BarBri Bar Review Hangout - February 2016 Exam Forum

[NY_Sea]

Are you guys referring to the 1-200 MBE practice assigned on January 29?

There was a 100 question MBE refresher assigned yesterday.

I only see ONLINE PDF: Complete MPQ Mixed Subject Set 4 (50 Qs)... where is the other 50? Or are you referring to the 2 x 18 questions?

If you are in CA, it's assigned on next Wednesday

Which is nuts, imo... I don't want to be taking a half day less than a week out. I wonder what causes the disparity in when it's assigned?

[Fenixdown]

Ok. So. So far I've memorized the entirety of the Contracts lecture and the Crim Law lectures (with the exception of Double Jeapordy cause fuck that noise). I'm decent with Torts, Con Law and Evidence, prolly will have those memorized soon. Property just turns me retarded so I'm gonna rock some flashcards and hope for the best. If it ain't Landord/Tenant/Easements/Covenants/Equitable Servitudes I'm probably not gonna know it. I memorized all the acronyms, so there's that.

I'm almost done memorizing the Civil Procedure outline. However I'm having trouble with understanding who can sue who in third party practice when impleader is involved. So I have some questions for you Civ Pro wizards out there.

First scenario: P sues D. They're from different jurisdictions. D impleads D2. D and D2 are from the same JD. Is that OK?

Second scenario: P sues D. They're from different jurisdictions. D impleads D2. P and D2 are from the same JD. Is that OK?

Now, expanding upon that. Are the Plaintiff and TPD only allowed to sue each other for things that happened out of the same transaction or occurrence, or can they bring in different claims?

[jackbauer10]

I see. Yeah CA here.

Have you guys been doing mostly essay practice or MBE? I've done very little MBE (about 150 questions) and plan to do about 500 by the end of next week. However, I have done more essays than I can count.

Also CA. I've been doing mostly essays. Spending the mornings reviewing outlines/flashcards, then several hours running through all essays on the assigned subjects. Some I do well on, and the others I just try to practice by typing up rule statements and reviewing them. In the evenings/nights, I drill MBE sets from the Emanuel book (because they are actual MBE questions) and if I have time or feel up to it, I do the assigned MPQs. I'm hovering right around 65-70% on MBEs according to Barbri, so I figure my time now is best spent on memorizing rules rather than trying to learn even more ridiculous nuances that I haven't picked up in the last 8 weeks... Does this sound like I'm on the right track? Thoughts/suggestions welcome.

[BrokenMouse]

.

[BrokenMouse]

.

[MrMustache]

Does anybody know the meaning of the Constitutional provision which states that in federal court a jury trial is guaranteed for civil cases involving at least $20? How does this relate to the AIC in diversity cases and state laws that require certain amount to even be heard (CA - 25K for unlimited, 7.5K/5K for small claims)?

The case would need to get into the federal court in the first place, so it falls back to subject matter jurisdiction stuff. You have a right to jury trial when you are sued in federal court, but there is no Constitutional right to be sued in federal court.

[Sue]

First scenario: P sues D. They're from different jurisdictions. D impleads D2. D and D2 are from the same JD. Is that OK?

Second scenario: P sues D. They're from different jurisdictions. D impleads D2. P and D2 are from the same JD. Is that OK?

Now, expanding upon that. Are the Plaintiff and TPD only allowed to sue each other for things that happened out of the same transaction or occurrence, or can they bring in different claims?

First and second scenarios: assess each claim separately for SMJ. Federal question? Diversity of citizenship? Supplemental jurisdiction (probably yes, because the same transaction/occurrence)?

Third scenario: Plaintiff and TPD are only allowed to bring claims that arise under the same transaction/occurrence as the underlying claim, but the original defendant (third-party plaintiff) may join any other claim against TPD (must have SMJ though).

[swtlilsoni]

First scenario: P sues D. They're from different jurisdictions. D impleads D2. D and D2 are from the same JD. Is that OK?

Second scenario: P sues D. They're from different jurisdictions. D impleads D2. P and D2 are from the same JD. Is that OK?

