Civil Procedure Outline PDF

**Civil Procedure** I. Subject Matter jurisdiction a. Involves the court's power over a **particular type of case** b. 3 types of SMJ c. Federal Question Jurisdiction -- if the action "arises under" federal law i. Fed Q must appear as part of **plaintiff's cause...

**Civil Procedure** I. Subject Matter jurisdiction a. Involves the court's power over a **particular type of case** b. 3 types of SMJ c. Federal Question Jurisdiction -- if the action "arises under" federal law i. Fed Q must appear as part of **plaintiff's cause of action** set out in complaint 1. D's answer or defense is irrelevant ii. Complaint will not create Fed Q if it alleges federal issues **only in** anticipation of defense iii. For exam -- no AIC d. Diversity -- out of state parties iv. Requires "complete diversity" no **plaintiff** may be a citizen of the same state as the **defendant** v. Diversity must exist at time suit is instituted 2. Need not when cause of action arose & not defeated if after commencement of action becomes a citizen of the same state vi. Citizenship of individual based on domicile 3. Permanent home to which he intends to remain for an indefinite period 4. New citizenship established: (1) physical presence and (2) intention to remain there vii. Citizenship of Corp 5. Deemed to be a citizen of **every** state in which it is incorporated and the **one** state where it has its principal place of business 6. Principal place of biz = nerve center; high level officers, direct, control, coordinate activities viii. Class action suits 7. Use the citizenship of the name representative for the P's case ix. Partnerships 8. Take on the citizenship of each party x. Diversity cannot be created by improperly or collusively assigning a claim or joining a party merely to create diversity e. Amount in Controversy xi. Must be **in excess** of 75k exclusive of interests & costs xii. It's a good faith basis -- legally tenable possibility that the recovery will exceed the jurisdictional amount xiii. Equitable relief: AIC is satisfied if relief requested exceeds 75K from **either** P's **or** D's pov xiv. Aggregation: Plaintiff may aggregate all claims against a single D 9. Permitted regardless of if claims are legally or factually related to each other 10. one P who has an action against several D's cannot aggregate claims based on **separate** liabilities 11. **no aggregation problem** if the P asserts a **joint** claim against multiple defendants a. joint claims: court look at it as one claim & look at total value of the claim to determine AIC me 12. Several P's can aggregate their claims **only when** they are seeking to enforce a single right where they all have a common interest b. If claims are separate/ distinct cannot aggregate 13. For class action **at least** one claim must exceed 75k then court will have supplemental over the rest II. Personal jurisdiction f. Involved the ability of a court having SMJ to exercise power over a particular defendant or item of property g. Generally, must be authorized by statue **and** constitutional h. Limitations: xv. Statutory: states have the power 14. If no state statute grants the court the power over the parties lacks PJ xvi. Constitutional: due process clause places restrictions 15. Defendant must have **minimum contacts** with the forum states to be **fair & reasonable** c. Contacts must be purposeful & foreseeable that D can be sued d. Relatedness: whether the cause of action is sufficiently related to the D's contact with the forum 16. The D must be given appropriate notice of the action & opportunity to be heard xvii. If there is violation of the two requirements then no PJ even if state statute authorizes it xviii. Fairness: burden is on the D 17. D put at a severe disadvantage 18. Burden on witness 19. Plaintiff's interest in suing in this forum 20. Don't need to consider genral PJ i. In personam jurisdiction: when the forum has power of the person xix. Where the D is present in the forum state & personally served w process 21. Doesn't matter how long they are present in the state xx. Where the D is domiciled in forum state 22. Applies even when D is not physically within the state when served 23. Where they maintain a permanent home xxi. Where the D consents to jurisdiction 24. Express: party's express consent to jurisdiction given before or after suit is commenced e. By contract f. By appointment of agent to accept service of process 25. Implied: state has substantial reason to regulate the in-state activity of a nonresident of the state 26. Voluntary appearance xxii. Where the D has committed acts bring him within the forum state's long arm statutes 27. Specifies when a state may exercise personal jurisdiction over D from another state 28. Unlimited: authorize PJ up to constitutional limits 29. Limited: specify acts that subject out of state D's to PJ 30. Hybrid: specific acts and add a catach all provision to go to constitutional limits j. In rem jurisdiction xxiii. when the court has power to adjudicate the rights of all persons with respect to a particular item of property k. General PJ xxiv. for all causes of action xxv. Applies to where the D is domiciled l. Specific PJ xxvi. D's contacts with the forum III. Supplemental m. A way for a court to hear a claim that it otherwise wouldn't have SMJ over n. Requirements: xxvii. Must have a claim to supplement -- either Fed Q or diversity **and** xxviii. Supplement claim must share **common nucleus of operative fact w/ 1^st^ claim** o. In diversity supplement is available to parties **other than** P except if there is a secondary plaintiff & they don't destroy diversity just don't meet AIC p. Checklist: xxix. Is there a claim with original jurisdiction to supplement? xxx. Does the claim invoking SJ arise from the same common nucleus? xxxi. Is the underlying claim based on diversity, and if so is the P trying to use SK? q. Courts have discretion to decline supplemental jurisdiction xxxii. Claim raised novel issues of state law xxxiii. Supplemental claim predominates over original claim xxxiv. Original claim has been dismissed r. If claims are in federal court based **solely** on diversity cannot be used: xxxv. Claims by P's against persons made parties by impleader, compulsory joinder, permissive joinder xxxvi. Claims by persons proposed ot be joined as P's under impleader xxxvii. Claims by. Persons seeking to intervene as plaintiffs under intervention s. Joinder xxxviii. Joining two or more parties in one action or joining two or more claims against someone else xxxix. [Two main questions: ] 31. Do the rules allow for joinder? 32. Is there SMJ over the party's claims? xl. Compulsory joinder: when one party forces another party into the case 33. Should the party be join? g. When the existing parties can't get full relief without them there 34. Can the party be joined? h. Is there PJ? i. Will their presence destroy diversity? j. Would venue be improper? 35. If the party cannot be joined , should the action proceed anyway? xli. Permissive joinder: P may join other P or D if -- 36. Claims arise from same transaction or occurrence and 37. Claims share any common question of law or fact xlii. Only Plaintiff may initiate xliii. Two P join together & 2^nd^ P claim fails to meet AIC then can use supplemental so long as there is diversity between D & 2^nd^ P t. Impleader xliv. Allows a D to bring in a 3^rd^ party who may be liable to the D (indemnity or contribution) xlv. After 3^rd^ party defendant is impleaded, they may assert a claim against the P in pending case, if the claim arises from the same transaction or occurrence as the underlying suit xlvi. After 3^rd^ party D is impleaded, the P may asset a claim against him if it arises from the same transaction or occurrence as the underlying suit xlvii. D may implead a non-party, **only if** the nonparty is or may be liable to them for any. Part of the judgment that P may recover against them xlviii. Still need SMJ 38. Supplemental can be used xlix. venue doesn't need to be proper for 3^rd^ party D u. Cross Claims l. Party may asset a claim in a pending case against a co-party but only if the claim arises from the same transaction or occurrence as the underlying dispute li. Need SMJ still but can be through supplemental v. Counterclaim lii. Claim for relief against an opposing party liii. D's counterclaim cannot be combined with P's claim to reach AIC liv. Compulsory counterclaim: Arises out of the same transaction or occurrence as opposing party's claim 39. Does not need to meet AIC 40. Does not require joinder for additional parties 41. Must be asserted in pending action or lost 42. Cross claims are not compulsory lv. Permissive Counterclaim: arising out of a completely unrelated transaction must have independent jurisdictional basis and meet AIC cuz common nucleus isn't met w. 3^rd^ party claim: lvi. may be