BarBri - NY Exam - July 2014 Forum

[Guchster]

Properly recorded PMSIs always have priority over landlords. /discussion

Also, same advice as was given to me yesterday, think this is probably getting too complicated. All the secured transactions problems I've encountered on the essays have been verrrryyy simple. Like extremely simple. Mostly "first in time, first in right" and testing that you know there has to be attachment and perfection. I haven't seen a single fixture filing question (but admittedly haven't read all the essays).

Exactly. And on the MBE, if it's super complicated, you're going to narrow it down to two possible answer choices. You're going to get 50% of those right. There will be like, 10 super complicated property/contracts questions.

I think the freaking out over super marginal issues happen because people start to obsess with what they don't understand this close to the end and do the typical "let me think of every single scenario that calls into question loopholes and exceptions as I can" common to law students prepping for exams.

While trying to figure out the right law in obscure scenarios might help you learn basic, general law (i.e., in this case, what the hell is a fixture and what's the test to determine whether it belongs to property), figuring out right answers to super complex questions isn't worth the nosebleed.

[sarahh]

i'm being dumb. i think i meant that i got the stove from like a best buy or something. but i stopped paying for it. so if it IS a fixture, does the landlord get to keep it? or does best buy get it back?

Bestbuy gets it back if: (1) It was the PMSI creditor; and (2) it recorded within 20 days after the stove was affixed to the land.

Is this rule applicable here? I thought that was the rule when there was a floating lien vs. PMSI, and the security interest was in equipment. A landlord would not have a floating lien.

Not just floating liens--any kind of liens (including mortgages). Page 68-69 of the Contracts MBE outline.

ETA:

Here is the portion of the outline so you can read it yourself: (shit posted wrong one)

Suppose Landowner purchases a furnace from Seller and installs it in her house. She owes a balance on the purchase price of the furnace, and therefore grants Seller a security interest in the furnace (in accordance with Article 9 of the Uniform Commercial Code (“U.C.C.”)). Suppose further that Landowner also executes a mortgage on her house, to Mortgagee.

If Landowner subsequently defaults on her payments, both on the furnace and the house, is Seller or Mortgagee entitled to priority? (Same issue where Landowner sells the house without mentioning the security interest.)

Normally, the rule is that whichever interest is first recorded in the local real estate records wins. (Thus, if the chattel security interest was recorded first, it constitutes “constructive notice” to all subsequent lenders or purchasers.) However, an exception allows a “purchase money security interest” in an affixed chattel (here, the interest given Seller to secure payment on the furnace) to prevail even over a prior recorded mortgage on the land, as long as the chattel interest is recorded within 20 days after the chattel is affixed to the land. [U.C.C. §9-334]
The document used to record the chattel security interest is known as a “fixture filing.” (This is a separate instrument from the “financing statement,” which is required to be filed to perfect the chattel security interest in the first place.)

Thanks. You meant the real property outline? So the PMSI for a fixture would have priority over an earlier mortgage on the property, if recorded within 20 days, but that is not relevant where there is a landlord tenant situation [?]

[sarahh]

At this point I do not even know what to study. There is just too much stuff. I think I am just going to go over essays. That seems to be the most helpful thing.

[Guchster]

Thanks. You meant the real property outline? So the PMSI for a fixture would have priority over an earlier mortgage on the property, if recorded within 20 days, but that is not relevant where there is a landlord tenant situation [?]

Yeah sorry, meant the property outline. Don't stress about L-T situations; of the thousands of pages they can pull questions from, the chances this will be a MC question is so small and insanely tiny on the essay part.

[harmonep07]

I love this little nugget: even though you have to oust a co-tenant for ten years to acquire title by adverse possession, you can acquire title to an entire co-tenancy parcel if you're in exclusive possession for 20 years in NY.

[Guchster]

I love this little nugget: even though you have to oust a co-tenant for ten years to acquire title by adverse possession, you can acquire title to an entire co-tenancy parcel if you're in exclusive possession for 20 years in NY.

As random of a nugget that seems to be, it looks like they love to test that when AP is an issue in the essays.

[turquoiseturtle]

I'm not providing an answer, but I did want to note that I think there might be some confusion here. PMSI and fixtures are totally distinct things. The two rules that we learned in the secured transactions lecture have to do with PMSIs when there is a floating lien, and there are different filing requirements depending on whether the collateral is equipment or inventory. NEITHER equipment or inventory is a necessarily a fixture (and I would be hard pressed to come up with a situation in which inventory is ever a fixture). Of course, in the hands of a consumer, a dishwasher that was inventory becomes a fixture.

