extraordinary circumstances and that plaintiff will succeed ORDER must be entered to be enforceable POST-seizure hearing required immediately afterwards if order was entered ex-parte FIND CJ: FOREIGN corporation INTENT to defraud creditors or frustrate enforcement of judgment NON-DOMICILIARY defendant DILIGENT efforts are not enough to serve domiciliary or resident CRIME victims are entitled to order of attachment when suing felon (Son of Sam law) cause of action is based upon default JUDGMENT from another jurisdiction that is entitled to full faith & credit SLOB: SHERIFF is not involved LIKELIHOOD of plaintiff's success not considered by court ORDER by court not required BOND does not need to be posted |
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Commercial Paper
Elements of Negotiability Rights of Holder in Due Course WOSSUPP! if WE FUC, you'll get DAFFIDILS. |
WOSSUP - elements that make an instrument negotiable
WE FUC - an HDC takes instrument free of all claims and personal defenses DAFFIDILS - an HDC takes instrument subject to real defenses |
WOSSUP:
in WRITING (statute of frauds) payable to ORDER of or to bearer (negotiable words) SIGNED by the maker or drawer SUM is certain (principal only - amount of interest flexible) UNCONDITIONAL promise with no other promises attached PAYABLE on demand or at a definite time PAYABLE in sovereign currency only WE FUC: WAIVER ESTOPPEL FRAUD in inducement (impostor) UNCONSCIONABILITY CONSIDERATION lacking (for the note) DAFFIDILS: DURESS - threat of violence (not economic duress) material ALTERATION of instrument FORGERY Fraud in the FACTUM (signor did not know it was a negotiable instrument) ILLEGALITY DISCHARGE in bankruptcy of maker or drawer INFANCY of maker or drawer LACK of mental capacity STATUTE of limitations has expired on the debt |
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Constitutional Law
Due process - Fundamental Liberties Courts strictly scrutinize government action involving a STAR VP CAMPER. |
STAR VP - six fundamental freedoms
CAMPER - privacy rights |
STAR VP:
freedom of SPEECH right to TRAVEL freedom of ASSOCIATION freedom of RELIGION right to VOTE right to PRIVACY CAMPER: Contraception Abortion ("undue influence" branches w/intermediate scrutiny) Marriage (including dissolution) Procreation Education of children outside public schools Related persons' right to live together |
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Constitutional Law - Establishment Clause Violations
Church and state can't PEE in the same urinal. |
PURPOSE. Law or conduct must have a primarily secular purpose
EFFECT. Primary or inevitable effect of law or conduct must neither advance nor inhibit nor endorse religion. ENTANGLEMENT. Law or conduct can't foster excessive governmental administration or entanglement with religion |
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Contracts - Common Law
Essential Contract Terms |
Q-TIPS
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Quantity
Time of performance Identification of parties Price Subject matter |
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Contracts
Exceptions to Statute of Frauds No writing necessary if the deal is made in a SWAMP. |
SPECIALLY Mfg
WAIVER ADMISSION MERCHANT MEMO PARTIAL performance |
SPECIALLY manufactured goods (production must have begun)
WAIVER judicial ADMISSION that contract is valid MERCHANT memo - UCC. Add'l terms are part of deal unless acceptance materially alters terms of offer objected to in writing within 10 days from receipt offer expressly restricted acceptance on terms PART performance goods already delivered payment already received/accepted |
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Contracts - Termination of Offer
Don't offer IDLE CIDER that's expired. |
INCAPACITY
DEATH LAPSE EXPRESS rejection COUNTEROFFER ILLEGALITY DESTRUCTION EFFECTIVE mailbox REVOCATION |
Incapacity of offeror
Death of offeror Lapse of time Express or implied rejection Counteroffer Intervening illegality Destruction of contract’s subject matter Effective termination under mailbox rule Revocation communicated to offeror before acceptance effective |
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Contracts - Termination of Options
three ways options can DIE |
DESTRUCTION of subject matter of option
INTERVENING illegality EXPIRATION of stated option time |
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Contracts - Defenses to Formation