maintained only if the D/3^rd^ party P alleges that the 3^rd^ party D is liable to the D / 3^rd^ party P for all or party of the liability to the plaintiff IV. Venue x. Relates to the **proper** geographic district to bring the action y. General Rules where venue is proper: lvii. A judicial district in which **any defendant resides**, if all defendants are residents of the state where district is located lviii. A judicial district where a **substantial part of the events / omissions** giving rise to the claim occurred, or a **substantial party of property that is subject of action** is situated lix. If there is no district that satisfies (1) or (2), a judicial district in which **any defendant is subject to court's PJ** z. Residency: lx. Natural person resides in one district where domiciled lxi. A biz entity resides in any district where it's subject to PJ 43. General & specific lxii. May be waived by the parties 44. Considered waived unless timely objection is made to improper venue a. Transfer lxiii. Courts have the discretion to transfer the action to a court where the action "might have been brought" in conformity with the rules governing: (1) SMJ, (2) in personam jurisdiction over D, (3) venue lxiv. Can also transfer where all parties have consented V. Pleadings & Motions b. Purpose of pleadings is to give **notice** to the opposing parties c. Service of Process lxv. Any person who is at least 18 and not a party may serve summons & complaint lxvi. Service must be made within 90 days of complaint being file 45. Can be extended for good cause lxvii. Individuals served by: 46. Personal service 47. Service left at D's usual place of home with one of suitable age & residing there -- doesn't need to be related to the D 48. Service upon an authorized agent lxviii. Minors / incompetents 49. **Must** be served **only** in accordance with state rules lxix. Corporations 50. May be served by serving an officer, a managing or general agent, or authorized agent of the Corp. lxx. States 51. In accordance with the rules of the state 52. Where the federal court sits 53. Where service is to be made lxxi. International 54. Unless federal law provides differently, a court will acquire PJ over a party served in a foreign country: 55. As provided in international agreement 56. As provided by the foreign country's law or as directed by foreign official 57. Unless prohibited by law, by personal service or by mail 58. Any method the court so orders lxxii. Waiver of service by mail 59. To request a waiver, P must mail the D certain times -- formal request to waive, two copies of waiver form, and a copy of the complaint 60. D will have 30 days from the date the request was sent to return lxxiii. Waiver effect 61. A D who waives formal service of process has **60 days** from the date sent to answer the complaint k. Rather than 21 62. Waiver of service **does not** waive the D's right to object to venue & jurisdiction lxxiv. Failure to waive 63. If D does not waive service, P must serve using authorized methods 64. D will be liable for the cost of service, if no good cause for failing to waive lxxv. Immunity 65. Party, witness, or attorney who enters state to appear in **another action** cannot be served while there d. Complaint -- beginning of the case lxxvi. Contains claims for relief lxxvii. Technical requirement 66. Short statement on jurisdiction 67. Claims showing entitled to relief 68. Demand requiring judgment lxxviii. Detailed facts not needed, just to show plausible claim lxxix. If alleging fraud, mistake or special damages the P must state the circumstances w/ particularity & special damages must be specifically stated e. Pre-answer motions lxxx. [Rule 12(b):] prior to filing an answer, D may file a motion & raise following defenses 69. Lack of SMJ l. May be raised at any time even on appeal 70. Lack of PJ m. Must raise @ time files motion or answer whichever is first or waives 71. Improper venue n. Must raise @ time files motion or answer whichever is first or waives 72. Insufficient process o. Must raise @ time files motion or answer whichever is first or waives 73. Insufficient service of process p. Must raise @ time files motion or answer whichever is first or waives 74. Failure to state a claim upon which relief can be granted q. Can be made at any time prior to trial or at trial 75. Failure to join a party need for a just adjudication r. Can be made at any time prior to trial or at trial 76. All can be raised in the D"s answer instead of filing a motion lxxxi. [Answer:] D's responses to the allegations in the complaint 77. Must contain **specific** denial or admission to each claim s. Or a general denial w specific admission to certain claims 78. Without knowledge or insufficient info to form a belief it will constitute a denial 79. Failure to deny = admission 80. Must state affirmative defenses that D may have 81. Within **21** days after service if no 12b motion t. D who waived gets **60 days** to answer 82. If 12(b) motion then responsive pleading served within **14** days of denial or postponement of motion 83. The answer is due within **14 days** of service of a more definite statement if court grants rule 12(e) 84. Claims D may have against the P may be pleaded in answer as counterclaims u. If compulsory must be pleaded or it will be barred v. If permissive may be asserted even if no connection lxxxii. [Failure to answer] -- Default 85. Default failure to answer within time permitted 86. Default judgment is a judgment entered because the D did not oppose the case 87. D cannot proceed with the action until default is set aside by the court 88. If P doesn't push for a default judgement, then the D can answer outside the time frame w. Default can be set aside for good cause shown 89. Default by clerk x. Claim is sum certain y. Default is due to D's failure to appear z. D is not a minor or incompetent a. Damages requested is not greater than requested in complaint 90. Judgment in default by court b. Hearing on damages where D can be heard c. D must be notified by 1^st^ class mail 7 days prior to hearing if they participated at all d. D may move to set aside judgment on certain grounds, mistake, inadvertence, surprise & excusable neglect lxxxiii. [Motion for Summary Judgment ] 91. Made before trail but after discovery -- cannot make motion 30 days after discovery 92. Movant must show: e. No genuine dispute of material fact **and** f. Movant entitled to judgment as matter of law 93. Goes beyond the complaint to show facts that support no genuine dispute 94. Court may not decide disputed fact issues 95. Motion may be support / opposed w/ affidavits or other declarations made under penalty of perjury, depositions, sworn pleadings, admissions, answers to interrogatories lxxxiv. [Judgment as matter of law (JMOL) ] 96. Movant is asking for the judge to evaluate the merits of the case or jury's verdict 97. This is at or after conclusion of opponents case but before case goes to jury 98. Standard: a **reasonable jury would not have a legally sufficient basis** to find for the nonmoving party 99. Judge will look at evidence in favor of non-movant party 100. Judge can refuse to rule on motion cuz jury verdicts are favored to limit appeals lxxxv. [Renewed Motion for judgment as matter of law (RJMOL)] 101. After the jury returns the verdict 102. It must be filed no later than 28 days after judgment & party must have moved for JMOL at some time during trial 103. The standard is the same as JMOL 104. Should also make a motion for a new trial 105. Judge can't consider credibility of witnesses and weight of evidence lxxxvi. [Motion for new trial ] 106. Grave error committed during trial g. Ex: admission of inadmissible evidence, verdict is against weight of evidence, juror misconduct, or verdict is excessive or inadequate 107. Must be filed no later than 28 days after judgment 108. Standard: based on evidentiary deficiencies is lower than JMOL because JMOL changes the outcome of the case and issues verdict in favor of one party, whereas a new trial is just a do over and either party could still win 109. Judge may consider the credibility of witnesses and evidence lxxxvii. [Failure] 110. If a party fails to move for RJMOL or new trial on the basis of insufficiency of evidence, party is precluded from raising the question of evidentiary sufficiency on appeal VI. Discovery f. Pre-trial exchange of info lxxxviii. Whens? Hows? Wheres? Of a case g. Both parties are required to participate to help uncover opposing sides review of facts h. Duty to disclose parties are requires disclosing certain info to other parties w/p waiting for a discovery request i. Types of disclosures required lxxxix. Party has obligation to make a reasonable inquiry into facts of case xc. Parties must disclose all info reasonable available that is not privileged or work product xci. Types required; initial, expert, & pretrial