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777 Cards in this Set
- Front
- Back
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When is a writing required for an agency relationship?
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When the contract is within the Statute of Frauds (often for land transactions)
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Three requirements for Principal-Agent relationship for tort liability:
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ABC: Assent, Benefit, Control
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When is a principal liable for torts of an independent contractor?
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1) Ultrahazardous activities
2) Nondelegable duty 3) Estoppel (P holds out IC w/ appearance of agency) 4) P knowingly selected an incompetent IC (if selection was negligent, only liable for negligence in selection) |
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Three factors for scope of employment in agency:
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1) Conduct of kind A hired to perform?
2) Did tort occur on job? (frolic vs. detour) 3) Did A intend to benefit P? |
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When is P liable for intentional torts of A?
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1) Force is authorized by P
2) Natural from the nature of employment 3) Motivated by desire to serve P |
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Three ways that agent's authority can be actual implied:
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1) Necessity for an expressly authorized task
2) Custom (inherent authority for person w/ A's title or position) 3) Prior dealings between P and A |
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Two-part test for apparent authority:
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1) P held out A as his agent
2) Third party reasonably relied on this appearance |
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When does a principal ratify a contract?
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1) P has knowledge of all material facts, and
2) P accepts its benefits |
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When is an agent liable on an authorized contract?
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When P is undisclosed or partially disclosed, both P and A are liable (but only one recovery)
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Three fiduciary duties of agent to principal:
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1) Duty of care
2) Duty of obedience 3) Duty of loyalty (no self-dealing, usurping opportunities, or secret profits) |
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How many justices does the VA Supreme Court have?
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7
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How many judges does the VA Court of Appeals have?
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11
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How many districts does Virginia have (for GDC purposes)?
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32
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What is the monetary jurisdiction for GDCs?
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1) Original jurisdiction if $4,500 or less
2) Concurrent jurisdiction if $4,501-$15,000 |
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What is the requisite amount involved for appeal from GDC to circuit court?
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$50
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What is the standard of review in circuit courts of GDC decisions?
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De novo
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How long do you have to appeal from GDC to circuit court?
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10 days
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How long do you have to move for rehearing at GDC? When must the court rule on the motion by?
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30 days; 45 days
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Is discovery allowable in GDC?
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No, but subpoenas are allowed
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What is a bill of particulars?
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When P must be more specific with what he is claiming
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When is contribution allowed among joint tortfeasors?
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Where the tort involved negligence and does NOT entail moral turpitude
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What is the procedure for minors suing? Being sued?
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Sue in own name by next friend; if sued, must have guardian ad litem appointed (unless represented by attorney who has entered an appearance for the minor)
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What is the procedure for persons under a disability suing? Being sued?
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Sue by guardian/conservator/next friend/committee; sued in name of committee (if appointed) or in own name and have guardian ad litem appointed
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What damages can you get for wrongful death?
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1) Sorrow, anguish, lost companionship
2) Service & income provided by decedent 3) Medical & funeral expenses 4) Punitive damages for wanton/willful misconduct |
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What is Category A venue?
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Statutory venue:
1) Where land is located 2) Where will is probated 3) Where subject of injunction is located |
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What are the options for Category B venue?
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1) Where D resides or has principal place of employment
2) Where cause of action or any part thereof arose 3) Where D has registered office or agent 4) Where D conducts substantial business activity 5) Where personal property is located 6) Where P resides, if out-of-state D |
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When must you object to venue in GDC? In circuit court? If a D whose presence created venue is dismissed?
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1) On or before day of trial
2) Within 21 days of service of process 3) Within 10 days of the dismissal (show that he was improperly joined or was joined to create venue) |
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What happens if a motion to transfer venue (in state court) is successful?
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Court will transfer to proper venue unless good cause to keep case (will NOT dismiss)
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If D waived service, how long does he have to file responsive pleadings if he is in-state? If out-of-state?
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60 days; 90 days
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How long does P have to serve D (in state court) after filing?
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1 year
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What are the 3 methods of service of process in VA?
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1) Actual service
2) Substituted service 3) Posted service |
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What are the requirements for substituted service in VA?
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1) Actual service attempted
2) Leave w/ D's family member, 16 or older, at D's usual abode 3) Give information of its purport to that family member |
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What are the requirements for posted service in VA?
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1) Post copy of service on front door of D's usual place of abode
2) Mail service to D at least 10 days before obtaining default judgment 3) Certify to clerk that this has been done |
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Is there a curing statute for defective service of process in VA?
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Yes - cured if service actually and timely reaches D
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How do you serve process on a corporation?
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Serve any officer, director, or registered agent
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Three ways to serve an out-of-state defendant:
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1) Personal service
2) Serve D's registered agent in VA 3) Deliver summons to Secretary of Commonwealth, who mails to D's last known address and files certificate of mailing in court |
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Acts providing personal jurisdiction under VA Long Arm Statute:
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1) Transacts any business in state
2) Contracts to supply services or things in state 3) Causes tortious injury by act/omission in state 4) Causes tortious injury in state by act/omission out of state if regularly does or solicits business in state 5) Causes injury in state by breach of warranty made in sale of goods, where injury in VA is foreseeable or where D does regular business in VA 6) Interest in, uses, possesses, own real property in VA 7) Domestic relations |
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What is a motion craving oyer?
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Asking opposing party to produce documents that are the basis of a claim or defense
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When can you make alternative pleadings in state court?
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1) Same T/O, alternative parties
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Can you amend pleadings in state court?
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Yes, but only with leave of court (liberally granted)
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What are the five necessary elements in a state complaint?
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1) Name of court and names of all parties and their addresses
2) Signature of counsel and office address 3) Statement of facts in numbered paragraphs 4) State a legal cause of action 5) State damages - punitive damages must be separate from compensatory damages |
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When can you join causes of action in state court?
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When they arise out of the same transaction or occurrence
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When can you make a jury demand in state court?
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In the complaint or by serving demand in writing at least 10 days after service of last pleading directed to the issue
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What is a "complaint" called in GDC?
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1) Warrant (printed form, fill in blanks)
2) Motion for judgment (drafted by D) |
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When is the return date in GDC?
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5-60 days after SOP
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What is misjoinder?
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Joining an unrelated claim
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What must a motion objecting to venue continue (state court)?
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1) Why venue is improper
2) What places would be proper |
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When can you assert lack of personal jurisdiction?
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Must be first and by itself (otherwise it is a general appearance and you waive PJ)
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When is a motion to quash service waived?
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When you make a general appearance (but you can file this motion along with others)
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What is a demurrer?
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Tests sufficiency of pleadings (often failure to state a cause of action)
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What can you not challenge in a demurrer?
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Lack of personal jurisdiction
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When are affirmative defenses waived?
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When not raised before trial
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What is a motion to strike the pleading?
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Tests the legal sufficiency of defensive pleadings
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Are there compulsory counterclaims in VA?
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No, only permissive
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Do state counterclaims have to arise out of the same T/O?
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No
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Do state crossclaims have to arise out of the same T/O? Are they compulsory?
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Yes; no
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Is there discovery in the GDC?
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No, but subpoenas
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What is the maximum number of interrogatories in circuit court? Depositions?
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30; no limit
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When do you have to file counterclaims by in GDC? In circuit court?
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Anytime before trial; w/in 21 days of SOP
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Who do counterclaims have to be against?
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The single P, or all P's (cannot just be against some P's)
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Can counterclaims exceed the amount of P's claim?
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Yes
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When do you have to file counterclaims by?
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w/in 21 days of SOP
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When do you have to file an impleader complaint by in circuit court? In GDC?
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w/in 21 days of first responsive pleading; 10 days after service or up to trial date, whichever is sooner
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Can you intervene at GDC?
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No, only in circuit court
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What is the SOL for personal injuries?
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2 years
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What is the SOL for fraud?
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2 years from when discovered (or when it should have been discovered)
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What is the SOL for property damage?
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5 years
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What is the SOL for wrongful death?
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2 years
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What is the SOL for written contracts?
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5 years
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What is the SOL for oral contracts?
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3 years
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What is the SOL for contribution among joint tortfeasors?
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3 years
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What is the SOL for domestic and foreign judgments?
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20 years
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What is the SOL for defamation?
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1 year
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What is the SOL for property damage for sales covered by the UCC?
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4 years
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What is the SOL for unlawful detainer?
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3 years
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Where can you file for a declaratory judgment?
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Only in circuit court
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Where can you file for partition of realty?
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Only in circuit court
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What are the three methods of partition?
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1) Division in kind
2) Partition by allotment (one party pays others for all the land) 3) Partition by sale |
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When can you have partition by sale?
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Only when division in kind is not feasible
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Where can you file a detinue action?
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In either GDC or in circuit court, depending on the amount claimed
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Where can you file an action to establish boundaries?
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Only in circuit court
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Where can you file an action for ejectment?
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Only in circuit court
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What are the elements for ejectment?
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1) P is out of possession
2) Wants to eject the person who is possessing it 3) Must show superior right to possession |
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Where can you bring an action for unlawful detainer?
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In either GDC or circuit court, depending on the amount
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What is an action for unlawful detainer?
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Landlord's action to oust tenant and recover possession of realty?
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What two capacity issues toll the SOL? What is the exception?
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1) Minority and insanity
2) Medical malpractice if the child is 8 or older |
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What is the scope of discovery generally in state court?
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Anything relevant to the subject matter
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What is the scope of discovery for divorce, habeas corpus, and eminent domain?
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Matters relevant to the issues
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What are the four situations where P cannot take a nonsuit?
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1) Jury is deliberating
2) Bench case submitted to court for decision 3) Motion to strike the evidence is granted 4) Demurrer or special plea is fully argued and awaiting decision |
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When can P refile after taking a nonsuit?
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Within the longer of 6 months or the remaining SOL period
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Is default entered automatically in state court?
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Yes
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When is default judgment automatically entered in state court?
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When P moves and damages are liquidated/clearly ascertainable (otherwise P moves for a hearing on damages)
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Can a D in default contest damages?
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Yes, but only damages - not liability
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In state summary judgment, can you use affidavits? Depositions?
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No; only if all parties agree
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What is the jury size for a case over $25,000?
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7 jurors
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What is the jury size for a case for $25,000 or less?
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5 jurors
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If parties agree, what is the fewest number of jurors that can be used?
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3 jurors
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How many peremptory strikes in voir dire?
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3 for each party
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What is the corollary to a JMOL in VA state court?
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Motion to strike the evidence (jury could properly find only one way)
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At the request of all parties, how many expert witnesses of each party may be permitted to remain in the courtroom?
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One expert witness
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Does a verdict have to be unanimous? If not, when not?
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Yes, except when counsel agrees or when a 3 person jury is used (only need 2 of the 3)
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What happens if the verdict is not unanimous?
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Hung jury and a mistrial
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What is the limit of damages in a state court case?
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The amount claimed in the ad damnum clause of P's complaint
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When can a jury be used to decide equitable causes of action? What is the effect?
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1) Facts regarding a special plea - binding on the judge
2) Court on its own motion - merely advisory on the judge |
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How long does the circuit court maintain jurisdiction after judgment? What is this called?
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21 days, unless it suspends/vacates/modifies; this is called in the breast of the court
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What is the functional equivalent of a RJMOL in state court? What is the main difference?
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Motion to Set Aside Verdict as Contrary to Evidence; did not need to file a Motion to Strike the Evidence to be able to file this motion
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What are the 5 grounds for a motion for new trial?
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1) Error or misconduct of judge or jury
2) Misconduct of a party, counsel, or third party 3) Newly discovered evidence that could not have been discovered with due diligence 4) Accident or surprise 5) Excessive or inadequate damages |
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When are damages excessive or inadequate?
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When they shock the conscience
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What is remittitur? Is it allowed at the federal level?
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1) Verdict is too high - P can accept reduced award or judge will order new trial (can accept w/o protest, accept under protest and appeal, or reject and go through new trial)
2) Yes |
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What is additur? Is it allowed at the federal level?
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1) Damages are too low - if either P or D rejects the increased award, court must order a new trial
2) No |
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What is a bill of review? When can you file?
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1) Seek review of final decree in equity (w/o leave - correct errors apparent on face; w/ leave - based upon new evidence)
2) Within 6 months |
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What is the object of detinue?