IF (I) C SCUM, this contract never happened. |
IF (I) C SCUM = equity of rescission
ILLEGALITY FRAUD - in inducement or execution (I) love contracts COERCION - lack of consent or duress STATUTE of frauds CAPACITY - minors, mental UNCONSCIONABLE k - gross disparity, against public policy MISTAKE - generally only allowed with mutually grave error while contract is still executory |
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Contracts - Parol Evidence Rule
DECAF Includes parol evidence but a FOAM LID keeps the contract from forming. |
DECAF I - elements of parol evidence rule
FOAM LID - parol evidence that will serve as a defense to formation |
reveal DEFENSE to contract formation
EXISTENCE of a condition CONTRADICTS, varies or adds to integrated writing clarify ADDITIONAL terms (UCC) FINAL writing intended but not accomplished INTRODUCE consistent collateral subordinate agreement that would not normally be included in an integrated writing FRAUD ORAL condition precedent AMBIGUITY MISTAKE LACK of consideration ILLEGALITY DURESS |
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Contracts - Discharge of Duty to Perform
IF A NIMROD is discharged of his duty to perform, so are you. |
IMPRACTICABILITY
FRUSTRATION of purpose ACCORD and satisfaction NOVATION IMPOSSIBILITY MODIFICATION RESCISSION (mutual) OCCURRENCE of condition subsequent DEFENSE to formation |
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Contracts
Excuse of Conditions & Discharge of Duty to Perform WIVES PAD their pockets with excuses to get out of contracts. |
WIVES PAD
these conditions excuse performance |
Waiver (knowingly accepted defective performance)
Impossibility (objective - nobody could perform) Voluntary disablement (implied repudiation) Estoppel (other party says don't perform) Subsequent agreement of parties (mutual rescission, modification, novation, substitution) Prevention of performance (intentional or negligent hindrance) Anticipatory repudiation (present, absolute, unequivocal renunciation of obligation) Divisibility of contract duties |
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Contracts - Formation by Quasi-Contract
I painted your CURB so you owe me. |
CONTRACT implied in FACT or at LAW
UNJUST enrichment if defendant allowed to keep benefit without legal detriment REASONABLE expectation of being compensated BENEFIT conferred upon defendant by express request or implied permission |
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Contracts - UCC Article 2
Material Alteration of Offer A merchant that WARPS my offer with his reply memo makes me Just Livid. |
WARRANTY
ARBITRATION RISK of loss PAYMENT SHORTENING SoL JURISDICTION LIABILITY waiver |
WARRANTY negation such as merchantability or fitness
ARBITRATION requirement added (unless customary practice in trade) RISK of loss shifted, adjusted or altered PAYMENT terms and amount changed SHORTENING Statute of Limitations to sue for non-conforming goods JURISDICTION clause bestowing or changing laws covering K LIABILITY waiver or limitation (in tort or contract) |
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Contracts - UCC Article 2
Seller's Remedies for Buyer's Breach When the buyer is a K LAPSER, seller has remedies. |
KEEP deposit
LOST profit ASSURANCES PRICE STOP goods EXERCISE reclamation RESELL |
KEEP deposit if under $500
sue for LOST profit (if "unlimited supply" available) demand ASSURANCES if insolvency/incapability is evident sue for entire contract PRICE STOP goods in transit. EXERCISE right to reclaim goods delivered to insolvent buyer RESELL goods to another buyer |
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Contracts - UCC Article 2
Buyers Remedies for Seller's Breach a buyer Can Revoke Security or WAIT when seller breaches. |
CANCEL
REVOKE SECURITY WITHHOLD $ ACCEPT & recover $ INADEQUATE = demand TENDER & claim |
CANCEL the contract, purchase from another, recover damages.
REVOKE contract if substantial breach where acceptance induced by reasonable expectation of prompt cure or latent (undetectable) defect withhold non-conforming goods as SECURITY for damages. WITHHOLD amount equal to damages (notice to seller required) ACCEPT non-conforming goods at k price, recover consequential & incidental damages if money damages are INADEQUATE, buyer can demand goods. TENDER balance due & claim goods if buyer has partially paid |
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Corporations - Contents of Articles of Incorporation.