j. Initial disclosures xcii. w/o waiting for request, a party must provide: 111. names, addresses, phone numbers of individuals who have information disclosing party may use to support 112. copies / description of docs, electronically stored information, and tangible things in possession / control that supporting party may use to support 113. a computation of damages claimed by the disclosing party & copies of materials that the computation is based on 114. copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered xciii. disclosures must be made **within 14 days** after meeting the parties k. Expert testimony xciv. Identities of the witnesses expected to be used at trial xcv. Disclosure accompanied by a report prepared & signed by expert listing qualifications, opinions expressed and basis for opinions, list of previous testimony given, & compensation xcvi. 90 days before trial if used to rebut opposing party then 30 days after disclosure of evidence xcvii. Party doesn't need to disclose evidence used **solely for impeachment** l. Pretrial disclosures xcviii. At least **30 days** before trial party must disclose & file a list of (1) witnesses to call, (2) witness to call if need arises, (3) witnesses whose testimony will be presented by means of deposition, (4) docs or exhibits to offer if needed xcix. Within 14 days to disclosure, a party may serve objects to use of depositions & admissibility of docs & exhibits c. Objections are waived if not made, except for objection that evidence is irrelevant, prejudicial, or confusing m. Scope of discovery ci. Any nonprivileged matter that is relevant to any party's claim or defense & proportional to the needs of the case cii. Proportionality requirement: if the burden & cost of discovery outweigh potential benefits to the other parties case ciii. [Trial prep materials: ] 115. **work product** of a party or representative made in **anticipation of litigation** is discoverable only after showing **substantial need** and to avoid **undue hardship** 116. extends to non-attorneys 117. underlying facts are not protected by work product so an attorney may ask during deposition 118. Procedure: when claiming privilege, must still disclose the existence of material in sufficient detail to opposing party so they may assess privilege VII. Methods & Interrogatories n. Interrogatories civ. Set of questions for opposing party to answer in writing, under oath cv. Only sent to **parties to the case** cvi. Parties must respond within **30 days** from delivery cvii. Limited to **25 questions** included subparts unless court order or stipulation to more o. Deposition cviii. Process of taking live testimony from witnesses & parties under oath cix. Objections will be noted in the transcripts cx. Motion to compel -- order the party to do something 119. Movant must certifies that in good faith attempted to confer with party failing to make discovery cxi. Have to give notice to the deposition 120. Doc served on all parties 121. Provides time, place & manner of deposition 122. Compels attendance of a party cxii. Subpoena required to depose a non-party &witness cxiii. Deposition of a non -- person 123. Entity ust designate a deposition witness 124. Witness must know about subject cxiv. Subpoena duces tecum: requires party or witness to bring tangible or docs to deposition cxv. Limits: 125. 10 per case 126. 1 per person without court approval or stipulation 127. 7 hours per day p. Certification & Duty to amend (depositions) cxvi. Required to sign discovery request or response to the request 128. Not submitted for improper purposes 129. Not unduly burdensome cxvii. Party's attorney must sign response & certify info contained is accurate cxviii. Party's must supplement response with updates or corrections q. Request for Production & Admission cxix. Production: written request to make documents available for review, copying or inspection 130. Party: requires only service of request for production 131. Non-party: requires service of subpoena cxx. Admission: written request for opposing party to admit admission 132. Narrows down the issue 133. Admit to the genuineness of docs 134. Failure to deny or object = admission 135. Limited to party's in case 136. Must return in **30 days** r. Medical Exam cxxi. Court-ordered independent physical or mental examination of the party when condition is in controversy cxxii. Limited to parties and must be connected to issue in case cxxiii. Can ask for copy of findings & deposition of examiner 137. Must turn over any exam reports that relate to the condition 138. Any privilege concerning any medical exam on the same condition is waived s. E-discovery cxxiv. ESI is covered under an ordinary request for production cxxv. Party may withhold ESI if not reasonably accessible due to undue burden or cost cxxvi. Motion to compel production & responding party may request order of protection 139. If protected, court still may order ESI produced at other party expense cxxvii. Must take reasonable steps to preserve discoverable info -- including ESI when litigation is anticipated 140. If lost despite reasonable steps to preserve courts may order measures to prejudice a requesting party cxxviii. ESI destroyed to avoid disclosure 141. Court may presume ESI was unfavorable & instruct jury that way, dismiss action or enter default judgment t. Sanction cxxix. Severity of discovery sancations depends on level of noncompliance cxxx. Partial failure to respond 142. Action for motion to compel h. Must certify you tried in good faith to resolve dispute i. Motion to compel granted: expenses awarded, including attorney's fees j. Motion to compel denied: protective order, and expenses and fees awarded to opponent cxxxi. Establishment order: facts asked for in discovery are taken as true cxxxii. Prohibit party from supporting claims or defenses or introducing evidence at trial cxxxiii. Strike pleadings cxxxiv. Stay proceedings cxxxv. Dismiss the action cxxxvi. Enter a default judgment cxxxvii. Contempt of court: parties can be held in contempt for disobeying court order 143. Exception: for refusing a medical exam cxxxviii. Complete failure to respond 144. Remedy: sanctions above 145. Must certify good faith attempt to resolve dispute 146. Opposing party cannot be held in contempt **CRIMINAL LAW** Murder I. Elements of a crime a. Actus reus: guilty act b. Mens rea: guilty mind c. Causation: factual **and** proximate cause of the result I. Common Law Homicides a. At CL homicides are subdivided into three different offenses i. Murder, involuntary manslaughter & voluntary manslaughter b. Murder: ii. Covers pre-meditated felony murder c. Voluntary manslaughter iii. Killing that would be murder if there wasn't an existence of adequate provocation d. involuntary manslaughter: iv. Death caused by criminal negligence v. Death caused by unlawful act II. Common Law Murder e. Is the unlawful filling of another **human being** with **malice aforethought** f. Malice aforethought: describes the mens rea required to convict a D of murder at CL vi. Intent to kill -- express malice 1. Can infer from the D's actions 2. Can be established under the deadly weapon rule -- intentional use of weapons allows inference of intent to kill vii. Intent to inflict great bodily injury 3. Intent was only to hurt viii. Reckless indifferences to an unjustifiability **high** risk to human life 4. Abandoned & malignant heart 5. Ex: shooting a gun into a crowded room ix. Intent to commit a felony III. Felony Murder g. Even an accidental killing murder x. Malice is implied from the intent to commit the underlying felony h. Burglary, arson, rape, robbery, & kidnapping xi. BARK i. Limitation on liability xii. Prosecution must prove D committed or attempted to commit underlying felony 6. If there is a substantive defense that negates the felony has defense for felony murder xiii. Felony must be independent of the killing xiv. Majority rule: death must have been a foreseeable result of the commission of felony 7. Most courts are willing to find most deaths foreseeable j. Accomplice liability: accomplices are responsible for all crimes committed in course of original crime or in furtherance of conspiracy k. Termination xv. Felony terminates once the felon has reached a place of temporary safety 8. If death happens after not FM 9. If death happens when fleeing FM xvi. Death must be **caused during** commission or attempted commission l. Co-Felon death xvii. Majority rule (redline): liability cannot be based on resistance by victim or police pursuit m. 3^rd^ party death: xviii. Agency theory: felon is liable only for killings committed by felon or agent xix. Proximate cause theory: felon is liable because felon's serious of events caused bystander's death IV. Voluntary Manslaughter n. This is murder but there is an existence of adequate provocation xx. **Still