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MEE practice rules Flashcards

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1
Q

what must a secured party do before disposing of collateral on default

A
  • send debtor + secondary obligor(s) reasonable authenticated notification of disposition
  • does not apply to collateral that is perishable, quickly declining in value, or is of a type customarily sold on a recognized market
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2
Q

when may a court modify the terms of a trust under common law

A
  • unanticipated change of circs occurs
  • which defeats the existing purpose(s) of the trust
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3
Q

when may a court modify the terms of a trust under the trust act thingy

A
  • unanticipated change of circs
  • defeats existing purpose(s) of the trust
  • modification may not harm anyone with a valid interest (e.g., remaindermen) in the trust
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4
Q

cy pres

A

when no longer possible to fulfill bequest to charity b/c charity no longer exists, court will attempt to substitute a similar charity with similar objectives to receive the gift

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5
Q

when will most courts find a defendant acted knowingly wrt fact they aren’t sure about

A
  1. defendant is aware of a high probability of a fact’s existence &
  2. defendant deliberately avoids learning the truth
  • a few jurisdictions require actual knowledge
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6
Q

Is commercial puffery considered a “false statement?”

A

No

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7
Q

what does an attorney who presents a pleading to a court certify

A

to best of knowledge, information, and belief:
(1) doc not presented for improper purposes
(2) claims, ds, & other legal contentions warranted by existing law or non-frivolous arguments about law
(3) factual contentions have evidentiary support or will likely after reasonable opp for investigation/discovery
(4) denials of factual contentions are either warranted on evidence or reasonably based on belief or lack of info

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8
Q

what happens if court finds representations attorney certifies by presenting pleadings untrue

A

it has discretion to impose sanctions on the party or the party’s attorney

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9
Q

what is required for sanctions to be ordered

A

due process

  1. notice to offending party
  2. opportunity to be heard
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10
Q

under safe harbor rule, what must a party do before filing motion for sanctions

A
  1. serve motion upon opposing party
  2. provide the opposing party with 21 days to withdraw or correct the offending pleading
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11
Q

court’s discretion in imposing sanctions

A

significant

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12
Q

What is the extent of sanctions a court will impose (I.e., the standard)

A

what would be sufficient to deter repetition of the conduct or comparable conduct by others

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13
Q

reqs of order imposing sanctions

A

describe sanctioned conduct and explain the basis for sanctions

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14
Q

what can a requesting party do if a party fails to make an admission and it is later proved the matter is true

A

move that the party who failed to admit pay the reasonable expenses, including attorney’s fees, incurred in making that proof.

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15
Q

upon whom may a court impose sanctions

A

any attorney, law firm, or party that violated Rule 11 or is responsible for the violation

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16
Q

when are settlement agreements made during the divorce process generally valid

A

if voluntarily made

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17
Q

when may settlement agreements made during the divorce process be set aside

A

if it is found to be substantially unfair due to fraud, overreaching, or duress

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18
Q

potentially significant factor for substantive and procedural unfairness of settlement agreements made during the divorce process, in some states

A

lack of independent counsel for each party

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19
Q

if one ex-spouse had an attorney and the other didn’t in contemplation of the divorce settlement agreement

A

ex-spouse with attorney may be found to have had a fiduciary duty to spouse who did not have counsel

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20
Q

how does fault-based divorce figure into property distribution

A
  • ml: eliminated from consideration in many states, at least wrt matters not related to the parties’ finances
  • some states restrict the use of adultery claims to determining alimony while other states consider adultery for fault only when egregious
  • consideration given if dissipation of assets or other financial misconduct by one spouse
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21
Q

how are professional degrees/licenses dealt with during property distribution in divorce?

A

most states hold they are not property interests subject to equitable distribution

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22
Q

alimony considerations

A
  1. parties respective financial resources and needs
  2. contributions each has made to the marital relationship (financially, care in the home)
  3. duration of marriage

alimony is highly discretionary

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23
Q

reimbursement alimony

A

some states require consideration of one spouse’s support for the other’s education or training and may mandate reimbursement for such contributions or may order rehabilitative alimony (e.g., when the other spouse quits school to support)

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24
Q

can a codicil republish a document that is not a valid will?

A

by most accounts, no. Some states probate statutes allow a court the power to validate a will not executed in accordance with the statute of wills if the evidence is clear and convincing that the testator intended the document to be a will.

