Virginia July 2015 Bar Exam Hangout Forum

[jas31]

[GULCPerson]

Got 2 quick civ pro questions

1) If D gives a waiver to P for service then D's time to file an answer is extended to 60 days from 21 days, or 90 days if D is outside US. Does a waiver also extend time to file a pre-answer motion (12b motions) as well? Or is stuck at 21 still?

Should cover a 12(b)(6) motion as well.

VA Code § 8.01-286.1(C)
...defendant that, before being served with process, timely returns a waiver so requested is not required to serve a grounds of defense or other responsive pleading to the motion for judgment or other initial pleading until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if the defendant's address was outside the Commonwealth.[/quote]

2) Is 21 days for filing answer the rule for D's that are outside US as well? Because it doesn't make sense to me that if you get a waiver suddenly the time to answer is split based on geography (60 days vs 90 days) but with no waiver, there is one time applicable to both situations.

Agree that this makes no sense, but the Rule suggests that the geographic distinction is only for waiver.

"Rule 3:8. Answers, Pleas, Demurrers and Motions.
(a) Response Requirement. A defendant shall file pleadings in response within 21
days after service of the summons and complaint upon that defendant, or if service of the
summons has been timely waived on request under Code § 8.01-286.1, within 60 days
after the date when the request for waiver was sent, or within 90 days after that date if the
defendant was addressed outside the Commonwealth."

EDIT: Wait, you said outside the US? Isn't the rule outside Virginia? That's what the Themis outline says, although I feel like I saw someone say U.S. also. Did the lecturer get it wrong?

[BelugaWhale]

Ok, I'm talking about federal civ pro, not VA civ pro.

The reason I ask is this

FRCP 4
(3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States.

it only specifies that an answer gets the 60 day extension, not pre-answer motions

[GULCPerson]

I have a specific domestic relations question. Spoilers because it's on the Themis practice essay exam assigned today.

[+] Spoiler

A woman decides to leave her husband. She tells him that she is leaving him, walks out the door, as he yells "Good Riddance!". She moves across the country. They never co-habitate again.

Can the man bring a claim for divorce on the grounds of abandonment/willful desertion? I thought the answer would be yes, because it's the deserter's intent that matters, and the non-deserting spouse has no obligation to voice any objection or attempt to reconcile.

Model Answer: No, because his statement "Good Riddance!" means that they separated by mutual consent, and therefore he wasn't abandoned.

Does that distinction make sense to anyone else? If he doesn't have to object to her leaving, saying "good riddance" strikes me as a totally reasonable statement that shouldn't amount to his consenting to separate.

[BelugaWhale]

I have a specific domestic relations question. Spoilers because it's on the Themis practice essay exam assigned today.

[+] Spoiler

A woman decides to leave her husband. She tells him that she is leaving him, walks out the door, as he yells "Good Riddance!". She moves across the country. They never co-habitate again.

Can the man bring a claim for divorce on the grounds of abandonment/willful desertion? I thought the answer would be yes, because it's the deserter's intent that matters, and the non-deserting spouse has no obligation to voice any objection or attempt to reconcile.

Model Answer: No, because his statement "Good Riddance!" means that they separated by mutual consent, and therefore he wasn't abandoned.

Does that distinction make sense to anyone else? If he doesn't have to object to her leaving, saying "good riddance" strikes me as a totally reasonable statement that shouldn't amount to his consenting to separate.

[+] Spoiler

yah i did this question and came out the same way you did. I think it's a poorly designed borderline question that could go either way

[3|ink]

Do you guys intend to memorize classes of crimes? I heard it isn't a heavily tested part of criminal law in Virginia.

[jas31]

Is there really no spell check function enabled in Exam4 for us?

[GULCPerson]

Okay, my back-and-forth with Themis about their inconsistent model answers has gotten me nowhere.

My current understanding is that for a joint tenancy in Virginia, specific right of survivorship language is required, otherwise it will be considered a tenancy in common. But for a tenancy by the entirety, right of survivorship is presumed, and express language need not be included.

Does that sound correct?

[IamIn]

Okay, my back-and-forth with Themis about their inconsistent model answers has gotten me nowhere.

My current understanding is that for a joint tenancy in Virginia, specific right of survivorship language is required, otherwise it will be considered a tenancy in common. But for a tenancy by the entirety, right of survivorship is presumed, and express language need not be included.

Does that sound correct?

Correct!

[3|ink]

Okay, my back-and-forth with Themis about their inconsistent model answers has gotten me nowhere.

My current understanding is that for a joint tenancy in Virginia, specific right of survivorship language is required, otherwise it will be considered a tenancy in common. But for a tenancy by the entirety, right of survivorship is presumed, and express language need not be included.

Does that sound correct?

Barbri says this is correct.

[GULCPerson]

Thanks to both of you.

[BelugaWhale]

VA Civ Pro rules on impleader is confusing me.