needs to fit into the definition of murder** if not can't be voluntary manslaughter o. Elements (must meet all 4) xxi. Provocation must have caused **sudden and intense** **passion** that would cause **ordinary person** to lose control 10. Objective test xxii. D must have **in fact** been **provoked** xxiii. There must **not have been sufficient time** from provocation & killing 11. Cooling period 12. Objective standard -- would a reasonable person have cooled off 13. Look @ nature of provocation & surrounding circumstances xxiv. D did not cool off between provocation & killing 14. Subjective test p. Adequate provocation xxv. Being subjected to serious batter or threat of deadly force and xxvi. Discovering one's spouse in bed with another person q. Mere words xxvii. CL: **cannot be adequate provocation** xxviii. Modern trend: leave It to the jury & use four-part test V. Involuntary manslaughter r. Criminal negligence: death cause by D's criminal negligence xxix. Fails to recognize **substantial and unjustifiable risk** AND failure is **substantial deviation** from standard of care xxx. MPC Recklessness: just need **substantial** & unjustifiable risk s. Unlawful Act xxxi. Misdemeanor or felony not covered by felony murder xxxii. Death must be foreseeable xxxiii. Under CL: only misdemeanors can be involuntary manslaughter xxxiv. For misdemeanors 15. Killing must be inherently wrongful act or 16. Death must be foreseeable & natural consequence of unlawful act VI. Statutory Classification t. Statute will say killing committed in course of specific felony is 1^st^ degree and everything else is 2^nd^ degree u. 1^st^ degree xxxv. Premeditated & deliberate 17. Deliberate: D made decision to killing a cool & dispassionate manner a. Intent to kill & decision made calmly 18. Premeditated: reflection on idea of killing can be brief xxxvi. Committed in certain way by statute 19. Ex: lying in wait, poison or torture VII. Causation v. D needs to be **both** cause-in fact & proximate cause w. Cause in fact: but for test x. Proximate cause: death was natural & probable result of D's conduct xxxvii. Even if not how D intended y. An act that speeds up the action is still causation z. Simultaneous acts by two or more people may be considered independently sufficient causes of a singular result a. Preexisting condition that makes a victim more likely to die does not break the chain of causation xxxviii. Takes the victim as he finds him b. Intervening act: breaks the chain of causation if: xxxix. Coincidence OR act of nature, gross negligence medical & Intentional medical harm that isn't foreseeable xl. Unforeseeable xli. Foreseeable intervening acts **don't** break causation 20. Negligent medication care 21. Acts by victim **Inchoate Offenses** I. Inchoate: describes something that is not yet complete a. Solicitation, attempt, & conspiracy b. Committee prior to and in preparation for a more serious offense II. Solicitation c. Consists of inciting, counseling, advising, inducing, urging or commanding another to commit a crime with the specific **intent** that the person commit the crime d. Offense completes at time it is made i. The person doesn't need to have agreed or even respond e. Not Defenses ii. Impossibility: culpability is measured by the circumstances as she believed them to be iii. Withdrawal / renunciation: typically, no defense that solicitor changed mind 1. MPC recognizes renunciation if the D prevents the commission of the crime iv. Person exempted from criminal liability for target crime cannot commit solicitation III. Conspiracy f. Elements: v. Agreement between two or more persons 2. Must agree to commit crime or use criminal means to achieve lawful object 3. Express or implied 4. If person is faking: a. Bilateral approach: need **two** guilty minds b. Unilateral approach (MPC): only need **one** guilty 5. Wharton rule: when two or more people are necessary for the commission of the substantive offense there is no crime of conspiracy unless more parties agree than necessary for the crime 6. Protected class rule: members of class statute is intended to protect cannot be guilty of conspiracy to violate statute vi. Intent to enter into an agreement 7. Can be inferred from conduct 8. May **not** be inferred from knowledge of conspiracy vii. Intent to achieve the objective of the agreement 9. **Each** D must intend to achieve objective of conspiracy viii. Overt act in furtherance 10. Majority of state require -- not needed for CL 11. Act of preparation is sufficient 12. Fine if only one member of the conspiracy commits the overt act g. Co-conspiratory Liability ix. Each co-conspirator is liable for crimes of all others if: 13. Crimes committed in furtherance of objective AND 14. Crimes were foreseeable h. Defenses x. Generally, no defenses xi. Can still be guilty even if the targeted crime is impossible xii. Withdraw of crime is not a defense cuz it's the intent to agree 15. MPC recognizes **only if** the withdrawal person stops the target crime xiii. Withdrawal is a defense from target crime & any subsequent crimes committed by the conspirators 16. If there is an affirmative act notifying co-conspirators in time to abandon plan IV. Attempt i. An act done with the intention of committing a crime that falls short of completion j. Elements: xiv. Specific intent to commit the crime AND 17. **Always specific** xv. Overt act in furtherance of that intent 18. Act in preparation is not enough c. Beyond mere preparation 19. D has to commit an act beyond mere prep 20. Two Tests: d. MPC (Majority): act must be a **substantial step** in conduct planned to commit crime that corroborates criminal purpose e. Proximity test (minority): D must commit an act that is **dangerously** close to success k. It's impossible to attempt a reckless or negligent crime l. Person can acquire attempt for strict liability xvi. D must act w/ intent to bring about the proscribed result m. Defenses xvii. Abandonment/ withdrawal 21. Majority: never a defense 22. MPC: valid defense if: f. fully voluntary not done due to difficulty or increased risk of apprehension g. Complete abandonment: manifest renunciation of criminal purpose xviii. Impossibility 23. Legal: D intended to commit a crime that really isn't 24. Factual: D unable to complete crime because of condition unknown to defendant h. Not a valid defense Merger I. Doctrine where a crime is considered to combine (merge) with another crime so the D can only be convicted of one crime II. Solicitation & attempt merge to a completed crime a. Conspiracy does not III. Cannot be convicted of solicitation & committed hitman. D is guilty of solicitation & murder as an accomplice b. **Convicted** of either crime but not both IV. D who completes a crime after attempting it can't be convicted of both attempt & completed V. Outlier is conspiracy c. Does not merge with completed crime d. D can be convicted of both conspiracy & completed crime **Property Offenses** I. Larceny: Taking a. Is the **taking** and **carrying away** of the **tangible personal property of another** by trespass with the **intent to permanently** deprive someone of it b. Taking: D must obtain control of the property i. Destruction or moving is not enough c. Carrying away: D must move the property ii. Even if it's only a short distance a few inches are ok d. Tangible personal property: personal property capable of being possessed e. Of another: property must be taking from someone who has a superior possessory interest to that of the D iii. Doesn't have to be the owner of the property just that they have a superior interest to D f. Possession: has possession if if she was given discretionary authority over the property g. Custody: only has limited authority over property h. By trespass: taking without victim's consent iv. Consent obtained by misrepresentation is invalid v. Larceny by trick: if the victim consents to the D's taking custody/possession of the property but the consent has been induced by a misrepresentation i. State of mind: vi. Intent to permanently deprive 1. Intent to borrow is insufficient 2. Intent to obtain payment of debt is insufficient vii. Intent must be present at moment of taking of property viii. Continuing trespass doctrine: if the D takes property with a wrongful state of mind (but w/o intent to steal) but later forms the intern 3. Viewed as continual and guilty of larceny 4. Initial taking must be wrong II. Embezzlement j. The fraudulent conversion of the property of another by a person in **lawful possession** of that property k. Conversion: occurs when someone with lawful possession but then , without permission, uses it as their own ix. D deals with the property inconsistent with the trust arrangement of which he holds l. D must intend to defraud for a conversion to become embezzlement x. Not satisfied if intent to restore same property 5. Has to be **exact same** a. **Ie.