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25
what can republication of a will do
cure defects that might otherwise affect the validity of bequests made under a will
26
incorporation by reference
a writing that is not valid as a will (i.e., unattested), but is in existence when a will is executed, maybe incorped by ref into the will if: 1. will manifest an intent to incorp the writing 2. writing to be incorped is identified with reasonable certainty
27
Can the word "republish" be used to incorp by reference?
No; it is a term of art that has legal consequences
28
slayer statute
- murderers often barred from inheriting under slayer statute - only apply when heir killed decedent whose estate is at issue
29
ademption by extinction & what are rights of devisee of real property adeemed by extinction
- **property specifically bequeathed or devised not in T's estate at death** - occurs even if property has been exchanged for other property - presumption against classifying a devise as specific; to rebut, language creating the devise must unambiguously be in form of specific devise - **under uniform probate code, specific devisee has right to any real property acquired as replacement**
30
Wills: stock splits and dividends w/ additional shares, who do the additional shares go to
- virtually all jurisdictions treat the same way, additional shares obtained by testator go to specific devisee
31
- What covenant is implied in contracts conditioned on loans? - what promise is generally implied in such contracts? What is the promise trying to avoid?
- under modern law contain implied covenant of good faith and fair dealing - to avoid illusory promises, courts often imply a promise to use reasonable efforts to bring about a condition to that party's performance
32
Expectation damages are the __ measure of damages for breach of contract. They aim to give the non-breaching party the ____ of his bargain. They must be ____ and proved with _____.
- the normal measure of damages for breach of contract is expectation damages - aim to give the non-breaching party the benefit of his bargain - must be foreseeable and proved with reasonable certainty
33
punitive damages (breach of contact)
- not generally recoverable in boc cases - UNLESS conduct a tort for which punitive damages may be recovered - available in tort cases involving willful, wanton, or malicious conduct
34
reqs for non-expert opinion testimony
(1) rationally based on perception of witness (2) helpful to clear understanding of testimony or to determination of fact in issue (3) not based on scientific, technical, or other specialized knowledge
35
habit evidence
- narrow range of highly probative traits that are automatic, invariable patterns of behavior - characterized by the words "always" or "invariably" - a regular response to a given situation done without a high degree of forethought - need not be corroborated
36
what is each partner in relation to the partnership, for business purposes?
an agent of the partnership
37
Do partners have equal rights to manage and conduct partnership business?
Yes
38
do acts of partners carrying on ordinary partnership business bind the partnership?
yes
39
when do a partner’s acts *not* bind the partnership
1. partner has no authority to act in the manner, and 2. person partner is dealing with has knowledge that he has no such authority
40
does a partner acting in ocob need to seek prior approval? Exception?
no, unless they have reason to believe other partners might not approve or might expect to be consulted
41
dissocation, basic
withdrawal of partner from partnership
42
when and how may partner dissociate
- power to do so at any time, rightfully or wrongfully - by expressly stating intention
43
when is partner dissociated
when partnership receives notices of partner's express intent to withdraw
44
is dissociation from at will partnership wrongful?
no, so long as not in breach of an express provision of the partnership agreement
45
what must a partnership do wrt dissociated partner's interest if they dissociate and the partnership doesn’t dissolve & wind up?
partnership must purchase dissociated partner's interest for a buyout price
46
what is the buyout price of a dissociated partner's share
must be the greater of either (1) the liquidation value of the partnership's assets based on a sale of the entire business as a going concern, or (2) if no purchase of interest within 120 days after written demand for payment, partnership estimates & pays buyout price
47
liability of members of llc (up to what amount, unless)
up to the amount member contributed unless there is cause to "pierce the corporate veil"
48
when must corporate bylaws be adopted and why then
during organizational meeting as part of completing the organization of the corporation
49
rebuttable presumption created by business judgment rule
when making a business decision, directors & officers acted: - on informed basis - in good faith - with honest belief decision in corp's best interest
50
llc def'n - incorped association? - # members? - how organized & operated?
- unincorped association - without perpetual duration - 1+ members - organized & operated pursuant to LLC stat or operating agreement
51
operating agreement
- llc document similar to corp's bylaws - governs internal affairs
52
llc member duty of loyalty
must not compete with llc in the conduct of its business
53
may llc place limits on duty of loyalty?
in majority of states, yes
54
how does an llc place limits on duty of loyalty and under what condition
- include them in operating agreement - on the condition they're not manifestly unreasonable
55
liability provided to members by llc
limited liability
56
when is limited liability not provided to llc members
- proper procedures not followed during dissolution and winding up - court decides to pierce corporate veil
57
operative llc law
uniform limited liability act
58
ulla notice requirements for llc dissolution & why the requirement exists
- llc must provide notice of dissolution to creditors - so creditors can make claims against dissolving entity
59
requirements of llc dissolution notice
explanation of how creditors can enforce their claims
60
consequences if llc does not follow proper procedures in winding up business
- court can enforce creditor's claim against each member - to the extent of each members proportionate share of the claim - up to amt of assets distributed to member during dissolution
61
what is piercing the corporate veil
court disregards separate corporate entity and holds shareholders or affiliated corporations liable on corporation's obligations
62
what must a p demonstrate to pierce a corporate veil
- control so complete that - corp has no separate will or existence of its own - shareholder was alter ego of corp or mere instrumentality of parent corp - corp form used fraudulently or for improper commingling of funds, AND injury or unjust loss resulted to p from such
63
majority/controlling shareholder duty to minority shareholders
- fiduciary duty - refrain from exercising their control to obtain a benefit from the corporation not shared proportionally
64
when can a court of equity intervene to compel the disbursement of dividends (corps)
- if shareholder proves directors' refusal to declare a dividend amounted to - fraud, bad faith, or abuse of discretioni
65
business judgment rule simply put
under bjr, a director or officer who makes a good faith error of business judgment will not have breached his duty of care
66
when does bjr apply and example
- analyzing situations where there isn't self-dealing - ex: analyzing a board's decision to refrain from issuing dividends when majority shareholders are not engaging in self-dealing
67
when is a conflict of interest inherent for directors and officers (corporations)
when director or officer: - contracts w/ corp to buy or sell goods or services, or - has a personal financial interest in the transaction
68
what must officers prove to render self-dealing contracts not-voidable (corporations)
(1) material facts of the conflict disclosed to board (2) transaction validly approved by a majority of disinterested directors (3) material facts disclosed to shareholders (4) transaction validly approved by majority of disinterested shareholders (5) ct determines transaction fair & reasonable to corp
69
when will a contract that otherwise constitutes self-dealing not stand (corporations)
if - an independent corporate fiduciary - in an arm's length bargain - would have bound the corporation to the transaction
70
what does a fiduciary duty of loyalty prohibit directors from taking for their own benefit
any business opportunity that properly belongs to the corporation
71
when may directors take a business opportunity that properly belongs to the corporation for their own benefit
1. opportunity fully disclosed to the corporation 2. corporation given first chance to pursue 3. corporation decides not to pursue OR - corporation could not have taken the opportunity
72
what liability an agent who acts in good faith in making health-care decisions generally shielded from
both criminal and civil liability
73
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