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[Agoraphobia]

Question ID:996

Question
The owner in fee simple of a small farm

The explanation I saw for this somewhere reasoned that the tenant had also received just compensation for the condemnation. Therefore the tenant suffered no economic loss and was still bound by the lease. Also, its one of those irritating questions where you can't add in logical inferences (like why would you lease a farm if you weren't going to till it), but must stick to what's in the pattern.

[GertrudePerkins]

Hey all, been lurking the past week or so. Gleaned a lot of helpful info. On the topic of being technical as shit, the above question annoyed me. I understand the rule, but think answer A is the better answer. Who would enter a ten-year lease of thirty acres, including a farm, that was not using the farm and land?

Just want to +1 your irritation with this question.

[elysiansmiles]

I'm bummed that Themis won't even try to answer my substantive law questions anymore. I get that they needed a cutoff point, but couldn't they at least do something like "Questions asked after the 24th MAY get answered, but there's not guarantee we'll get to it in time"? I have a bunch of questions that have come up since then, mostly stuff like - "I just answered this question about secured transactions (question #1494) - the model answer didn't discuss how Maryland has a presumption that collateral taken is equal to the debtor's obligation and wipes out the debt when it talked about the deficiency judgment against the debtor. Is it inappropriate to talk about that/am I applying that rule wrong?"

I would post it here but gosh, its just too much to ask any of you to go through. Besides, who really understands secured transactions, anyway?

[Charles Barkley]

Just need to nail down some of the timing rules for civ pro & crim pro state MC and I'll be ready to roll.

[kalvano]

Just need to memorize all the substantive law and I'll be ready.

[releasethehounds]

Maryland has a presumption that collateral taken is equal to the debtor's obligation and wipes out the debt when it talked about the deficiency judgment against the debtor.

Prefacing this with "I don't know Maryland specific law, and so this is general secured transactions stuff" and "secured transactions is a crapshoot for me knowledge-wise," this sounds like one of the possible debtor remedies in the event that the SP does something stupid with the disposition of the property (not commercially reasonable, didn't give notice to all parties, etc).

If it is, so far as I understand the remedy: it's a rebuttable presumption that in the event the SP violated debtor's rights with the disposition of the property whatever the SP got in exchange for the collateral wipes out any deficiency judgment. The SP can rebut this in whole or in part by showing that had he acted in a commercially reasonable manner/not violated debtor's rights, he would have received less than what the debtor owed on the collateral.

So essentially: A's a SP, B's a debtor. B is in the hole for $1000. A repossesses and sells B's...chia pet on which he has a security interest. He doesn't do so in a commercially reasonable manner. A receives $500 and sues B for the deficiency. B says 'whoa, buddy, you can't do that. You messed up the sale and prejudiced me, I shouldn't have to pay the deficiency' and the court says 'yeah, A, what do you have to say about THAT?' and either:

1. A says "well...shit." and the court says "HAH. sucks to be you. Guess the chia pet was equal to the debtor's obligation under your security agreement. No deficiency judgment for you" and then the judge thwacks the gavel and A cries while B skips through a field of debt free daisies.

OR

2. A says "I can miraculously show you that, while I messed up, if I hadn't messed up and instead acted in a commercially reasonable way, i would actually have gotten $700 for the chia pet." The judge will then turn to B and say 'welp, A has successfully rebutted the presumption, in part, that the obligation you owed was equal to what he received in return for the collateral. You are liable for the deficiency to the extent it exceeds what you owed at default minus what A would have received had he acted properly. It sucks, I know. But you owe him $300. At least it isn't $500." And B cries and A...watches with glee because he's a creditor and that's what they do.


I seriously need a nap. I'm pretty sure you really weren't even asking how to apply it. I think really the only point i was trying to make when I started this post was that it sounds like it'd be an appropriate thing to talk about if the SP messed up the sale/disposition somehow or otherwise violated the debtor's rights. I would think this would have to only apply if the debtor's rights were violated: if the SP did everything the SP was supposed to do and did it within the bounds of the law without violating the debtor's rights...there's no logical reason a court would still wipe the deficiency judgment: it'd just encourage debtors to take on debt because they'll never be responsible for paying for it. Assuming this is even what you were talking about.