Now, expanding upon that. Are the Plaintiff and TPD only allowed to sue each other for things that happened out of the same transaction or occurrence, or can they bring in different claims?

First and second scenarios: assess each claim separately for SMJ. Federal question? Diversity of citizenship? Supplemental jurisdiction (probably yes, because the same transaction/occurrence)?

Third scenario: Plaintiff and TPD are only allowed to bring claims that arise under the same transaction/occurrence as the underlying claim, but the original defendant (third-party plaintiff) may join any other claim against TPD (must have SMJ though).

Edit:

After looking at my notes, I think scenario 1 and 2 are both ok as long as common nucleus. as for P's claims, P can only bring it against D2 in scenario 1, but not scenario 2 (that destroys complete diversity)

[MrMustache]

Property question.

So, there's an implied warranty of a marketable title when buyer and seller enter into a land sales contract. If there was an easement the buyer didn't know about, the title is unmarketable. However, if buyer didn't know about the easement and still bought the property on closing date, the contract merges with the deed and it no longer matters that the title was unmarketable. Correct?

Now, assuming the seller sold a General Warranty deed, can the buyer still sue the seller for violation of the present covenant against encumbrances because there's an easement on the land? Or does the fact that the contract merged with the deed somehow prevent this?

[swtlilsoni]

Property question.

So, there's an implied warranty of a marketable title when buyer and seller enter into a land sales contract. If there was an easement the buyer didn't know about, the title is unmarketable. However, if buyer didn't know about the easement and still bought the property on closing date, the contract merges with the deed and it no longer matters that the title was unmarketable. Correct?

Now, assuming the seller sold a General Warranty deed, can the buyer still sue the seller for violation of the present covenant against encumbrances because there's an easement on the land? Or does the fact that the contract merged with the deed somehow prevent this?

I don't think merger prevents that, merger only prevents the warranties that are in the contract. encumrances is a deed warranty (not a contract warranty) so those are still good

[THE_U]

Property question.

So, there's an implied warranty of a marketable title when buyer and seller enter into a land sales contract. If there was an easement the buyer didn't know about, the title is unmarketable. However, if buyer didn't know about the easement and still bought the property on closing date, the contract merges with the deed and it no longer matters that the title was unmarketable. Correct?

Now, assuming the seller sold a General Warranty deed, can the buyer still sue the seller for violation of the present covenant against encumbrances because there's an easement on the land? Or does the fact that the contract merged with the deed somehow prevent this?

I don't think merger prevents that, merger only prevents the warranties that are in the contract. encumrances is a deed warranty (not a contract warranty) so those are still good

Yeah, I think is exactly right.

On page 46 of the property CMR, it says that "When title passes the land sale K is extinguished (along with the implied covenant of marketability)" and that "The only basis for a suit by Buyer after title passes is an express covenant, if any, in the deed (Seisen, Right to Convey, Encumbrances, etc.)

[MrMustache]

Property question.

So, there's an implied warranty of a marketable title when buyer and seller enter into a land sales contract. If there was an easement the buyer didn't know about, the title is unmarketable. However, if buyer didn't know about the easement and still bought the property on closing date, the contract merges with the deed and it no longer matters that the title was unmarketable. Correct?

Now, assuming the seller sold a General Warranty deed, can the buyer still sue the seller for violation of the present covenant against encumbrances because there's an easement on the land? Or does the fact that the contract merged with the deed somehow prevent this?

I don't think merger prevents that, merger only prevents the warranties that are in the contract. encumrances is a deed warranty (not a contract warranty) so those are still good

Yeah, I think is exactly right.

On page 46 of the property CMR, it says that "When title passes the land sale K is extinguished (along with the implied covenant of marketability)" and that "The only basis for a suit by Buyer after title passes is an express covenant, if any, in the deed (Seisen, Right to Convey, Encumbrances, etc.)

Got it! Thank you guys!

[Sue]

Property question.

