February 2015 Bar Exam Forum

[Albatross]

Can a mortgage company take possession of property that has been abandoned and is in default prior to foreclosure in a Title theory jurisdiction?

I thought that it was lien theory?

Title theory definitely. But I'm almost sure it was lien theory.

Whatever it was, I said they could. My thought was that abandonment seemed like a caveat that could exist in such a circumstance.

[underthirty]

.

[sparty99]

The Restatement of the Law (Third) Property (Mortgages) permits a lender to enter the property following abandonment, but it does not appear to contemplate a duty to do so. (15) Furthermore, the lender may well not want to take possession because doing so can subject it to tort suits like any other property owner. (16) Several states also provide judicial procedures for the mortgage lender to take possession where a receiver might be appointed. (17) It makes little sense for such procedures to exist if lenders were deemed responsible as "owners" prior to foreclosure by application of a vacant property ordinance.

[Holly Golightly]

I really hope I passed. Sigh.

[YibanRen]

Edit. Too much detail.

[guest305]

Can a mortgage company take possession of property that has been abandoned and is in default prior to foreclosure in a Title theory jurisdiction?

I thought that it was lien theory?

Title theory definitely. But I'm almost sure it was lien theory.

Whatever it was, I said they could. My thought was that abandonment seemed like a caveat that could exist in such a circumstance.

It was def. lien theory. But now I can't remember whether I chose yes or no.

I chose whatever one was without receiver because I had never seen that in my notes. I can't remember whether it was yes or no either.

[YibanRen]

The Restatement of the Law (Third) Property (Mortgages) permits a lender to enter the property following abandonment, but it does not appear to contemplate a duty to do so. (15) Furthermore, the lender may well not want to take possession because doing so can subject it to tort suits like any other property owner. (16) Several states also provide judicial procedures for the mortgage lender to take possession where a receiver might be appointed. (17) It makes little sense for such procedures to exist if lenders were deemed responsible as "owners" prior to foreclosure by application of a vacant property ordinance.

This means that under title theory this wouldn't be necessary, under lien theory subsequent to abandonment and notification, it would.

[MichBar]

My assumption is that a lender in such a circumstance can enter to protect their interest regardless of title or lien theory.

[YibanRen]

My assumption is that a lender in such a circumstance can enter to protect their interest regardless of title or lien theory.

Title theory says that they may already enter, cause its theirs. This is why mortgages destroys a joint tenancy in a title theory state. Practically, banks don't because of the risks involved, but they may hire a third party.

Lien theory you can't because it isn't yours unless abandonment, then a court may appoint a receiver to accomplish the same purpose.

[1234567888]

Feels good to be done. Opening a bottle of wine.

[OklahomasOK]

My assumption is that a lender in such a circumstance can enter to protect their interest regardless of title or lien theory.

It would seem like good policy to allow a debtor to protect their collateral provided it doesn't interfere with the rights of the creditor.

[sparty99]

The Restatement of the Law (Third) Property (Mortgages) permits a lender to enter the property following abandonment, but it does not appear to contemplate a duty to do so. (15) Furthermore, the lender may well not want to take possession because doing so can subject it to tort suits like any other property owner. (16) Several states also provide judicial procedures for the mortgage lender to take possession where a receiver might be appointed. (17) It makes little sense for such procedures to exist if lenders were deemed responsible as "owners" prior to foreclosure by application of a vacant property ordinance.

This means that under title theory this wouldn't be necessary, under lien theory subsequent to abandonment and notification, it would.

I couldn't find this rule in Themis....Bitches...

[MichBar]

I saw nothing about recieverships in Kaplan. Maybe it is hidden on an outline somewhere. But I do know several times the lectures would say, "You never learned this in law school or in this course so ignore those answer choices." And also, "This is never a right answer on the MBE."

I feel very misled on both counts.

[Albatross]

In regards to mortgages, I didn't really notice anything other than PMM priority. As daunting as mortgages appears, the rules aren't that difficult to memorize when you understand the purpose of mortgage rules. That being, generally, to protect responsible, good faith purchasers from getting screwed over. Of course there are exceptions, but they too serve a legitimate purpose.