It's A PAIN to write the articles of incorporation. |
AUTHORIZED shares
PURPOSE AGENT authorized to receive service of process INCORPORATORS NAME and address of corporation |
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Corporations
Actions Requiring Shareholder Approval Shareholders deserve A DAMN SALAD if the corporation makes a big change. |
AMENDMENT
DISSOLUTION ASSET MERGER NAME SURETY AGENT LOCATION ABOLISHING liability DIRECTOR loans |
AMENDMENT of certificate of incorporation that changes quorum, maxi/super majority, preemptive or cumulative voting rights, and/or corporate purpose
DISSOLUTION (voluntary) ASSET sale, lease or exchange (>75% of assets) MERGER or consolidation NAME change SURETY interests in debt not acquired for corporate purposes change of AGENT for service of process change of LOCATION of corporate office ABOLISHING or limiting directors’ liability for negligence DIRECTOR loans |
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Corporations - Appraisal Rights of Shareholders
if PAM C dissents, she gets appraisal rights. |
PREEMPTIVE
ASSET MERGER CUMULATIVE |
PREEMPTIVE, redemptive or other share of ownership rights affected
ASSET sale, lease or exchange (>75% of corp assets) MERGER or consolidation into another entity CUMULATIVE voting rights affected |
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Corporations - Duties of Directors & Officers
Directors & Officers who get SUED For being OLD can fire a FLARE. |
SUED - types of conflict of interest
FOLD - usurpation of corporate opportunity tests FLARE - defenses to usurping corporate opportunity |
SELF-dealing
USURPATION EXECUTIVE compensation unreasonable DIRECT conflict of interest FITNESS & fairness of transaction OPPORTUNITY was available to corporation LINE of business was same as corporation's DISCLOSURE was not proper FINANCIAL incapacity of corporation to enter K LEGAL incapacity of corporation to enter K ABANDONED (purposeful failure to deal) REJECTED (purposefully declining to transact) EXPLICIT approval by uninterested BoD or SH |
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Corporations
Valid Reasons For Judicial or Voluntary Dissolution To dissolve a corporation, just I.D. the WOLF in the boardroom. |
ILLEGAL conduct
DIVERSION of corporate assets to directors/officers WASTE (including that which results from deadlock) OPPRESSION of minority shareholders LOOTING FRAUD |
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Criminal Law - When Omission To Act Is A Crime
You can't just watch them SCRAP when you've got a legal duty to break it up. |
STATUTORY duty (filing taxes)
CONTRACT (nurse, lifeguard) RELATIONSHIP (parent, spouse) ASSUMPTION of duty voluntarily (rescuer liability) PERIL (caused risk of harm) |
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Criminal Procedure
Exceptions to Search Warrant Requirement SHAPE up WISEACRE or I'll search you without a warrant. |
STOP (articulable, reasonable suspicion) & frisk (armed & dangerous) of outer clothing
HOT pursuit AUTOMOBILE PLAIN view EVANESCENT evidence (up) WIRETAP w/ one party’s consent INCIDENT to lawful arrest SCHOOL property EXIGENT circumstances ADMINISTRATIVE searches (e.g. Border, Airport) CONSENT to search expressly granted ROUTINE, non-discriminatory checkpoint stops EAVESDROPPING on conversation with no reasonable expectation of privacy |
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Criminal Procedure
Exceptions to the Exclusionary Rule U SAID G was fruit of the poisonous tree but he's not. |
USE for impeachment
independent SOURCE ATTENUATED chain of causation between tainted evidence and illegal action INTERVENING act of free will inevitable DISCOVERY GOOD faith of police & magistrate in issuing invalid warrant |
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Evidence - Rule 403
Exclusion of Relevant Evidence the UMP doesn't have to let the evidence IN |
UNDUE delay
MISLEAD the jury PREJUDICIAL effect on jury confusion of ISSUES NEEDLESS presentation of cumulative evidence |
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Evidence - Inadmissible Relevant Evidence
I like PORN but it's still inadmissible. |
INSURANCE proving fault
PRIVILEGED communication OFFERS of compromise REMEDIAL measures NEGOTIATION during plea |
INSURANCE introduced to prove fault or deep pockets
PRIVILEGED evidence OFFERS of compromise or settlement (except in conjunction with offer to pay medical expenses) subsequent REMEDIAL repairs NEGOTIATED admissions made by criminal defendant during unsuccessful plea bargaining |
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Evidence - Non-Hearsay Regardless of Testimony
SANE evidence is not hearsay so it's admissible. |
STATE of mind
ADMISSION by party opponent NONASSERTIVE conduct EFFECT on listener |
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Family Law - Requirements of Prenuptial Agreements