[locusdelicti]

Just need to memorize all the substantive law and I'll be ready.

lol.

[mrpickles]

CA WILLS QUESTION - Looking for ANY help on this!
In case anyone here knows/or if I could possibly get an answer, the graded CA Wills essay regarding the stock - I believe under those facts that Cal. Probate Code section 102 would allow him to recapture 1/2 of the stock value, because it satisfies the elements under 102 - mainly that there had to be 1) consent by husband as to QCP transmutation, but mainly 2) that the cousin did NOT give "consideration of substantial value" for the stock, as he gave nothing!

I understand that this was not covered in themis at all, but this IS the law - that you can recapture some QCP interest held by the dedecent spouse in joint title with a third party that did not give consideration of substantial value.

Any thoughts???

[kalvano]

Bad Themis, bad bad!

Question
The open-air amphitheater in a city park has been utilized for concerts and other entertainment programs. Until this year, each of the groups performing in the amphitheater was allowed to make its own arrangements for sound equipment and sound technicians. After recurring complaints from occupants of residential buildings adjacent to the city park about intrusive noise from some performances held in the amphitheater, the city council passed an ordinance establishing city control over all sound amplification at all programs held there. The ordinance provided that the Department of Parks would be the sole provider in the amphitheater of sound amplification equipment and of the technicians to operate the equipment "to ensure a proper balance between the quality of sound at such performances and respect for the privacy of nearby residential neighbors." Which of the following standards should a court use to determine the constitutionality on its face of this content-neutral ordinance?

Answers
The ordinance is narrowly tailored to serve a substantial government interest, and does not unreasonably limit alternative avenues of expression.
The ordinance is rationally related to a legitimate government interest, and does not unreasonably limit alternative avenues of expression.
The ordinance is rationally related to a legitimate government interest and restricts the expressive rights involved no more than is reasonable under the circumstances.
The ordinance is substantially related to a legitimate governmental interest and restricts the expressive rights involved no more than is reasonable in light of the surrounding circumstances.


Rationale:
Answer choice A is correct. The ordinance is a restriction on the time, place, and manner of expression in a public forum (the city park) but is content-neutral as to both subject matter and viewpoint. It therefore must be narrowly tailored to serve a significant government interest and leave open alternative channels of communication for the speaker, which occurs here because groups can still hold concerts in the city park. (Note that if the restrictions were not content-neutral, strict scrutiny would apply.) Answer choice B is incorrect because it articulates, essentially, the rational basis test, when a stricter standard should apply. Answer choice C is incorrect because it again articulates the rational basis test similar to answer choice B. Answer choice D is incorrect because it states the intermediate scrutiny test, which is also inapplicable to restrictions on time, place, and manner of expression with regard to regulation of speech.

That's not a content regulation at all, that's a noise ordinance.

[mrpickles]

CA WILLS QUESTION - Looking for ANY help on this!
In case anyone here knows/or if I could possibly get an answer, the graded CA Wills essay regarding the stock - I believe under those facts that Cal. Probate Code section 102 would allow him to recapture 1/2 of the stock value, because it satisfies the elements under 102 - mainly that there had to be 1) consent by husband as to QCP transmutation, but mainly 2) that the cousin did NOT give "consideration of substantial value" for the stock, as he gave nothing!

I understand that this was not covered in themis at all, but this IS the law - that you can recapture some QCP interest held by the dedecent spouse in joint title with a third party that did not give consideration of substantial value.

Any thoughts???

Don't know if anyone is interested, but I found the answer. So I don't know why, but for the "model" answer to CA Wills Graded Essay #8, they used their own Themis Sample, not a CA Bar Model answer.
So I went and found the model CA answers, and indeed, this is what a model answer says - why is the Themis answers to blatantly wrong?? I mean, it didn't even raise the issue.

CA MODEL:
"Under California Law, a surviving spouse may set aside to the extent of one half any transfer or gift of quasi-community property at death when the decedent spouse died domiciled in California, that the decedent spouse did not receive substantial consideration for the gift, and the decedent spouse had retained an ownership or use interest in the property. Here, Wilma may have made the transfer, and at her death the joint tenancy may have passed her interest automatically over to Carl, but Hal will be able to set aside to the extent of ½ of the interest because it was a gift and she had retained an ownership interest in the property at the time of her death."