[Holly Golightly]

Feels good to be done. Opening a bottle of wine.

I'm still recovering from last night. Congrats.

I hope I never have to do this again.

[fslexcduck]

I had never heard of a receiver, but I knew that a mortgagee has a right to not have the collateral devalued due to waste, so i just picked the receiver option anyway since it seemed like the most reasonable.

Probably the only time that guessing a random word I had never heard of worked out for me (yes there were multiple times that happened, lol). Wtf is "[something] lat?" that's what i chose instead of horizontal privity. anyone know what i'm talking about?

[MichBar]

Regarding the thing about receiverships, it implies "several states" require that, not that it is a common law requirement. Or am I reading the restatement and its implications wrong?

[fslexcduck]

To me, often times it felt like the answer was whatever the majority rule was rather than the actual common law requirement. Like, they were pretty sloppy about that IMO. So even if you're right, I wouldn't be surprised if receiver was still the right answer.

[fslexcduck]

OK another question for you guys:

Riddle me this: Do 42 bad apples spoil the bunch?

[MichBar]

I'm not saying your wrong, I'm just as foggy as anyone else on some of these, but with the receivership deal, where do we see that it is a majority state requirement, and not just in some states?

[BeachedBrit]

Congress controls the UCMJ and amends it, not the President.

Prez directs the FBI though.

Just saying, in case anyone was wondering about the law in those areas.

[guest305]

OK another question for you guys:

Riddle me this: Do 42 bad apples spoil the bunch?

I went with no because of common industry practice.

[fslexcduck]

I'm not saying your wrong, I'm just as foggy as anyone else on some of these, but with the receivership deal, where do we see that it is a majority state requirement, and not just in some states?

No, we don't, you right you right. I have no idea what the answer is.

[MichBar]

I also think this thread needs to be careful not getting too specific about questions. It's not worth the risk and isn't going to change anything for any of us. Unless someone here really wants to practice in that specific area of law in the real world and the answer is somehow relevant to your career it's probably for the best to just not fret too much over these questions.

The bottom line is that most if not all posters here have high LSATs and solid law school credentials and put in their time and studied hard for the bar. People still fail, but to fail you had to have both screwed up your essays and gotten like 80 MBE's wrong.

Is that possible? Sure.

Is it likely? Probably not.

That's what I keep telling myself when I keep thinking of the various questions I know I got wrong. I can think of maybe a dozen or so. And I obviously got plenty more wrong. But, at least 20 of those questions were designed to be pure nightmares, and many more were designed to get us down to two and flip a coin before moving on.

Nobody cares how much we pass by, just that we pass. It's not like the difference between a 146 LSAT to get you into some crap school vs. a 170 to go to a top school. All that matters is if we hit our jurisdictional minimums, even if that's by .1 points. And if we struggled with these questions so did everyone else and who knows however they curve these things.

We don't need perfection, just passing.

I've been going nuts all day but I've slowly been starting to feel like I'm coming down from some drunken stupor and re-entering reality. The reality is we all got a bunch wrong, some more than others. But all that matters is if we passed, and as for some of these BS questions, there's about a 100% probability we will never have to deal with it in the real world. If one of these questions was the difference between passing and failing, then appeal an essay score. But again, for that even to be a factor, it will mean we have to have really tanked.

Therefore, it's probably best for our mental health to ignore some of the particulars. For one thing, we aren't supposed to discuss question specifics, and even for generalities, again, we already know we all got numerous questions wrong and have room to get a lot wrong, so why torture ourselves?

[fslexcduck]

OK another question for you guys:

Riddle me this: Do 42 bad apples spoil the bunch?

I went with no because of common industry practice.

Same. It just seemed weird. I hated the questions that took the form like "what would you do if you were his attorney?" because it's like, ok am I supposed to give the actual legal standard, or am I supposed to give advice under anything I think there is a semi-decent argument to be made for?

That came up on a couple of other questions too, like "what motion should you tell the client to make?" and it's just like well I don't think a motion to dismiss is gonna work, but an attorney should probably make it anyway...