Prenups are enforceable if the spouses SPIED on each other. |
SUPPORT - must be fair at time of enforcement
PROPERTY - must be fair at time of execution IN WRITING - court does not bind on issues involving children ENTERED voluntarily into by both parties with knowing consent DISCLOSURE - full and fair |
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Family Law - Validity Requirements of Marriage
To validate his marriage, the groom must CROWN his lovely bride's ASS. |
CONSANGUINITY
RECOGNIZED c/l OBTAIN license WITNESSES NO spouse AGE SOLEMNIZED SIGNED |
CONSANGUINITY - parties cannot be closer kin than second cousins
if RECOGNIZED as valid where contracted under common law, then valid in most non CL states OBTAIN license from county auditor (must be used at least 3 days later, expires after 60 days) WITNESSES - two physically present NO other living spouse at time of marriage AGE of majority SOLEMNIZED by officer authorized by state to perform marriage ceremonies SIGNED marriage certificate (witnesses and person solemnizing marriage) |
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Family Law - Typical Provisions of a Parenting Plan
Divorcing parents throw DARTS at a board to decide who gets the kids. |
DESIGNATION of primary residential parent
ALLOCATION of decision-making authority RESTRICTIONS on contact, where appropriate TRANSPORTATION arrangements SCHEDULE for residential contact with child |
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Family Law - Factors Affecting "Just and Equitable" Distribution
Your lifestyle might GET CRAMPED when marital assets are equitably distributed. |
GOODWILL
EXTENT of property TENANCY IN COMMON COMPENSATION right of REIMBURSEMENT ALL property subject to division MARITAL standard of living PENSIONS EARNING capacity DURATION |
GOODWILL of spouse's professional services practice (value intrinsically tied to personal work)
EXTENT and nature of separate and joint property TENANCY IN COMMON results if joint property is discovered after decree of dissolution, to be held jointly with 50/50 split COMPENSATION - all income and earnings are subject to division RIGHT OF REIMBURSEMENT for joint property contributions to separate property assets ALL property, both joint and separate, is to be divided in a just and equitable distribution (some states even permit division of pseudo-joint property acquired during non-formalized meretricious relationships) MARITAL standard of living PENSIONS - railroad, military and government pensions are governed by ERISA (federal law) EARNING CAPACITY at time of separation - "rehabilitative" maintenance may be granted to less fortunate spouse to acquire of sufficient education or training for a limited period of time DURATION of marriage: <5 yrs (division by restitution); 5 to 30 yrs (court discretion, case-by-case); >30 yrs (equalization of assets/income through time of retirement) |
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Family Law - Specific Obligations Included In
Child Support Orders Support HAS TILTeD in favor of the children. |
HEALTH CARE
ACTIVITIES STATE SUPPORT SCHEDULE TRANSPORTATION INCOME recalculation LIFE insurance TAX eXEMPTION downward DEVIATIONS |
HEALTH CARE costs that are extraordinary
ACTIVITIES - day care, athletics, team sports, lessons, camp fees, etc (dovetails with decision-making authority) STATE SUPPORT SCHEDULE - standard calculation TRANSPORTATION for long-distance commuting to accomplish visitation INCOME RECALCULATION due to fluctuations that reasonably affect ability to fulfill support obligations (based upon current pay stubs and tax returns; no retroactive changes) LIFE INSURANCE - court may order parent to obtain life insurance to ensure fulfillment of prospective support obligations TAX EXEMPTION allocations DOWNWARD DEVIATIONS on the basis of support payments required for other children or time spent with paying parent |
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Professional Responsibility - Duties To Client
When playing 5-Card STUD with a client's money, I must be a responsible professional. |
CCCCC (5-Card)
STUD |
COMMUNICATE with client
act COMPETENTLY do not reveal CONFIDENCES avoid CONFLICTS of interest render CANDID advice SAFEGUARD client's money & property TERMINATE atty/client relationship fairly and properly UNREASONABLE fees should not be charged act with reasonable DILIGENCE |
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Professional Responsibility
Withdrawing from Attorney/Client relationship WE attorneys suffer from MANICURE withdrawal. |
attorney is a WITNESS in the case, resulting in unfair prejudice to client