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Recover specific personal property that P has an interest in and a right to immediate possession
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Who must file a suit to sell/lease/encumber land of persons under disability?
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The fiduciary of the person under disability
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Who are the necessary parties in a suit to sell/lease/encumber land of persons under disability?
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1) Person under disability
2) Fiduciary if not a party plaintiff 3) All persons who would be heirs or distributees of the disabled person if he died 4) All other persons with an interest in the land 5) Appoint a guardian ad litem to protect future interests of minors or those who don't exist yet |
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Can you bring tort claims against the Commonwealth?
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Yes - for money damages for property damages, personal injury, or death - caused by wrongful act or omission of a state employee while acting in the scope of employment
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What are the four elements for allowing interlocutory review in state court?
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1) Substantial ground for difference of opinion
2) No clear appellate precedent 3) Dispositive to a material aspect of the case 4) Court and parties agree it is in the best interest to seek review |
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How do you appeal from GDC to circuit court?
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1) File notice of appeal in GDC w/in 10 days
2) Post bond and pay writ tax and cost w/in 30 days |
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When is there an appeal of right from circuit court to the court of appeals?
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In domestic relations cases
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Is there an appeal of right to the VA Supreme Court?
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No, it is discretionary (except for death penalty cases)
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What are the steps to appeal from circuit court to the supreme court?
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1) File notice of appeal w/ circuit clerk w/in 30 days
2) Mail/deliver a copy of notice of appeal to counsel for other parties and state whether you will file transcript or written summary 3) Clerk prepares the record for transmission to Supreme Court 4) Transcript is only part of record if filed w/ clerk w/in 60 days; otherwise, can prepare written record and file w/ clerk w/in 55 days (and mail to other counsel) 5) File petition for appeal w/ clerk of Supreme Court w/in 3 months 6) Post appeal bond w/in 15 days of certificate of appeal if not done earlier |
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Can P execute on judgment even if D has appealed?
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Yes
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How can D avoid P executing on a judgment while D appeals?
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D must post a supersedeas bond
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What are the requirements for res judicata (claim preclusion)?
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1) Brought by same claimant against same defendant
2) Case 1 must have ended in valid final judgment on the merits (includes default judgments but NOT jurisdiction, venue, or indispensable parties) 3) Same conduct, transaction, or occurrence (except can bring personal injury and property damage separately) |
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What are the requirements for collateral estoppel (issue preclusion)?
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1) Case 1 ended in valid final judgment on the merits
2) Issue was actually litigated and determined in Case 1 3) Issue was essential to the judgment in Case 1 4) Asserted against one who was a party to case 1, by one who was a party to case 1 |
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What are the grounds for vacating arbitration awards?
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1) Corruption/fraud by arbitrators
2) Evident partiality of arbitrators 3) Actions beyond powers or arbitrators 4) Prejudicial failure to postpone proceedings when necessary for a party 5) Lack of arbitration agreement and timely objection |
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What are the grounds for modifying arbitration awards?
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1) Miscalculation apparent on the face
2) Misdescription of a person or property involved |
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What are the two basic instruments of commercial paper
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Note and draft
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Who are the parties involved in a note?
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Maker (promises to pay) and payee/bearer (promisee)
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Who are the parties involved with a draft?
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Drawer, who orders the drawee to pay money to the payee/bearer
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What are the requirements of a negotiable instrument (WOSSUPP)?
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1) Writing
2) payable to Order or bearer 3) Signed by maker/drawee 4) for a Sum certain (fixed amount) 5) Unconditional promise 6) Payable on demand or at definite time 7) Payable in currency |
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When is an instrument not conditional?
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If it expressly states a condition or it states that it is subject to or governed by another writing
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When is an instrument for a sum certain?
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When the principal due under the instrument is fixed (interest can be variable)
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When is an instrument payable to order?
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When it uses the word "order" or "assigns"
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When is an instrument payable to bearer?
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1) When it states that it is payable to "bearer", "order of bearer, "order or bearer", "order and bearer"
2) Does not state a payee, or 3) Payable to cash or not to an identified person |
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When is an instrument payable on demand?
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1) States that it is payable "on demand", "at sight", or "on presentation", or
2) No time for payment |
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When is an instrument payable at a definite time?
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1) On a fixed date
2) After elapse of specified period after sight, or 3) At a time readily ascertainable |
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What are the 3 rules of construction concerning instruments?
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1) Handwriting controls type and print
2) Type controls print 3) Words control figures |
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How do you become a holder of a bearer instrument?
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When you are in possession of it
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How do you become a holder of an order instrument?
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1) When you are the named payee and have possession, or
2) When the named payee makes a valid indorsement and transfers possession to you |
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What is a specific indorsement?
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An indorsement that names a particular person as indorsee - that person must sign for the instrument to be further negotiated
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What is a blank indorsement?
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Indorsement that does not name a specific indorsee - it creates bearer paper
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When is an indorsement qualified? What does this do?
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When the words "without recourse" are used; it limits contract liability imposed on the indorser
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What is a restrictive indorsement?
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One that adds other language - ineffective to limit transfer or negotiable, but "for deposit" works
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When are you a holder in due course?
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1) Take for value
2) In good faith 3) Without notice or reason to know of claims or defenses |
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What is the main benefit of being a holder in due course?
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HDC takes subject to only real defenses
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What is the shelter rule for commercial paper? What is the exception?
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Transferee acquires whatever rights his transferor had; exception is that no HDC rights are given to persons who were parties to fraud or illegality affecting the instrument
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What are the real defenses that an HDC is subject to?
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MADFIFI4 and SOL
1) Material alteration 2) Duress 3) Fraud in the factum 4) Incapacity 5) Infancy 6) Illegality 7) Insolvency 8) Statute of limitations |
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When can personal defenses be asserted for commercial paper? What are some of these defenses?
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When the person in possession is not an HDC; lack of consideration, breach of warranty, fraud in inducement, etc.
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Who is liable for signing a negotiable instrument?
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1) Maker or drawer
2) Indorser 3) NOT the drawee |
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What must the holder do before looking to an indorser for payment?
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1) Presentment made on drawee or maker
2) Dishonor - maker or drawee does not pay 3) Give notice of dishonor to indorser (w/in 30 days of dishonor) |
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Who is liable for transferring a defective instrument?
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Any transferor who sells the instrument (not liable if it is a gift)
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Who can sue for transfer of a defective instrument?
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1) D indorsed - any P in possession
2) D didn't indorse - only D's immediate transferee |
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What are the 5 warranties that a transferor for consideration makes?
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1) Good title (entitled to enforce)
2) All signatures are authentic and authorized 3) Not been materially altered 4) No defense or claim is good against D 5) No knowledge of any bankruptcy or insolvency proceedings |
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When must a bank recredit a drawer's account?
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1) No order by the depositor (drawer's signature is forged)
2) Charged for more money than the original order (third party altered amount) 3) Bank pays wrong person |
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When can the bank charge customer's account for a forged check?
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When the customer fails to discover and notify the bank of unauthorized payments on his bank statement resulting from alteration or forgery of his signature
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When can the bank pay a check after the customer dies?
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1) When it doesn't know of the death
2) Within 10 days of death |
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How long is an oral stop payment order effective for? A written stop payment order?
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14 days; 6 months
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What is the effect when parties to an instrument sign jointly?
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Joint and several liability
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What is the effect of unauthorized signatures?
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1) Ineffective as the signature of the person whose name is signed
2) Effective as the signature of the signer |
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What are the 5 circumstances where a forgery or unauthorized signature will be validated?
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1) Imposter or fictitious payee (carelessness of maker/drawer in issuing an instrument)
2) Fraudulent indorsement by employees entrusted w/ responsibility 3) Negligence (e.g., leaving blanks or spaces on the instrument) 4) Failure to examine one's bank statement and report forgery/alteration 5) Estoppel by bank certification |
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When can maker safely pay an instrument?
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When he determines that the party seeking payment is a holder
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When is payment of a negotiable instrument final?
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When persons took the instrument for value in good faith and those who in good faith change their position in reliance
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What are the 3 presentment warranties made to drawees on unaccepted drafts?
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1) Warrantor is entitled to enforce the draft or authorized by one who is
2) Draft is not altered 3) No knowledge that drawer's signature is unauthorized (forged indorser's signature destroys good title but forged drawer's signature does not) |
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Which state's law should be used in tort cases? In defamation cases?
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The place of the wrong; the place of publication
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What state's law should be used in contract cases?
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1) Party choice
2) UCC: forum if appropriate relationship 3) Usury: law of state w/ some relationship that will validate 4) Performance details: law of place of performance 5) Formalities/validity/interpretation/capacity: law of place of contracting (where the final act making the K binding occurred) |
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When is a choice of forum provision not enforceable in a contract?
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1) Obtained by unfair means,
2) No reasonable relation to state chosen, or 3) Contrary to public policy of the state whose law would otherwise govern |
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What state's law governs interests in land? Interests in tangible chattels?
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The situs of the land; where the chattel was located at the time of the transaction
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What state's law governs inheritance of realty? Of personalty?
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Law of situs of the realty; law of decedent's domicile at time of death
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What state's law governs the validity of a marriage?
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Place of celebration (but will not recognize if public policy reasons)
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What are some procedural matters (governed by law of forum)?
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1) SOL, generally
2) Statute of Frauds 3) Appropriate remedy 4) Admissibility of evidence 5) Sufficiency of proof 6) Criminal procedure |
|
|
What are some substantive matters (governed by law of state chosen)?
|
1) Borrowing statutes
2) SOL w/in statute creating the right 3) Adverse possession 4) Damages 5) Parol evidence rule |
|
|
What are some invalid defenses to recognition of foreign judgments?
|
1) F-1 judgment violates public policy of F-2
2) F-1 judgment result of erroneous proceedings |
|
|
What are valid defenses to enforcement of foreign judgments?
|
1) Judgment holder has failed to comply w/ F-2's procedures for enforcement
2) F-1 judgment based on a penal law 3) Lack of notice, opportunity to be heard, or impartial tribunal in original proceedings 4) Lack of finality in F-1 judgment 5) F-1 judgment obtained by extrinsic fraud |
|
|
When are foreign divorce decrees entitled to full faith and credit?
|
When at least one of the spouses was domiciled in F-1
|
|
|
What parties are estopped from attacking a foreign divorce decree?
|
1) Parties to the prior proceedings
2) Privies of parties (e.g., children) 3) Persons who accept the foreign divorce and remarry in reliance thereon |
|
|
When is a foreign judgment conclusive as to alimony and property rights? When is it not?
|
Bilateral divorce (PJ over both spouses); ex parte divorce
|
|
|
What is the statute governing modification of child custody decrees?
|
Uniform Child Custody Jurisdiction and Enforcement Act
|
|
|
What are the three sources of corporate rules?
|
1) Virginia Stock Corporation Act
2) Articles of incorporation 3) Bylaws |
|
|
When is a promoter not liable to the corporation for profits?
|
When he discloses all material facts to an independent board (or all current SH) that adopts the transaction, or when promoter is the sole SH
|
|
|
When is a corporation liable for promoter contracts?
|
When it adopts the contract
|
|
|
When a promoter relieved of liability for contracts?
|
When there is a novation agreement b/w the promoter, the corporation, and the third party
|
|
|
What must the Articles of Incorporation set forth?
|
(APAIN)
1) Authorized shares (number) 2) Preferences, if multiple stock classes 3) Agent's name and address 4) Incorporators' name and address 5) Name - must contain indicia of corporate status |
|
|
Are there de facto or estoppel corporations in Virginia?
|
No
|
|
|
What are the 6 kinds of special businesses that a corporation must state as its purpose and conduct no other business?
|
1) Banking or trust
2) Insurance 3) Savings and loan 4) Industrial loan 5) Railroad 6) Public service |
|
|
What are the 3 situations in which the corporate veil may be pierced?
|
1) Corp. treated as owner's alter ego and injustice results (e.g., commingling of funds or failure to keep separate books or hold meetings)
2) Corp. is undercapitalized 3) To prevent SH from using the corporate form to perpetuate fraud/crime, commit injustice, or gain unfair advantage |
|
|
In what situation do SH have the right to manage the business?
|
1) SH agreements in nonpublic corps.
