BarBri - NY Exam - July 2014 Forum

[rivkah]

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?

A judgment lien is enforceable whether or not it is recorded. Recordation affects priority. If a judgment lien is properly recorded first then it gets priority as first recorded. However, if it is not recorded first - although granted first - it is subordinated to the first recorded mortgage or lien. Importantly, the property is sold without the judgment lien recorded prior to the sale, the sale extinguishes the lien and the buyer does not take subject.

(I THINK?!?)

[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?

A judgment lien is enforceable whether or not it is recorded. Recordation affects priority. If a judgment lien is properly recorded first then it gets priority as first recorded. However, if it is not recorded first - although granted first - it is subordinated to the first recorded mortgage or lien. Importantly, the property is sold without the judgment lien recorded prior to the sale, the sale extinguishes the lien and the buyer does not take subject.

(I THINK?!?)

Right, but so they don't get the protection of recording acts? So, if there's a prior mortgage, not recorded, a later recorded judgment doesn't take priority right?

[thetashster]

Whoaaaaa I love that my random ass question got like 20395802395825 pages of commentary.

thanks for all the help guys.

[turquoiseturtle]

Took a much needed ice cream break. Totally ignoring thetashter's linking advice recommending avoiding sugar. Bring on the sugar rush.

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?

I pulled out my secured transactions outline from actual class for this.

Just another terminology thing: you can't mortgage a fixture, because a mortgage is just a lien on land and fixture doesn't equal land. The question you might mean, if someone takes a mortgage out on land where there are fixtures, what do rights does the mortgage creditor have against the fixture creditors? And that's the entire point of fixture filing. Basically when ever you take out a mortgage, usually the mortgage would cover the land, the house and all the fixtures. But by making a fixture filing, the creditor of the fixture can have priority in the fixture over the mortgage creditor. There are a bunch of different ways that a fixture creditor can have priority, all in UCC 9-334. 9-334(e)(2)(C) covers "domestic appliances that are consumer goods."

This is 9-334
(e) [Priority of security interest in fixtures over interests in real property.] A perfected security interest in fixtures has priority over a conflicting interest of an encumbrancer or owner of the real property if:
(1) the debtor has an interest of record in the real property or is in possession of the real property and the security interest:
(A) is perfected by a fixture filing before the interest of the encumbrancer or owner is of record; and
(B) has priority over any conflicting interest of a predecessor in title of the encumbrancer or owner;
(2) before the goods become fixtures, the security interest is perfected by any method permitted by this article and the fixtures are readily removable:
(A) factory or office machines;
(B) equipment that is not primarily used or leased for use in the operation of the real property; or
(C) replacements of domestic appliances that are consumer goods;
(3) the conflicting interest is a lien on the real property obtained by legal or equitable proceedings after the security interest was perfected by any method permitted by this article; or
(4) the security interest is:
(A) created in a manufactured home in a manufactured-home transaction; and
(B) perfected pursuant to a statute described in Section 9-311(a)(2).

[thetashster]

Took a much needed ice cream break. Totally ignoring thetashter's linking advice recommending avoiding sugar. Bring on the sugar rush.

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?

I pulled out my secured transactions outline from actual class for this.

Just another terminology thing: you can't mortgage a fixture, because a mortgage is just a lien on land and fixture doesn't equal land. The question you might mean, if someone takes a mortgage out on land where there are fixtures, what do rights does the mortgage creditor have against the fixture creditors? And that's the entire point of fixture filing. Basically when ever you take out a mortgage, usually the mortgage would cover the land, the house and all the fixtures. But by making a fixture filing, the creditor of the fixture can have priority in the fixture over the mortgage creditor. There are a bunch of different ways that a fixture creditor can have priority, all in UCC 9-334. 9-334(e)(2)(C) covers "domestic appliances that are consumer goods."

This is 9-334
(e) [Priority of security interest in fixtures over interests in real property.] A perfected security interest in fixtures has priority over a conflicting interest of an encumbrancer or owner of the real property if:
(1) the debtor has an interest of record in the real property or is in possession of the real property and the security interest:
(A) is perfected by a fixture filing before the interest of the encumbrancer or owner is of record; and
(B) has priority over any conflicting interest of a predecessor in title of the encumbrancer or owner;
(2) before the goods become fixtures, the security interest is perfected by any method permitted by this article and the fixtures are readily removable:
(A) factory or office machines;
(B) equipment that is not primarily used or leased for use in the operation of the real property; or
(C) replacements of domestic appliances that are consumer goods;
(3) the conflicting interest is a lien on the real property obtained by legal or equitable proceedings after the security interest was perfected by any method permitted by this article; or
(4) the security interest is:
(A) created in a manufactured home in a manufactured-home transaction; and
(B) perfected pursuant to a statute described in Section 9-311(a)(2).

oh dude eat all the sugar now. i've been squeezing chocolate sauce and whipped cream into a tub of blackberry ice cream every day for the past week. i just thought that it might not be cool to do that on test day.