When does the defendant, as 3rd party plaintiff, need to implead? My understanding is that the defendant has up to 21 days after he files a responsive pleading to the original complaint from the original Plaintiff, to file his 3rd party complaint. And thereafter, he needs to ask for leave of court. Is that right?

[3|ink]

VA Civ Pro rules on impleader is confusing me.

When does the defendant, as 3rd party plaintiff, need to implead? My understanding is that the defendant has up to 21 days after he files a responsive pleading to the original complaint from the original Plaintiff, to file his 3rd party complaint. And thereafter, he needs to ask for leave of court. Is that right?

This is what the barbri book says.

[IamIn]

Ok, I am losing my mind here.. Is Virginia a lien theory Jx or a title theory one? I can't find the answer in the outline, and googling didn't help---some sources says it's one, and others say it's another.

[BelugaWhale]

Anybody know what to expect logistically?

Like when the morning sessions starts, when break is, how long break is, when we do afternoon session, is there food nearby, etc.

[GULCPerson]

Anybody know what to expect logistically?

Like when the morning sessions starts, when break is, how long break is, when we do afternoon session, is there food nearby, etc.

At least some of these are answered in the instruction letter (first day starts at 8:15, second day at 9:00). I think that's the most detail that's available about how the day will run.

[3|ink]

Ok, I am losing my mind here.. Is Virginia a lien theory Jx or a title theory one? I can't find the answer in the outline, and googling didn't help---some sources says it's one, and others say it's another.

lien

[IamIn]

Ok, I am losing my mind here.. Is Virginia a lien theory Jx or a title theory one? I can't find the answer in the outline, and googling didn't help---some sources says it's one, and others say it's another.

lien

Thanks!

[UVAIce]

But just so you know, Virginia is a lien theory state but most of the mortgages in the state end up actually being a Deed of Trust. This puts the title in the hands of a third-party trustee until such time the mortgagee (if that is even the right terminology with a Deed of Trust) pays off the mortgage or defaults. It ends up speeding up the "foreclosure process." That's probably what's throwing you off about the law.

[3|ink]

For some reason beyond reason, I find wills easy to learn and trusts super hard to learn. And Barbri only gives like 6 trusts essays. That's kind of odd considering that Wills/Trusts are supposedly the most frequently tested topics, equal only to federal and VA civ pro.

[IamIn]

But just so you know, Virginia is a lien theory state but most of the mortgages in the state end up actually being a Deed of Trust. This puts the title in the hands of a third-party trustee until such time the mortgagee (if that is even the right terminology with a Deed of Trust) pays off the mortgage or defaults. It ends up speeding up the "foreclosure process." That's probably what's throwing you off about the law.

Yes, thank you. I think the terminology is still the same (I just think you meant the "mortgagor")

[IamIn]

For some reason beyond reason, I find wills easy to learn and trusts super hard to learn. And Barbri only gives like 6 trusts essays. That's kind of odd considering that Wills/Trusts are supposedly the most frequently tested topics, equal only to federal and VA civ pro.

Themis gave us only a couple of Trusts essays; however, some wills essays also tested on trusts.
According to the chart they gave us, Trusts are not tested super often (as opposed to Wills).

[UVAIce]

But just so you know, Virginia is a lien theory state but most of the mortgages in the state end up actually being a Deed of Trust. This puts the title in the hands of a third-party trustee until such time the mortgagee (if that is even the right terminology with a Deed of Trust) pays off the mortgage or defaults. It ends up speeding up the "foreclosure process." That's probably what's throwing you off about the law.

Yes, thank you. I think the terminology is still the same (I just think you meant the "mortgagor")

Yeah, it's the mortgagor. The only thing to watch out for is that I'm fairly certain that a Deed of Trust does break a joint tenancy since title actually passes to a third-party.

[IamIn]

But just so you know, Virginia is a lien theory state but most of the mortgages in the state end up actually being a Deed of Trust. This puts the title in the hands of a third-party trustee until such time the mortgagee (if that is even the right terminology with a Deed of Trust) pays off the mortgage or defaults. It ends up speeding up the "foreclosure process." That's probably what's throwing you off about the law.

Yes, thank you. I think the terminology is still the same (I just think you meant the "mortgagor")

Yeah, it's the mortgagor. The only thing to watch out for is that I'm fairly certain that a Deed of Trust does break a joint tenancy since title actually passes to a third-party.

That's what I'm confused about. Because that's what happens in title theory states.

[3|ink]

For some reason beyond reason, I find wills easy to learn and trusts super hard to learn. And Barbri only gives like 6 trusts essays. That's kind of odd considering that Wills/Trusts are supposedly the most frequently tested topics, equal only to federal and VA civ pro.

Themis gave us only a couple of Trusts essays; however, some wills essays also tested on trusts.
According to the chart they gave us, Trusts are not tested super often (as opposed to Wills).

Thanks.