2) In articles or bylaws, approved by all SH 3) Valid for 10 years |
|
|
Where can corporate meetings be held?
|
Within or outside of the state
|
|
|
When must notice be given for normal SH meetings?
|
10-60 days prior
|
|
|
When must notice be given for a SH meeting concerning a fundamental corporate change?
|
25-60 days prior
|
|
|
What is the record date in a corporation?
|
Determines eligibility to vote and receive notice of meetings - set in bylaws and cannot be more than 70 days prior to the meeting
|
|
|
When is cumulative voting permitted?
|
When authorized by the charter
|
|
|
What is a quorum?
|
A majority of shares entitled to vote
|
|
|
What is the minimum that the articles can set for a quorum?
|
1/3 of the shares entitled to vote
|
|
|
When will an ordinary corporate matter be approved?
|
Votes cast in favor exceed votes cast against
|
|
|
When will a fundamental corporate change be approved?
|
2/3 of all outstanding shares entitled to vote
|
|
|
How long do corporate proxies last?
|
11 months
|
|
|
How long do voting trusts last?
|
10 years (but renewable)
|
|
|
How long do voting agreements last?
|
Can be perpetual
|
|
|
What are the requirements for a SH to inspect books and records of the corporation?
|
1) Holder for at least 6 months or at least 5% of outstanding stock
2) Proper purpose 3) 5 days written demand |
|
|
What is the maximum term of election for corporate directors?
|
3 years
|
|
|
How many directors must be elected each year if cumulative voting?
|
At least 3
|
|
|
How are directors removed?
|
By SH vote, with or without cause
|
|
|
When can corporate action be taken without a board meeting?
|
Unanimous written consent of the board
|
|
|
Is proxy voting allowed for director voting?
|
No
|
|
|
What are the two fiduciary duties of corporate directors?
|
1) Duty of care
2) Duty of loyalty |
|
|
When can a director deal with the corporation?
|
1) Material facts disclosed and approved by majority vote of disinterested directors or shares, or
2) Transaction was fair to the corporation |
|
|
Do directors have a fiduciary duty to SH?
|
No
|
|
|
When must a corporation indemnify a director?
|
When director entirely prevails in his defense
|
|
|
When may a corporation indemnify a director?
|
When director acted in good faith and believed his conduct was in the corp's best interest
|
|
|
When can a corporation NOT indemnify a director?
|
When director is adjudged liable in a derivative action or for received an improper personal benefit
|
|
|
What is the limit of damages assessed against an officer or director?
|
Lesser of (i) limit specified in articles or bylaws; or (ii) greater of $100K or the cash compensation received in the past 12 months
|
|
|
How long is a subscription agreement irrevocable for an unformed corporation?
|
6 months
|
|
|
What are the consequences for directors who issue stock for below par value? For the purchasing SH?
|
Personally liable; liable to pay full consideration (at least par value)
|
|
|
What are preemptive rights for a shareholder?
|
Right to maintain proportional ownership when corporation issues new voting stock in exchange for money
|
|
|
When are there SH preemptive rights?
|
Only when expressly granted in the articles
|
|
|
What are the 3 requirements for bringing a derivative suit?
|
1) SH must have owned stock at the time of the act complained of
2) SH must make a demand on the directors and have it turned down (or have nothing happen in 90 days) 3) SH must adequately represent the corporation |
|
|
When will a derivative action be dismissed?
|
Court-appointed panel or majority vote of disinterested directors determines in good faith after review that the action is not in the corporation's best interests
|
|
|
Can directors revoke a declared dividend?
|
No
|
|
|
When can corporate dividends not be paid?
|
When the corporation is insolvent or they would make the corporation insolvent
|
|
|
Who is liable for an unlawful dividend?
|
1) Directors who approved it are individually liable
2) Entitled to contributions from SH |
|
|
What are 5 kinds of fundamental corporate change?
|
1) Merger
2) Consolidation 3) Dissolution 4) Fundamental amendment of articles 5) Sale of substantially all assets |
|
|
When is dissenting SH appraisal remedy available?
|
Merger, consolidation, sale or exchange of assets, or exchange of shares (not amendment or dissolution)
|
|
|
What is the procedure for SH appraisal?
|
1) Notify corporation in writing at least 5 days before vote
2) Not vote for the proposed action 3) Make demand for payment 10 days after the action 4) Corporation must pay FMV w/in 30 days |
|
|
What is the order of payment distribution during wind up?
|
1) Creditors (including member creditors)
2) Members' capital contributions 3) Members' profits |
|
|
What is the difference b/w general creditors and secured creditors?
|
Secured creditors have a lien in specific property of the debtor
|
|
|
How long does the right to enforce a judgment continue?
|
20 years - and can be extended an additional 20 years by motion or by obtaining a new judgment by bringing action on the old judgment
|
|
|
How does a creditor enforce a sister state judgment?
|
1) Register the judgment in the office of the clerk of the court where the judgment is sought to be enforced
2) Notify D of the registration in writing |
|
|
How does a judgment creditor obtain a lien against debtor's real estate? How does he enforce the lien?
|
By docketing; by bringing suit in equity where the land is located w/in 20 years of docketing
|
|
|
How does a judgment creditor obtain a lien on tangible personal property?
|
1) Get clerk to issue writ of fieri facias 21 days after judgment, directing the sheriff to levy on debtor's property
2) Sheriff levies when he seizes the property and lists it in his return on or before the return date |
|
|
How does a judgment creditor enforce a lien on tangible personal property?
|
Sale of property at public advertised auction (creditor may buy; sheriff may not)
|
|
|
How does a judgment creditor obtain a lien on intangible personal property?
|
1) Attaches on delivery of writ of fi fa to the sheriff, but cannot be enforced by levy
|
|
|
How does a judgment creditor enforce a lien on intangible personal property?
|
Garnishment - serve a summons of garnishment on the garnishee and give notice to the debtor
|
|
|
What are the options of a garnishee?
|
1) Admit liability and he will surrender money or payment to court
2) Asserts any defenses he has against the debtor - trial will be held on those issues |
|
|
How long do nonlien creditors of a decedent have to submit claims to the personal representative?
|
Within 4 months of her qualification
|
|
|
How long does a creditor have to enforce a lien on real property that is sold?
|
10 years
|
|
|
What are the duties of a commissioner in enforcing a lien on real estate?
|
1) Determine parties w/ interest
2) Join all necessary parties 3) Make any necessary partition of jointly held property 4) Adjudicate priorities 5) Determine if rents and profits will pay the judgment w/in 5 years and sell if they will not |
|
|
What is a creditor's bill and interrogatories?
|
Allows creditor to discover the nature, location, and condition of all debtor's assets
|
|
|
What are the sanctions for a debtor who ignores a creditor's bill and interrogatories?
|
Judge can issue a capias (writ taking debtor into custody)
|
|
|
What are the 5 grounds for prejudgment attachment (detinue)?
|
1) D is nonresident or foreign corp.
2) D has made or about to make a fraudulent conveyance 3) D has removed or about to remove property from VA 4) D has concealed or about to conceal property w/ intent to hinder or delay creditors, or 5) D has or is about to remove self from VA w/ intent to change domicile |
|
|
When does an attachment lien attach on tangible personalty in D's possession?
|
When the sheriff makes a proper levy
|
|
|
Does P have to post a bond for attachment?
|
Yes, 2x the FMV
|
|
|
When does an attachment lien attach on tangible personalty in possession of a third party?
|
Service of a copy of the attachment on the third party named as co-defendant
|
|
|
When does an attachment lien attach on a debt owed by third party to D?
|
Service of a copy of the attachment on the third party named as co-defendant
|
|
|
When does an attachment lien attach to real property?
|
1) Service of a copy of the attachment on the person in possession, and
2) Officer's return includes a sufficient description of the property |
|
|
How do you make a lien effective against a BFP?
|
File a memorandum of lis pendens
|
|
|
How long does D have to challenge attachment?
|
W/in 10 days of issuance of the writ of attachment
|
|
|
What is the homestead exemption?
|
Any property up to $5,000 plus an addition $500 for each dependent
|
|
|
What 3 debts can you not file a homestead exemption against?
|
1) Purchase money mortgage or security interest
2) Spousal or child support obligations 3) Intentional torts |
|
|
What does the Poor Debtor's Exemption cover?
|
1) Clothes up to $1,000
2) Household furnishings up to $5,000 3) Tools of the trade up to $10,000 4) Motor vehicles up to $2,000 5) Heirlooms up to $5,000 6) Burial lots up to $5,000 7) Sentimental items, wedding/engagement rings, and pets |
|
|
What is the exemption for garnishment of earnings?
|
Lesser of: (1) 25% of take-home wages, or (2) amount by which take-home wages exceed 40x the effective federal minimum wage
|
|
|
Are personal injury actions and proceeds exempt from creditors' claims?
|
Yes, except for those who rendered medical assistance
|
|
|
When can a present creditor avoid a conveyance by the debtor?
|
1) Fraudulent conveyances
2) Voluntary conveyances |
|
|
What is a voluntary conveyance?
|
Renders debtor insolvent or made while debtor is insolvent
|
|
|
Can conveyances preferring one creditor over another be set aside?
|
No
|
|
|
When is a conveyance presumed to be fraudulent?
|
1) Transfers b/w husband and wife
2) Interfamilial transfers 3) Renunciation of an inheritance |
|
|
What is the limit of a mechanic's lien for repair at request of non-owner in lawful possession? At owner's request?
|
$800; just and reasonable charges
|
|
|
When can a creditor holding a mechanic's lien on personal property hold a self-help sale?
|
Debt not paid w/in 10 days and value of property is $7,500 or less
|
|
|
When does a creditor holding a mechanic's lien on personal property have to have a sheriff's sale?
|
More than $7,500 but $15K or less (petition GDC); more than $15K (petition circuit court)
|
|
|
When is a mechanic's or materialmen's lien on real property enforceable?
|
After it is perfected
|
|
|
How do you perfect a mechanic's or materialmen's lien on real property?
|
1) General contractor: file a memorandum of a mechanic's lien in clerk's office w/in 90 days of end of work
2) Subcontractor: above, plus also give notice to owner and general contractor |
|
|
How do you enforce a mechanic's or materialmen's lien on real property?
|
Bring a suit in equity w/in the later of 6 months from the recording of the memorandum of lien or 60 days after the end of work
|
|
|
Who wins in subcontractor vs. general contractor?
|
Subcontractor
|
|
|
Who wins in sub-subcontractor vs. subcontractor?
|
Sub-sub
|
|
|
Who wins in manual laborers vs. materialmen?
|
Manual laborers
|
|
|
How many classes of felonies are there in VA? Misdemeanors?
|
6 and 4
|
|
|
Are traffic offenses criminal?
|
No, they are violations of public order
|
|
|
What is a principal in the first degree?
|
The criminal actor
|
|
|
What is a principal in the second degree?
|
Present at the crime's commission and commits some overt act or shares the criminal intent of the perpetrator
|
|
|
What is an accessory before the fact?
|
One who encourages, orders, or aids and abets another to commit an offense but is not present at the offense
|
|
|
What is an accessory after the fact? Who is excluded from liability?
|
Knows an offense has been committed and assists the felon in escaping punishment; close family members are excluded
|
|
|
Who of P1, P2, and accessory before fact can get the death penalty?
|
Only principal in the first degree
|
|
|
How do you withdraw from a crime scheme?
|
Show other parties involved (by words or conduct) that you disapprove or oppose AND try to prevent consummation of the crime
|
|
|
What is conspiracy? Is an overt act required?
|
Agreement b/w 2 or more guilty parties with the intent to agree to commit a felony; No
|
|
|
Can you be convicted of both conspiracy and the underlying crime?
|
Yes, but only in a single trial
|
|
|
What is an attempt?
|
Direct act w/ intent to commit a crime that falls short of completing the crime
|
|
|
Can you be convicted of both attempt and the underlying crime?
|
No
|
|
|
What is solicitation?
|
Commanding, entreating, or attempting to persuade another to commit a felony
|
|
|
Can you be convicted of both solicitation and the underlying crime?
|
No
|
|
|
Can you withdraw from conspiracy?
|
No, b/c no overt act requirement
|
|
|
Can you withdraw from solicitation?
