Bar Review

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Bar Review
2014-07-27 16:07:49
North Carolina Bar Exam

Review for NC Bar Exam Summer 2014
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  1. What four situations will prevent a deficiency judgment on a mortgage?
    • 1. The statute of limitations has run
    • 2. The sale was made without notice
    • 3. The mortgage is based on a seller-financed PMSI.
    • 4.Mortgagee buying for less than reasonable value at a power-of-sale sale (reduce only)
  2. What are the elements of Trespass to Chattels?
    • 1. Interfering with plaintiff's right to possession
    • 2. Intent to do the act
    • 3. Causation
    • 4. Damages
  3. What are the elements of Conversion
    • 1. Severe interference with plaintiff's right to possession
    • 2. Intent to do the act
    • 3. Causation
  4. What are the elements of the attractive nuisance doctrine?
    • 1. Dangerous condition owner knows or should know of
    • 2. Owner knows or should know children visit
    • 3. Condition is dangerous because child cannot understand the risk
    • 4. Expense of remedy is slight compared to magnitude of risk
  5. What are the elements of strict product liability?
    • 1. Defendant is a commercial supplier
    • 2. Who produced or sold a defective product
    • 3. Which caused 
    • 4. Damages to person or property
  6. What intent is required for assault?
    Purpose or substantial certainty
  7. What are the elements of IIED?
    • Intent
    • Outrageous Conduct
    • Causation
    • Damages
  8. What must be established for Self-Defense as a defense to a tort?
    • Reasonable force
    • Reasonable belief in danger
  9. Necessity is a defense only to torts against _________
  10. May the jury presume damages for slander and libel?
    No for slander (unless slander per se), yes for libel
  11. What is a professional's standard of care?
    That of an ordinary member of the profession in good standing
  12. Does the eggshell skull plaintiff rule apply to intent or damages?
  13. When is an NC vehicle owner responsible for another person driving the vehicle?
    When the owner is riding as a passenger or a household member.
  14. How is contribution recovered in NC?
    In proportional shares.
  15. When can a prior inconsistent statement be used to impeach?
  16. When may a prior inconsistent statement be used as substantive evidence? Give federal and NC rule.
    Federal: When made orally under oath as part of a formal proceeding

    NC: Prior inconsistent deposition in a civil case
  17. Must witness be given time to explain prior inconsistent statement? Give federal and NC
    Federal: Yes, at any time (unless a party)

    NC: No
  18. What crimes are allowed for impeachment under the federal rules of evidence?
    Misdeameanors and felonies involving dishonesty, other felonies at court discretion.
  19. What crimes are admissible for impeachment in North Carolina?
    Any felony or misdemeanor, no balancing.
  20. What is the spousal privilege?
    You can't be forced to testify in a criminal case against a current spouse.
  21. What is the marital communication privilege?
    You can prevent your current or past spouse from testifying about communications during a marriage.
  22. What are the two malice crimes?
    Common law murder and arson.
  23. Is assault a general or specific intent crime?
  24. What is specific intent?
    The desire to achieve the result.
  25. What are the four general intent crimes?
    • Battery
    • Rape
    • False Imprisonment
    • Kidnapping (Not in NC)
  26. What is embezzlement?
    Conversion by someone in lawful possession (discretionary authority) with intent to defraud.
  27. Can a North Carolina burglary occur in the day?
    No, must be at night.
  28. Must a North Carolina arson involve a home?
  29. Does North Carolina require an overt act for conspiracy?
  30. What is required in North Carolina for an attempt?
    Dangerous proximity to completion.
  31. Which inchoate crimes merge with the completed offense?
    Solicitation and attempt, but not conspiracy.
  32. Which insanity test does NC use?
  33. What is entrapment in NC?
    Defendant would not have committed offense but for police, misrepresentation, trickery, persuasion, or fraud.
  34. What does the NC Dead Man's statute exclude?
    An interested party's testimony about ORAL communications (other than who was driving a car) with a dead person.