[kalvano]

In practice, if anyone ever tells me "I have a deed to such-and-such property, but I haven't recorded it yet...," I am going to punch them square in the face.

[elysiansmiles]

In practice, if anyone ever tells me "I have a deed to such-and-such property, but I haven't recorded it yet...," I am going to punch them square in the face.

"I just put it in my drawer/safe deposit box/never picked it up from my rich uncle's house, and forgot I had it. Come to think of it, I haven't been down to that land in [number of year required for adverse possession plus 1], so I might want to go check it out."

[kalvano]

My dad has been in practice for 47 years and said unrecorded deeds have happened maybe 2 or 3 times.

[yeff]

Also, too, "I conveyed this land to my son, three years ago. Guess it's time to sell it."

[09042014]

Also, too, "I conveyed this land to my son, three years ago. Guess it's time to sell it."

I don't get why the law even allows this shit. I'd just say, "fuck it, you can only convey it once. "

[Bikeflip]

Also, too, "I conveyed this land to my son, three years ago. Guess it's time to sell it."

I don't get why the law even allows this shit. I'd just say, "fuck it, you can only convey it once. "

I bet states have a provision to cover this scenario, as it sounds similar to fraud.

[yeff]

yeah its gotta be fraud, but the issue is whether the fool that didn't record or the fool that got defrauded gets the place.

[forza]

Lol at NY's DOOMSDAY instructions. QUIET SNACKS ONLY, people.

Settled on Swedish fish. If the kid next to me gets away with cashews, sun chips or hot and spicy cheezits (my faves), I'm gonna rage.

[Bikeflip]

yeah its gotta be fraud, but the issue is whether the fool that didn't record or the fool that got defrauded gets the place.

Right, and I'll let the recording statutes do their work, for bar purposes.

[locusdelicti]

In practice, if anyone ever tells me "I have a deed to such-and-such property, but I haven't recorded it yet...," I am going to punch them square in the face.

"I just put it in my drawer/safe deposit box/never picked it up from my rich uncle's house, and forgot I had it. Come to think of it, I haven't been down to that land in [number of year required for adverse possession plus 1], so I might want to go check it out."

Old Man: "I want my daughter to have this house, but if she ever wears a yellow dress, I want my grandchildren's pet cats who reach the age of 23 to have it, because no reason, but if any of the cats have kittens, then I want it to go back to my dead daughter's estate. can I do that?"

Lawyer: "...you could just deed it to your daughter."

Old Man: "But the cats."

Lawyer: "..."

Old Man: "Ok, here's my deed. Take this but don't give it to my daughter yet because I still might change my mind, and I'm 95 but I don't have a will. Oh, and I described the property using hand gestures; I hope that's enough. I can't remember the metes and bounds, or my address."

*dies*

Daughter: "GIMME MY HOUSE."

Cats: "GIMME MY EXECUTORY INTEREST."

Executor: "RAP."

Lawyer: "Kill me."

[ragnarok545]

In practice, if anyone ever tells me "I have a deed to such-and-such property, but I haven't recorded it yet...," I am going to punch them square in the face.

"I just put it in my drawer/safe deposit box/never picked it up from my rich uncle's house, and forgot I had it. Come to think of it, I haven't been down to that land in [number of year required for adverse possession plus 1], so I might want to go check it out."

Old Man: "I want my daughter to have this house, but if she ever wears a yellow dress, I want my grandchildren's pet cats who reach the age of 23 to have it, because no reason, but if any of the cats have kittens, then I want it to go back to my dead daughter's estate. can I do that?"

Lawyer: "...you could just deed it to your daughter."

Old Man: "But the cats."

Lawyer: "..."

Old Man: "Ok, here's my deed. Take this but don't give it to my daughter yet because I still might change my mind, and I'm 95 but I don't have a will. Oh, and I described the property using hand gestures; I hope that's enough. I can't remember the metes and bounds, or my address."

*dies*

Daughter: "GIMME MY HOUSE."