|
No
|
|
|
What two tests for insanity does VA use?
|
1) M'Naghten rule
2) Irresistible impulse test |
|
|
What is D's standard of proof for insanity?
|
To the satisfaction of the jury
|
|
|
Is voluntary intoxication a defense?
|
NO
|
|
|
Is involuntary intoxication a defense?
|
Yes, may be to all crimes
|
|
|
When can voluntary intoxicated be a limited defense?
|
If super drunk, can prevent conviction for capital or first degree murder
|
|
|
At what ages is D presumed incapable of forming intent to commit a crime?
|
Age 7 or younger
|
|
|
At what ages is there a rebuttable presumption that D is incapable of forming intent to commit a crime?
|
Ages 8-13
|
|
|
At what ages is D presumed capable of forming intent to commit a crime?
|
Age 14 or older
|
|
|
When may nondeadly force be used for self-defense or defense of others? Is there a duty to retreat?
|
When reasonable under the circumstances, from D's subjective viewpoint; no duty to retreat
|
|
|
When may deadly force be used for self-defense or defense of others? Is there a duty to retreat?
|
When D is w/o fault and when there is an imminent danger of death or great bodily injury; retreat is not required unless D was at fault or provoked the aggressor
|
|
|
Is there a duty to retreat on one's own premises?
|
No, but force used must be reasonable
|
|
|
When may you use nondeadly force in defense of a dwelling? Deadly force?
|
To prevent entry; when fearing great bodily injury
|
|
|
When may you use nondeadly force in defense of property? Deadly force?
|
If reasonably necessary to retain property; NEVER
|
|
|
What are the two elements for the defense of entrapment?
|
1) Criminal design originated w/ police
2) D was not predisposed to commit the crime |
|
|
When is duress available as a defense? For what crime is it not available?
|
D reasonably believed that committing the crime was the only means of avoiding imminent death or serious bodily harm to himself or another; not available for homicide
|
|
|
What are the elements of assault?
|
1) Attempted battery, or
2) Placing another in reasonable apprehension of immediate offensive touching |
|
|
What are the elements of battery?
|
Unlawful application of force resulting in bodily injury or offensive touching
|
|
|
What level of crime is simple assault or battery?
|
Misdemeanor
|
|
|
What is malicious wounding? When is it aggravated?
|
Causing malicious injury with intent to maim, disfigure, or kill; if victim is severely injured and suffers permanent impairment or if done to pregnant woman w/ intent to terminate her pregnancy
|
|
|
What is capital murder?
|
Willful, deliberate, premeditated murder in one of 14 aggravating circumstances
|
|
|
What is first-degree murder?
|
1) Poison, lying in wait, imprisonment, starving
2) Willful, deliberate, premeditated murder that is not capital murder 3) Felony murder |
|
|
What are the enumerated felonies for felony murder?
|
1) Arson, 2) Rape, 3) Forcible sodomy or object penetration, 4) Abduction, 5) Burglary, 6) Robbery
|
|
|
What is second-degree murder?
|
All murder that is not capital or first-degree murder
|
|
|
What is voluntary manslaughter?
|
Unlawful killing without malice (usually under extreme provocation)
|
|
|
What are the two kinds of involuntary manslaughter?
|
1) Accidental killing while committing unlawful but nonfelonious act, or
2) Accidental killing while committing a lawful act amounting to criminal negligence |
|
|
What are the elements of abduction?
|
1) By force/intimidation/deception, 2) without legal justification or excuse, 3) seizes, physically detains, takes, transports, or secretes another person, 4) with intent to deprive them of liberty or withhold them from one entitled to their charge
|
|
|
When is abduction aggravated?
|
1) Intent to extort money or defile
2) Taking of female under 16 for prostitution |
|
|
What is felony homicide?
|
Accidental killing committed during the course of a nonenumerated felony (= 2nd degree murder)
|
|
|
What is statutory rape?
|
Sex with a child under 13
|
|
|
What three common law offenses are charged as larceny?
|
1) Larceny
2) Embezzlement 3) False pretenses |
|
|
What is larceny?
|
Taking of personal property from another without consent w/ the intent to permanently deprive them of possession
|
|
|
What are the 3 types of grand larceny?
|
1) Larceny, from the person of another, of $5 or more
2) Simple larceny of $200 or more 3) Simple larceny of a firearm |
|
|
What are the elements of receiving stolen goods? What is it charged as?
|
Buy/receive/aid in concealing goods known to me stolen; charged as larceny
|
|
|
What are the elements of embezzlement?
|
Fraudulent conversion of property of another by a person in lawful possession (not mere custody) with the intent to deprive the owner thereof
|
|
|
What are the elements of false pretenses?
|
Obtaining title to property from another through an intentional false statement with the intent to defraud
|
|
|
What are the elements of robbery?
|
Taking, with intent to steal, the personal property of another from his person or presence by violence or intimidation
|
|
|
What is uttering?
|
Offering a forged instrument as genuine with intent to defraud
|
|
|
What are the elements of burglary?
|
1) Entering at night w/ or w/o breaking; or entering in daytime by breaking or entering and concealing
2) A dwelling, office, shop, etc. 3) With intent to commit a felony therein |
|
|
What is arson?
|
The malicious burning or destruction of any building
|
|
|
What is perjury?
|
The willful false swearing regarding a material matter while under oath
|
|
|
What is subornation of perjury?
|
Inducing another to give false material testimony
|
|
|
Are unanimous criminal verdicts necessary in VA?
|
Yes
|
|
|
Over what does the VA supreme court have automatic review?
|
Death penalty cases
|
|
|
Over what does the VA supreme court have original jurisdiction?
|
Original habeas corpus petitions
|
|
|
Is there an appeal of right to the court of appeals in criminal cases?
|
No - just discretionary review
|
|
|
When is there no appeal to the supreme court?
|
1) Traffic infractions and misdemeanors with no incarceration imposed
2) Domestic relations |
|
|
Which court has original jurisdiction over felonies?
|
Circuit court
|
|
|
Which court has original jurisdiction over misdemeanors?
|
GDC
|
|
|
When may an accused waive counsel?
|
At any time, when accused is competent and waiver is voluntarily and intelligently made
|
|
|
May a court try a defendant without appointing counsel?
|
Yes, but only if no incarceration will be imposed
|
|
|
How long does a warrant have before it is void?
|
15 days
|
|
|
When may an officer arrest a person w/o a warrant, generally?
|
1) Person committed crime in officer's presence
2) Officer reasonably suspects person has committed crime somewhere else |
|
|
What are statutory exceptions that allow an officer to arrest w/o a warrant?
|
1) Assault and battery based on probable cause upon reasonable complaint of eyewitness
2) Misdemeanors where: (i) motor vehicles are involved; (ii) shoplifting; (iii) officer receives message that warrant is on file; (iv) assault and battery against family member |
|
|
When may bail amount/denial be appealed?
|
Immediately
|
|
|
When may bail be denied?
|
1) Probable cause to believe that D will not appear for trial
2) Probable cause to believe that D constitutes an unreasonable danger to himself or to others |
|
|
When does an accused not have a right to a prelim hearing?
|
When an indictment is already returned
|
|
|
If D testifies regarding the voluntariness of his confession, does he waive his privilege against self-incrimination?
|
No
|
|
|
For what limited purpose is refusal to submit to breathalyzer test admissible?
|
To explain the absence of a chemical test
|
|
|
How many members of a regular grand jury?
|
5-9 persons
|
|
|
How many members of a special grand jury?
|
7-11 persons
|
|
|
What does a regular grand jury do?
|
1) Find indictments or make presentments by at least 4 members
2) Determine whether sufficient probable cause exists to return a true bill |
|
|
What does a special grand jury do?
|
Investigates and makes reports on criminal activity and files with the court
|
|
|
What does a multi-jurisdiction grand jury do?
|
Act across jurisdictional lines to investigate and return indictments
|
|
|
What are the requisite qualifications of members of a grand jury?
|
1) At least 18 years old
2) Citizens of VA 3) Residents of the state for 1 year and of the municipality for 6 months |
|
|
Who prepares a presentment?
|
Regular grand jury, from own knowledge or observation
|
|
|
Who prepares an indictment?
|
Attorney for the Commonwealth
|
|
|
Who prepares an information?
|
A competent public official upon his oath of office
|
|
|
What must be found before an accused can be tried for a felony? Can he waive it?
|
An indictment or a presentment; yes, and can then be tried on a warrant or information
|
|
|
When is an accused in custody forever discharged from prosecution? An accused out of custody?
|
If trial is not commenced w/in 5 months; w/in 9 months
|
|
|
What events toll the right to a speedy trial?
|
1) Insanity
2) Escape 3) Witness issues 4) Hung jury 5) Natural disaster 6) Continuance on motion by accused |
|
|
How big is the jury in a felony case?
|
12 jurors
|
|
|
How big is the jury in a misdemeanor case?
|
7 jurors
|
|
|
How many peremptory challenges per party in a felony case? In a misdemeanor case?
|
4 challenges; 3 challenges
|
|
|
What is proper venue for a criminal trial?
|
Where the crime was crimmitted
|
|
|
What is a plea of nolo contendere?
|
No contest - neither a confession nor a declaration of guilt or innocence, but allows court to consider him guilty for the purpose of imposing a judgment and sentence
|
|
|
When may D plead guilty?
|
When plea is made intelligently, knowingly, and voluntarily
|
|
|
When may D withdraw a guilty plea?
|
Before sentence is imposed or w/in 21 days after judgment in court's discretion
|
|
|
When may D be retried?
|
1) Hung jury
2) Mistrial declared for manifest necessity 3) Acquitted due to variance b/w allegations and the proof |
|
|
When does jeopardy attach?
|
1) When jury is sworn in jury trial
2) When first material witness is sworn in bench trial, or 3) When court accepts D's guilty plea |
|
|
When are two offenses NOT the same offense for double jeopardy purposes?
|
When each offense contains an element the other does not
|
|
|
Are lesser-included and greater-included offenses the same offense for double jeopardy?
|
Yes
|
|
|
Does prosecution under a federal statute bar later prosecution for the same act under a state statute?
|
Yes
|
|
|
Who generally does the criminal sentencing?
|
The jury, unless a bench trial
|
|
|
May the sentence in circuit court be greater than in GDC? May D be charged for a more serious charge in circuit court?
|
Yes; No
|
|
|
What court has exclusive original jurisdiction over matters of minors accused of committing acts that would be crimes if committed by adults?
|
Juvenile and domestic relations courts (JDRCT)
|
|
|
What court do preliminary hearings take place in?
|
GDC
|
|
|
How long before a marriage license is void?
|
60 days
|
|
|
Can common law marriages be created in VA?
|
No
|
|
|
Are common law marriages recognized in VA?
|
Only if valid where entered into (not if created in VA)
|
|
|
What are the 4 types of void marriages?
|
1) Bigamous
2) Incestuous 3) Party under age of 18 w/o parental consent 4) Same-sex marriage |
|
|
What are the types of voidable marriages?
|
1) Duress
2) Mental incapacity 3) Fraud (convicted of felony, carrying/fathered the child of another) 4) Either party had been a prostitute 5) Incurable impotency |
|
|
When can action not be brought for annulment for lack of mental capacity, fraud, or duress?
|
Aggrieved party cohabitated with full knowledge for 2 years after marriage
|
|
|
Are prenups w/in the Statute of Frauds?
|
Yes - must be in writing and signed, unless part performance and reliance
|
|
|
What are the 2 types of divorce?
|
1) Divorce a mensa et thoro
2) Divorce a vinculo matrimonii |
|
|
What court has jurisdiction for divorce suits?
|
Circuit court
|
|
|
What are the procedural requirements to bring a divorce suit?
|
One party must be domiciled in and have been a resident of VA for 6 months
|
|
|
What is preferred venue for a divorce action?
|
1) Where parties last dwelled
2) Where D resides 3) Where P resides if D out of state |
|
|
If a party fails to request spousal support at the time of bilateral divorce, is it waived?
|
Yes
|
|
|
If a party fails to request child support at the time of bilateral divorce, is it waived?
|
No - may be requested anytime
|
|
|
What domestic relations acts give rise to use of the Long Arm Statute?