** Same exact 20-dollar bill xi. If intended to restore **similar or substantially identical** property embezzlement m. Possession requirement xii. D must have lawful possession of property III. False Pretenses n. Obtaining title to the property of another by a knowing false statement of **past or existing** statement with the intent to defraud another o. If **title** is obtained, then false pretenses xiii. Difference from larceny by trick that is only custody p. D must have created a false impression as to the **matter of fact** xiv. Not opinions xv. Not puffery xvi. Not failing to correct mistaken belief **if** D was not responsible for creating that belief q. Victim has to be deceived by or act on reliance on misrepresentation & the misrep must be a major factor in passing title r. Intent xvii. D must have known the statement to be false when it was made **and** must intend for the victim to rely on the misrep xviii. He has not committed false pretenses if he believes the statement true even if his belief was unreasonable IV. Robbery s. Larceny + force t. A taking of personal property of another from the other person or presence by force or intimidation with the intent to permanently deprive him of it u. For must be sufficient to overcome the victim's resistance v. Threats must be threats of immediate death or serious physical harm to the victim, member of family, relative, or a person in her presence at the time xix. Presence covers anything in victim's vicinity xx. If V is in a house, then vicinity would include other rooms within that house w. Threat to damage property **not** enough x. For or threats must be used either to gain possession of the property or to retain possession **immediately** after such possession has been accomplished **Criminal Procedure** Fourth Amendment I. In general a. 4^th^ amendment provides that people should be free in their persons from **unreasonable** searches & seizures i. Protects persons, houses, papers & effects b. Search: governmental intrusion into an area where a person has a reasonable & justifiable expectation of privacy c. Seizure: as the exercise of control by the government of a person or thing ii. Detentions of persons arrests d. Reasonableness: typically involves the gov't obtaining a warrant e. Warrants iii. Need probable cause iv. Supported by oath or affirmation v. Need particularity in describing f. **Privacy v governmental interests** II. Arrests & other detentions g. Seizures occur under the **totality of the circumstances** vi. A reasonable person would not feel free to leave vii. 4^th^ requires **physical application of force** by the officer or a **submission** to the officer's show of force h. Arrests viii. Occurs when police take a person into custody against will for purposes of prosecution or interrogation ix. Must be based on **probable cause** based on **totality of the circumstances** 1. PC present when @ time of arrest, officer had knowledge of reasonably trustworthy facts & circumstances sufficient to warrant a **reasonably** **prudent person** to believe suspect committed crime x. Warrant not generally required in **public place** 2. Officer may arrest w/o warrant if **probable cause to believe** the person committed a felony 3. Officer may make a warrantless arrest for a misdemeanor **committed in her presence** a. Aware through any of her senses xi. Need warrant to arrest in own home non-emergency 4. Officer executing can only enter home if **reason** to believe suspect is home 5. Warrantless home searches unreasonable unless exigent circumstances 6. Absent exigent circumstances officer cannot enter home of 33^rd^ party w/o separate search party b. If they do so, arrest is still valid, but evidence found during search is inadmissible xii. Unlawful arrest, **by itself**, no impact on subsequent prosecution 7. Officer can improperly arrest a person & detain him if they have PC i. Investigatory detentions (Stop & Frisk) xiii. Police must have **reasonable suspicion** supported by **articulable facts** of criminal activity or involvement in completed crime 8. Articulable fact = facts that can be spoken xiv. If police have reasonable suspicion to believe person is **armed & dangerous** may conduct a frisk (limited search) to ensure no weapons xv. Reasonable suspicion: more than vague suspicion but less than PC 9. Totality of the circumstances 10. Doesn't need to arise from personal knowledge 11. If from an informant's tip must be accompanied by **indicia of reliability** c. Predictive information to make suspicion reasonable xvi. Police must act in **diligent & reasonable manner in confirming or dispelling suspicions** 12. Brief but not subject to a specific time xvii. If suspicion to stop may require ID xviii. If RS turns to PC then officer can arrest xix. Police may briefly seize items upon RS but seizures limited j. Automobile stops xx. Need **reasonable suspicion** to stop a vehicle 13. Roadblocks are an exception to stop w/o individualized suspicion d. **Neutral & articulable standard;** and e. Designed to serve purposes **closely related to a particular problem pertaining to cars and mobility** xxi. Mistake of law that gives rise to RS does not invalidate seizure as long as mistake was **reasonable** xxii. Stop constitutes a seizure of driver **and** passengers xxiii. Can order occupants out of vehicle 14. If belief that dangerous can frisk detainee and search passenger compartment to look for weapons even after they're out of car xxiv. Pretextual stops 15. PC that traffic law violated can stop vehicle **even If** ulterior motive to investigate other crime III. Evidentiary Search & Seizure k. 4^th^ amendment protects against gov't searches **only if** there is a reasonable expectation of privacy xxv. Personal injury l. Reasonable expectation of privacy xxvi. Based on **totality of the circumstances** xxvii. Not reasonable if: 16. Held out to the public 17. Anything the person abandons 18. In someone else's home 19. Dog sniffs f. Stop cannot be prolonged g. Alert leads to PC to search car h. Dogs cannot sniff around the home 20. Open fields next to home i. Curtilages are subject to PO entry and search held out to public j. Consider proximity to home and where in the same enclosure k. Fly over naked eye is not a search xxviii. Personal effects m. Searches pursuant to a warrant xxix. warrant requirements 21. issued by neutral & detached magistrate 22. based on PC 23. particularity describe person or places to be seized xxx. To obtain valid warrant: 24. PO gives affidavit to magistrate 25. Affidavit shows PC to believe seizable evidence will be found 26. Magistrate signs off & issues n. Warrants can be anticipatory xxxi. Evidence will be there @ time of execution o. Informers must be reliable xxxii. Totality of circumstances -- reliability, creditability, & basis of knowledge p. Search will still be valid if mistaken warrant was relied on in good faith q. Scope -- anywhere items in question may be hidden xxxiii. What is reasonably necessary to discover items in warrant r. Execution of warrant xxxiv. Must be executed by police w/o unreasonable delay xxxv. No-knock entry 27. Officers are supposed to knock and announce 28. No knock is reasonable if knocking would be dangerous, futile or lead to destruction of evidence 29. Exclusionary rule is **not** available for violation of knock & announce s. Seizure of unspecified property xxxvi. When executing warrant PO may seize contraband/ fruits/ instrumentalities of crime they discovered whether or not specified in W t. PO can detain occupants while search is being conducted in the immediate vicinity but cannot search those not named IV. Warrant Exceptions u. Search incident to arrest xxxvii. No W needed to search person & things in person's possession xxxviii. Arrest must be constitutional based on PC xxxix. Traffic citation does **not** equal an arrest xl. Search contemporaneous with arrest xli. Scope: 30. Suspect's wingspan or grab area 31. Where accomplice may hide xlii. Searches in cars 32. Interior grab area **when arrestee is unsecured** 33. If arrestee is in back of squad car or in handcuffs generally may not search car unless **reasonable** belief evidence of arrest is in vehicle xliii. DUI justifies breath test v. Search of automobiles xliv. Diminished expectation of privacy in car xlv. PC to believe car contains contraband or evidence of crime xlvi. Scope 34. May extend to anywhere in car where officer has PC to believe contraband or evidence will be found 35. For drugs no spot in car is off limits & can extend to personal belongings of driver or passenger xlvii. No contemporaneous requirement xlviii. Can search vehicle after arrest when its impounded xlix. This can be extended to motor homes w. Consent l. Can search whatever li. Knowledge of right to withhold consent is not prerequisite to establishing voluntary consent