Law exam 3

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Law exam 3
2013-05-07 18:49:30

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  1. 1.Surety
    • 1.Liable for another persons debt or performance of another persons duty
    • 2.Principle in primary liability with debtor
    • 3.Writing not required unless over $50K in Idaho
  2. 2.Defenses for a surety
    • 1.consideration failure
    • 2.fraud
    • 3.duress
    • 4.breach by the other party
  3. 3.Rights of a surety
    • 1.Subrogation
    • 2.Exoneration
    • 3.Contribution
    • 4.Reimbursement
  4. 4.Subrogation
    acquires all the rights the creditor has against the principal
  5. 5.Exoneration
    Right of surety or guarantor to require debtor to make good when 1)able and 2)does not have a valid defense against payment
  6. 6.Contribution
    cosurety who pays all can collect shares from the other cosureties.
  7. 7.Reimbursement
    recover cost from principal if surety performs
  8. 8.Accommodation surety
    • 1.Acts a surety without compensation
    • 2.Generally more protected by courts
  9. 9.Compensated surety
    • 1.professional paid for serving as a surety
    • 2.courts less protective
    • 3.Must show they will be harmed by an extension of time before they are relieved of responsibility
  10. 10.Creditor duties to surety
    • 1.Disclose-Creditor must disclose any material facts about the risk involved to the surety
    • 2.Consent-If debtor posts security for the performance of an obligation the creditor must not surrender without consent of the surety
  11. 11.Defenses of the principle that cannot be used by the surety
    • 1.lack of capacity
    • 2.bankruptcy
  12. 12.Guarantor
    • 1.Promisor agrees to answer obligation of another
    • 3.Only liable if principle defaults
    • 4.Writing generally needed
    • 2.Secondarily liable
  13. 13.Common Law lien
    • 1.Created by 1) possession by the improver 2) debt created by the improvement
    • 2.Artisans,Innkeepers,and carriers entitled to secure the reasonable value of services performed
    • 3.Lien attach to the property artisan made improvements on such as fixing a car
    • 4.Keep debtors property until reasonable charges for services have been paid
  14. 14.Foreclosures
    • 1.Strict foreclosure
    • 2.Action and sale
    • 3.Power of Sale
  15. 15.Strict foreclosure
    • 1.Creditor keeps property in satisfaction of debt.
    • 2.Creditor has no right to deficiency
    • 3.Debtor has no right to surplus.
  16. 16.Action and sale foreclosure
    • 1.Law suit required.
    • 2.Sale of property results
    • 3.Surplus paid to mortgagor
    • 4.Deficiency must be paid by the mortgagor
  17. 17.Power of Sale foreclosure
    • 1.Created in terms of the mortgage.
    • 2.No court action.
    • 3.Notice of default and sale held.
    • 3.Surplus paid to mortgagor.
    • 4.Creditor must bring suit for deficiency.
  18. 18.Types of security interest in property
    • 1.Mortgage
    • 2.Deed of trust (under 40 acres in Idaho)
    • 3.Land contract
  19. 19.Parties in Mortgage
    • 1.Mortgagor (owner/debtor)
    • 2.Mortgagee (creditor)
  20. 20.Features of Mortgage
    • 1.Property by motgagee as security for money borrowed for the house
    • 2.Action and sale if default
    • 2.Limited time after foreclosure for Mortgagor to redeem interest
  21. 21.Features of Deed of Trust
    • 1.Deeded to the trustee
    • 2.Under 40 acres
    • 3.Missing payments beneficiary calls trustee
    • 4.Private power of sale if default
    • 5.Satisfied debt then title transferred to the owner/debtor
    • 6.Payments debtor to trustee to owner (beneficiary)
  22. 22.Features of Land contract
    • 1.Convey title when full price is paid.
