Texas Bar Exam July 2014 Forum

[OklahomasOK]

I thought the trust q went like this, and correct me if I'm wrong.

For irrevocable Trust I, the first three can break through to the principal: the tax lien, the hospital bill ( as necessaries), and child support (as Texas allows alimony and child support to be satisfied out of spendthrift principal). The other two claims cannot and they'd have to wait until distribution.

For the default revocable Trust II, where the settlor is also one of the beneficiary, the protection fails and all five creditors can claim from the entirety of the money given to Trust II. Texas law does not allow self-settled trusts as a way to avoid creditors.

I didn't think the Shopping Channel could because it was Mom's debt, not Sarah's.

[TX129392]

I went with SOF for the first part of the O&G question and probably missed the second part b/c I said the implied easement is absolute because mineral interest is dominant. Hopefully my CREAC carried me home.

I agree on SOF. Also, no present intent to transfer (at least arguably).

Would the dominant mineral estate doctrine apply if the lease wasn't valid in the first place? That's what I thought.

[OklahomasOK]

I went with SOF for the first part of the O&G question and probably missed the second part b/c I said the implied easement is absolute because mineral interest is dominant. Hopefully my CREAC carried me home.

I agree on SOF. Also, no present intent to transfer (at least arguably).

Would the dominant mineral estate doctrine apply if the lease wasn't valid in the first place? That's what I thought.

I thought it was weird. I thought the second question made it sound like the lease was valid, which was unsettling. I first said, "IF THE LEASE IS NEVERTHELESS VALID..." Next I talked about the dominant mineral estate, then I made up some BS about how the covenant not to explore for oil and gas only touched and concerned the severed surface estate and there was no POC/ POE between DOC and the surface leaseholder. It was completely made up, but I think it sounded intelligent and it was in CREAC form so hopefully I'll get something. I think my Consumer Law essay banked a couple points for me anyways

[BCPRO]

Are we positive that DOC had no rights to conduct drilling, even after the severance of the mineral estate and death of Wally? Because I advocated pretty hard for DOC being able to use their implied easement of the surface, and the dominant mineral estate being able to do whatever they want, and that there was no pre-existing use for the accommodation doctrine. I could easily be wrong.

In other news:
My summary:
Wills - holographic will, proving lost will = luckily knew all of that
Wills- intestate distribution wasn't too bad
trusts- spendthrift, came down to knowing difference between revocable/irrevocable and whether creditors can get income vs. principal for necessaries (missed the tax lien part)
LLC and a default GP - knew all of that but wasn't positive on which GP agreement provisions were ok (said the liability provision was unenforceable and the choice of law provision was unenforceable)
no corporations, glad I spent a shit ton of time learning that.
the real property foreclosure sale- knew the basics, not sure if right- sale wasn't done correctly (notice was incorrect and location of sale wrong), no idea about the second part
secured question was easy IMO, answers were BIOCOB, lienholder in business inventory vs. Bank, bank in inventory vs. messed up PMSI in inventory, I think that order is correct.
Family law community property was easy.
Family law prenup- knew the law but I think I argued the wrong side.
Article 2 I knew, not so much with the commercial paper part 3.


I showed up and am glad it's over with. Hopefully MBE did not own me.

For the wills essays, I felt pretty good, hit all the high points and banked some time & points. I think I got most of the big issues on the spendthrift trusts, mentioned the revocable/ irrevocable distinction, not sure if I applied it correctly.

The LLC question was straight-forward but I added some comments about LLCs being a desirable entity to form because of tax benefits and limited liability. The GP question was strange. I didn't have much to say but I think I hit all the high points. I said the liability portion was OK because it didn't really conflict with the DOC/ DOL and the choice of law provision was obviously wrong. Kinda pissed no corporations questions. I knew the piss out of that stuff.

I went with SOF for the first part of the O&G question and probably missed the second part b/c I said the implied easement is absolute because mineral interest is dominant. Hopefully my CREAC carried me home.

I really hedged my bets on real property and memorized the foreclosure rules, banked some points of the first part. I'm pretty sure the bank was required to prove the disclosure because the sale wasn't conducted in connection with the foreclosure. A buyer takes as is at a foreclosure sale, but this was a month later--I don't know though. I felt my made-up rule sounded pretty good.

Family law was pretty straight forward. I think the prenup question was a factual call and I ended up going through the factors to consider when splitting up an estate. Kinda threw everything at the fan in hope I could justify giving him some maintenance.

On secured, I said BIOCOB, Landlord (because automatic perfection in proceeds had lapsed), and Seller (b/c perfection by control). On the last question, which was the toughest. For some dumbass reason I said that implied warranties were not available for farm products. I really had no clue but I didn't think I'd lose many points because express warranties would apply and could not be waived. I said she could give a writing to the bank to stop payment.