lii. Who can 36. Anyone who appears to have authority 37. Those who have the apparent right to use or occupy the property liii. Scope 38. Scope of consent 39. Extends to all areas to which a **reasonable person** under circumstances would believe liv. If co-occupant says no cannot search x. Plain view / Stop & Frisk lv. Plain view 40. Can make warrantless seizure when: l. Legit on the premises m. Discover evidence / fruits/ instrumentalities / contraband n. Have PC to believe item **is** evidence o. In plain view 41. No manipulation is allowed 42. PO can seize item if reasonably believe weapons/ contraband based on plain feel w/o manipulation p. Consider expertise lvi. Stop & Frisk 43. Can stop upon **RS** can search if reasonably believes dangerous 44. Pat down of outer clothes 45. Can ask driver to leave vehicle and frisk q. May search passenger compartment even if not arrested if **limited to areas where weapon may be placed** y. Hot Pursuit / other emergencies lvii. Due to emergency like circumstances reasonable lviii. Use to prevent destruction of evidence 46. Cannot create the exigency lix. Evanescent evidence 47. Evidence that can disappear 48. Officers may seize without warrant 49. Cavet: natural dissipation of alcohol does not automatically determine a warrantless test lx. Hot pursuit if office is chasing the suspect can follow them into a home lxi. Emergency aid 50. Sometimes known as community caretaker exception 51. Officer may act without warrant if there is a reason to believe there's an emergency that will threaten health and safety unless they act immediately 52. Make sure emergency is on going V. Police Inventories & public school z. Inventories lxii. Officers may make warrantless search for purpose of inventory of personal belongings and impounded car lxiii. Make sure they're safe prevent claims of theft lxiv. Just need department policy that provides a. Public School lxv. Duty to protect their students lxvi. No W or PC lxvii. Permitted if conducted by school personnel & reasonable 53. Moderate chance of finding evidence of wrongdoing 54. Methods are reasonably related to the objectives 55. Not excessively intrusive lxviii. Schools can drug test for any school related activity Confessions & 14^th^ Amendment I. Confession = any incriminating statement a. Limited by the 14^th^ , 5^th^, and 6^th^ II. 14^th^ amendment b. Needs to be voluntary i. Totality of the circumstances -- age, education, mental/ physical condition, setting, duration, manner of interrogation 5^th^ Amendment I. Applicable to the states thorough the 14^th^ amendment II. Provides that no person shall be compelled to be a witness against himself III. Miranda Warnings a. Right to remain silence b. Right to an attorney can't afford one will be appointed to you c. Right to be warned that anything they say will be used against them IV. **Not offense specific** V. When required? d. When there is a custodial police interrogation i. Custodial: (1) would a reasonable person under the circumstances feel free to terminate interrogation, (2) does the environment present the same inherently coercive pressures as traditional station 1. If detention is voluntary, then it's not considered custody 2. **Objective standard** 3. **Not** for traffic stop ii. Police: only if the detainee knows the person doing the questioning is a PO iii. Interrogation: refers to express questioning & anything likely to elicit an incriminsate response 4. Doesn't apply to spontaneous statement made in response but then must give Miranda 5. Routine booking questions **not needed** not an interrogation 6. No need to give Miranda against due to break in interrogation **unless** enough time lapses that failure to do so would be an attempt to take advantage VI. Right to waive or terminate e. Options after Miranda iv. Do nothing 7. if detainee doesn't response police may continue to question v. Waive rights 8. Must be **knowing and voluntary** 9. Totality of the circumstances 10. If given Miranda and D continues to talk = waiver 11. If Miranda is given a voluntary confession will be valid even if PO lies about intent or fail to inform detainee attny is attempting to see him vi. Assert right to silence 12. Must be explicit, unambiguous, unequivocal a. Failure to speak doesn't count 13. PO must scrupulously honor request 14. PO may ask about another crime vii. Assert right to attorney 15. Must be explicitly & unambiguous 16. Must cease **all** questioning until attny or D initiates further questioning himself b. About any crime 17. Waiver can now only happen if attny is present or after D initiates 18. Lasts entire time detainee is in custody plus 14 days after returning home 19. Applies whenever there is custodial interrogation VII. Effect of violation f. Confessions obtained in violation may be used to impeach testimony but inadmissibly in case in chief g. If no Miranda confession Miranda given it would be inadmissible if deemed intentional h. Subsequent valid confession may be admissible if seemed unplanned and failure was inadvertent i. Evidence suppressed if failure was purposeful j. If concern for public safety & Miranda not given will be fine 6^th^ amendment I. Right to assistance of counsel II. Applies at **all critical stages after formal proceedings have begun** a. Formal charges have been filed III. Offense specific b. D must make a claim for 6^th^ amendment **for every** subsequently charged offense he wants counsel for IV. Waiver c. Must be **knowing & voluntary** V. Remedy d. If failure to provide counsel results in a conviction remedy is reversal w/o showing of unfairness in proceedings e. Statements made without counsel can be used to impeach Exclusionary Rule I. Evidence obtained in violation of the 4^th^, 5^th^, or 6^th^ amendment **cannot** be introduced in criminal trial a. Deter police from violating rights II. Fruit of poisonous tree b. Bans the use of evidence obtained or derived from the illegally obtained evidence III. Exceptions c. [Balance the purpose of the rule against the cost ] i. Depends on the culpability of the police & the potential of the exclusion to deter wrongful conduct d. [Independent source ] ii. Same evidence obtained from a lawful source e. [Attenuation intervening act/ circumstance] iii. Looks at how closely connected the improper action is to the discovery of evidence iv. Court considers: 1. Time between 2. Any intervening circumstances between conduct & discovery 3. Purpose & flagrancy of the conduct v. Intervening act of free will by D will break casual chain remove the taint f. [Inevitable discovery ] vi. If P can show PO would have discovered the evidence whether or not they had acted unconstitutionally g. [Good faith ] vii. Police acted improperly but in good faith pursuant to arrest or warrant viii. Exceptions 4. Underlying is lacking PC that no reasonable officer would have relied 5. Warrant defective on fact 6. PO or official obtained W lied or misled judge 7. Judge abandoned his role h. Exclusion is not an available remedy for violations of knock and announce **Property** Conveyancing - Encompasses everything that has to do with the transfer of real estate - Two-step process - Step 1: the land contract - Lives a short life span because it only lives to step 2 - Pass equitable title from seller to buyer - Closing date set in contract - Contract rules apply before closing - Issues typically arise between signing of contract and closing date (escrow) - Step 2: - Deed - Deed passes legal title from seller to buyer - Within the land K - Need offer, acceptance, & consideration - SOF - Signature of bound party & in writing - Description of property - ID of the parties of the K - Price and manner of payment - SOF exceptions - Part performance: court will enforce the K by specific performance if -- - Oral K is clear - **Possession** of the land by purchaser - Making substantial **improvements** - **Payment** of all or part of purchase price - Equitable conversion - Once K is signed EC recognizes the buyer as the owner of the property - Sellers interest = personal property - Retains bare legal title right to possess until closing - Buyer bares the risk of property damage **only if** seller is **not** at fault - Seller **must** credit insurance proceeds against purchase price - Under doctrine a deceased buyer's interest passes as real property to their estate - Deceased seller's interest, the right to the purchase price, passes to their estate as personal property - Marketable title - Implied covenant within land K that **@ closing** the seller will provide a marketable title - Free from any reasonable doubt no threats of litigation - Defects in chain of title - Signification **variation in the description** from one deed to the next - Deed in chain was **defectively executed** - Prior grantor **lacked capacity** to convey the title - Unmarketable - Adverse possession even if