Fixture filings, and the rules associated with that, are totally different that the PMSI rules. A fixture can also be a PMSI, again, like the example where you buy a dishwasher.

Just wanted to clarify that because they seem to be getting thrown together and they're not the same thing.

[Guchster]

I'm not providing an answer, but I did want to note that I think there might be some confusion here. PMSI and fixtures are totally distinct things. The two rules that we learned in the secured transactions lecture have to do with PMSIs when there is a floating lien, and there are different filing requirements depending on whether the collateral is equipment or inventory. NEITHER equipment or inventory is a necessarily a fixture (and I would be hard pressed to come up with a situation in which inventory is ever a fixture). Of course, in the hands of a consumer, a dishwasher that was inventory becomes a fixture.

Fixture filings, and the rules associated with that, are totally different that the PMSI rules. A fixture can also be a PMSI, again, like the example where you buy a dishwasher.

Just wanted to clarify that because they seem to be getting thrown together and they're not the same thing.

I think that's where most of the confusion is at ITT. Good call.

[harmonep07]

Does anyone have any idea what the right rule for the partial performance exception to SOF is? I have three different formulations from studying:

(1) any two of the following three that unequivocally evidences an intent to convey the land: (a) possession; (b) payment ; (c) substantial improvements.

(2) still unequivocally evidence intent to convey, but must be possession plus either: (a) improvements or (b) payment

(3) unequivocal intent shown by any of the three.

[PennBull]

Possession-plus seems more accurate but who knows?

[Guchster]

Does anyone have any idea what the right rule for the partial performance exception to SOF is? I have three different formulations from studying:

(1) any two of the following three that unequivocally evidences an intent to convey the land: (a) possession; (b) payment ; (c) substantial improvements.

(2) still unequivocally evidence intent to convey, but must be possession plus either: (a) improvements or (b) payment

(3) unequivocal intent shown by any of the three.

Land sales contracts: at least two of the following: (i) payment (in whole or in part), (ii) possession, and/or (iii) valuable improvements.

Sale of goods: (i) the goods have been specially manufactured, or (ii) the goods have been either paid for or accepted. If a sales contract is only partially paid for or accepted, the contract is enforceable only to the extent of the partial payment or acceptance.

One year + needed for performance: An n oral contract that cannot be completed within one year but has been fully performed by one party is enforceable.

[harmonep07]

Does anyone have any idea what the right rule for the partial performance exception to SOF is? I have three different formulations from studying:

(1) any two of the following three that unequivocally evidences an intent to convey the land: (a) possession; (b) payment ; (c) substantial improvements.

(2) still unequivocally evidence intent to convey, but must be possession plus either: (a) improvements or (b) payment

(3) unequivocal intent shown by any of the three.

Land sales contracts: at least two of the following: (i) payment (in whole or in part), (ii) possession, and/or (iii) valuable improvements.


Right but I'm just talking about land sale K. That formulation is from contracts lecture. Paula didn't add that there had to be at least to in the property lecture, implying that any one would work. Then, reading an essay or mc question (can't remember) it said possession plus.

[harmonep07]

I'm not providing an answer, but I did want to note that I think there might be some confusion here. PMSI and fixtures are totally distinct things. The two rules that we learned in the secured transactions lecture have to do with PMSIs when there is a floating lien, and there are different filing requirements depending on whether the collateral is equipment or inventory. NEITHER equipment or inventory is a necessarily a fixture (and I would be hard pressed to come up with a situation in which inventory is ever a fixture). Of course, in the hands of a consumer, a dishwasher that was inventory becomes a fixture.

Fixture filings, and the rules associated with that, are totally different that the PMSI rules. A fixture can also be a PMSI, again, like the example where you buy a dishwasher.

Just wanted to clarify that because they seem to be getting thrown together and they're not the same thing.

So, conceivably a fixture filing wouldn't have to be a PMSI. But, if someone were to mortgage a fixture already affixed to the land, would the secured creditor still be protected by a fixture filing?

[Guchster]

Does anyone have any idea what the right rule for the partial performance exception to SOF is? I have three different formulations from studying:

(1) any two of the following three that unequivocally evidences an intent to convey the land: (a) possession; (b) payment ; (c) substantial improvements.

(2) still unequivocally evidence intent to convey, but must be possession plus either: (a) improvements or (b) payment

(3) unequivocal intent shown by any of the three.