|
1) Matrimonial domicile in the state at the time of separation forming the basis for the divorce
2) Conceived or fathered a child in VA |
|
|
Is there a waiting period to bring an action for divorce a mensa et thoro?
|
No
|
|
|
What are the 2 grounds for divorce a mensa et thoro?
|
1) Cruelty and reasonable apprehension of bodily harm
2) Abandonment and desertion w/o justification |
|
|
What are fault-based grounds for divorce a vinculo matrimonii?
|
1) Adultery/sodomy/buggery (by C&CE)
2) Conviction of felony w/ incarceration of over one year 3) Cruelty or desertion for one continuous year (can be constructive desertion) |
|
|
What are grounds for no-fault divorce a vinculo matrimonii?
|
1) Lived separate and apart for 1 continuous year
2) If separation agreement and no children, only need 6 months |
|
|
What are the 4 defenses to fault-based divorce?
|
1) Connivance (corrupt consent)
2) Condonation (forgiveness) 3) Collusion (fraud on court) 4) Recrimination (unclean hands) |
|
|
What is separate property?
|
1) Acquired before marriage
2) Acquired during marriage through inheritance or gift in one spouse's name only 3) Acquired after separation 4) Passive increase in value of separate property |
|
|
What is marital property?
|
1) Titled in both names
2) Property acquired during marriage 3) Active increase in value of separate property |
|
|
What is it called when separate property is commingled w/ marital property and loses its separate identity?
|
Transmutation
|
|
|
Is there a presumption favoring a 50-50 split of marital property?
|
No
|
|
|
How may spousal support be awarded?
|
In periodic payments or as a lump sum
|
|
|
What is an absolute bar to spousal support?
|
Adultery, unless manifest injustice
|
|
|
What are some factors for determining spousal support?
|
1) Earning capacities
2) Education 3) Current standard of living 4) Duration of marriage 5) Age and health of parties 6) Contributions to the family, both monetary and nonmonetary |
|
|
How is child support determined?
|
Guidelines based on income of parents and number of children
|
|
|
What are some factors to consider if the court deviates from child support guidelines?
|
1) Support of other family members
2) Custody arrangements 3) Debts incurred for benefit of child 4) Payments ordered by court 5) Special needs 6) Child's independent financial resources 7) Standard of living 8) Earning capacities, debts, and finances of each parent 9) Tax consequences |
|
|
When can spousal support be modified?
|
1) Ceases at death of either party or remarriage of payee or end of specified duration
2) Payee cohabitation w/ another for over one year 3) Bona fide changes in circumstances |
|
|
When can child support be modified?
|
1) Material changes in circumstances
2) Significant increase in income warrants an increased payment of child support |
|
|
What is the standard for determining child custody?
|
Best interests of the child
|
|
|
What notice must a party give before relocating, in the context of child custody?
|
30 days notice to the court
|
|
|
When may a custody decree be modified?
|
Changed circumstances and best interests of the child
|
|
|
What is the requisite probability of paternity in scientifically reliable genetic testing?
|
98%
|
|
|
What consent is required for adoption, generally?
|
Written consent by both natural parents, unless their rights have been terminated
|
|
|
How old must a child be for his consent to adoption to be required?
|
14 or older
|
|
|
When do parental rights terminate?
|
1) Serious and substantial threat to child's life, health, or development that is not reasonably likely to be corrected
2) Child in foster care and parents failed to contact for at least 1 year or are unwilling or unable to remedy conditions causing foster care placement |
|
|
What state has jurisdiction over child custody and enforcement?
|
The child's home state - where the child lived with a parent for at least 6 months before the proceeding
|
|
|
When may a VA court modify a child custody determination made by a court of another state?
|
1) Other state no longer has exclusive continuing jurisdiction and VA has jurisdiction; or
2) Neither the child, his parents, or any person acting as a parent presently resides in the other state |
|
|
What are the three questions to ask for equity?
|
1) Is there an adequate remedy at law?
2) Is the equitable remedy practicable? 3) Does D have any equitable defenses? |
|
|
When is the remedy at law inadequate?
|
1) Damages will not make P whole (e.g., unique property)
2) Damages are uncertain and speculative 3) Multiple suits would be necessary 4) D is insolvent 5) Irreparable harm from D's conduct that cannot be fully compensated w/ money |
|
|
When is an equitable remedy impracticable?
|
1) Require protracted supervision by the court
2) Court lacks standards to measure compliance 3) Interference w/ free speech or criminal law |
|
|
What showing must P make for a temporary injunction?
|
1) Irreparable injury if status quo not maintained
2) Likelihood of succeeding on the merits 3) Public interest will not be adversely affected 4) D's hardship does not substantially outweigh P's hardship |
|
|
May a permanent injunction be based on depositions? On affidavits?
|
Yes; No
|
|
|
What is nuisance?
|
Substantial and unreasonable interference with the use and enjoyment of property
|
|
|
What is trespass to land?
|
Invasion of land of another by tangible, physical object
|
|
|
May a private individual enjoin a public nuisance?
|
Only if it violates a specific right not shared by the public at large, serious injury, and outweighs any public benefit from maintaining status quo
|
|
|
May waste be enjoined?
|
Yes, but not ameliorative waste
|
|
|
Can you enjoin defamation (generally)?
|
No
|
|
|
Name 5 equitable defenses
|
1) Unclean hands
2) Laches 3) Unconscionability 4) Impossibility/hardship 5) Fraud |
|
|
What is unclean hands?
|
P is guilty of improper conduct related to same transaction for which P seeks equitable relief
|
|
|
What are the 2 elements of laches?
|
1) Adult P waits unreasonably long before suing, considering when he knew of the wrong, and
2) Delay was prejudicial to D |
|
|
What is fraud?
|
Knowing misrepresentation of a present fact that other party reasonably relies on
|
|
|
What are the 3 requirements for specific performance of contracts (beyond the normal equitable requirements)?
|
1) Valid contract exists (offer, acceptance, consideration, certainty of material terms)
2) All contract provisions met by P 3) Mutuality of remedy exists |
|
|
What material terms must be certain for specific performance of a contract?
|
1) Subject matter
2) Price/consideration 3) Duties or performance required 4) Period for performance |
|
|
When will reformation of written instruments be granted? What is the burden of proof?
|
Mutual mistake or unilateral mistake perpetrated by fraud of other party, and fails to reflect true agreement; prove by C&CE
|
|
|
When will rescission be granted?
|
Fraud, mutual mistake, or innocent misrepresentation of a material fact
|
|
|
When does P have a claim for restitution?
|
1) D obtained a benefit from P
2) Where D knew or should have known that P expected recompense |
|
|
Constitutional limits for personal jurisdiction (My Parents Frequently Forgot to Read Children's Stories)?
|
1) Minimum contacts (purposeful availment & foreseeability)
2) Fair play and substantial justice (related to D's contact in forum, convenience for parties, state's interest in providing a forum) |
|
|
What is the citizenship of an unincorporated association or an LLC?
|
Each state of which any member is a citizen
|
|
|
What is the citizenship of a legal representative of an estate, infant, or incompetent?
|
The citizenship of the estate/infant/incompetent
|
|
|
What is the citizenship for a class action?
|
That of the named members of the class
|
|
|
Are interest and fees included for determining the Amount in Controversy?
|
No
|
|
|
May a plaintiff aggregate her claims to meet the amount in controversy requirement?
|
Only against a single D or if multiple D's are jointly liable
|
|
|
Can counterclaims be combined with P's claim to meet the amount in controversy requirement?
|
No
|
|
|
What kinds of cases will federal courts generally not exercise diversity jurisdiction over?
|
Domestic relations and probate proceedings
|
|
|
What is the general requirement for supplemental jurisdiction?
|
The claims derived from a common nucleus of operative fact (same T/O)
|
|
|
Is there an amount in controversy requirement in federal question cases?
|
No
|
|
|
Where is proper venue in federal court?
|
1) District where any D resides if all D's reside in the same state
2) District where a substantial part of the events giving rise to the claim occurred |
|
|
Where do persons "reside" for federal venue purposes? Corporations?
|
District where domiciled; all districts where subject to personal jurisdiction
|
|
|
When can a case be removed to federal court? What is the exception?
|
If it could have originally been filed in federal court; but not in a diversity case if any D is a citizen of the state where the action is filed
|
|
|
May plaintiffs remove to federal court?
|
No, only D's
|
|
|
How does D remove a case to federal court?
|
File a notice of removal in the district court and send a copy to other parties and the state court
|
|
|
How long does D have to file a notice of removal?
|
30 days after receiving notice
|
|
|
Does a federal court have to remand a case to state court once all federal claims have been resolved?
|
No, it has discretion to remand or to keep the case
|
|
|
Who may serve process?
|
Any person who is 18 and not a party to the action
|
|
|
Are you immune from federal service if you enter a state to appear in another action?
|
Yes
|
|
|
Are you immune from state service if you enter a state to appear in another action?
|
Only for criminal cases and grand juries, NOT for civil cases
|
|
|
Is pleading in federal courts fact pleading or notice pleading?
|
Notice pleading
|
|
|
What is the standard for making a federal claim?
|
State facts supporting a plausible claim
|
|
|
What 3 things must a federal complaint contain?
|
1) Grounds of federal jurisdiction
2) Short statement of the claim 3) Demand for relief |
|
|
What rule 12 defense can be raised at any time?
|
Lack of SMJ
|
|
|
What two rule 12 defenses can be raised any time before trial or at trial?
|
Failure to state a claim and failure to join an indispensable party
|
|
|
What rule 12 defenses are waived if not raised by motion or answer?
|
Lack of PJ, improper venue, insufficiency of process, and insufficiency of service of process
|
|
|
How long does D have to make a responsive pleading after a Rule 12 motion is denied?
|
14 days
|
|
|
What is a compulsory federal counterclaim? What happens if it is not raised?
|
One that arises from the same T/O as P's claim; it is waived if not raised
|
|
|
What must a permissive federal counterclaim meet to be asserted?
|
The jurisdictional requirements for filing a claim in federal court
|
|
|
Is there a right to amend pleadings in federal cases?
|
Yes, once
|
|
|
How long does P have to amend pleadings in federal cases? How long does D have?
|
Within 21 days after service; 21 days after responsive pleading or pre-answer motion
|
|
|
What 3 things does an attorney signing certify to the court under Rule 11?
|
1) Not presented for any improper purpose
2) Legal contentions are warranted 3) Factual contentions have evidentiary support |
|
|
What are the 3 situations where a party is necessary in a federal case?
|
1) Complete relief cannot be given to existing parties in his absence
2) Absence would impair his ability to protect his own interest in the controversy 3) Absence would expose existing parties to potential multiple obligations |
|
|
When is compulsory joinder feasible? What is a party who cannot be joined called?
|
When the necessary party is subject to personal jurisdiction and his joinder will not destroy diversity or venue; an indispensable party
|
|
|
What are the four requirements for a class action?
|
1) Numerosity
2) Commonality 3) Typicality 4) Named parties adequately represent the class |
|
|
In what 3 situations are class actions appropriate?
|
1) Risk of inconsistent results of separate actions
2) Injunctive or declaratory relief is appropriate for the class as a whole 3) Common questions predominate over individual issues and class action is the superior method of adjudication |
|
|
In which situation must the court notify class members?
|
Common question class action
|
|
|
In which situation may class members opt out and not be bound by a class action result?
|
Common question class action
|
|
|
Must the court approve a dismissal or settlement of a class action?
|
Yes
|
|
|
When may an interpleader suit be instituted?
|
When multiple claimants claim and interest in a stakeholder and separate actions might result in double liability for the stakeholder
|
|
|
What are the two kinds of interpleader procedures?
|
Rule interpleader (regular rules) and statutory interpleader (minimum diversity and $500 AiC)
|
|
|
When is federal intervention of right? When is it permissive?
|
When disposition of the action without the party may impair his ability to protect his interest; when there is a common question of fact or law
|
|
|
Is supplemental jurisdiction available for impleader claims?
|
Yes
|
|
|
What 3 types of disclosures are required in federal cases?
|
1) Initial disclosure of parties and documents likely to have discoverable info
2) Experts disclosure 3) Pretrial disclosure of witnesses and evidence |
|
|
What is the scope of federal discovery?