  35. What is necessary for third party standing before federal courts?
    Injury to both the party suing and the third party.
  36. What level of scrutiny is used for content-neutral speech regulation?
    Intermediate scrutiny.
  37. A regulation on speech cannot constitutionally give officials ____________
    Unfettered discretion
  38. Time place, and manner power to regulate speech changes based on ____________
    Type of forum
  39. What standards must a regulation on a public forum meet?
    • Content neutral
    • Narrowly tailored to an important interest
    • Leaves alternative channels
  40. What standards must regulations of limited public forums and non-public forums meet?
    • Viewpoint neutral
    • Rationally related to a legitimate interest
  41. What standard must content-based speech regulation meet?
    Necessary to achieve a compelling government interest.
  42. What standard must a regulation on commercial speech meet?
    Narrowly tailored to a substantial government interest.
  43. What are the three factors used to evaluate process?
    • Importance of the interest
    • Value of safeguards to that interest
    • Government's interest in efficiency
  44. What things must you be a lawyer to do?
    • Appear in court
    • Draft documents substantially affecting client's rights
    • Negotiate a settlement
  45. What are is required to get a lawyer's work product?
    • Substantial need
    • Inability to gather
    • Without undue hardship
  46. Must a principal and agent have the capacity to contract?
    Only the principal must have capacity.
  47. What are the three sources of agency power?
    • Actual authority
    • Apparent authority
    • Ratification
  48. What are the two kinds of actual authority and agent may have?
    Express and implied.
  49. What is implied actual agency?
    Authority the agent reasonably believes he possesses based on the principal's actions.
  50. What is apparent authority?
    Authority that a third party reasonably believes an agent possesses due to the acts of the principal.
  51. When is an agency irrevocable?
    When it is coupled with an interest.
  52. What are the two steps of respodeat superior liability?
    • Master-servant relationship
    • Acting in course of employmnent
  53. Who is liable for the debts of a partnership?
    Both the partnership and the individual partners.
  54. What is the deciding factor as to whether a partnership existed?
    Whether 2 persons are co-owners of a business for profit
  55. How are profits, losses, and management divided in a partnership?
    Equally, unless otherwise agreed.
  56. In a general partnership, which of partner A's torts is partner B liable for?
    Those committed within the ordinary course of business.
  57. Can a limited partnership be implied?
    No, a filing is required.
  58. How are profits (by default) shared in a limited partnership?
    By each member's contribution.
  59. What is the advantage of an LLP?
    The partner is not responsible for the debts of the partnership or the malpractice of other partners.
  60. What is the advantage of an LLC?
    It combines the tax advantage of a partnership with the limited liability of a corporation.
  61. Which business forms should one always choose if it is available?
    • LLC
    • LLP
  62. May an interest in a partnership be assigned or attached?
    Yes, but it conveys a financial interest only, not management control.
  63. Is an LLP responsible for the torts of a partner?
    Yes, the LLP and the partner himself are liable, the other partners are not.
  64. What is the limit of a limited partner's liability?
    Their capital contribution.
  65. What are the fiduciary dutes of LLC members?
  66. What is an S Corp?
    A closely held corporation taxed like a partnership
  67. What is the term for acts beyond a corporation's power?
    Ultra Vires
  68. Are ultra vires contracts voidable?
  69. When can the corporate veil be pierced against an individual shareholder?
    • Corporation is an alter ego
    • Corporation inadequately capitalized when formed
    • Piercing is necessary to prevent fraud
  70. What is a promoter?
    A person who raises capital to start a new corporation.
  71. How may shareholders act outside of shareholder meetings?
    By unanimous written consent (majority for non-public corporations)
  72. What are the shareholder voting requirements for an ordinary matter and a fundamental change?
    Ordinary matter: Majority present at meeting

    Fundamental change: Majority of outstanding stock
  73. When may a shareholder sue a corporate officer directly?
    When the officer breaches a duty to the shareholder (not the corporation)
  74. When is a corporation NOT allowed to make distributions?
    When it is insolvent.