Land sales contracts: at least two of the following: (i) payment (in whole or in part), (ii) possession, and/or (iii) valuable improvements.


Right but I'm just talking about land sale K. That formulation is from contracts lecture. Paula didn't add that there had to be at least to in the property lecture, implying that any one would work. Then, reading an essay or mc question (can't remember) it said possession plus.

Sorry your question didn't specify so I thought you were asking for an overview.

That formulation is also from a properties lecture. My notes say 2 of the 3 are required, and this is from Paula's lecture. Check out the lecture handout on page 70.

[lawyerwannabe]

Does anyone have any idea what the right rule for the partial performance exception to SOF is? I have three different formulations from studying:

(1) any two of the following three that unequivocally evidences an intent to convey the land: (a) possession; (b) payment ; (c) substantial improvements.

(2) still unequivocally evidence intent to convey, but must be possession plus either: (a) improvements or (b) payment

(3) unequivocal intent shown by any of the three.

Land sales contracts: at least two of the following: (i) payment (in whole or in part), (ii) possession, and/or (iii) valuable improvements.


Right but I'm just talking about land sale K. That formulation is from contracts lecture. Paula didn't add that there had to be at least to in the property lecture, implying that any one would work. Then, reading an essay or mc question (can't remember) it said possession plus.

I have anyone of the three work for MBE. But you need two of the three in NY.

[Guchster]

Also, I'm super confused by your question because "possession plus" meets Paula's test (2/3--where 1 is already possession)

[harmonep07]

Also, I'm super confused by your question because "possession plus" meets Paula's test (2/3--where 1 is already possession)

Yeah possession plus would meet that test but it's a different test, because a possession plus requirement couldn't be satisfied by payment and improvements alone.

[Guchster]

Does anyone have any idea what the right rule for the partial performance exception to SOF is? I have three different formulations from studying:

(1) any two of the following three that unequivocally evidences an intent to convey the land: (a) possession; (b) payment ; (c) substantial improvements.

(2) still unequivocally evidence intent to convey, but must be possession plus either: (a) improvements or (b) payment

(3) unequivocal intent shown by any of the three.

Land sales contracts: at least two of the following: (i) payment (in whole or in part), (ii) possession, and/or (iii) valuable improvements.


Right but I'm just talking about land sale K. That formulation is from contracts lecture. Paula didn't add that there had to be at least to in the property lecture, implying that any one would work. Then, reading an essay or mc question (can't remember) it said possession plus.

I have anyone of the three work for MBE. But you need two of the three in NY.

This is from the large property outline on 98:

Acts of Part Performance

In most states, two of the following are required:
(i) Possession of the land by the purchaser;
(ii) Making of substantial improvements; and/or
(iii) Payment of all or part of the purchase price by the purchaser.
Some state courts will go beyond this list and will accept as “part performance” other types of detrimental reliance by the purchaser, such as performance of services or sale of other land.

My notes copied and pasted from Paula's lecture:
One exception to statute of frauds: Doctrine of Part Performance.

If, on your facts, you have two of the
following three, the doctrine is satisfied and equity will decree
specific performance of an oral contract for the sale of land:
1. B has possession
2. B pays all or part of the price: and/or
3. B makes substantial performance

[TrustMeI'mAnActress]

Any predictions on what you think our essays will be on?

[Guchster]

Paula didn't add that there had to be at least to in the property lecture, implying that any one would work.

Yeah I just opened up the lecture to re-watch and make sure there wasn't a distinction between her written notes (and the CMR and NY Outline) and her lecture and she did add that there had to be two, just to give you some comfort.

[harmonep07]

Paula didn't add that there had to be at least to in the property lecture, implying that any one would work.

Yeah I just opened up the lecture to re-watch and make sure there wasn't a distinction between her written notes (and the CMR and NY Outline) and her lecture and she did add that there had to be two, just to give you some comfort.

K I'll go with two. I must have typed it wrong.

[harmonep07]

Is the only time you're dealing with a grantor-grantee index vs. a tract index really is going to matter is if there is a wild deed problem?

[harmonep07]

Also, judgment liens. What is the deal with those and recording statutes? They don't get protection, right? Meaning they don't subordinate earlier interests, but they still are superior if they were recorded before a later interest is created, right?

[Guchster]

Hm... can attorneys who drafted a will serve as a witness? (Uninterested) executors can right?

[harmonep07]

Hm... can attorneys who drafted a will serve as a witness? (Uninterested) executors can right?

Pretty sure most anyone can. It will only effect distributions if a witness is interested.