|
Anything reasonably calculated to lead to the discovery of admissible evidence
|
|
|
What are possible sanctions for failure to comply with a motion compelling discovery?
|
1) Treat matter as admitted
2) Strike pleadings 3) Stay or dismiss action 4) Render default judgment 5) Contempt 6) Prohibit from presenting evidence on the matter |
|
|
When must a demand for jury trial be made in federal cases?
|
Within 14 days of the pleading making a jury-triable issue
|
|
|
When must a RJMOL be filed?
|
Within 28 days after judgment is entered
|
|
|
When must a motion for new trial be filed in the federal courts?
|
Within 28 days after judgment is entered
|
|
|
Is the judgment limited to P's demand for relief in federal courts?
|
No - any relief that is appropriate based on the evidence
|
|
|
What is the population of a city? Of a town?
|
5,000 or more; 1,000 or more
|
|
|
What are governmental functions?
|
Exercises of political, discretionary, or legislative authority
|
|
|
What are proprietary functions?
|
Functions that promote comfort/safety/happiness of residents (often with payment)
|
|
|
What is Dillon's Rule?
|
Locality may exercise only those powers expressly granted, or those necessarily implied in or incident to the express powers, or those essential to the declared powers
|
|
|
What is the limit for municipalities incurring debt?
|
Not more than 10% of assessed valuation of real estate subject to taxation
|
|
|
What are the 3 requirements for passing a valid ordinance?
|
1) Published prior notice
2) Majority vote of government body at a public meeting 3) Reasonably certain in application |
|
|
How often must a comprehensive zoning plan be updated?
|
Every 5 years
|
|
|
Who administers the zoning scheme?
|
Zoning administrator
|
|
|
What must you demonstrate to receive a variance?
|
1) Undue hardship that is not shared by other adjacent properties
2) Variance will not be detrimental to adjacent properties |
|
|
Where do you appeal decisions of the zoning administrator to?
|
Board of Zoning Appeals
|
|
|
Where do you appeal decisions of the Board of Zoning Appeals to?
|
Circuit court
|
|
|
What kind of locality is immune in tort?
|
Counties
|
|
|
When are cities and towns immune in tort?
|
When acting in governmental capacity
|
|
|
What governmental employees are automatically immune in tort?
|
Top level employees
|
|
|
What is the 4-part test for determining whether lower level governmental employees are immune for simple negligence?
|
1) Nature of function performed (public vs. private function)
2) Extent of governmental entity’s interest and involvement in the function 3) Degree of control and direction exercised by the entity over the employee 4) Whether alleged wrongful act involved the exercise of judgment and discretion (points opposite way) |
|
|
When are cities and towns not immune in tort?
|
Proprietary functions
|
|
|
When must you give notice for governmental torts? To who?
|
Within 6 months, to the locality's attorney or top office
|
|
|
When are localities liable for recreational facilities?
|
Only for gross/wanton negligence in operation
|
|
|
When may a municipality condemn land, buildings, or personal property?
|
1) When there is a public need for the property, and
2) Cannot agree w/ the owner as to compensation |
|
|
Are improvements to the tax base or creation of jobs permissible public purposes to authorize condemnation?
|
No
|
|
|
What is the measure of compensation for property taken? For remaining property after a partial taking?
|
FMV at the time of taking; difference in FMV before and after the taking
|
|
|
Does Virginia follow the title theory or lien theory for mortgages?
|
Lien theory
|
|
|
What is the equity of redemption? Who holds it? Can it be waived?
|
May prevent foreclosure by paying off the debt; the mortgagor and all junior mortgage/lien holders; No
|
|
|
What is a vendor's lien?
|
An implied equitable lien against the property for the unpaid portion of the purchase price (but not if vendor conveys possession to the property)
|
|
|
What is the statute of limitations for foreclosure?
|
10 years
|
|
|
What kind of mortgage gets priority over a prior judgment creditor?
|
Purchase money mortgage
|
|
|
What is the effect when a buyer assumes a mortgage?
|
Buyer is liable as a principal obligor on the mortgage, with the mortgagor becoming a surety
|
|
|
What is the effect when a buyer takes subject to a mortgage?
|
Buyer is not liable on the mortgage, but the mortgagee can foreclose on the land if not paid
|
|
|
When is a partnership formed?
|
When two or more people associate to carry-on as co-owners a business for profit
|
|
|
Is a writing required to form a partnership?
|
No, but if the agreement is to be enforceable for more than one year, there must be a writing to comply w/ Statute of Frauds
|
|
|
Is a formal agreement required to form a partnership?
|
No, their intent may be implied by their conduct
|
|
|
What raises a presumption of partnership?
|
Sharing of profits
|
|
|
What factors are evidence of but do not raise a presumption of partnership?
|
1) Title to property is held in joint tenancy or in common
2) Parties designate their relationship as a p'ship 3) Venture requires extensive activity |
|
|
When is property deemed to be partnership property?
|
1) Titled in p'ship name
2) Titled in a partner's name and the instrument notes that the partner is a partner |
|
|
When is property presumed to be partnership property?
|
When purchased with partnership funds
|
|
|
May partners transfer their share in management? Their share in profits/surplus?
|
No; Yes
|
|
|
Do partners get salary?
|
No, absent agreement, except for compensation during wind up
|
|
|
What fiduciary duties do partners owe to the partnership?
|
Duty of care and duty of loyalty
|
|
|
Absent an agreement, how are profits shared? How are losses shared?
|
Equally; losses follow profits
|
|
|
What are partners liable for?
|
All contracts and torts of co-partners within the authority or scope of the business
|
|
|
When is an outgoing partner released from obligations?
|
Actual notice to creditors, 90 days after filing a notice of dissociation with the SCC, or when there has been a novation
|
|
|
What is the end of a partnership called?
|
Dissolution
|
|
|
Can limited partners manage the business?
|
No, or else they may become liable as a general partner
|
|
|
How do you become a limited partnership? What if you fail?
|
By filing a limited partnership certificate; if you fail, you are a general partnership
|
|
|
How do you become a registered limited liability partnership (RLLP)? What is the benefit of an RLLP?
|
File a statement of qualification and annual reports; no partner is liable for the debts of the RLLP
|
|
|
What is a fixture?
|
A chattel annexed to real property
|
|
|
Can one who doesn't have title to goods pass title to a BFP, generally?
|
No, except money/negotiable instruments
|
|
|
When is property abandoned?
|
When the owner voluntarily and intentionally gives up both title and possession
|
|
|
When is property lost?
|
When a reasonable person would judge that the owner accidentally parted with possession
|
|
|
Who prevails for lost property b/w the finder and the premises owner? What are the exceptions?
|
The finder, except if the finder is a trespasser, a servant, or in a highly private locus
|
|
|
When is property mislaid?
|
When a reasonable person would judge that the owner placed it there intentionally but then forgot about it
|
|
|
Who prevails as to mislaid property between the finder and the premises owner?
|
The premises owner
|
|
|
What is treasure trove?
|
Gold, silver, etc. found concealed, the owner of which is unknown
|
|
|
Who gets to keep treasure trove at common law? In modern law?
|
The finder; but modern law treats it as lost property so the finder wins unless there is an exception
|
|
|
What is accession?
|
The addition of value to personal property that is not yours, through labor or new materials
|
|
|
Who gets ownership when accession occurs by a willful trespasser?
|
The owner, and the trespasser gets nothing
|
|
|
Who gets ownership when accession occurs by an innocent trespasser?
|
If the property has been completely change or greatly enhanced in value, the trespasser keeps the property and the original owner can only sue for damages
|
|
|
What is the statute of limitations for adverse possession of personal property?
|
5 years
|
|
|
What is detinue?
|
Action to recover a chattel
|
|
|
What is trespass to chattel?
|
Action to recover money damages caused by dispossession
|
|
|
What is an action for conversion?
|
Action to recover the value of the chattel (and damages for dispossession), but not the chattel itself
|
|
|
What three things do gifts inter vivos require?
|
1) Donative intent
2) Delivery 3) Acceptance |
|
|
What are the three types of delivery of a gift?
|
1) Actual delivery
2) Constructive delivery 3) Symbolic delivery |
|
|
If a donee has an agent, when is delivery effective?
|
When delivered to either the donee or his agent
|
|
|
If a donor has an agent, when is delivery effect?
|
When the donor or agent delivers to the donee
|
|
|
When is a check or note executed by the donor delivered?
|
When the donee cashes it
|
|
|
When is a check or note executed by a third party to the donor delivered?
|
When physically delivered to the donee
|
|
|
Are joint bank accounts presumed to create a right of survivorship?
|
Yes
|
|
|
When is acceptance of a gift presumed?
|
When the gift is beneficial
|
|
|
When does a donee not accept a gift?
|
When he makes an affirmative act indicating his refusal to accept
|
|
|
Can real property be conveyed by a gift causa mortis?
|
No
|
|
|
How is a gift causa mortis revoked?
|
If the donor recovers, if the donor revokes it, or if the donee predeceases the donor
|
|
|
If property is subject to an instrument securing money, what is the limit of a mechanic's lien?
|
$800
|
|
|
When is a bailor-bailee relationship formed?
|
When the bailee takes physical custody of the property with the intent to exercise control
|
|
|
Who assumes the risk of loss b/w a bailor and a bailee for innocent loss?
|
The bailor, because he has title
|
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When is a bailee strictly liable to a bailor?
|
When the bailee makes intentional, unauthorized use of the property
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|
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What care is required for a bailment solely for the benefit of the bailor? When is there liability?
|
Slight diligence; liability for gross negligence
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|
|
What care is required for a bailment solely for the benefit of the bailee? When is there liability?
|
Great diligence; liability for only slight negligence
|
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|
What care is required for a bailment solely for mutual benefit?
|
Ordinary care
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|
May an ordinary bailee exempt himself from his own negligence? May a professional bailee?
|
Yes; No, but he can limit liability for ordinary negligence provided that the bailor knows or should know of the limitation
|
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|
What are the 3 requirements for a common carrier?
|
1) Holding out to perform services for all who apply
2) Service is one for carriage 3) Carriage is for hire |
|
|
Is a common carrier an insurer of goods?
|
Yes
|
|
|
When are common carriers not liable for loss or damage?
|
1) Act of God/nature
2) Poor packaging by the shipper 3) Inherent nature of the goods (e.g., perishable goods) |
|
|
What is it called when an out of state attorney is allowed to appear in court in another state?
|
Pro hac vice
|
|
|
What are the most common penalties for engaging in professional misconduct?
|
Disbarment, suspension, and public or private censure
|
|
|
May lawyers practice law with or share fees with nonlawyers?
|
No
|
|
|
What are exceptions to the rule that lawyers may not share fees with nonlawyers?
|
Deceased lawyer's estate or employee retirement plans
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|
|
May nonlawyers own an interest in a law firm? Be a corporate officer or director of a law firm?
|
No; No
|
|
|
When is advertising not allowed?
|
When it contains false or misleading statements or claims
|
|
|
What words must written communications contain that are sent to prospective nonlawyer clients?
|
Advertising Material
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|
When is in-person solicitation prohibited? What are the exceptions?
|
Personal injury or wrongful death cases; except when the lawyer has a family or prior professional connection
|
|
|
How much of a lawyer's professional time should be devoted to pro bono work?
|
2%
|
|
|
When is there a concurrent conflict of interest?
|
1) Representation of a client will be directly adverse to another client
2) Significant risk that representation of a client will be materially limited by a lawyer's obligations to another client, a former client, a third party, or the lawyer's personal interests |
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|
When may a concurrent conflict of interest be waived?
|
L reasonably believes that he can provide competent and diligent representation to each client, there is not assertion of claims by one client against another in the same case, and each client gives written consent after consultation
|
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May a lawyer advance court and litigation costs to a client? Living expenses?
|
Yes; no
|
|
|
May a laywer limit his liability for malpractice?
|
No
|
|
|
May a lawyer represent a client in litigation where L is likely to be a necessary witness?
|
No
|
|
|
May a lawyer representing an organization also represent its directors, employees, or shareholders?
|
Yes, subject to conflicts rules
|
|
|
In what kinds of cases are contingent fees prohibited?
|
Domestic relations and criminal cases
|
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|
What are the 3 situations in which a lawyer MUST reveal confidential info?