  75. May shareholders and directors vote by proxy?
    • Shareholders: Yes.
    • Directors: No.
  76. What is the minimum proportion of directors that a corporation's charter may allow for a quorum?
    One third
  77. What are the two important defenses to a charge that a director has breached the duty of care?
    • Business judgment rule
    • Reliance on experts
  78. How can a conflict of interest transaction be upheld?
    • Approval by majority of disinterested directors
    • Approval by majority of disinterested stockholders
    • Showing that the transaction is fair
  79. What must a board have for the corporate opportunity doctrine to apply?
    An interest or expectancy in the deal
  80. When must a corporation indemnify a director?
    When the director prevails in a lawsuit
  81. When may a corporation NOT indemnify a director?
    When he is found liable to the corporation or takes an improper personal benefit.
  82. What is the fraud provision of the federal securities rules?
    Rule 10b-5
  83. Does rule 10b-5 require scienter?
  84. What is the director's duty of care?
    To act as a reasonably prudent person.
  85. What is the director's duty of loyalty?
    To act in good faith.
  86. May the articles shield directors from liability for the breach of the duty and loyalty?
    May shield from duty of care, but not from duty of loyalty.
  87. What is the test for parent/subsidiary liability?
    The "mere instrumentality" test.
  88. Who has inspection rights?
    Directors and qualified shareholders.
  89. What happens if directors make an unauthorized distribution?
    They are personally liable.
  90. What is the test for whether a corporation is a shareholder's alter ego?
    • Complete domination
    • Misuse of power
    • Causing the damage
  91. When can an employment contract without a set time period be terminated?
    At the will of either party.
  92. When may an offer for a unilateral contract be revoked?
    Federal: Once performance begins

    NC: Once performance is complete
  93. When does the accommodation rule apply?
    Only when goods are shipped as a form of acceptance.
  94. What happens if, in a contract negotiation between merchants, the offeree sends an acceptance with materially altered terms?
    The contract is accepted with the original terms.
  95. A contract induced by misrepresentation is ___________
  96. What tools are used in construing contractual ambiguities?
    • Express terms
    • Course of performance
    • Course of dealing 
    • Usage of trade
  97. May a contract that requires a writing to modify be modified orally?
    • Yes for common law
    • No for UCC
  98. When can parol evidence be used to explain and supplement?
    • Common law: When contract is ambiguous on its face
    • Article 2: Any time
  99. What is the statue of limitations for sale of goods contracts?
    4 years
  100. What is the statute of limitations for intentional and negligent torts?
    3 years
  101. When do the rights of a third party beneficiary vest?
    • The party:
    • Manifests assent
    • Sues to enforce
    • Materially changes position
  102. When is assignment irrevocable?
    When it is made for value
  103. How long must a North Carolina lease be to fall under the statute of frauds?
    At least 3 years.
  104. Who is usually sued for products liability in NC?
    The manufacturer.
  105. What does Article 2A of the UCC apply to?
    Leases of goods.
  106. Can foreseeable reliance make an offer irrevocable?
    • Federal, yes
    • NC, No
  107. Is a counteroffer a rejection in North Carolina?
    Only if there is a material change.
  108. When is past consideration valid in NC?
    If performance is requested, and there's a reasonable expectation of compensation.
  109. What is general intent?
    Defendant's awareness he is committing a crime and attendant circumstances exist.
  110. What crimes may involve transferred intent?
    Homicide, battery, and arson.
  111. What crimes cannot be excused by duress?
    Homicide crimes
  112. What are the four factors of adequate provocation for manslaughter?
    • Would provoke an ordinary person
    • Defendant was provoked
    • Ordinary person would not have had time to cool off
    • Defendant did not cool off
  113. What is required in NC to withdraw as an accomplice?
    Renouncing the purpose to the other participants
  114. Is there a duty to retreat in NC?
    Yes, for non-felonious assault.
  115. Does North Carolina follow the misdemeanor manslaughter rule?
  116. What makes a kidnapping first degree in NC?
    If the person was seriously injured, sexually assaulted, or not released in a safe place.