ETHICAL violation will occur if client is represented MALICIOUS harassment will be brought upon opposing party with no good faith that claim/defense is warranted under law ATTORNEY is being employed to commit past crime/fraud *proper NOTICE of withdrawal must be given to client INCOMPETENCY of attorney to handle matter CRIMINAL or fraudulent conduct required UNREASONABLE financial burden on attorney *REFUND all papers/property of client, along with unearned fees, upon withdrawal EXPENSES or fees promised by client are not paid *these are procedural requirements of withdrawal |
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Real Property - Requirements for obtaining title by
Adverse Possession An adverse possessor's voice must ECHO long enough to get title to the property. |
EXCLUSIVE and actual
CONTINUOUS for the statutory period HOSTILE (without permission) OPEN and notorious |
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Real Property - Non-Possessory Interests In Land
Let me C NIPPLES and I'll let you use my land. |
COVENANT
NECESSITY IMPLICATION PROFIT PRESCRIPTION LICENSE EXPRESS SERVITUDE |
COVENANT running with the land (writing, intent, touch & concern, privity of estate)
easement by NECESSITY (landlocked) easement by IMPLICATION (conveyance with retention by owner of part of property; must be reasonably necessary) PROFIT that complies with SoF to extract something therefrom easement by PRESCRIPTION (adverse, open/notorious, continuous for statutory period - does not need to be exclusive) revocable LICENSE that grants permission to enter without being a trespasser EXPRESS easement by deed or will SERVITUDE equitably enforceable by another lot owner |
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Real Property
Termination or Expiration of Non-Possessory Interests In Land REMAND use of that ACRE back to its rightful owner! |
RELEASE
EMINENT DOMAIN MERGER ABANDONMENT NECESSITY DESTRUCTION ABUSE CHANGED REVOCATION (licenses) ESTOPPEL |
RELEASE by party with non-possessory interest (written)
EMINENT DOMAIN (condemnation / taking by regulation or physical possession) MERGER - common ownership of dominant and servient tenement ABANDONMENT (non-use is NOT sufficient) end of NECESSITY DESTRUCTION of servient tenement ABUSE - servient landowner may receive injunction & damages CHANGED neighborhood conditions (equitable servitudes only) REVOCATION (applies to revocable LICENSES only) ESTOPPEL - where holder represents intent to abandon & servient tenement so relies |
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Real Propert - Ways to Sever a Joint Tenancy
to sever a joint tenancy's TTIP, RIP'M apart |
TTIP - 4 Unities
RIP'M - ways to sever a JT |
TIME
TITLE INTEREST POSSESSION RIGHT of survivorship upon death INTER VIVOS conveyance resulting in tenancy in common PARTITION by MORTGAGING interest in title theory state |
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Real Property - Deed Requirements
You can't transfer property unless the deed IS WILD. |
IDENTIFIES
SIGNED WRITING INTENT LAND DELIVERED |
IDENTIFIES parties
SIGNED by grantor in WRITING must show INTENT to transfer an interest LAND conveyed is described must be DELIVERED |
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Real Property - Tenant's Remedies for Breach by Landlord
If landlord breaches, tenant can hit the ROAD. |
RESCIND the lease agreement
OFFSET rent payment after repair ABATE rent until landlord fixes problem (must place in escrow) DAMAGES ordered by court |
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Real Property - Landlord's Obligations to Tenant
A landlord's day is MIRED with responsibilities to his tenants. |
MAINTAIN
IMPLIED warranty of habitability REPAIR warrant quiet ENJOYMENT DELIVER possession |
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Real Property - Tenant's Duties to Landlord
WE R UP to date with rent payments. |
abstain from committing WASTE
refrain from interfering with quiet ENJOYMENT of other tenants pay RENT USE premises for legal activities only fulfill PROMISES made to repair |
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Real Property - Landlord's Remedies for Breach by Tenant
Pay the rent or you're DEAD. |
withhold DEPOSIT
EVICTION ACCELERATION clause DAMAGES for holdover |
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UCC Article 9 Secured Transactions
Classes of Tangible & Intangible Goods a FAN is a SPECIFIC type of goods covered under UCC Article 9. |
FARMING products
ACCOUNT proceeds received upon sale of collateral NOTES (promissory & drafts) STOCKS, bonds & mutual funds PERSONALTY - chattels / movable goods generally EQUIPMENT CONSENSUAL security interests only (not statutory or mechanic liens) INVENTORY FIXTURES annexed to real estate (lighting fixtures, sprinkler systems, furnaces, etc.) INTELLECTUAL properties CONSUMER goods |
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UCC Article 9 Secured Transactions
VCR The 3 Requirements for Attachment |
VALUE must be given by creditor
CONTRACT - the security agreement serves as evidence of the secured transaction unless the secured party has taken possession of the collateral. debtor must have RIGHTS in the collateral. |