So, there's an implied warranty of a marketable title when buyer and seller enter into a land sales contract. If there was an easement the buyer didn't know about, the title is unmarketable. However, if buyer didn't know about the easement and still bought the property on closing date, the contract merges with the deed and it no longer matters that the title was unmarketable. Correct?

Now, assuming the seller sold a General Warranty deed, can the buyer still sue the seller for violation of the present covenant against encumbrances because there's an easement on the land? Or does the fact that the contract merged with the deed somehow prevent this?

I don't think merger prevents that, merger only prevents the warranties that are in the contract. encumrances is a deed warranty (not a contract warranty) so those are still good

Exactly!

[Sue]

Property question.

So, there's an implied warranty of a marketable title when buyer and seller enter into a land sales contract. If there was an easement the buyer didn't know about, the title is unmarketable. However, if buyer didn't know about the easement and still bought the property on closing date, the contract merges with the deed and it no longer matters that the title was unmarketable. Correct?

Now, assuming the seller sold a General Warranty deed, can the buyer still sue the seller for violation of the present covenant against encumbrances because there's an easement on the land? Or does the fact that the contract merged with the deed somehow prevent this?

Right. But...
I wouldn't mention the merger doctrine in the first case because you don't have any fact talking about the contract warranties. Under doctrine of merger, once the buyer accepts the deed, the sales contract merges into the deed, and any contract provisions that were not in the deed, are destroyed. In your first case, even if the contract was silent about marketability, it still has an implied warranty of marketability, and was breached at the time of conveyance. After the closing, your seller would not have any liability. I would stop right here. Nothing about the merger.

However, if the contract had some warranties against encumbrances, and you see differences between the contract warranties and deed warranties, I would go with the doctrine of merger. E.g.: if S and B contracted to sell a land by a general warranty deed, but then at the closing B did not check the deed and accepted a quitclaim deed, in this case, we talk about the merger because implied warranty of marketability is gone (after closing), and contract re general warranty deed merged with a quitclaim deed. There you have a merger.

So, to answer your question: after the closing, buyer with a general warranty deed would have a right to sue the seller under future covenants (covenant of warranty, quiet enjoyment, further assurances), not present covenant against encumbrances. Again, you don't talk about the merger because it is irrelevant in this case (because no differences between the contract and deed), or implied warranty in the contract because the buyer has a general warranty deed, and the implied one does not matter already, it is gone, so are present covenants in the deed.

[crumpetsandtea]

Are you guys referring to the 1-200 MBE practice assigned on January 29?

There was a 100 question MBE refresher assigned yesterday.

I only see ONLINE PDF: Complete MPQ Mixed Subject Set 4 (50 Qs)... where is the other 50? Or are you referring to the 2 x 18 questions?

If you are in CA, it's assigned on next Wednesday

Which is nuts, imo... I don't want to be taking a half day less than a week out. I wonder what causes the disparity in when it's assigned?

CA only weighs the MBE at 35% of the final score, so if you're taking CA the essays are MUCH MUCH more important than the MBE.

[jamescastle]

Too lazy to go up and find who wanted notes from the simulated exam review lectures.
Anyway, I only took these notes from Guzman's constitutional law lecture but hopefully you'll find them helpful:

Professor Guzman’s “Almost Always Wrong” Answer Choices
1. Congress may not delegate its power to an administrative agency.
2. The federal statute is unconstitutional since the subject matter is reserved to the states (under the Tenth Amendment).
3. Congress has the power to legislate for the general welfare.
4. Congress has the power to act under its police power.
5. The federal statute is unconstitutional under the Fourteenth Amendment.
6. Any pick that refers to the Privileges and Immunities Clause of the Fourteenth Amendment.
7. When there is a claim following an alleged violation of an individual right by the government:
. i. Any pick that states the plaintiff prevails because the plaintiff has a right and not a privilege.
. ii. Any pick that states the government prevails because the government has a privilege and not a right.
8. Any pick that applies the ex post facto to non-criminal legislation.
9. Any pick that claims the state statute is unconstitutional because it places a burden on commerce.
10. Any pick that invalidates legislation under the Contracts Clause.
11. Any pick that claims the president has violated his duty to see that the laws are faithfully executed.
12. Any pick that dismisses a lawsuit because it is a political question.