  117. Does robbery in NC require taking?
  118. What is the first degree- second degree difference between NC Burglary and Arson?
    Whether the dwelling is occupied.
  119. When is a mistake of fact a defense?
    • Always to general intent or malice
    • To specific intent when reasonable
  120. Is there an exception to the NC murder rule for the death of a co-felon?
  121. What standard is needed for police to stop a car?
    Reasonable suspicion.
  122. What standard is needed for a search warrant?
    Probable cause.
  123. May police rely on an invalid warrant if they rely in good faith?
    • Federal, yes.
    • NC, no.
  124. Police can search a vehicle if __________
    • It is incident to arrest
    • It is for inventory after impoundment
    • They have probable cause to believe it contains evidence
  125. When does the sixth amendment right to counsel attach?
    When formal proceedings have begun.
  126. Which amendment is offense specific?
    The sixth.
  127. When may an out of court identification be excluded?
    When the process is unnecessarily suggestive or there is a substantial likelihood of misidentification
  128. If there has been an unconstitutional pretrial identification, when may a witness make an in-court identification?
    When the witness has independent grounds.
  129. When is counsel required for misdemeanor charges?
    When imprisonment is actually imposed.
  130. A co-defendant's confession can be admitted if
    • The co-defendant takes the stand OR
    • References to the defendant are elimated
  131. When are two crimes not the same offense?
    When each requires proof of an element the other does not.
  132. The privilege against self incrimination protects what evidence?
    Testimonial evidence.
  133. Do arrests in North Carolina generally require a warrant?
    Not unless they are in the defendant's home.
  134. Must plain view discovery be inadvertent?
    • Federal: No
    • NC: Yes
  135. Must a guilty plea be supported by a factual basis?
    In NC, yes.
  136. What are the elements of common law robbery?
    • Trespassory taking
    • Suspect used force to cause
    • Victim to relinquish control
  137. When may relevant evidence be inadmissible?
    When likelihood of prejudice outweighs probative value or there is a public policy exclusion.
  138. What issues may be brought up on cross-examination?
    • Federal: Issues brought up on direct
    • NC: Anything relevant
  139. What cases may use dying declarations?
    • Federal: Civil and Homicide
    • NC: Any
  140. When is character admissible in a civil case?
    Only when it's an element of a claim or defense.
  141. Which requires privity, real convenants or equitable servitudes?
    Real covenants
  142. Both real covenants and equitable servitudes require ______________
    • Intent
    • Notice (not required for benefit)
    • Touch and concern
  143. When is a seller liable for a defect in a building?
    When it is know, latent, and serious.
  144. In a notice jurisdiction a BFP is protect if he _________
    Purchases without notice
  145. In North Carolina a purchaser of land is protected if he __________
    Records first
  146. In a race notice jurisdiction, a BFP of land is protected if he ___________
    Purchases without notice AND records first.
  147. When does a NC fee simple defeasible based on use of land become invalid?
    60 years.
  148. How long must an NC lease be to implicate the statute of frauds?
    3 years
  149. What are the elements of constructive eviction?
    • Substantial chronic interference
    • Notice by the tenant
    • Vacation by the tenant
  150. What is the time limit for an option on land in NC?
    30 years.
  151. What is the effect of a disability on adverse possession in NC?
    Adverse possession not complete until longer of statute of limitations or disability removed + 3 years.
  152. What is the standard for shoplifting detention in NC?
    Probable cause.
  153. Must special damages be established for libel in NC?
    Yes, unless it is libel per se.
  154. Of the invasion of privacy torts, NC does not recognize ___________
    False light or publication of private facts
  155. What is the standard of care for discovered trespassers federally and in NC?
    Federal: Warn of concealed dangerous artificial conditions

    NC: Exercise care in active operations
  156. What is NIED in North Carolina?
    Negligence conduct causing foreseeable emotional distress.
  157. Do North Carolina public officials have tort immunity?
    Only for discretionary functions.