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UCC Article 9 Secured Transactions
Priority of Creditors Article 9 dictates which creditor gets to keep the O-PA-L NUG(get). |
buyer in ORDINARY course
PERFECTED ATTACHED creditor LIEN creditor NON-ordinary course buyer attached UNPERFECTED creditor (including bankruptcy trustee) GENERAL unsecured creditor |
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UCC Article 9 Secured Transactions - Assignees
& UCC Article 3 Commercial Paper - Holder in Due Course three requirements to avoid being subject to personal defenses |
FOR value
IN good faith without NOTICE |
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UCC Article 9 Secured Transactions
Methods of Perfection Perfection Calls For Many Things (5) |
Possession
Control Filing the financing statement in debtor's state Mere attachment (consumer goods and PMSI) Title certificate |
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Torts - Causes of Action for Economic Injury
causing FAMINE is an economic tort. |
FRAUD
ABUSE of process MALICIOUS prosecution INJURIOUS falsehood NEGLIGENT misrepresentation interference with prospective ECONOMIC advantage |
FRAUD - misrepresentation of a past or present material fact
ABUSE of process - initiation of civil or criminal proceedings against plaintiff with malicious intent (prior action NEED NOT have terminated in favor of present plaintiff) MALICIOUS prosecution - initiation of civil or ciminal proceeding against plaintiff with no probable cause that plaintiff is liable or guilty, malicious intent (prior action MUST have terminated in favor of present plaintiff) INJURIOUS falsehood (disparagement) - recklessly or intentionally published false assertion of fact leading to pecuniary injury caused by 3rd party's response NEGLIGENT misrepresentation - negligent misstatement of material fact in business of supplying information to others justifiably relied upon by plaintiff interference with prospective ECONOMIC advantage, including contractual relations |
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Torts - Theories of Vicarious Liability
i DARE Plaintiff to Join vicariously liable tortfeasors. |
DELEGATION of danger
AUTOMOBILE ownership RESPONDEAT superior Negligent ENTRUSTMENT known PROPENSITIES JOINT enterprise |
DELEGATION of non-delegable duties (inherently dangerous work, like excavation)
AUTOMOBILE ownership negligent entrustment (knew of unsafe driving habits) use by family members for a family purpose statutory liability for consenting to another's use of the vehicle RESPONDEAT superior - "master" liable for acts of "servant" if committed within scope of employment negligent ENTRUSTMENT of dangerous instrumentalities to a child failure to control child's known dangerous PROPENSITIES JOINT enterprises - when two or more persons act in concert |
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Trusts - Elements of a Valid Trust
I know the PARTS of a valid trust. |
INTENT to create
valid PURPOSE ASCERTAINABLE beneficiaries RES named TRUSTEE SETTLOR |
INTENT to create a trust is manifest by conduct
valid PURPOSE (not contrary to public policy or illegal) ASCERTAINABLE beneficiaries (directly capable of taking and holding title for their benefit) RES must be a presently existing, identifiable property interest named TRUSTEE with active duties who is capable of acquiring, holding and administering the trust res; legal & equitable titles merge if beneficiary and trustee are same person SETTLOR with capacity to understand extent of property, natural objects of bounty and nature of disposition |
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Trusts - Ways a Trust can be Created
it's WICKED smart to create a trust. |
by WILL
INTER VIVOS CONSTRUCTIVE/resulting by K (contract) EXERCISING power of appt. DECLARATION |
created by WILL (testamentary trust)
INTER VIVOS trust created by transfer of property CONSTRUCTIVE or resulting trust created as a matter of law creation of trust by K (contract) creation of trust by EXERCISING the power of appointment DECLARATION of trust by property owner |
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Trusts - Duties of Trustee
The trustee had a duty to make sure the beneficiary wasn't drinking SPOILED CAB. |
SELF-DEALING
PROTECT corpus not usurp OPPORTUNITIES INFORM on big transactions LITIGATE EXERCISE care, skill, prudence not DELEGATE authority COMPLY with terms ACCOUNTING refrain from BORROWING |
refrain from SELF-DEALING (duty of loyalty)
