pieper bar review
TRANSCRIPT
JURISDICTION
Due Process Clause requires you to
MOP
up jurisdiction
•
M
Some minimum contact w/ thestate of NY
•
O
An opportunity to be heard
•
P
Been properly served w/ process To obtain IPJ over
∆
DIAL DC
•
D
∆
is a domicile of NY
•
I
In state service on a non-domicile
∆
•
A
Serving an agent designated bythe
∆
to accept service
•
L
Long Arm (LA) jurisdiction over anon-domiciliary
•
D
∆
is doing business in NY
•
C
∆
consents to NY jurisdiction To get LA jurisdiction over a ND whocommits tort act outside NY causinginjury inside NY, sue a non-resident’s
DEER
in New York (+
SSS
)
•
D
Derives substantial revenues fromgoods used or consumed or servicesrendered in NY
•
E
Engages in some persistent courseof conduct w/in NY
•
E
Expects or should reasonablyexpect its tortuous acts would haveconsequence in NY &
∆
derives
substantial revenues
from interstateor international business
•
R
Regularly does or solicits businessin NY
+ SSS
→
conduct purposelydirected at NY
S
- Soliciting of NY Business
S
- Sales in NY
S
- Performing Services in NY You can sue in NY in matrimonial actionwhere
DADA
doesn’t live in NY &mama’s seeking maintenance or childsupport.
•
D
NY was last recent marital Domicileof parties
•
A
Abandonment took place in NY
•
D
Claim for support accrued underNY Decree or under NY law
•
A
Parties executed a separationAgreement in NY
Pieper Bar Review Mnemonics2
Even if no minimum contacts or notserved properly,
∆
may consent to NY jurisdiction by
SCAAMS
•
S
Stipulating in open ct., pleading, k,or letter
•
C
Asserting unrelated CC in answer
•
A
Serving an Answer & failing toraise jurisdictional objection
•
A
Asserting improper service inanswer, but failing to move for Sum Jud on issue w/in 60 days from whenanswer was served
•
M
3211 Motion to dismiss, but failingto raise MOP jurisdictional objection
•
S
Moving for Sum Jud on related CC,seeking affirmative relief from NY ct.
AL-RAN
can serve a summons outsideNew York
•
A
Attorney in that jurisdiction
•
L
Law of that jurisdiction
•
R
Resident of NY
•
A
Adult
•
N
Non-PartyService of process is made by
SAD MIC
•
S
Delivered to person of Suitable age& discretion, mail copy, then file
•
A
Agent Service
•
D
Due Diligence - Nail, Mail & File
•
M
Mailing Process to
∆
who mustthen consent to such service
•
I
In hand personal delivery to the
∆
•
C
Ct. invented service You may serve a corporate
A MAC DOG
anywhere
•
A
Assistant Cashier
•
M
Managing Agent
•
A
Agent authorized to receive servicefor corp. expressly, impliedly or byestoppel
•
C
Cashier
•
D
Director
•
O
Officer
•
G
General Agent
Pieper Bar Review Mnemonics3
Only a
MAN
can make a properappearance in a pending lawsuit
•
M
Make pre-answer Motion,extending
∆
’s time to answer
•
A
Serve an Answer
•
N
Serve a Notice of appearance inresponse to summons served w/ocomplaint To vacate default judgment, bring a
REAM
of papers w/in 1 yr of beingserved w/ copy of judgment
•
RE
Reasonable Excuse for
∆
’sdefault
•
AM
∆
must offer Affidavit of Meritsetting forth meritorious defense to
Π
’s claim & that
Π
won’t beprejudiced by opening default judgment
STATUTE OF LIMITATIONS
A
BEAR
patient doesn’t need to giveinformed consent
•
B
In Best interest of patient not todisclose risks involved cause it wouldhave adversely affected patient
•
E
Emergency treatment was requiredcause of an imminent danger orthreat of death to patient
•
A
Patient Asks Dr. to proceedregardless of risk
•
R
Risks were so commonly known
A DIMPLE FIB
’s for 1 year
•
A
Arbitration award must be judiciallyconfirmed
•
D
Unlawful State Discriminationcomplaint must be filed w/ NY stateDivision of Human Rights
•
I
Recover excess Interest paid onloan that has usurious rate (NY - 16%+ annually)
•
M
Malicious Prosecution
•
P
Invasion of Privacy
•
L
Libel & Slander
•
E
Retaliatory Eviction
•
F
False Imprisonment or False Arrest
•
I
Intentional Infliction of EmotionalHarm
•
B
Assault or Battery
Pieper Bar Review Mnemonics4
LEAP DAD’S CAT
if SOL expired
•
L
Parties Lengthen the SOL
•
E
Equitable Estoppel
•
A
Written Acknowledgment of anold / existing debt
•
P
Part payment of an old debt
•
D
Disability of the P
•
A
Amending a pleading to add a timebarred claim
•
D
Death of a party
•
S
Soldier’s and sailor’s relief act
•
C
Time barred related CC’s
•
A
Claim’s Arising outside NY whereIPJ can’t be obtained over
∆
in NY ct.