  158. Do North Carolina public employees have tort immunity?
  159. What does the constitution require for personal jurisdiction?
    Minimum contacts.
  160. Venue may be waived by _________
    the defendant
  161. What type of pleading does North Carolina require?
    Notice pleading.
  162. When must venue and personal jurisdiction defenses be asserted?
    By motion or first answer.
  163. When do North Carolina courts not count weekends and holidays toward deadlines?
    When the time period is less than 7 days or ends on a weekend or holiday.
  164. What is the statute of repose for products liability?
    12 years.
  165. When is a counter-claim compulsory?
    When it arises out of the same transaction.
  166. When does a fact in discovery need to be updated?
    If it was incorrect when made, or was correct and is no longer true.
  167. What happens if a party refuses discovery?
    Sanctions such as dismissal or excluding evidence.
  168. Who pays discovery costs?
    Each pays, then the loser reimburses.
  169. When may a clerk enter a default judgment for failure to appear?
    When the claim is for a sum certain.
  170. How long does a party have to move for a judgement notwithstanding the verdict or a new trial?
    10 days.
  171. How long does a temporary restraining order last?
    10 days
  172. What are the requirements for a judgment to serve as res judicata?
    It must be final, on the merits, and involve the same cause of action.
  173. Collateral estoppel is usually available to non-party __________, but not _________.
    Defendants, but not plaintiffs.
  174. What is the jurisdictional amount for superior court?
  175. What is the jurisdictional amount for district court?
  176. What is required for supplemental jurisdiction?
    • A common nucleus of fact AND
    • Court decides to hear
  177. What is the time limit for removal to a federal court?
    30 days.
  178. What is the Erie doctrine?
    A federal court will apply state law when the law is clearly outcome determinative.
  179. What law defines what contacts are sufficient for personal jurisdiction?
    North Carolina long arm statute.
  180. What is the time limit to serve process?
    60 days.
  181. How long does a defendant have to file an answer to a complaint?
    30 days.
  182. In North Carolina, do amended pleadings relate back to the original filing date?
    Yes for claims, no for parties.
  183. How long does a party have to appeal?
    30 days
  184. When can entry of default be set aside?
    For good cause, including lack of injury to other party.
  185. A complaint may not state over $10k in _________________.
    Punitive damages.
  186. What are the basic requirements of equity?
    • Legal remedy is inadequate
    • Equitable remedy is feasible
    • Harm to defendant does not greatly outweigh benefit to plaintiff
    • There are no equitable defenses
  187. What are three equitable defenses?
    • Unclean hands
    • Laches
    • Impossibility or hardship
  188. What are 3 reasons a legal remedy may be inadequate?
    • Uniqueness
    • Speculative nature of damages
    • Multiplicity of action
  189. Reformation and recission are ___________ remedies.
  190. Equitable relief is always __________
  191. When may a time is of the essence clause be ignored in equity?
    When the delay is de minimis and there is no harm to the other party
  192. When is a constructive trust used?
    When the value of the claim is less than the value of the asset.
  193. When is an equitable lien used?
    When the value of the claim is more than the value of the asset.
  194. What does a person with an equitable lien ordinarily do?
    Foreclose immediately.
  195. What is criminal conversation?
    A tort action for adultery.
  196. What is alienation of affection?
    The destruction of genuine love and affection by the wrongful and malicious acts of a third party.
  197. What are the economic effects of annulment?
    Post-separation support may be given, but not equitable division or alimony.
  198. How long must you live in NC to divorce in NC?
    Six months.
  199. What happens to divisible property in a divorce?
    It is divided along with marital property
  200. The main sources of divisible income are
    • Appreciation to marital property
    • Property rights earned by pre-separation labor
  201. What is the tracing funds rule in property division?
    Property is marital or separate based on the source of funds used to buy it, unless it is taken in tenancy by the entirety
  202. Separation and pre-nuptial agreements can be binding on ___________ and _________, but not __________.
    • Alimony
    • Post separation support

    Child custody or support
  203. How long may an ex parte child custody order last?
    One year.
