February 2015 Bar Exam Forum

[dxchpwd]

Was Ed's son supposed to take anything by any chance?

[MichBar]

So because it's just pissing me off, is there any weird exception out there where a copy of a contract doesn't violate the BER, or is the original always needed no matter what?

[underthirty]

.

[seizmaar]

photocopy is admissible to the same extent as an original, unless the authenticity of the original is brought into dispute. FRE 1003.

[sparty99]

From the Conviser:
a. The Lien Theory
According to the lien theory, the mortgagee is considered the holder of a security interest only and the mortgagor is deemed the owner of the land until foreclosure. A majority of the states follow this theory, which provides that the mortgagee may not have possession before foreclosure.

Now for the kicker:
2. Mortgagor Consent and Abandonment
All states agree that the mortgagee may take possession if the mortgagor gives consent to do so, or if the mortgagor abandons the property.

MOTHER FUCKER

Double kicker:

4. Receiverships: Most mortgages attempt to intercept the rents before foreclosure by getting a receiver appointed by the court to manage the property. Courts will generally appoint receivers for rental property showing (waste, value decreasing, insolvency).

I think this means receivership was not the right answer, because it isn't necessary. However, it is important to do after abandonment to prevent waste, or when you want to relet. So, because it was abandoned you want to prevent damage, so receiver. But, it isn't a prerequisite. So, of the question is, what must Mortgagee do, the answer is likely take possession, if the question is what can mortgagee do, then the answer is receiver.

So I'm still confused. Can the mortgagor just take posession because it was abandoned. Or is it that they can take ownership because it is abandoned, however, they can only take posession and enter the property by appointing a RECEIVER. ugh.

[Dan1220]

Yes, if a property is abandoned a mortgagee can take possession.

[dxchpwd]

Yes, if a property is abandoned a mortgagee can take possession.

I support the appointment of receiver idea. Otherwise, mortgagors can claim they never abandoned.

[MichBar]

Something potentially involving the 10th Amendment also stumped me this week.

[mclilazng]

The Best Evidence Rule, in regards to a contract, will only apply if there is an issue about the evidence attempted to be submitted is to prove the actual terms of the contract.

So because it's just pissing me off, is there any weird exception out there where a copy of a contract doesn't violate the BER, or is the original always needed no matter what?

Doesn't Best Evidence apply only to copies when the authenticity is in question? If the parties to a contract are not disputing the actual contract, wouldn't a copy be sufficient?

[mclilazng]

This, too.

photocopy is admissible to the same extent as an original, unless the authenticity of the original is brought into dispute. FRE 1003.

[OklahomasOK]

Yes, if a property is abandoned a mortgagee can take possession.

I support the appointment of receiver idea. Otherwise, mortgagors can claim they never abandoned.

Hypothetically, what if I was debtor with a PMM on my house in a lien theory state and I got way behind on my mortgage, wrote a nasty letter to my lender saying I was leaving the house, and up and left.

Wouldn't the writing satisfy the presumption that I abandoned my house?

[mclilazng]

I think I remembered this one. If it was the MBE question, I don't think the 10th amendment applied because it didn't involve a power reserved to the states.

Something potentially involving the 10th Amendment also stumped me this week.

[Bogs5]

This question was weird. None of the answers seemed to really work given the rule re: copies and the fact that they are admissible.

This, too.

photocopy is admissible to the same extent as an original, unless the authenticity of the original is brought into dispute. FRE 1003.

[Bogs5]

Given the function lien the lien theory, the receiver one is the only one that makes sense, irrespective of whether property is abandoned. I think abandonment is what TRIGGERS the right to seek possession but only through judicial means.

Yes, if a property is abandoned a mortgagee can take possession.

I support the appointment of receiver idea. Otherwise, mortgagors can claim they never abandoned.

[MichBar]

Does the Restatement say that in a lien theory state it is a prerequisite or an option?

[YibanRen]

It's funny that we are all arguing about one question.

Abandonment triggers the right to enter in a lien theory state. I don't think a receivership is required. However, it is a good idea because 1) abandonment will lead to waste (empty house), 2) banks don't want to enter properties, or manage properties and collect rents after abandonment because this will lead to significant potential liability, 3) a bank might not to enter, then face the abandoner in court because they claim that they never abandoned, so a receivership will iron out their right to enter.

So, I'm honestly not sure what the right answer is because a lien theory mortgagee can enter, but shouldn't after abandonment until the court irons out the issues.

The examiners made a question that punishes those that already knew a difficult concept (lien theory as it relates to abandonment), and then were either wrong because they 1) chose the legally prudent answer (receivership to identify claim to title and avoid liability), or 2) choose the black letter law absolute answer (receivership isn't required if we are certain they've abandoned).

[YibanRen]

Can someone please answer one issue that has been driving me crazy?

Interstate commerce/10th amendment/commandeering were tested on the essays right?

[MichBar]

I'm further aggravated by annoying con law concepts that make you remember when the "least restrictive means" is required and when it isn't. Just in case anyone was confused, least restrictive means not required for public forum speech regulations.

I'm wondering which Con Law questions I actually got right.

[ilovetypos]

I'm wondering which Con Law questions I actually got right.

Exactly my feeling for myself.

[fslexcduck]

Was Ed's son supposed to take anything by any chance?

Dave, right? Nah I don't think Dave got shit.

[MichBar]

"4. Receiverships: Most mortgages attempt to intercept the rents before foreclosure by getting a receiver appointed by the court to manage the property. Courts will generally appoint receivers for rental property showing (waste, value decreasing, insolvency)."

This just seems too loosey-goosey to be a prerequisite/requirement before going in. "Most" and "generally" does not mean "must."

Either way, screw them for this question.

[OklahomasOK]

It's going to be funny* when the bar examiners pull the question because it's an experimental question.

* = funny meaning horrible.

[minnbills]

This, too.

photocopy is admissible to the same extent as an original, unless the authenticity of the original is brought into dispute. FRE 1003.

Fuckkkk

Definitely didn't see that in my outline either. Okay, I failed this fucking exam

[MichBar]

Which part was your outline unclear on for that rule?

[Dan1220]

Don't torture yourself going over this in your head too much, just try and put it out of mind for now. Honestly, few walk out of the exam feeling good.