[turquoiseturtle]

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.

Also pretty sure most anyone can. However, I'm also pretty sure that it is not good practice to have the attorney be a witness.

[belowthelaw57]

Can someone help me out with multiple issues in essay question 75?

Even after reading both answers and seeing them both say "NY case law created a presumption of negligence in situations where a stopped vehicle is rear-ended by another motorist" I just have no idea where they're getting that from. I don't have it in my torts notes and I can't find it in the CMR. I can commit that random presumption to memory, but it makes me worried I'm missing other things.

Same with all the info on DWIs. I see in the CMR distinctions part info about vehicular manslaughter, but just nothing about the general offense of DWI. Again, from life, I know what a DWI is, but are those essays just making stuff up or did I miss it somewhere?

Is anyone bothering to remember the different names in NY for future interests? I know NY abolished the distinction between contingent remainders and executors interests and just calls them remainders subject to condition precedent and a FSSCS is a "fee on condition" in NY.

hahahahahaha. Absolutely not.

gonna second the absolutely not. but also, that's res ipsa. that's probably how they're getting to that.

it's the type of thing that doesn't happen unless you're being negligent and also you haven't been able to eliminate any other causes.
res ipsa can be rebutted though. so unless you can say "i had a heart attack unexpectedly with no history of them ever" etc. also if you rear-ended you were probably following too closely and/or going too fast to stop in time.

I thought res ipsa also, but res ipsa is not a presumption. It's a permissible inference for the jury to make but doesn't have to, whereas a presumption, if not rebutted, requires judgement for the party it favors.

It actually was mentioned in our torts lecture. I have it in my notes under "breach." Schechter told us there are 3 types of evidence we can use to prove breach beyond stating something obvious like "alcohol impairs reflexes."--

Custom

Cost/benefit analysis (Learned Hand)--where they provide you with cost figures

Presumptively unreasonable behaviors--like the "presumption" that you breached a duty by rear-ending someone.

[turquoiseturtle]

It actually was mentioned in our torts lecture. I have it in my notes under "breach." Schechter told us there are 3 types of evidence we can use to prove breach beyond stating something obvious like "alcohol impairs reflexes."--

Custom

Cost/benefit analysis (Learned Hand)--where they provide you with cost figures

Presumptively unreasonable behaviors--like the "presumption" that you breached a duty by rear-ending someone.

Great! Thank you so much. I figured it was probably just because I have awful torts notes.

[StillNDC]

Can anyone explain the "unborn widow" RAP problem better than barbri?

Their explanation makes little to no sense. Their explanation is "The son's widow was not necessarily born and in existence at the time of the conveyance, and we will not know who the widow's descendants are until she dies, which may be well outside the lives in being at the time of the transfer plus 21 years. "

Or is everyone going to see a problem with a devise to a widow and the widow's heirs and say EFF this - I'm marking B.

Thanks.

PS - this question was Mixed Set2, Q 43 in studysmart.

[StillNDC]

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.

Also pretty sure most anyone can. However, I'm also pretty sure that it is not good practice to have the attorney be a witness.

I would think that this would be heavily scrutinized and I'd write something about there could be undue influence here. It wouldn't rise to the level of Putnam scrutiny, but that would be really suspect.

[turquoiseturtle]

Can anyone explain the "unborn widow" RAP problem better than barbri?

Their explanation makes little to no sense. Their explanation is "The son's widow was not necessarily born and in existence at the time of the conveyance, and we will not know who the widow's descendants are until she dies, which may be well outside the lives in being at the time of the transfer plus 21 years. "

Or is everyone going to see a problem with a devise to a widow and the widow's heirs and say EFF this - I'm marking B.

Thanks.

PS - this question was Mixed Set2, Q 43 in studysmart.

Basically think about it with actual people. Pretend son is Woody Allen.