  204. How long must a statutory lien holder hold property before selling?
    30 days (10 days for cars)
  205. A lienor may purchase personal property at a _______, but not a ________ sale.
    • Public
    • Private
  206. How long does a builder have to enforce a statutory lien?
    120 days to claim, 180 days to sue.
  207. Subcontractors have a lien on __________
    funds owed to contractors above them
  208. How long is a judgement lien valid?
    10 years
  209. Judgement liens attach only to _______________
    Real property
  210. Who should a creditor with a suretyship promise pursue first?
    The primary debtor or the collateral
  211. A suretyship promise must be __________ unless ___________
    • In writing
    • For the primary benefit of the surety
  212. A suretyship promise must be made for
  213. What is a suit for exoneration?
    A lawsuit by a surety to force a primary debtor to pay the creditor
  214. What is a suit for reimbursement?
    A lawsuit by a surety to force the debtor to pay the surety.
  215. Gratuitous sureties can be discharged if a creditor does _____________________
    Anything to vary the risk.
  216. A compensated surety may generally be discharged __________
    To the extent of his injury
  217. A surety will ___________ to an innocent creditor if the debtor procures a surety by fraud.
    still be liable
  218. What is a surety's right of subrogation?
    He gets the right to foreclose on the collateral securing the debt
  219. A paying surety who wants contribution MUST raise__________
    Any defense common to all sureties.
  220. Personal property liens are generally __________ to Article 9 security interests.
  221. What is the priority of a real estate lien vs. a mortgage?
    First in time, first in right
  222. When may a plaintiff attach another party's assets?
    When there's a risk they will be unavailable or hidden at judgment.
  223. Is North Carolina a lien theory or title theory state?
    Title theory
  224. Who is most likely to exercise the equity of redemption?
    The mortgagor, junior lienholders, and tenants.
  225. Who is liable if a transferee assumes a mortgage?
    Both the transferee and the original mortgagor.
  226. What is the statute of limitations on foreclosures?
    10 years
  227. When is an upset bid  or right of redemption allowed?
    Within 10 days of a foreclosure sale
  228. Possession for ___________ after default cuts off the right of foreclosure.
    Ten years
  229. What four issue must be determined for a power of sale foreclosure to be valid?
    • Notice
    • Authorization
    • Debt
    • Default

  230. How much must an upset bid be over the sale price?
    5% and at least $750
  231. What three types of liens can take priority over a preexisting mortgage?
    • PMSI in a fixture (filed within 20 days)
    • Lien acquired by instantaneous seisin (such as a prior judgment attaching to new property or a PMSI)
    • Tax liens
  232. When is the Peterson presumption overcome?
    When a parent is:

    • Neglectful
    • Unfit
    • Acts in a way inconsistent with parenthood
  233. When can you represent clients with adverse interests?
    When you reasonably believe you can competently represent each client AND have informed consent in writing
  234. What are three ways a lawyer may be punished for ethics violations?
    • Disbarment
    • Suspension
    • Censure
  235. What is pro hac vice?
    Temporary permission to practice in order to handle a case in a state where you're not licensed.
  236. A lawyer may not ________ or __________ with a non-lawyer

    Share legal fees
  237. What is the difference between advertising and solicitation?
    Advertising is to the public at large, solicitation is personal
  238. A lawyer hired by a corporation represents _________________ but not ____________.
    • The corporation
    • The individuals who work tehre
  239. Contingent fees are not available in ________, __________or ______________ cases.
    • Criminal
    • Family law
    • Civil asset forfeiture
  240. Which is broader, attorney client privilege, or confidentiality?
  241. A client makes _________ decisions, while a lawyer makes __________ ones.
    • Strategic
    • Tactical
  242. A lawyer may not given advice that__________
    Recommends unlawful conduct
  243. If an attorney know of a controlling case directly adverse to his client, he should____________
    disclose it and attempt to distinguish it.