PROTECT the corpus of the trust by preserving principal and diversifying the trust portfolio refrain from usurping OPPORTUNITIES available to trust (duty of loyalty) INFORM settlor and beneficiaries of transactions involving more than 25% of trust assets and wait for objections prior to executing the transaction LITIGATE on behalf of the trust when necessary EXERCISE degree of care, skill and prudence which would be exercised by a reasonably prudent person in managing his/her own property avoid DELEGATION of duties involving judgment, discretion or power of appointment (proper administration) COMPLY with terms & duties under trust detailed ACCOUNTING, including earmarking and segregating trust assets separately from personal assets refrain from BORROWING funds from the trust (duty of loyalty) |
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Trusts - When a "Charging Order" to
Invade a Spendthrift, Support or Discretionary is Permitted Certain ANTICS let creditors invade the principal of protective trusts. |
ALIMONY
NECESSITIES TAXES INTENTIONAL hindrance of creditor CHILD SUPPORT SELF-SETTLED trust assets |
ALIMONY obligations due a former spouse
NECESSITIES - debts incurred for food, shelter, medical expenses, etc. TAXES - income necessary to satisfy beneficiary's tax responsibility can usually be attached INTENTIONAL hindrance, delay or defrauding of creditor's claims by transfering assets into a trust CHILD support owed to minor children SELF-settled asset protection trusts where settlor is also the beneficiary (minority rule: permitted if irrevocable and not created to defraud creditors) |
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Trusts - Ways a Trust can be Terminated
When a trust wants to be terminated, it yells "Pour some ACID on ME!!!" |
PETITION to court
ACCOMPLISHED purpose CONSOLIDATION of trusts INCOME interest terminates DONOR termination MERGER of title EXPIRATION of trust term |
PETITION to court by beneficiary, spendthrift provision or settlor (if beneficiary is in agreement)
purpose ACCOMPLISHED, illegal or impossible (such as if the sole beneficiary dies without heirs) CONSOLIDATION by the court where multiple trusts have same purpose, trustees, settlors and beneficiaries INCOME interest terminates - corpus is distributed to remainder beneficiaries if all income beneficiaries die (doctrine of acceleration) unilateral DONOR termination permitted if this right is specified in the instrument. This right is called a "grantor trust," so assets are included in grantor's estate for tax purposes. MERGER of legal and equitable title when beneficiary and trustee are the same person EXPIRATION of term specified in the trust instrument |
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Wills - Elements of a Valid Will
I CAST a valid will into the stream of probate court. |
INTENT to devise contents upon death at time of execution
CAPACITY to understand the property, people involved and the effect of executing the instrument. ATTESTED to by two competent, non-interested witnesses SIGNED by testator or person directed who is within "line-of-sight" TESTAMENTARY age of legal capacity |
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Wills - Will Challenges
Grounds To Contest a Dependable, Constructive UMPIRE decides whether a will can be contested. |
DEPENDANT relative revocation may apply if subsequent will or codicil is invalid AND prior valid will is substantially identical & consistent with testator's intent
CONSTRUCTIVE trust may be necessarily imposed to prevent unjust enrichment or injustice to omitted beneficiary (wrongdoer serves as trustee, ha ha ha) indicia of UNDUE influence (only a CAD ROBS a rich testator) MISTAKE in the execution (wrong document signed with no intent to make a will--will invalid, parol evidence inadmissible) fraudulent PREVENTION of a will being written fraud in the INDUCEMENT failure to REVOKE fraud in the EXECUTION |
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Wills - Undue Influence
Factors to Consider only a CAD ROBS a rich testator. |
CONFIDENTIAL (or fiduciary) relationship exists
ACTIVE participation in will preparation or execution DISPOSITION to exercise undue influence unnatural RESULT OPPORTUNITY to exercise undue influence undue BENEFIT to alleged wrongdoer SUSCEPTIBLE testator |
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Wills - Classification of Legacies and Devises
Acrostic Some Grantors Die Really Intestate |
Some - Specific devise or bequest
Grantors - General legacy Die - Demonstrative legacy Really - Residuary gift Intestate - Intestate property |
SPECIFIC devise or bequest - particular items specified in the will
GENERAL legacy - a sum of money to be paid out of any assets of the estate DEMONSTRATIVE legacy - a sum of money to be paid from a particular account or upon sale of a particular asset RESIDUARY gift - everything else not mentioned under a will with a residuary clause, distributed to the primary beneficiaries INTESTATE property - where there is no will, a lapse, disclaimer, no residuary clause, or the only will was successfully challenged (NOTE: most states disfavor intestacy--the court will interpret parol evidence to save any document that exists and adequately expresses the decedent's intent) |