So Woody is married to wife #1 at the time of the conveyance. Woody and wife #1 are lives in being. Then Son and wife #1 adopt child. Child was not a life in being, because she was just born. Woody divorces wife #1 and married adopted child. They have kids. Woody eventually dies. Because Adopted Child (wife #2) is much younger than Woody, she lives way longer than 21 years after his death. And we have to wait until her death to determine who her descendants are.

[StillNDC]

Can anyone explain the "unborn widow" RAP problem better than barbri?

Their explanation makes little to no sense. Their explanation is "The son's widow was not necessarily born and in existence at the time of the conveyance, and we will not know who the widow's descendants are until she dies, which may be well outside the lives in being at the time of the transfer plus 21 years. "

Or is everyone going to see a problem with a devise to a widow and the widow's heirs and say EFF this - I'm marking B.

Thanks.

PS - this question was Mixed Set2, Q 43 in studysmart.

Basically think about it with actual people. Pretend son is Woody Allen.

So Woody is married to wife #1 at the time of the conveyance. Woody and wife #1 are lives in being. Then Son and wife #1 adopt child. Child was not a life in being, because she was just born. Woody divorces wife #1 and married adopted child. They have kids. Woody eventually dies. Because Adopted Child (wife #2) is much younger than Woody, she lives way longer than 21 years after his death. And we have to wait until her death to determine who her descendants are.

Thank you. Why can't barbri explain things like this, incorporating divorce, etc - which would make more sense.

[sarahh]

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?

A judgment lien is enforceable whether or not it is recorded. Recordation affects priority. If a judgment lien is properly recorded first then it gets priority as first recorded. However, if it is not recorded first - although granted first - it is subordinated to the first recorded mortgage or lien. Importantly, the property is sold without the judgment lien recorded prior to the sale, the sale extinguishes the lien and the buyer does not take subject.

(I THINK?!?)

Right, but so they don't get the protection of recording acts? So, if there's a prior mortgage, not recorded, a later recorded judgment doesn't take priority right?

Look at the big NY book, Mortgages section, page 10. A judgment creditor is not considered a purchaser. A docketed lien is inferior to all prior mortgages, whether or not recorded, and is superior to all subsequent mortgages, whether or not recorded.

[sarahh]

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.

Also pretty sure most anyone can. However, I'm also pretty sure that it is not good practice to have the attorney be a witness.

I would think that this would be heavily scrutinized and I'd write something about there could be undue influence here. It wouldn't rise to the level of Putnam scrutiny, but that would be really suspect.

According to a random internet article, that is fine. But if the lawyer does this, he can probably not represent the estate when the will is probated, because he will be a witness.

[Guchster]

Can anyone explain the "unborn widow" RAP problem better than barbri?

Their explanation makes little to no sense. Their explanation is "The son's widow was not necessarily born and in existence at the time of the conveyance, and we will not know who the widow's descendants are until she dies, which may be well outside the lives in being at the time of the transfer plus 21 years. "

Or is everyone going to see a problem with a devise to a widow and the widow's heirs and say EFF this - I'm marking B.

Thanks.

PS - this question was Mixed Set2, Q 43 in studysmart.

Basically think about it with actual people. Pretend son is Woody Allen.

So Woody is married to wife #1 at the time of the conveyance. Woody and wife #1 are lives in being. Then Son and wife #1 adopt child. Child was not a life in being, because she was just born. Woody divorces wife #1 and married adopted child. They have kids. Woody eventually dies. Because Adopted Child (wife #2) is much younger than Woody, she lives way longer than 21 years after his death. And we have to wait until her death to determine who her descendants are.

LOL. Great explanation.

[turquoiseturtle]

I don't really have a specific question on, but does anyone have any thoughts(?) about fiduciary duties of shareholders to other shareholders. Specifically I'm talking about the information thats on page 31 of the corporations outline. We didn't discuss or mention this in my business associations class.

I have that controlling shareholders cannot use their power for personal gain at the expense of minority shareholders of the corporation. The example at the very bottom of the page, involving three shareholders, seems very similar to a number of essay questions, but I rarely see essay answers bring up "reasonable expectations of most people who invest in a close corporation."

Just read through essay question #79, which is what prompted this. But other essays with very similar facts don't bring it up.

[PennBull]

I don't really have a specific question on, but does anyone have any thoughts(?) about fiduciary duties of shareholders to other shareholders. Specifically I'm talking about the information thats on page 31 of the corporations outline. We didn't discuss or mention this in my business associations class.

I have that controlling shareholders cannot use their power for personal gain at the expense of minority shareholders of the corporation. The example at the very bottom of the page, involving three shareholders, seems very similar to a number of essay questions, but I rarely see essay answers bring up "reasonable expectations of most people who invest in a close corporation."