|
1) Client intends to commit a crime
2) Client commits fraud on the tribunal 3) Another lawyer's misconduct, but must get client's consent if necessary |
|
|
When MAY a lawyer reveal confidential info?
|
1) Client consents
2) Impliedly authorized by the representation 3) Conflict b/w client and lawyer 4) Client committed fraud upon a third party |
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|
What kinds of decisions does the client get to make? What kinds of decisions does the lawyer get to make?
|
Those that affect the merits of the case or the client's rights; procedural tactics
|
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|
When MUST a lawyer withdraw?
|
1) Representation will result in violation of law or the RPC
2) Lawyer's mental/physical condition materially impairs L's ability to represent C 3) L is discharged |
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|
When MAY a lawyer withdraw?
|
1) C persists in illegal or unjust course of action
2) C used L's services to perpetuate crime or fraud 3) L considers C's objective to be repugnant or imprudent 4) C fails to pay L and has been given reasonable warning 5) Unreasonable financial burden |
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|
What security interest may a seller of consumer goods take?
|
ONLY in the consumer goods being sold
|
|
|
What 5 types of tangible collateral are there?
|
1) Consumer goods
2) Inventory 3) Equipment 4) Farm products 5) Fixtures |
|
|
What are the 3 requisites for attachment of a security interest?
|
VCR
1) Value given by secured party 2) Contract or other authenticated agreement (or creditor takes possession or control) 3) Rights in the collateral by the debtor |
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|
How does a secured party perfect a security interest?
|
1) Filing an authorized financing statement or security agreement
2) Taking possession or control of the collateral 3) Automatically, for PMSI in consumer goods |
|
|
Where does a secured party file a financing statement generally? For timber/minerals/fixtures?
|
The SCC; the local country where located
|
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|
How long is the filing of a financing statement valid for?
|
5 years
|
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|
Who has priority between two unperfected security interests?
|
The first to attach
|
|
|
Who has priority between a perfected security interest and an unperfected security interest?
|
Perfected interest
|
|
|
Who has priority between perfected security interests?
|
The first to file or perfect
|
|
|
Who has priority between a security interest perfected by control and an interested perfected by another method?
|
Control
|
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|
When does a PMSI in inventory have priority over prior perfected security interests?
|
Perfected and notice given to the other secured parties before the debtor takes possession
|
|
|
When does a PMSI in non-inventory have priority over prior perfected security interests?
|
Perfected before or within 20 days after debtor receives possession
|
|
|
Who has priority between a buyer/lessee and an unperfected secured party?
|
The buyer/lessee if he gives value and takes without knowledge
|
|
|
Who has priority between a buyer/lessee in the ordinary course of business and a perfected secured party?
|
BIOC
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|
|
When may a secured party take collateral through self-help?
|
When it is done without breach of the peace
|
|
|
When is strict foreclosure not allowed?
|
When the debtor has paid at least 60% of the debt
|
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|
What is the difference between a surety, a guarantor, and a guarantor of collectibility?
|
1) Surety signs the front of the note and has primary liability
2) Guarantor signs the back of the note and has secondary liability – obligation to pay is conditional on debtor’s default 3) Guarantor of collectibility signs “guarantee of collection” only - obligation to pay is conditional on creditor exhausting all remedies against debtor |
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|
When must a gratuitous surety's promise be given to be enforceable?
|
Before or at the time the debtor agrees to give the loan
|
|
|
When do surety agreements not need to be in writing?
|
1) Negotiable instruments
2) Main purpose of surety's promise is to benefit himself and not the debtor |
|
|
Does the surety have the right to notice of the debtor's default?
|
No
|
|
|
Does the surety have the right to force creditor to sue debtor as well?
|
Yes
|
|
|
Does the surety have the right to force the creditor to use collateral before suing the surety?
|
No
|
|
|
Does the surety have the right to compel debtor to pay?
|
Yes - exoneration
|
|
|
Does the surety have the right to be reimbursed by the debtor for any payment the surety made to the creditor?
|
Yes - indemnification
|
|
|
Does the surety have the right to use the rights of the creditor against the debtor?
|
Yes (subrogation) if he pays the full debt
|
|
|
What rights does a surety have against co-sureties?
|
Exoneration, contribution, and subrogation
|
|
|
What defenses of the debtor can the surety also use?
|
Fraud and duress
|
|
|
What defenses of the debtor can the surety NOT use?
|
Infancy, insanity, bankruptcy (of the debtor)
|
|
|
What is the effect of variation of the risk on a gratuitous surety? On a compensated or negotiable instrument surety?
|
Total discharge; discharged only to the extent of his injury
|
|
|
What are 5 types of variation of risk (suretyship)?
|
1) Alteration of contract
2) Extension of time 3) Release of security/collateral 4) Release of co-surety 5) Impairment of collateral (e.g., creditor fails to perfect security interest) |
|
|
What is gross income?
|
Income from whatever source derived - a clearly realized accession to wealth
|
|
|
Is there income and deduction for alimony? For child support?
|
Yes; No
|
|
|
What is realization?
|
The increased or decreased value of an asset is not taken into account for tax purposes until it is realized through the sale or other disposition of the asset
|
|
|
Does gross income include services received?
|
Yes
|
|
|
How much income is there for the recovery of property for which you took an earlier deduction?
|
The amount of the deduction, not the FMV
|
|
|
When is alimony taxable and deductible?
|
1) Pursuant to written divorce or separation agreement
2) Not living together 3) Ceases at death 4) In cash |
|
|
Are prizes and awards gross income?
|
Yes
|
|
|
When is cancellation of indebtedness not income?
|
RIG
1) Reduction in purchase price 2) Insolvency 3) Gift |
|
|
Are life insurance proceeds gross income?
|
No, except interest paid
|
|
|
Are inheritances gross income?
|
No, unless delayed compensation for work
|
|
|
Are gifts gross income?
|
No
|
|
|
Are business gifts gross income?
|
Yes
|
|
|
What aspects of tort awards are gross income?
|
NOT personal injury, but punitive damages are gross income
|
|
|
Are qualified scholarships gross income?
|
No
|
|
|
Is the value of employer-provided health or accident insurance coverage gross income?
|
No
|
|
|
Is the value of health insurance reimbursements for medical expenses actually incurred gross income?
|
No
|
|
|
How much employer-provided group term life insurance may you exclude?
|
The first $50,000
|
|
|
When are employer meals and lodging excluded?
|
1) Provided for convenience of employer
2) In-kind 3) On employer’s premises |
|
|
What are some above the line deductions?
|
1) Ordinary and necessary business expenses
2) Business interest 3) Business taxes (state and local, but NOT federal) 4) Depreciation 5) Capital losses, up to $3,000 6) Alimony 7) Moving expenses (direct, work-related only) 8) Limited deduction for school loan interest |
|
|
What are some itemized deductions?
|
1) Home Mortgage Interest
2) State and local taxes 3) Unreimbursed casualty losses or medical expenses 4) Charitable contributions 5) Miscellaneous deductions 6) Business/investment legal fees |
|
|
When are unreimbursed casualty losses deductible?
|
1) Greater than $100
2) Sudden and unexpected 3) Exceed 10% of AGI |
|
|
When are unreimbursed medical expenses deductible?
|
Exceed 7.5% AGI
|
|
|
Who is income taxed to? Income from property?
|
He who earns it; he who owns the property
|
|
|
What is the cash method of accounting? What is constructive receipt?
|
Report income and take deductions when you receive or make payments
|
|
|
What is the accrual method of accounting?
|
Report income (or take deduction) when all events have occurred and the amount can be determined with reasonable likelihood
|
|
|
What is the formula for determining gains or losses?
|
Gain/loss = Amount Realized less Adjusted Basis
|
|
|
What does the amount realized include?
|
Money received, the FMV of any property/services received, and any mortgages or liabilities that the buyer assumes
|
|
|
What is a basis, generally?
|
The amount that the person paid for the property
|
|
|
Is transfer of property incident to divorce a taxable event? What is the basis of the spouse receiving property?
|
No; the basis of the donor spouse
|
|
|
What is the basis in gift property?
|
The basis of the donor
|
|
|
What is the basis in inherited property?
|
FMV at decedent's death (or 6 months later if elected by executor)
|
|
|
When is there no gain or loss for involuntary conversion?
|
When converted in property that is similar or related in service or use
|
|
|
Is there gain or loss for like-kind exchanges?
|
No
|
|
|
How much gain can you exclude from sale of a principal residence? How long do you have to have used it as a principal residence?
|
$250,000; at least 2 of the last 5 years
|
|
|
What are capital assets?
|
Assets used to make money (stock or real estate held for investment) - not inventory or depreciable property
|
|
|
What is the tax rate on capital gains for capital assets held for more than 12 months?
|
15%
|
|
|
What is the top marginal rate on ordinary income?
|
35%
|
|
|
What are dividends generally taxable at?
|
Capital gains rates (15%)
|
|
|
What is the basic double tax regime for corporations?
|
1) Corporation pays income tax on profits
2) SH pay tax on dividends |
|
|
Is there gain to the corporation upon the receipt of money/property upon formation or incorporation?
|
No
|
|
|
When is there NOT gain or loss to SH upon formation or incorporation?
|
1) SH contribute property
2) SH receive stock in return 3) SH control at least 80% immediately after the exchange |
|
|
What are dividends?
|
Corporate distributions made out of earnings and profits
|
|
|
What is the tax effect for corporate distributions that are not dividends?
|
Treated as a tax-free recovery of the SH's basis in the stock
|
|
|
What are 3 examples of pass-through entities?
|
1) Partnerships
2) LLCs 3) S Corporations |
|
|
How are pass-through business entities taxed?
|
Each partner/owner/SH reports his pro rata share of income or loss on his individual tax return, even if he did not actually receive it
|
|
|
How much is the annual gift exclusion?
|
$13,000 per taxpayer per donee per year
|
|
|
How much is the marital gift deduction?
|
100%
|
|
|
How much is the estate/gift exemption for 2011 and 2012?
|
$5 million
|
|
|
What does decedent's gross estate include?
|
1) All assets beneficially owned at death
2) Proportionate share of property held in joint tenancies 3) Lifetime transfers w/ a retained life estate or the power to alter/revoke 4) Life insurance proceeds if payable to the executor or if the decedent possessed incidents of ownership (right to change beneficiary or borrow against the policy) |
|
|
When is there not an unlimited marital deduction? How can this be avoided?
|
If the property may ultimately be received by someone other than the surviving spouse? Avoid by executor making a qualified terminable interest election (Q-TIP)
|
|
|
How much may an employee exclude from money received by an employee under an educational assistance program?
|
$5,250
|
|
|
How much may individuals contribute annually to an education savings account that has exempt income?
|
$2,000
|
|
|
How much mortgage interest on a first or second home is deductible?
|
All of it, on loans up to $1 million
|
|
|
What is the standard deduction for 2010?
|
$5,700 ($11,400 for joint returns)
|
|
|
What is the personal exemption amount in 2010?
|
$3,650
|
|
|
What are the 5 elements for an express trust?
|
1) Settlor w/ capacity
2) Intent to create a trust 3) Definite and ascertainable beneficiaries 4) Trustee w/ active duties to perform 5) Identifiable property |
|
|
May the same person by the sole trustee and sole beneficiary?
|
No
|
|
|
Will a trust fail for lack of a trustee?
|
No, the court will appoint one
|
|
|
What is a trust created inter vivos to receive property at death called?
|
Pour-over trust
|
|
|
Are partial restraints on marriage valid?
|
Yes, if reasonable
|
|
|
Does Virginia recognize oral trusts?
|
Yes - must be established by C&CE
|
|
|
Can a trust opt-out of being subject to the RAP?
|
Yes, if it says so in its provisions
|
|
|
When is an interest valid under the Uniform Statutory Rule Against Perpetuities?
|
1) When it would be valid under the common law RAP?