    • 2.Buyer takes posession
    • 3.Strict foreclosure if buyer defaults
  23. 23.Goal of creditor is obtaining security interest against
    • 1.Debtor
    • 2.Other creditors of debtor
    • 3.Person who might purchase property from the debtor
  24. 24.How to obtain an enforceable security interest
    • 1.Attachment-enforceable against the debtor
    • 2.Perfection-enforceable against everyone else
  25. 25.Attachment of security requires
    • 1.Collateral rights by Debtor
    • 2.Agreement by debtor to grant creditor security interest in particular property
    • 3.Value by creditor to the debtor like advance money or goods
  26. 26.Security agreement
    Agreement in which a debtor grants a creditor security interest in the debtors property
  27. 27.Requirements of security agreement
    • 1.Authentication required except where creditor has control or possession then oral agreement is enough
    • 2.Reasonably describe the collateral
    • 3.Set out terms of the arrangement
  28. 28.Purchase Money Security Interests (PMSI)
    • 1.Seller of goods retains a security interest in goods until they are paid for, or when money is loaned for the purpose of acquiring certain goods and the lender takes a security interest in those goods
    • 2.Holders PMSI have certain advantages over other creditors
  29. 29.How to perfect a security interest
    • 1.Filing public notice
    • 2.Automatic perfection. By mere attachment in some transactions
    • 3.Possession-Creditor taking possession
    • 4.Control-Creditor taking control of the collateral
  30. 30.Perfection by public filing
    • 1.Writing must include-Names of debtor, name of secured party, describe collateral, real estate description required if it is a fixture
    • 2.File a financial statement is most common
    • 3.Notice to the world that creditor claims an interest in collateral
  31. 31.Perfection by possession
    • 1.Serves as notice of the security interest
    • 2.Common for chattel paper and negotiable documents of title
    • 3.Uncommon for consumer goods
    • 4.May be used for inventory in a field warehouse arrangement
  32. 32.Perfection by control
    • 1.Similar to possession
    • 2.Only way to perfect interest in deposit account a)Bank is secured party where deposit is maintained b)Debtor has agreed the bank will comply c)The secured party becomes the bank’s customer for the deposit account
  33. 33.Automatic perfection
    • 1.Certain types of collateral at the time of attachment
    • 2.PMSI (Purchase Money Security Interests) in consumer goods automatically perfected
    • 3.Might not protect priority in battle with other creditors
  34. 34.Perfection for Motor Vehicles
    • 1.Title may show securitys
    • 2.Protect the would-be buyer or creditor
  35. 35.Gift
    Voluntary transfer of property to the donee for which the donor gets no consideration in return, not need writing.
  36. 36.Elements for a valid gift
    • 1.Intend-Donor must intend to make a gift
    • 2.Delivery-Donor must make delivery
    • 3.Accept-Donee must accept the gift
  37. 37.Will
    Document by testator that contains their instructions on how their property will be disposed upon their death.
  38. 38.Testate
    Have a will
  39. 39.Features of a will Testate
    • 1.Writing
    • 2.Signed
    • 3.Witness Signed
  40. 40.Intestate
    No will
  41. 41.Features of Intestate
    • 1.All community property goes to the other spouse and kids.
    • 2.If no spouse then kids
    • 3.If no kids then parents
  42. 42.Living will
    State in advance intention to forgo or obtain certain life-prolonging medical procedures.
  43. 43.Durable power of attorney
    • 1.Gives another person the legal authority to act on ones behalf in case of mental or physical incapacity
    • 2.Gives extremely broad powers to make decisions such as for health care
  44. 44.Per stripes
    Right of representation. Grandchildren divide evenly the Grandparents residuary that would have gone to their parents.
  45. 45.Per capita
    Each of a group of persons will share equally. Grandparents children all deceased, residual goes equally to the grandchildren.
  46. 46.Tenancy in common
    Two people own a percent of the whole property, not a certain part but a percentage of the whole
  47. 47.Features of tenancy in common
    • 1.You can give property away when you die
    • 2.Must go to court to pass it on
  48. 48.Joint Tenancy
    1.Equal interest in real property to two or more all own the whole
  49. 49.Features of Joint Tenancy
    • 1.Ownership goes to survivor
    • 2.You don’t have rights to give it away
    • 3.Eliminates going to court because just the one still alive
  50. 50.Community property-In Idaho
    • 1.Once married all property bought, earned, or mortgaged to buy becomes property of the marriage.