On the last question, I though the call of the question was wrong. I thought it would be breaches of contract warranties. Contract warranties apply when you want to enforce against the indorser of the note. I went down the HDC route with Carl saying he was an HDC of a negotiable instrument. I said that the Drawer of the note had a real defense to enforcement for two reasons: 1) insolvency and 2) alteration. She would be liable to the extent of the original obligation, I think.

Congrats everyone. Have a beer (or 5) and try to relax!

For the last UCC question I wrote about the implied transfer warranties

[OklahomasOK]

For the last UCC question I wrote about the implied transfer warranties

I did too, briefly. I had 45 minutes left to answer the last part of Essay 12 so I threw everything I knew about commercial paper at it. Went though all of the elements of negotiability (because YOLO), all of the elements to prove Carl was an HDC. Then I went through all of the possible defenses. Then I talked about transfer warranties briefly and contract actions.

[Burgstaller04]

For the last UCC question I wrote about the implied transfer warranties

I did too, briefly. I had 45 minutes left to answer the last part of Essay 12 so I threw everything I knew about commercial paper at it. Went though all of the elements of negotiability (because YOLO), all of the elements to prove Carl was an HDC. Then I went through all of the possible defenses. Then I talked about transfer warranties briefly and contract actions.

I'm thinking our answer was about 90% the same based on this description.

[DMXdawg]

For the last UCC question I wrote about the implied transfer warranties

I did too, briefly. I had 45 minutes left to answer the last part of Essay 12 so I threw everything I knew about commercial paper at it. Went though all of the elements of negotiability (because YOLO), all of the elements to prove Carl was an HDC. Then I went through all of the possible defenses. Then I talked about transfer warranties briefly and contract actions.

I'm thinking our answer was about 90% the same based on this description.

Commercial paper was my weakest subject. This is what essentially came down to--so let me know if it looks about the same:

Carl was a HDC because he met all the elements. As to the Drawer, she had at least one real defense: her bankruptcy. So she was not liable. The second guy who indorsed the check was not good on his transfer warranties because he had knowledge of the bankruptcy, so he is liable for $500. The person who transferred it to Carl had altered it, so clearly he was liable. My question at this part was the damages--was he also responsible for the $350 damages for the "bad checks" Carl had later in addition to the fraudulent damages from the alteration? I said he was...but I'm not sure.

[Prime]

For the Commercial paper, I just dumped everything on the forger.

[Grapes]

For the other UCC part, you need to discuss the possibility of two remedies--either rejection which the seller can argue against because it was not rejected by delivery because of the lack of inspection (but you should still discuss that inspection may be been precluded by the nailed crates). Rejection has the perfect tender rule. Keep in mind that before the delivery date, seller has an absolute right to cure, and after the delivery date, seller has right to cure in a reasonable time if he in good faith believes his goods were conforming. The other remedy is repudiation, and the standard of proof for that is much higher--substantial nonconformity.

If you hit those points you are in excellent shape!

The remedy I discussed was a stop payment on the check she wrote since the question was asking about nonjudicial remedies. like you said, the repudiation requires a "standard of proof" which seems to imply that it would be judicial.

[Prime]

For the other UCC part, you need to discuss the possibility of two remedies--either rejection which the seller can argue against because it was not rejected by delivery because of the lack of inspection (but you should still discuss that inspection may be been precluded by the nailed crates). Rejection has the perfect tender rule. Keep in mind that before the delivery date, seller has an absolute right to cure, and after the delivery date, seller has right to cure in a reasonable time if he in good faith believes his goods were conforming. The other remedy is repudiation, and the standard of proof for that is much higher--substantial nonconformity.

If you hit those points you are in excellent shape!

The remedy I discussed was a stop payment on the check she wrote since the question was asking about nonjudicial remedies. like you said, the repudiation requires a "standard of proof" which seems to imply that it would be judicial.

Yea, I threw in a stop payment suggestion as well.

[OklahomasOK]

For the other UCC part, you need to discuss the possibility of two remedies--either rejection which the seller can argue against because it was not rejected by delivery because of the lack of inspection (but you should still discuss that inspection may be been precluded by the nailed crates). Rejection has the perfect tender rule. Keep in mind that before the delivery date, seller has an absolute right to cure, and after the delivery date, seller has right to cure in a reasonable time if he in good faith believes his goods were conforming. The other remedy is repudiation, and the standard of proof for that is much higher--substantial nonconformity.

If you hit those points you are in excellent shape!