2) When the interest actually vests or terminates within 90 years |
|
|
After which date are all inter vivos trusts presumed to be revocable and amendable?
|
July 1, 2006
|
|
|
In what 3 ways does a charitable trust most differ from an express trust?
|
1) Must not benefit identifiable beneficiaries
2) May be perpetual 3) Cy pres doctrine applies |
|
|
When does the RAP not apply to the shifting of the beneficial interest in a trust?
|
When it is from one charity to another
|
|
|
What two things can you establish an honorary trust to benefit?
|
1) Benefit of pets
2) Maintenance of burial property |
|
|
What are 3 situations where a resulting trust arises?
|
1) Express trust fails (resulting trust in settlor or heirs)
2) Trust purpose fully satisfied and some property remains 3) Purchase Money Resulting Trust |
|
|
When is there a presumption for a PMRT?
|
When the two parties are not related
|
|
|
What is a constructive trust?
|
Flexible equitable remedy imposed to prevent unjust enrichment as a result of fraud, undue influence, breach of fiduciary duty, mistake, etc.
|
|
|
What are 3 exceptions to spendthrift trusts?
|
1) Beneficiary is the settlor
2) Child support claims 3) Claims by the government |
|
|
When may a trust be modified or terminated when settlor is still alive?
|
With consent of settlor and all beneficiaries
|
|
|
When may a trust be modified or terminated with only the consent of all beneficiaries?
|
When no material purpose of the trust would be frustrated
|
|
|
What standard of care must a trustee exercise in investing and managing the trust assets? What duties does he have in relation to this?
|
Reasonable care, skill, and caution; establish and pursue a diverse investment strategy suit to the particular trust
|
|
|
What is a unitrust?
|
Trustee directs a fixed percentage of the value of the trust assets to current beneficiaries
|
|
|
When does an intestate spouse inherit 1/3 of the estate? When does she inherit the entire estate?
|
When there are descendants of decedent who are not descendants of the spouse; when there are no descendants or all descendants are also descendants of the spouse
|
|
|
What is the consequence of willful desertion or abandonment with respect to the estate?
|
Deserting spouse loses all rights in the estate and the right to be executor
|
|
|
Does Virginia have a laughing heir statute?
|
No
|
|
|
What are the 8 circumstances where a natural father is considered to be the parent of a nonmarital child?
|
1) F married M
2) F openly cohabited w/ M during entire pregnancy 3) F consented to be named on child's birth certificate 4) F allowed the child to use his surname 5) F claimed child as his on a government document 6) F adjudged to be the father in a paternity suit 7) F admitted paternity under oath 8) Genetic testing establishes |
|
|
How do you make a valid disclaimer of inheritance?
|
1) In writing
2) Declare the disclaimer 3) Describe the interest disclaimed 4) Delivered to the personal representative |
|
|
When is a lifetime gift to a descendant presumptively an advancement?
|
When decedent dies intestate
|
|
|
Is there an interested witness rule in VA?
|
No
|
|
|
How do you admit a foreign will to probate in VA?
|
File an authenticated copy of the will and the certificate of probate
|
|
|
What share does an omitted spouse take?
|
Intestate share
|
|
|
What share does a pretermitted child take, where T had no other child at the time of execution? Where T had other children?
|
1) Intestate share
2) Lesser of intestate share OR the largest bequest made to a child |
|
|
When does the share of a pretermitted child revert to the person who would have received it?
|
If the child died unmarried, without issue, under the age of 18
|
|
|
What presumption when a will cannot be found or is found mutilated after T's death?
|
Presumption that it was revoked, unless the will was not in T's possession or control
|
|
|
What are the 3 requirements for a will to incorporate a document by reference? What is the difference for a legal list disposing of tangible property?
|
a) 1) Document in existence at time of will execution
2) Will refers to the document as being in existence 3) Will identifies the document w/ reasonable certainty b) Can be in existence after execution of the will; must identify the items and beneficiaries with reasonable certainty |
|
|
How close a relative is protected under the anti-lapse statute?
|
Grandparent or lineal descendant thereof
|
|
|
When does a class close?
|
When any member of the class is entitled to disposition
|
|
|
What are some exceptions to the ademption by extinction doctrine?
|
1) Sale by guardian/conservator
2) Condemnation or insurance proceeds not yet paid |
|
|
When is a specific devisee entitled to stock that changes from the stock devised to him?
|
When the action was taken by the entity (merger, stock splits, consolidation, etc.)
|
|
|
What are the two possible amounts for an elective share?
|
1) 1/3 if descendants
2) 1/2 if no descendants |
|
|
How and when does a spouse claim an elective share?
|
File a notice of election within 6 months of probate (or the appointment of the administrator)
|
|
|
What donative transfers to third parties does the augmented estate contain?
|
1) Property passing by right of survivorship to third parties
2) Transfers where decedent retained a life estate or the power to revoke/consume/invade principal 3) Gifts in excess of $10K within the past 5 years 4) Life insurance, retirement, and employee benefits |
|
|
What donative transfers to the surviving spouse does the augmented estate contain?
|
1) Gifts from decedent (not personal property)
2) Life insurance proceeds, employee benefits |
|
|
What 4 exemptions can the surviving spouse take? When can she not take the last one?
|
1) Residence (live there until her rights to the residence are determined)
2) Exempt personal property up to $15,000 3) Family allowance (up to $18K; more w/ court approval) 4) Homestead allowance of $15K, but NOT if spouse claims an elective share |
|
|
What are the four requirements for testamentary capacity, beyond being 18 and mentally competent?
|
1) Understand the nature of the act he is doing
2) Know the nature, condition, and extent of his property 3) Know the names of and relationship to the natural objects of his bounty 4) Understand the scope and meaning of the provisions in his will |
|
|
When is there a presumption of undue influence?
|
1) A confidential relationship existed, or
2) Suspicious circumstances |
|
|
What is the difference between a latent ambiguity and a patent ambiguity?
|
1) Latent = clear on face but misdescriptive of actual facts
2) Patent = uncertainty appears on the face |
|
|
For which of patent and latent ambiguity is declarations of T's intent admissible?
|
Only latent
|
|
|
Are no-contest clauses enforceable?
|
Probably yes, even with probable cause (but if the challenge is successful, the clause fails along with the will)
|
|
|
When is a person presumed dead?
|
Absent from VA and not been heard of for 7 years
|
|
|
Is there a time limit for offering a will for probate?
|
No
|
|
|
What is the order of abatement?
|
1) Personal property passing by intestacy
2) Residuary personal property 3) General legacies 4) Specific & demonstrative bequests of personal property 5) Same order for real property |
|
|
Who fixes the compensation of directors?
|
The board of directors
|
|
|
When does a SH not need to wait 90 days after demand before commencing a derivative proceeding?
|
1) Notified of rejection
2) Irreparable injury would result |
|
|
Where the corporation has 35 or fewer SH, the holders of what % of all votes entitled to be cast may make a written demand for a special meeting?
|
20%
|
|
|
What are 3 types of proceedings at which the ultra vires nature of a corporate act may be raised?
|
1) Proceedings before SCC
2) Injunction proceeding by SH 3) Action by corporation against officer/director |
|
|
At what ages is there a rebuttable presumption that a juvenile does not have the physical capacity to commit rape?
|
Over 10 but less than 12
|
|
|
How far in advance must the defense notify the Commonwealth of intent to use the insanity defense?
|
60 days before trial
|
|
|
What is the standard of proof to overcome a presumption that confessions after an involuntary confession are also tainted?
|
Clear and convincing evidence (C&CE)
|
|
|
What are the three sources of rules regarding VA crim pro?
|
1) VA constitution
2) VA supreme court 3) VA code of crim pro |
|
|
What are the four requirements for an indictment or information?
|
1) Name of accused
2) Offense charged 3) Where committed 4) When committed |
|
|
How long may a merchant detain a person it has probable cause to believe is guilty of shoplifting?
|
1 hour
|
|
|
If you are convicted of perjury, what are you prevented from doing?
|
1) Serving on a jury
2) Holding public office |
|
|
For what period of time is a person making threats required to give a recognizance to keep the peace?
|
Up to 1 year
|
|
|
Under what 3 conditions do children have a statutory duty to support their parents?
|
1) At least 18 years old
2) Have sufficient income 3) Have sufficient earning capacity |
|
|
What standard of proof do you need to overcome the presumption that newly acquired commingled property is marital property?
|
Preponderance of evidence
|
|
|
What is the standard of proof for terminating parental rights?
|
Clear and convincing evidence (C&CE)
|
|
|
Does Virginia recognize equitable adoptions?
|
No
|
|
|
A court must accept the adoption petition of foster parents when parental rights have terminated and the child has resided continuously in their home for how long?
|
18 months
|
|
|
What year did Virginia abolish the common law defense of interspousal immunity?
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1981
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What is the standard of proof for establishing parentage?
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Clear and convincing evidence (C&CE)
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An enforceable covenant not to compete must be reasonable in what 4 respects?
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1) Geographic reach
2) Activities forbidden 3) Duration 4) Public policy impact |
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What percentage of the qualified voters of a territory adjacent to a city or town may petition to be annexed?
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51%
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May a locality adopt an ordinance even though there is already binding state law on the topic?
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Yes, if citizens could comply with both requirements
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What proportion of existing partners must give consent to allow a new partner?
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All of the partners
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How many credit hours per year must be about legal ethics or professionalism?
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At least 2 hours
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What are four areas considered to be pro bono legal services?
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1) Poverty law
2) Civil rights law 3) Public interest law 4) Volunteer activities |
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What is the landlord's limit for setting a security deposit?
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2 months rent
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How long does the death of the mortgagee toll the SOL on the right to foreclose?
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1 year
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Taxpayers must retains tax records for how many years?
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3 years
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What percentage of the cost of meals incurred while traveling on business is allowed as a deduction?
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50%
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What percentage of the cost of lodging incurred while traveling on business is allowed as a deduction?
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100%
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What is the limit for deductions for business gifts?
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$25
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Qualifying child dependents must be under what age? Unless they are a full-time student under what age?
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19; 24
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How much notice does a trustee need to give to resign?
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30 days notice
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What is the SOL for actions on notes payable at a definite time or on demand?
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6 years
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The parties may reduce the period of limitation for an action for breach to not less than how long?
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1 year
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May parties extend the period for limitation for an action for breach of a contract?
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No
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What is an F.A.S. contract?
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The seller must deliver the goods to a named port alongside a vessel designated by the buyer
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What court are decisions of the SCC appealed to?
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VA supreme court
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A lawsuit against the Commonwealth will be forever barred if not brought within how long?
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18 months
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A person cannot be a juror twice within what amount of time?
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3 years
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In a lawsuit against the Commonwealth, a plaintiff must notify the Commonwealth of the claim within how long?
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12 months
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How long does a trial court have the power to vacate a default judgment or decree on the ground of fraud?
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2 years
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How many justices must be convened for the supreme court to be deemed sitting as a division?
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3
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How many days are added to a prescribed period when served by mail?
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3 days
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How many days are added to a prescribed period when served by email or commercial deliver?
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1 day
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An appellant must file an opening brief within how many days of the certificate of appeal?
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40 days
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Oral argument may not exceed how long?
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15 minutes
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An appellee must file his brief within how long of the filing of the appellant's brief?
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25 days
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The appellant may file a reply brief within how many days of the filing of the appellee's brief?
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14 days
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By who filed are amicus briefs allowed as a matter of right?
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1) Commonwealth
2) United States |
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How many CLE credit hours are required per year?
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12 hours
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What is the name of the nonprofit corporation that assists lawyers suffering from substance abuse or mental illness?
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Lawyers Helping Lawyers
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Does the privilege against self-incrimination apply to the taking of blood samples?
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No
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What is a Totten trust bank account?
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A acts as trustee for B and maintains the bank account, B has no access to the account during A's lifetime
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What is the monetary limit for the small claims court that has concurrent jurisdiction with the GDC?
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$5,000
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What is the SOL for petit larceny?
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5 years
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What is the SOL for misdemeanors?
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1 year
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What is the SOL for false statements to obtain unemployment benefits?
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3 years
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What is the SOL for attempt to produce abortion?
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2 years
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Penalties will be imposed if a taxpayer fails to pay at least what percentage of his tax due?
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90%
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Who must sign the return of an indictment?
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The foreman of the grand jury
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If SOL for adverse possession is extended due to disability, the total cannot be longer than how many years?
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25 years
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Action is barred if a decedent died how many years after injury without bringing suit?
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2 years
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Within how many days must a landlord return a security deposit to a tenant after the tenancy terminates?
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45 days
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