  244. If a lawyer knows a client will enter false evidence, he should
  245. An attorney must have _________ to withdraw
  246. A lawyer must abstain from publicity that is _______________
    likely to have a prejudical effect
  247. An attorney should perform ____ hours of pro bono work per year.
  248. When is a managing attorney responsible for a junior attorney's misconduct?
    When he orders it or knows of it.
  249. A lawyer may break confidentially to rectify perjury in a _____________, but not a __________.
    • Current case
    • Past one
  250. If a lawyer is representing multiple clients, they do not have an expectation of __________________ among them.
  251. What compensation is a person entitled to for the unauthorized practice of law?
  252. How does a lawyer incompetent in an area become competent?
    Through research or consulting with an experienced attorney.
  253. What happens when a lien attaches?
    It becomes effective between the original parties
  254. What happens when a lien is perfected?
    It becomes effective against the world
  255. A PMSI still exists even if it _________ or _____________.
    • Involves future advances
    • Has been refinanced
  256. What are the four types of tangible collateral?
    • Farm products
    • Inventory
    • Consumer goods
    • Equipment
  257. A security interest in an asset usually also applies to the _________ of that asset.
  258. What are the three ways a security interest can attach?
    • Possession
    • Authentication
    • Control
  259. A supergeneric description ("all of the debtor's assets") may be used in a ____________, but not a _______________.
    • Financing statement
    • Security agreement
  260. What is the purpose of a UCC financing statement?
    To perfect a creditor's security interest that has been attached by authentication.
  261. Perfection occurs _________ or _____________ attachment.
    • after 
    • at the same as
  262. How long is a UCC financing statement good for?
    5 years
  263. Which methods of attachment also perfect?
    • Possession
    • Control
  264. What kind of security interests perfects automatically?
    A PMSI in consumer goods.

    Cash proceeds.
  265. Between two unperfected security interests, which wins?
    The first to attach.
  266. Between two perfected security interests, who wins?
    The first to file OR perfect
  267. A PMSI in equipment has priority over prior loans if __________________
    It is perfected within 20 days of debtor receiving goods
  268. How is a security interest in proceeds dated?
    It will date back to the original collateral if perfected within 20 days.
  269. A buyer in the ordinary course has priority over a security interest unless _____________
    The buyer knows the sale violates the security interest.
  270. How do you distinguish a lease from a disguised sale and why is it important?
    Whether lessor is likely to get item back with economic value remaining. Important because it determines whether Article 9 or Article 2A applies.
  271. What has priority between a security interest and a judgment lien?
    Whichever is perfected (interest) or levied (lien) first.
  272. What wins between a statutory lien and a security interest?
    The statutory lien.
  273. A PMSI in equipment if, filed in 20 days, has automatic priority over ____________
    equipment and proceeds
  274. In a trust, the same person cannot be _________________
    The sole trustee and the sole beneficiary.
  275. If a trustee dies, the court will usually
    appoint a new one.
  276. Definite beneficiaries are required for a __________ trust, indefinite beneficiaries are required for a __________ trust.
    • Charitable
    • Private
  277. A trust purpose is not valid if it is _________, _________, or __________.
    • Illegal
    • Against public policy
    • Impossible
  278. What is the doctrine that uses an impossible charitable trust for the next best purpose?
    Cy Pres
  279. A trust may be terminated by consent of ____ beneficiaries, only if ________________
    • All
    • No material purpose would be frustrated
  280. A self-dealing transaction by a trustee becomes __________
  281. A trustee may adjust between principle and income in order to ___________
    treat all beneficiaries fairly.
  282. Will a void forfeiture provision (such as forfeiture on marriage, invalid a gift in a trust?
  283. What is a res?
    The property that is subject to a trust.
  284. An honorary trust may be created for the care of _________ or __________.
    • Animals
    • Graves
  285. When are oral inter vivos trusts enforceable?
    When their terms can be established by clear and convincing evidence.
  286. Can there be a secret trust in NC?
    No, not in North Carolina.
  287. Beneficiaries get the __________ of a trust, while remaindermen get the _____________.
    • Income
    • Principle
  288. Trespass is an interference with the right of ____________
  289. Marital communication privilege does not apply in ______________
    actions between the spouses.