just a potion - Encumbrances - Mortgages & liens - seller has a right to satisfy **at closing** with proceeds from sale - as long as its accomplished simultaneously w title transfer title will be marketable - Easements - Reduces the value of the property - One visible or known does **not** constitute - Covenants & options - Restrictive covenants & options to purchase - Encroachments - When adjacent landowner is going over onto seller's land - Significant title defect - Still marketable if: (1) varies light & no inconvenience, (2) owner indicated will not sure, (3) existed for so long its legal by adverse possession - Zoning restrictions - Existing violation of ordinance = unmarketable - Restrictions are fine - Anything can be waived by buyer - Seller has until **date of closing** to make title marketable - If an installment land K seller has until **when delivery is to occur** (make final payment) to make it marketable - Remedies - Must notify seller & give **reasonable time** - Recission, damages, or specific performance w// adjustment to purchase price - Seller liability defects - No false statements of material fact - liable for material lies and omissions - A disclaimer will not excuse seller from fraud or failure to disclose - To be liable for failure to disclose: - The seller must know or have reason to know of the defect; - The seller must realize that the buyer is unlikely to discover the defect; **and** - The defect is serious enough that the buyer would probably reconsider the purchase - Performance & Breach of K - Time not of essence - Closing date in K **not absolutely** binding - If **reasonably** time after date still enforceable - Missing closing date is **not** a material breach - Time is of essence **when** - Contract states, circumstance indicate intention, party gives notice - If failure, then it's a total breach - Tender performance - B obligation to pay purchase price & seller's obligation to convey title are **concurrent conditions** - Neither party is in breach until the other party tenders performance - Even if closing date has passed - Remedies - Damages - Difference between K price & market value on date performance was due - Specific performance - Nonbreaching seller also entitled - If S cannot produce marketable title & buyer still wants to purchase, entitled to SP with reduction in purchase price - Recission - Buyer breaches seller may rescind K - Seller breaches buyer may rescind K & recover down payment - Buyer cannot rescind before closing cuz seller has until then to fix defects - Deeds - SOF - Deed must be **in writing** **signed by grantor** - **Unambiguous** description of land - if insufficient to provide a good lead, title isn't transferred - Parol evidence is permitted to clear up ambiguities - ID of the parties by name or description - Words of intent to transfer word "grant" is enough - No consideration required - Defective / Fraudulent - Void deed - Deed will be set aside by court even if property has passed to a bona fide purchaser - Forged, no delivered, dead/nonexistent grantee, deed obtained by fraud in factum - Grantor did not know what they were signing - Voidable - Deed will be set aside only if the property has **not** passed to a bona fide purchaser - Executed by minor, without mental capacity, by fraud in inducement, by duress or undue influence, mistake, breach of fiduciary duty - Fraudulent conveyances - With actual intent to hinder, delay or defraud creditor to grantor; or - Without receiving a reasonably equivalent value in exchange for transfer & debtor insolvent due to transfer - Closing Documents - Closing disclosure: detailing the loan amount - Mortgage amount, interest rate, monthly payment, if amounts can change, prepayment penalty, estimated taxes/insurance/ assessments, total closing costs to buyer - Notification of defects - Detailing any physical defects on property - Required even if selling "as is" - Environmental Report - Comes up in commercial real estate sales - Owner of property is responsible to pay to cure any damage - Delivery - A deed is not effective until it has been delivered - Delivery: grantors intent and is satisfied by **words or conduct** evidencing the grantor's intention that the deed have **some present operative affect** that **title** pass immediately & irrevocably - Presumption delivery - Handed to grantee - Acknowledged by the grantor in front of a notary; or - Recorded - If grantor retains possession presumption to no delivery - Delivery = title so returning the deed to grantor has no effect - Extrinsic evidence - Any type of evidence including grantor's conduct or statements **before or after** delivery are admissible to prove intent - Outside evidence is not permitted to show unconditional deed given directly to grantee was subject to a condition - Admissible to prove that the grantor did **not** intend to have any present affect at all - Delivery to 3^rd^ party - Transfer to 3^rd^ party w/o conditions - Delivery w/ instructions to delivery to intended grantee is considered valid - w/o instructions hinge on whether party is an agent of either party - Transfer w/ conditions - If escrow agent is given written instructions grantor is bound by the delivery to the agent - If oral instructions grantor may change the instructions & recall the deed while still in agent's hands, **unless written K of sale** - If died before title will still pass between escrow agent to grantee once the conditions are met - Donative escrow w / conditions - If grantor gives deed to 3^rd^ party w/ instructions to turn it over to donee only when certain conditions occur: - If the condition is something other than death, the grantor may retrieve it - Can change mind - Acceptance - **Must be** acceptance by grantee - Most states its presumed - Usually relates back to date of delivery of the deed - Some states don't relate back when it would defeat the rights of intervening 3^rd^ parties -- BFPs, Creditors or surviving joint tenants - Types of deeds - Quitclaim: - Contains no covenants (promises) - Grantor is not promising that he has good title - General Warranty: - Warrants against all defects in title including due to grantor's predecessors - Contains 6 covenants for title - Covenant of Seisin -- grantor has the interest she purports to convey - Covenant of right to convey -- grantor has the power to make grant - Covenant against encumbrances -- no visible/invisible encumbrances - Covenant for quiet enjoyment -- grantee will not be disturbed in possession or enjoyment of a 3^rd^ party's lawful claim - Covenant of warranty -- agrees to defend on behalf of grantee any lawful / reasonable claims of title by a 3^rd^ party & compensate grantee for any loss - Covenant for further assurances -- to perform whatever acts reasonably necessary to perfect the title - Special Warranty: - Contains same 6 covenant but only claims involving the grantor - No promises about prior owners - Breach of Covenants - Present covenants are breached **at time of conveyance** - Seisin, convey, encumbrances - Seisin & convey breached **if grantor is not the owner** - SOL beings at time of conveyance - General rule: subsequent grantee has **no right of action** against the covenanter - Encumbrances breached if **property is encumbered** - Future covenants are breached **only upon interference w/ possession** - Enjoyment, warranty, & further assurances - Future is not breached until **a 3^rd^ party interferes with the possession** of the grantee or successors - Covenants are viewed as continuous & can be viewed a number of times runs with the grantee's estate - Remedies - Damages treated like a breach of K - General guide = injured party should be put in the position they would have been in had the title been as promised - Estoppel by dead - If a grantor purports to convey an estate in property that she does not own, her subsequent **acquisition of title to the property will automatically insure to the benefit of the grantee** - Implied covenant she will convey property upon obtaining title - Remedies - Grantee may accept title or sue for damages Recording - Common law: first in time, first in right - Now statutes "recording acts" require a grantee to. Make a recordation to give "notice to the world" that title to certain property has already been conveyed - Meant to protect BFPs - By recording the grantee gives record **notice to everyone** - But it's not essential to the validity of the deed - Race Statute - First to record wins - Doesn't matter if the person had notice of a prior conveyance by the G - [A conveyance of an interest in land is valid against any subsequent purchaser whose conveyance is **first** recorded] - Notice Statute - Subsequent purchaser who had **no notice** of a prior conveyance by the G will prevail over a prior grantee who failed to record - No actual or constructive notice @ time of conveyance - Protected even if they decide not to record - [A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without, **notice**, unless the conveyance is recorded ] - Race-Notice - Subsequent purchase must not have **any notice** of the prior grant **and** record **first** - [A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without **notice**, whose conveyance is **first** recorded ] - Must be innocent and responsible - Who is protected from recording acts - Bona fide purchases are entitled to prevail against a prior transferee under "notice" and "race notice" statutes - BFP must be: - Be a **purchaser** - Not by gift, will, or inheritance - Take **without notice** - Pay **valuable consideration** - if the requirements are not met not protected - Notice - Actual notice - B gets literal knowledge of A's existence - Grantee knows of the prior transaction - Can be proven by extrinsic evidence - Most common is result of someone telling the grantee about prior conveyance - Inquiry Notice - Form of constructive notice - Buyer has a duty to exam the land before it is transferred - The inspection would show if anyone else was living on the property - A grantee is expected to demand to see the grantor's title docs and require them to be recorded if not, they are on inquiry notice of anything those documents would have revealed - Record Notice - Constructive notice - B is charged w / record notice if A is recorded in the chain of title - Find out through a title search - If document outside the chain of title is referred to in a doc that is in the chain of title, that reference may be enough to put the grantee on notice of other instrument - Shelter Rule - Person who takes from a BFP will prevail against any interest that the BFP would have prevailed against - Still trust even if the transferee had **actual knowledge** of the prior unrecorded interest - Mortgagees v creditors - Lenders w mortgage is considered purchasers for value like any BFP - Creditors / lienors are not protected by recording acts their notice or lack of notice of prior claims is irrelevant - Record Notice -- Chain of title - In grantor-grantee index system, a purchaser is charged w / notice of conveyances of the property by their grantor that were **recorded** after the grantor acquired the property and **before** a deed is recovered conveying title - Subsequent purchaser will only be charged w notice if deed is in **chain of title** - It's recorded in a fashion that a searcher could reasonably find it - Wild deeds: is a recorded deed that is not connected in chain of title - Hasn't been properly recorded incapable of giving notice of existence - Same as never recording - If recorded doc in chain of title refers to another instrument, reference may be sufficient for constructive notice - Effect of recording - Gives all prospective subsequent grantees constructive notice can be no BFPs - Recordation not necessary for a valid conveyance - It won't validate an invalid conveyance - Record when it is file @ recorder's office - Recording & Estoppel by Deed - Estoppel by deed: equitable concept - One who conveys property where he has no interest is estoppel from denying that validity of the transaction when he subsequently acquires that interest that he had previously purported to transfer - Shoots back in time to A's rescue. **Mortgages** - Overview - To secure a debt borrower gives the lender a mortgage on property - Lender may foreclose on the mortgage - Borrower = Mortgagor - Lender = mortgagee - The transaction involves a promissory note & the mortgage - Note = personal obligation - Not paid then it can be sold to pay debt - Transfers by Mortgagees & mortgagor - All parties can transfer their interest - Mortgagor transfers by deed property - Mortgage will always follow - Buyer assumes the mortgage or takes subject to it - Assumes = agreeing to be personally liable on the note - Expressly assumes mortgage - Subject = not agreeing to personal liability - Mortgagee's only recourse is foreclosure - Mortgagee transfers by indorsing note and executing a separate assignment of mortgage - Note & mortgage must pass to **same person** for transfer to be complete - Due on sale clauses - Allow the lender to demand full payment of the loan if mortgagor transfers interest in property w/o lenders consent - Defenses & discharge - If underlying loan is unenforceable so is the mortgage - Duress, mistake, fraud & other K defenses - Consumer Protection when M signed - Dodd -- Frank: requires residential mortgage lenders to determine consumer's ability to pay before extending a loan - Terms have to be understandable & fair - Consumer Protection Foreclosure - Mortgagee must in good faith, consider a request made by mortgagor for modification or another alternative - Cannot file foreclosure while request is pending - If request made during foreclosure action cannot continue until resolved - Discharge of M - Full pre-payment discharges lien - Merger -- a mortgage lien vests the mortgagee with equitable interest or legal interest while the mortgagor retains the other interest - Deed in lieu if FS -- mortgagor turns over her equity of redemption to the mortgagee - Acceptance permits the mortgagee to take immediate possession w/o formalities of the sale - Doesn't terminate JR. liens cuz not FC - Possession before foreclosure - When default the mortgagee can sue on the debt or foreclose - Majority of states is a lien theory - Mortgagee is considered the holder of a **security interest only** & the mortgagor is deemed the owner of the land unit FC - Mortgagee may not have possession before FC unless consents or abandons - Foreclosure - Process where the mortgagor's interest in property is terminated - Sold to satisfy debt in all or part - if not fully satisfied lender can sue debtor in a **deficiency action** - satisfy the remaining balance - Surplus junior liens are paid in priority then to debtor - Judicial sale highest bigger takes property - Lender. May bit at the sale - Redemption - At any time **prior to FC sale** mortgagor has the right to redeem the land or free it from mortgage by paying off amount w/ interest - In equity -- allows the mortgagor to redeem the property before the foreclosure sale - Universally recognized until the date of sale - Gone once a foreclosure has happened - Acceleration clause: permits the creditor to require full balance or trigger default - can also be full balance, costs, interest - If note does not contain acceleration clause, then paying miss payment plus interest & costs - Clogging the equity of redemption: debtor cannot waive any rights in the event of default - Equitable to redeem - Statutory right - Recognized in half the states & allows mortgagor to redeem for period of time - Typically, FC price not the original date - Debtor is still in right of possession during statutory period - FC buyer has to wait until period is over - Priorities - Determined by the time placed on property - FC terminates junior interests to mortgage & won't affect senior - Buyer takes as title existed - Includes jr, mortgages, liens, leases, easements & others - Once FC of superior claim Jr. can't go to property to satisfy - If 1^st^ priority debt is not in default, but there is FC action from subsequent creditor it will not affect the first - FC buyer not liable for 1^st^ priority debt - **mortgage stays with the land** - subsequent buyer doesn't have to pay but land can be FC on - Determining Priority interest - By Chronology - Earliest mortgage place on property is first priority f - Chronology can be changed by: - Failure to record - If 1^st^ fails to record but the 2^nd^ records/gives value/and takes without notice to the 1^st^ 2^nd^ mortgage has priority - Subordination agreement - Can enter into agreement with jr. to subordinate priority - Purchase money mortgages - PPM: - Vendor of the property as part of purchase price or - 3^rd^ party lender allowing buyer to purchase property - Whether recorded or not has **priority** over mortgages liens and other claims that arise **prior** to acquisition of title - PPM priority is defeated by **subsequent** mortgages - Modification of senior - If landowner enters into modification with first mortgage the junior mortgage will be **given priority** over the modification Superiority: - Interests that rank higher can be set aside Lower priority - Foreclosing party must give interests notice of foreclosure - Junior interests that don't receive notice are treating as a senior interest and will survive foreclosure Distribution - Distribute proceeds of foreclosure sale to the foreclosing party then group junior interests in order of priority - Senior interests will remain with the land Deficiency Suits - Any junior interest holder who did not receive full payment from proceeds is entitled to bring deficiency suit Distribute excess funds - If surplus funds go to debtor