    • 2.Only exception if gift and kept separate.
    • 3.If mix gift becomes community
  51. 51.Easement
    Right to use another’s property for our own interest
  52. 52.Ways to create an easement
    • 1.Grant-ask someone and they grant
    • 2.Reservation-reserve it when we sell it like a contractor
    • 3.Implication- Implied it’s fair, therefore it is like by prior use, or by necessity
    • 4.Prescription-take the easement like adverse possession use openly, actually use, continuously use-5 years
  53. 53.Profit
    Right to go into another’s property and remove stuff from it-timber, ore
  54. 54.Adverse possession
    Get property nobody wanted you to have
  55. 55.To get adverse possession
    • 1.Open use of the property
    • 2.Actual use of the property
    • 3.Continuous use of the property-25 years in Idaho
    • 4.Exclusive of the owner use of the property
    • 5.Hostile to the owner
  56. 56.Duties of the Landlord
    • 1.Fair housing act-non discrimination
    • 2.Americans with disabilities act
    • 3.Bring up to code
    • 4.Comply with city codes
    • 5.Habitability
    • 6.Allow tenant to possess
    • 7.Quiet enjoyment
  57. 57.Rights of the landlord
    • 1.Rent
    • 2.Return of property
    • 3.Inspect the property in reasonable time and situations
  58. 58.Duties of the tenant
    • 1.Pay the rent
    • 2.Wear and tear reasonable
    • 3.Lawful manner use property
    • 4.Return the property when lease is up
  59. 59.Rights of tenant
    • 1.Exclusive possession
    • 2.Quiet enjoyment
    • 3.Habitability
  60. 60.Remedy for landlord-tenant
    • 1.Constructive Eviction suit by Tenant
    • 2.Abatement or Rent statutes. Abate rent until landlord does what it needs to do
    • 3.Repair and deduct statute.
    • 5.Breach of contract suit, to terminate the lease or problem
    • 6.Deduct repair for the rent
  61. 61.Abandoned property
    • 1.Intentionally given up
    • 2.Finder owns it outright
  62. 62.Lost property
    • 1.Not intend to get rid of it
    • 2.Finder becomes the owner but not more right than the real owner
  63. 63.Mislaid property
    • 1.Owner intentionally places someplace but forgets about it
    • 2.Place where mislaid gets the ownership but not more right than the real owner
  64. 64.How to transfer property
    • 1.Confusion-fungible like grain intermixing of others goods
    • 2.Accession-While in you possession you add value. If they not pay can get by accession
    • 3.Real Gift
    • 4.Transfer
    • 5.Lease
  65. 65.Bailment
    • 1.Owner of the property
    • 2.Another takes possession
    • 3.Knowing they must give it back
  66. 66.Duties of bailee
    • 1.Take care of the property
    • 2.Return the property
  67. 67.Types of bailment
    • 1.Bailor benefit
    • 2.Bailee benifit
    • 3.Mutual benefit
  68. 68.Feature of bailor benefit bailment
    Bailee only responsible if commit gross negligence
  69. 69.Feature of bailee benefit bailment
    Slightest negligence of the bailee then bailor has cause of action
  70. 70.Feature of mutual benefit bailment
    Have to prove ordinary negligence
  71. 71.Common carrier bailment
    • 1.Higher level of responsibility
    • 2.Strict liability
    • 3.No negligence standard
  72. 72.Common carrier bailment relief
    • 1.Enimey of puplic
    • 2.God act of
    • 3.Government order
    • 4.Shipper act
    • 5.Nature of the goods themselves
  73. 73.Types of property
    • 1.Real
    • 2.Personal
    • 3.Intellectual
  74. 74.Fixture
    • 1.Ground attached
    • 2.Adaptation-degree to which beneficial or necessary to the use of the real property
    • 3.Intent-intend to make it a fixture
  75. 75.Trade fixture
    • 1.Attached to commercial property
    • 2.Claim the fixture by landlordif remove trade fixture
    • 3.Express agreement
    • 4.Should keep fixture there