  290. Consent will be implied to a tort if ___________________
    The plaintiff was not in a condition to consent, but a reasonable person would have.
  291. When is consent a defense to invasion of privacy?
    When there is actual consent.
  292. A defendant may withdraw a guilty plea because of ___________________
    Ineffective assistance of counsel
  293. What is the order of intestacy?
    Spouse, descendents, parents, other relatives, state
  294. How long must a beneficiary survive a decedent to take property?
    120 hours unless stated otherwise in will.
  295. Beneficiaries of a will have a homestead exemption of __________
  296. Under a will, a spouse receives a year's allowance of _____________, while a child receives a year's allowance of ________.
    • $30,000
    • $5,000
  297. If a spouse is dissatisfied with a will, they may choose to take an _________
    Elective share
  298. The amount of the elective share depends on ____________
    the length of the marriage.
  299. A spouse may take their share of the will, an elective share, or _____
    statutory dower.
  300. A pretermitted child is not included if ______________
    it was clear the will meant to exclude him (by stating or excluding other children)
  301. Who can make a will?
    Any person 18 or older.
  302. A nuncupative will only dispose of _______________ and must be made during ________________ before _______________.
    • Personal property
    • The testator's last illness or peril
    • Two witnesses
  303. Explain dependent relative revocation
    A change to a will can be revoked when the change is made because of a mistake of fact or law, and the testator mistakenly thought another gift would be effective.
  304. When a person is divorced, what happens to gifts to their spouse in the will?
    They are revoked.
  305. What is abatement of a will?
    When gifts are used to pay debts.
  306. What is ademption?
    When a gift in a will fails because the specified property does not exist.
  307. May an insane person make a will?
    Yes, if he understands what his property is and who it is going to.
  308. Undue influence may invalidate all or parts of a will if the testator's ______________
    free will is overpowered.
  309. A nuncupative will __________ change a written will.
  310. Revocation of a will requires _______ and _____________.
    • Intent to revoke
    • A physical act
  311. A lost will requires proof of __________, ____________ and a reason why it is ______.
    • Execution
    • Contents
    • Missing
  312. Who does the anti-lapse statute apply to?
    Testator's grandparent or a lineal descendant thereof
  313. If property is not disposed of specifically or by residue, it is disposed of by _______________
  314. An elective share is __________________
    a percentage of net assets minus property already distributed to spouse.
  315. A will contract must be in writing if it _______________
    concerns real property
  316. Damages for wrongful death pass only by _____________
  317. Share transfer restrictions are enforceable if they are ___________
    • Reasaonable
    • Conspicuous 
    • Not unconscionable
  318. A plaintiff bringing a previously dismissed action who is charged with costs must pay the costs of the previous action within_________
    30 days of a motion by the defendant.
  319. Who decides what witnesses to call?
    The attorney, not the client
  320. What North Carolina law allows a plaintiff to bring suit on the grounds of breach of implied warranty of merchantibility against the manufacturer?
    Chapter 99B
  321. What is the standard for a public employee's official speech?
    Whether the first amendment right outweighs disruption to the workplace
  322. The elements of malicious prosecution are
    • Instituting criminal proceedings
    • Which are resolved favorably
    • Without probable cause
    • For an improper purpose
    • Damages
  323. Libel is per se if it is _______________
    Defamatory on its face
  324. Slander is per se if it is about
    • Business skill
    • Having a disease
    • Crime of moral turpitude
  325. A default judgment cannot be had if the person charged ____________
    Has filed an answer, even a late one
  326. Post separation support is awarded if the other spouse is _____________ and support is ________________
    • A dependant spouse
    • Equitable
  327. Can marital misconduct be considered for alimony, post-separation support, and equitable division?
    • Yes for alimony and post separation support
    • No for equitable division
  328. What are two forms of marital misconduct?
    • Adultery
    • Abandonment
  329. Miranda warning only need by given when there is _____________________
    Custodial interrogation