The remedy I discussed was a stop payment on the check she wrote since the question was asking about nonjudicial remedies. like you said, the repudiation requires a "standard of proof" which seems to imply that it would be judicial.

I wrote the same thing. I was in commercial paper tunnel vision so I just mentioned stop payment.

I forgot to mention the $350 in bank fees. Oh well, I put he could recover against the person making the alteration.

[DMXdawg]

The standard of proof I was referring to doesn't mean that they go to court; but if the issue were to be litigated (say--the Seller takes the buyer to court), then the standard needed to have a good repudiation is higher than a good rejection.

It's like saying perfect tender is a standard of proof--it's the standard that the Buyer needs to show Seller, and if the Seller does not agree AND THEN takes the buyer to court, then it's the standard the court uses. You don't need go to court for a rejection of goods or a repudiation of goods. That would be kind of crazy.

My reading of "judicial remedies" was more along the lines of compensatory damages or foreseeable damages that Buyer can sue for...

EDIT: now that I think about it some more, doesn't a stop payment have to have a justification? A mere stop payment will not absolve Buyer's responsibility to pay Seller. Buyer would still be required to pay seller unless he justify his actions, and then it would go back to whether Buyer had rightfully rejected or repudiated.... It's as if you tell your credit card to stop a payment to a particular vendor. At that time, then you need to show good cause to the credit card company/merchant still. Like if the merchant failed to give conforming goods, services, was fraudulent, etc.

[Neve]

For the other UCC part, you need to discuss the possibility of two remedies--either rejection which the seller can argue against because it was not rejected by delivery because of the lack of inspection (but you should still discuss that inspection may be been precluded by the nailed crates). Rejection has the perfect tender rule. Keep in mind that before the delivery date, seller has an absolute right to cure, and after the delivery date, seller has right to cure in a reasonable time if he in good faith believes his goods were conforming. The other remedy is repudiation, and the standard of proof for that is much higher--substantial nonconformity.

I also discussed the above for remedies on Question 12 - albeit I wasn't expecting that question, and I know it was one of my worst answers. I just kept thinking, "What do I know about UCC Article 2 warranties?" It's been two years since I took Sales of Goods (UCC Art. 2) and I don't remember the nitty-gritty about all that stuff.

[Grapes]

The standard of proof I was referring to doesn't mean that they go to court; but if the issue were to be litigated (say--the Seller takes the buyer to court), then the standard needed to have a good repudiation is higher than a good rejection.

It's like saying perfect tender is a standard of proof--it's the standard that the Buyer needs to show Seller, and if the Seller does not agree AND THEN takes the buyer to court, then it's the standard the court uses. You don't need go to court for a rejection of goods or a repudiation of goods. That would be kind of crazy.

My reading of "judicial remedies" was more along the lines of compensatory damages or foreseeable damages that Buyer can sue for...

EDIT: now that I think about it some more, doesn't a stop payment have to have a justification? A mere stop payment will not absolve Buyer's responsibility to pay Seller. Buyer would still be required to pay seller unless he justify his actions, and then it would go back to whether Buyer had rightfully rejected or repudiated.... It's as if you tell your credit card to stop a payment to a particular vendor. At that time, then you need to show good cause to the credit card company/merchant still. Like if the merchant failed to give conforming goods, services, was fraudulent, etc.

i understood judicial remedies to mean any type of damages the buyer could have gotten for breach of contract. like the buyer would have the option to reject the non-conforming goods, but the remedy under the UCC would be to sue for damages. I'm confusing myself so I'm probably wrong.

Barbri didn't have much material on stop payments. but i don't think an initial stop order payment needs a justification. buts its the bank customer's burden to prove that the person that the check isn't written out to doesn't deserve to get paid.

[Prime]

For the other UCC part, you need to discuss the possibility of two remedies--either rejection which the seller can argue against because it was not rejected by delivery because of the lack of inspection (but you should still discuss that inspection may be been precluded by the nailed crates). Rejection has the perfect tender rule. Keep in mind that before the delivery date, seller has an absolute right to cure, and after the delivery date, seller has right to cure in a reasonable time if he in good faith believes his goods were conforming. The other remedy is repudiation, and the standard of proof for that is much higher--substantial nonconformity.

I also discussed the above for remedies on Question 12 - albeit I wasn't expecting that question, and I know it was one of my worst answers. I just kept thinking, "What do I know about UCC Article 2 warranties?" It's been two years since I took Sales of Goods (UCC Art. 2) and I don't remember the nitty-gritty about all that stuff.