  76. 76.Types of people owners owe liability
    • 1.Trespasser-Owes no liability except incapacity becomes invitee
    • 2.Licensee-gas company, duty to warn of dangers on property
    • 3.Invitee-If making money from duty to warn and keep property safe
  77. 77.Tenant duty to others on property
    Warn over that have responsibility for
  78. 78.Fight zoning
    • 1.Get an amendment
    • 2.Get a variance
    • 3.Sue
  79. 79.Straight bankruptcy-Chapter 7
    Rid of all debt and end up with only exempt assets all rest distributed to creditors
  80. 80.Reorganization-Chapter 11
    Not trying to rid debt, try to do best to pay and go on as company
  81. 81.Farms or fisherman-Chapter 12
    Not trying to rid debt, try to do best to pay and go on as company
  82. 82.Consumer-Chapter 13
    • 1.Not for business
    • 2.Reorganization type
  83. 83.Features of chapter 7 Straight bankruptcy
    • 1.Counseling for debtors
    • 2.Retain only exempt property
    • 3.Affidavit filed by lawyer
    • 4.Petition to court
    • 5.Prove have debt, not that cannot pay
    • 6.Trustee appointed
  84. 84.Features of chapter 11 reorganization bankruptcy
    • 1.Secured committee
    • 2.Plan by debtor to pay debt
    • 3.Unsecured committee
    • 4.Debtor becomes own trustee
    • 5.Reorganize to work through it
    • 6.Corporations
    • 7.Creditors approve plan
  85. 85.Features of reorganization plan
    • 1.Fair
    • 2.Impared classes identified that treat worse
    • 3.Same treatment for all creditors in same class
    • 4.How pay them
    • 5.Equitable
    • 6.Divide creditors into classes
  86. 86.Features of chapter 12 Farms or fisherman bankruptcy
    • 1.Income from family farm 50%
    • 2.Plan by debtor to give creditors liquidation value like chapter 7
    • 3.Upper limit in debt
    • 4.Trustee appointed
    • 5.Petition by debtor only
    • 6.Orientation of debt 80% farming
    • 7.Three years possession to work through
  87. 87.Features of chapter 13 consumer bankruptcy
    • 1.Trustee appointed
    • 2.Upper limit for debt
    • 3.Regular income wage earner
    • 4.Five years in possession
    • 5.Petition by debtor only
    • 6.Plan for unsecured creditors liquidation value
  88. 88.Creditors cannot file involuntary against
    • 1.Farmers
    • 2.Ranchers
    • 3.Non-profit
    • 4.Credit union
    • 5.Savings and loan
    • 6.Municipalities
  89. 89.Trustee powers
    • 1.Void liens not perfected to get more first money
    • 2.Rid of fraudulent transfers such as by debtor to hide money
    • 3.Rid of preferential payments
  90. 90.Priorities of payment
    • 1.Secured creditors
    • 2.Ten priority creditors
    • 3.General creditors
    • 4.Debtor
  91. 91.Discharge
    • 1.Person who has not been guilty of dishonest acts during the bankruptcy
    • 2.Fulfilled duties
    • 3.Relieves person of further responsibilities
  92. 92.Exemptions
    • 1.Federal general necessary to continue to earn a living
    • 2.In Idaho 2 guns
  93. 93.Advantages of chapter 7
    • 1.After liquidation most or all debts discharged
    • 2.Fresh start
  94. 94.Advantages of chapter 11
    • 1.Remains in business
    • 2.Debts liquidated by approved plan
  95. 95.Advantage of chapter 12
    • 1.Remain in possession to work it out
    • 2.Usually 3 years
    • 3.Implementation of plan
  96. 96.Advantage of chapter 13
    • 1.Work out over period of 5 years
    • 2.Implementation of plan
  97. 97.Types of collateral
    • 1.Chattel paper-appliances
    • 2.Documents of title-bills of lading
    • 3.Instruments-eg.checks, notes
    • 4.Property for investments
    • 5.Goods
    • 6.Right to payment accounts
    • 7.Intangibles-eg.copyrights, software
    • 8.Deposit accounts
  98. 98.Things sue government for in zoning battle
    • 1.interference
    • 2.character of the invasion
    • 3.economic impact