Just read through essay question #79, which is what prompted this. But other essays with very similar facts don't bring it up.

Basically that close corporation shareholders have a reasonable expectation of employment, a return on their investment, and a voice in management. Controlling shareholders have to act in general good faith towards other shareholders rights (i.e. if they make a bad investment on accident it'll be fine as long as it was a good faith investment decision and the dissenting shareholder had a voice in the decision)

[Guchster]

I don't really have a specific question on, but does anyone have any thoughts(?) about fiduciary duties of shareholders to other shareholders. Specifically I'm talking about the information thats on page 31 of the corporations outline. We didn't discuss or mention this in my business associations class.

I have that controlling shareholders cannot use their power for personal gain at the expense of minority shareholders of the corporation. The example at the very bottom of the page, involving three shareholders, seems very similar to a number of essay questions, but I rarely see essay answers bring up "reasonable expectations of most people who invest in a close corporation."

Just read through essay question #79, which is what prompted this. But other essays with very similar facts don't bring it up.

Basically that close corporation shareholders have a reasonable expectation of employment, a return on their investment, and a voice in management. Controlling shareholders have to act in general good faith towards other shareholders rights (i.e. if they make a bad investment on accident it'll be fine as long as it was a good faith investment decision and the dissenting shareholder had a voice in the decision)

[peanut123]

Do people have thoughts as to a NY-day game plan? I can't decide if I'd rather outline essays before doing MC, then go finish essays, or do all of one before moving to the other, and if so in what order. Same with afternoon, not sure if it makes since to do MPT first or last.

[rivkah]

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?

A judgment lien is enforceable whether or not it is recorded. Recordation affects priority. If a judgment lien is properly recorded first then it gets priority as first recorded. However, if it is not recorded first - although granted first - it is subordinated to the first recorded mortgage or lien. Importantly, the property is sold without the judgment lien recorded prior to the sale, the sale extinguishes the lien and the buyer does not take subject.

(I THINK?!?)

Right, but so they don't get the protection of recording acts? So, if there's a prior mortgage, not recorded, a later recorded judgment doesn't take priority right?

EDIT The last guy said something different so I just don't effing know. Sorry

[PennBull]

Do people have thoughts as to a NY-day game plan? I can't decide if I'd rather outline essays before doing MC, then go finish essays, or do all of one before moving to the other, and if so in what order. Same with afternoon, not sure if it makes since to do MPT first or last.

I don't even know the schedule. Three essays and multiple choice in the morning, two essays and an MPT in the afternoon? How much time for each?

[rivkah]

Do people have thoughts as to a NY-day game plan? I can't decide if I'd rather outline essays before doing MC, then go finish essays, or do all of one before moving to the other, and if so in what order. Same with afternoon, not sure if it makes since to do MPT first or last.

I don't even know the schedule. Three essays and multiple choice in the morning, two essays and an MPT in the afternoon? How much time for each?

According to NYS Bar Website:

AM:
NYMC: 75 min
Essay 1: 40 min
Essay 2: 40 min
Essay 3: 40 min
PM:
Essay 1: 45 min
Essay 2: 45 min
MPT: 90 min

[PennBull]

Holy shit the MPT is 90 minutes? Why do people think it's a time crunch? Cause it's easy points and they try to be absolutely fucking perfect?

They're getting a general structure from me and that's it. I need to spend more time making up laws in the essays

[turquoiseturtle]

Do people have thoughts as to a NY-day game plan? I can't decide if I'd rather outline essays before doing MC, then go finish essays, or do all of one before moving to the other, and if so in what order. Same with afternoon, not sure if it makes since to do MPT first or last.

I don't even know the schedule. Three essays and multiple choice in the morning, two essays and an MPT in the afternoon? How much time for each?

I'm definitely going to do the MC first. Mostly because I think they go pretty fast and from what people have said they are much clearer than Barbri's examples. Like you either instantly know the rule or you don't, guess, and move on. I'd rather have as much time as I can for the essays.

I can't decide if I'd rather do the two essays before or after the MPT though. I'm leaning towards doing them first, just because otherwise I think I might shortchange the MPT too much, rushing through it to get to the essays.


Kind of weird to have 5 extra minutes on some of the essays. I wonder how they decide which ones are "harder" and get the five extra minutes.

[Helpful]

There's no way anyone actually spends 75 minutes on the NYMC, right?