Most of my UCC warranty knowledge came from my consumer transaction course. haha

[Prime]

I'm not complaining but I thought the Consumer essay was gonna include debt collection. I had this awful feeling about that particular subject going into the bar. hah

[OklahomasOK]

I'm not complaining but I thought the Consumer essay was gonna include debt collection. I had this awful feeling about that particular subject going into the bar. hah

Kinda glad it didn't. I was able to really go in depth (if there is such a thing) on the DTPA on that essay to cover for possible short comings on later essays. I wrote a damn treatise on the DTPA.

[Prime]

I'm not complaining but I thought the Consumer essay was gonna include debt collection. I had this awful feeling about that particular subject going into the bar. hah

Kinda glad it didn't. I was able to really go in depth (if there is such a thing) on the DTPA on that essay to cover for possible short comings on later essays. I wrote a damn treatise on the DTPA.

To be honest I was expecting Consumer as follows: Debt Collection >>> Insurance/DTPA >>> Pure DTPA

[DMXdawg]

The consumer transaction essay had a couple subtle points beyond the laundry list/breach of warranty/unconscionability/treble damages commensurate with the knowledge/intentionality.

The first was that the express warranty would not cover "puffery," including "of the highest quality" and some of the other statements. But some statements were subject to the warranty (e.g., Discount had a good reputation when it did not).

Another was differentiating between the liability of the salespeople and the shop.

Finally, whether or not + to whom the wedding costs can be attributed to is a bit tricky.

Otherwise, it was pretty much a straightforward essay with tons of issues to spot.

[txadv11]

So.... besides the obvious task of "job hunting", any advice on what I should be doing between now and early November?

-- Is it worth trying to get the "third year" bar card or whatever they call it? If so, how quickly can I get one?

--DAYL events worth going to? Should I even attempt to get a law clerk job for a few months?

--Also, without going into specifics, IF my C&F was going to be flagged, anyone know how soon I'd hear something? I'm not anticipating any serious issues, because my disclosures were relatively minor (not even an arrest), but I'd still like some peace of mind.

[dallaseagle]

The consumer transaction essay had a couple subtle points beyond the laundry list/breach of warranty/unconscionability/treble damages commensurate with the knowledge/intentionality.

The first was that the express warranty would not cover "puffery," including "of the highest quality" and some of the other statements. But some statements were subject to the warranty (e.g., Discount had a good reputation when it did not).

Another was differentiating between the liability of the salespeople and the shop.

Finally, whether or not + to whom the wedding costs can be attributed to is a bit tricky.

Otherwise, it was pretty much a straightforward essay with tons of issues to spot.

Oh, you have made my day with this post. I included all of this in detail. I think you are exactly right on all of this.

Wedding costs unrecoverable; the treble/treble for intentional on the difference between the amount paid for the ring and its actual value is all the cover he's getting. Defense will rightly say for all we know this woman was going to dump him regardless. And it's unreasonable (be careful throwing that around, but the fact pattern begged for it) to expect covering a massive glitzy wedding to be the baseline from which treble/treble is calculated.

So the wedding costs clearly not a basis for the damages. The gray area would be the psychotherapy, but I think defense wins on that, too. Matters of the heart probably had a lot more to do with that than losing $10k, especially if you're balling like this guy with the thousand guest wedding and honeymoon in Maui.

[aquasalad]

Anyone talk about giving notice to defendant and implications of a settlement offer in the consumer law essay?

[Haymarket]

Anyone talk about giving notice to defendant and implications of a settlement offer in the consumer law essay?

Just that the failed notice was a potential defense. The part about settlement offers seemed unimportant and unrelated, so given the time restraints, I just left it at the notice defense.

[dallaseagle]

Anyone talk about giving notice to defendant and implications of a settlement offer in the consumer law essay?

Just that the failed notice was a potential defense. The part about settlement offers seemed unimportant and unrelated, so given the time restraints, I just left it at the notice defense.

I don't know which question you're talking about, and I don't understand what you mean by "failed notice." I have never heard of that or of "notice defense." The questions didn't ask about any notices, either, if you mean question 6.

[Haymarket]

Anyone talk about giving notice to defendant and implications of a settlement offer in the consumer law essay?

Just that the failed notice was a potential defense. The part about settlement offers seemed unimportant and unrelated, so given the time restraints, I just left it at the notice defense.

I don't know which question you're talking about, and I don't understand what you mean by "failed notice." I have never heard of that or of "notice defense." The questions didn't ask about any notices, either, if you mean question 6.

Under the DTPA, you are required to give a defendant 60 days' notice before filing suit. The question said the buyer's lawyer filed write away. One of the prompts asked what potential defenses the various defendants might raise. All the defendants had this defense, and it allows them to require the court to abate the case to give them their 60 days' notice.