[BrokenMouse]

.

[BrokenMouse]

.

[jamescastle]

Too lazy to go up and find who wanted notes from the simulated exam review lectures.
Anyway, I only took these notes from Guzman's constitutional law lecture but hopefully you'll find them helpful:

Professor Guzman’s “Almost Always Wrong” Answer Choices
1. Congress may not delegate its power to an administrative agency.
2. The federal statute is unconstitutional since the subject matter is reserved to the states (under the Tenth Amendment).
3. Congress has the power to legislate for the general welfare.
4. Congress has the power to act under its police power.
5. The federal statute is unconstitutional under the Fourteenth Amendment.
6. Any pick that refers to the Privileges and Immunities Clause of the Fourteenth Amendment.
7. When there is a claim following an alleged violation of an individual right by the government:
. i. Any pick that states the plaintiff prevails because the plaintiff has a right and not a privilege.
. ii. Any pick that states the government prevails because the government has a privilege and not a right.
8. Any pick that applies the ex post facto to non-criminal legislation.
9. Any pick that claims the state statute is unconstitutional because it places a burden on commerce.
10. Any pick that invalidates legislation under the Contracts Clause.
11. Any pick that claims the president has violated his duty to see that the laws are faithfully executed.
12. Any pick that dismisses a lawsuit because it is a political question.

I can't recall all of them, but I vaguely recall that #12, political question was the correct answer in one of the questions in the Emmanuel MBE book//

yeah i think i recall someone saying that in con law set 5 or 6 one of those answers is the right answer too.

How many PTs have you guys done so far and plan to do over the next week or so?

dunno if i'll do any full practice tests but i'll probably do at least three 100 question things. maybe split the sim up over two days. might do the diagnostic, the half day, and the refresher. i dunno yet. need to go hard on essays this week too. i've been prioritizing MBE and a special texas thing (criminal procedure and evidence) these past couple days.

[Sue]

How many PTs have you guys done so far and plan to do over the next week or so?

I have done ~14-15 so far, 6-7 remaining, but I am still bad at MPTs, plus I almost never finish in time.

[rcharter1978]

How many PTs have you guys done so far and plan to do over the next week or so?

I have done ~14-15 so far, 6-7 remaining, but I am still bad at MPTs, plus I almost never finish in time.

Wow, that is a LOT of PT's good for you.

[BrokenMouse]

.

[BrokenMouse]

.

[rocket32]

Hi everyone... hope y'all are hanging in there. Can anyone help with products liability - strict liability vs. negligence? Basically, the two theories of liability seem pretty much the same to me, except obviously for negligence, the plaintiff has to make the additional showing of negligence. So, why would a plaintiff ever assert a claim of products liability under a negligence theory, when he could assert it as strict liability without having to prove anything additional (negligence)? When I initially reviewed this topic I had it in my head that the defendant had to be a commercial supplier to be subject to strict liability (edit to add: but did NOT need to be a commercial supplier to be subject to negligence), but I see that that is actually incorrect - in the multistate outline it also discusses commercial suppliers in the part about negligence. Thanks!

[rocket32]

Can anyone explain what "holder in due course" is? I am unsure when it is used and what purpose.

I assume you're talking about commercial paper? I don't really get it either... or most things about commercial paper. I've got a partial mnemonic for it in case it comes up, just to get the elements down. It's not one of my better ones but it's sort of stuck for me, so who knows, maybe it will help you - (1) holder who (2) takes for value (3) in good faith without notice of ODD-SAC-D. (the note is Overdue, Dishonored, or in Default; that there are no unauthorized Signatures or Alterations; or that there are any Claims or Defenses to the instrument.

As I understand it, if you're a holder in due course, personal defenses cannot be asserted against enforcement of the note. Only REAL defenses.