Cats: "GIMME MY EXECUTORY INTEREST."

Executor: "RAP."

Lawyer: "Kill me."

Hehe, nice ^

[Catleesi]

In practice, if anyone ever tells me "I have a deed to such-and-such property, but I haven't recorded it yet...," I am going to punch them square in the face.

My favorite questions right now are the ones that a) deal with intent (because clearly it is known in every case whether the defendant intended his actions, and he never says "I didn't intend to kill her") and b) the ones that ask how much the plaintiff can recover in damages (because a defendant who lost his job and won't pay your $50k contracting bill will find the money and pay you if you get a judgment against him, or otherwise will not get that lien discharged in bankruptcy).

[lionelhutz123]

NYMQ spoiler.

Now am I wrong, or did this question flip the parties in the answer options? Both the call of the question and the explanation seem to suggest there was a total integration barring an contradictory evidence under the parol evidence rule, but the answer inexplicably is that the parol evidence should be introduced. WHAT AM I MISSING?!

Question
Defendant, a shoe importer/exporter, telephoned Plaintiff, a shoe wholesaler. Defendant and Plaintiff regularly did business both buying and selling shoes to one another. In December, the parties discussed the purchase of shoes. After the conversation, Plaintiff sent Defendant a dated confirmation slip, which included the following terms: "WE HAVE SOLD TO YOU 250,000 SHOES." The confirmation slip called for delivery the following August. Defendant's treasurer signed the slip and returned it to Plaintiff five days later. By letter dated in July, Plaintiff notified Defendant he was awaiting instructions on how to deliver the shoes to Plaintiff. Defendant responded by letter stating that Plaintiff was mistaken, and that Defendant intended to sell shoes to Plaintiff rather than make a purchase. To cover, Plaintiff sold the shoes at a loss, and brought suit against Defendant. Plaintiff moved for summary judgment, and Defendant sought admission of parol evidence to prove the parties' intent was to purchase rather than sell Plaintiff shoes. How should the court rule on Defendant's request for admission of parol evidence?
Answers
Deny the motion, because triable issues of fact exist as to whether the confirmation slip signed by Defendant was intended to be the final expression of Defendant and Plaintiff's agreement
Deny the motion, because parol evidence does not bar evidence offered to show that a contract between the parties never existed
Deny the motion, because the confirmation slip failed to include an express indication that Defendant and Plaintiff intended the slip to be the final expression of their agreement
Grant the motion, because the confirmation slip was intended to be the final expression of Defendant and Plaintiff's agreement
Rationale:
Answer choice D is correct. The parol evidence rule does not apply if the document is determined not to be an integration, such as a preliminary negotiation document or tentative draft agreement. Here, the essential terms of the transaction are plainly set forth in the confirmation slip: that Plaintiff sold 250,000 shoes to Defendant. Defendant's agent signed and returned the confirmation slip signifying acceptance of these terms. Nothing in the confirmation slip suggests it was to be a memorandum of a preliminary or tentative understanding with respect to these terms. On the contrary, the slip clearly demonstrates the final expression of parties' agreement that "WE HAVE SOLD TO YOU 250,000 shoes." The confirmation does not describe a bargain to be made in the future, but expresses a meeting of the minds as to completed essential terms - the sale of 250,000 shoes. As such, answer choice A is incorrect. Answer choice B is incorrect because, although UCC § 2-202 does not bar the use of parol evidence to show that there was never a contract, the only dispute here is whether the agreement was for the purchase or sale of shoes. There is no requirement that the writing itself contain express terms that this is the final expression of the agreement. Thus, answer choice C is incorrect.

[antonious13]

Lol at NY's DOOMSDAY instructions. QUIET SNACKS ONLY, people.

Settled on Swedish fish. If the kid next to me gets away with cashews, sun chips or hot and spicy cheezits (my faves), I'm gonna rage.

You guys get snacks?!

[Bikeflip]

Lol at NY's DOOMSDAY instructions. QUIET SNACKS ONLY, people.

Settled on Swedish fish. If the kid next to me gets away with cashews, sun chips or hot and spicy cheezits (my faves), I'm gonna rage.

You guys get snacks?!

Where are you? Many places are getting snacks.