•
T
Termination of action, thenrecommencing after SOL has expired.A
SCARF CRIME
lasts 6 years
•
S
Specific Performance of Contract
•
C
Contract Actions to recover $ thatdon’t involve sale of goods
•
A
Actions recognized at common law,but where leg. hasn’t prescribed SOL
•
R
Reformation of Contract
•
F
Fraud, Deceit or
ℵ
Misrepresentation
•
C
Corp. Derivative Actions
•
R
Rescission & Restitution c/a
•
I
Indemnification or Contribution
•
M
Mortgage Foreclosures
•
E
Equitable Claims There was a
SOFT RAIN
for 3 years
•
S
Strict Products
λ
(
DIM
)
•
O
Misappropriation of corp or
Opportunity
•
F
Breach of Fiduciary Duty in whichonly $ damages are sought
•
T
Damages for Trespass or claim fornuisance
•
R
Replevin or Conversion
•
A
Annulment of a marriage on theground of fraud
•
I
Tortuous Interference w/ anotherpersons k rights (
KID
)
K
∆
Knew of enforceable k
I
Intentionally Procured it’sbreach; AND
D
Proximately caused
Π
$Damages
•
N
ℵ
or Malpractice by professionalLiability is vicarious to a
POPE
•
P
Principal
•
O
Owner of NY Vehicle
•
P
Partner
•
E
Employer
J.P. MD
doesn’t get an extra 6 months torecommence dismissed suit
•
J
Lack of Jurisdiction (
MOP
)
Pieper Bar Review Mnemonics5
•
P
Π
’s neglect to Prosecute 1
st
action
•
M
Dismissal on Merits (Sum Jud)
•
D
Voluntary Discontinuance by P
MOTION PRACTICE
Dismiss
Π
’s complaint w/
SPARERIBS
•
S
SOL
•
P
Payment
•
A
Arbitration & Award
•
R
Release given by the
Π
•
E
Collateral Estoppel
•
R
Res Judicata
•
I
Infancy or Incompetency
•
B
Π
’s claim was discharged inBankruptcy by
∆
•
S
SOFSummary Judgment has
LIPS
to kiss
•
L
Motion can be decided as matter of Law
•
I
There are no factual Issues of material fact that have to be litigated
•
P
Ct. can grant Partial summary judgment
•
S
Ct. can Search the record, but onlyon issues or claims raised in motionpapers
PROVISIONAL REMEDIES
Before granting
LIAR
, ct. looks for a
COP
•
L
Lis Pendens (Notice of Pendency)
•
I
Preliminary Injunction
•
A
Order of Attachment
•
R
Receiver
•
C
Showing by C&C evidence,
Π
probably will succeed & is entitled toPR requested by demonstrating extra-ordinary circumstances (
LIE
).
•
O
Judge must issue Order
•
P
Immediate Post-Seizure hearing’srequired if
LIAR
was obtained exparte (5 or 10 days is consideredimmediate)LP’s the only PR where
Π
’s not a
SLOB
•
S
The Sheriff’s not involved
•
L
There’s no ct. review of
Π
’sLikelihood of success on the merits
•
O
No ct. Order’s required
Pieper Bar Review Mnemonics6
•
B
No Bond needs to be postedPrelim injunction won’t be granted unless
Π
tells a
LIE
•
L
Likelihood (probability, but notcertainty) of
Π
’s success
•
I
Irreparable injury’s occurring or willoccur to
Π
unless PI is granted.
•
E
Equities when balanced by ct.clearly weigh in
Π
’s favor.Extra Ordinary Circumstances must beshown in
Π
’s motion papers before ct.can
FIND C.J.
to attach her property andgrant order of attachment
•
F
∆
’s Foreign corp not qualified to dobusiness in NY
•
I
Intent to defraud creditors orfrustrate enforcement of $ judgment
∆
READS
his NY assets
READS
a fraudulent intent
•
R
Removes assets /property from state
•
E
Encumbers property
•
A
∆
has Assigned property
•
D
Disposed of it
•
S
Secreted property (hid it)
•
N
∆
’s a Non-domiciliary who residesoutside state
•
D
∆
’s a NY Domicile or NY residentbut can’t be personally served despitediligent efforts
•
C
Crime Victims are entitled to orderof attachment when suing convictedfelon (Son of Sam law)
•
J
Π
’s cause of action is based ondefault Judgment from fed or sisterstate ct. entitled to full faith & creditor is based on foreign countries judgment
Pieper Bar Review Mnemonics7
PLEADINGS
Even if a tortfeasor is less than 50% atfault,
WARM DIPS
doesn’t limit joint &several
λ
•
W
Worker’s Comp. cases where
Π
’semployer’s impleaded by
∆
to share(contribution) in employee’s graveinjury
•
*A
Π
’s injuries were caused by
∆
’s“use, ownership or operation” of
A utomobile, motorcycle or othermotor vehicle.
Except Municipal Fire trucks &Police Cars
•
R
Reckless (Gross
ℵ
) Conductcausing
Π
’s injury
•
M
∆
’s who are More than 50%responsible for
Π
’s injury
•
D
Wrongful Death judgments (NY -actions to recover only “econ injuries)resulting from decedent’s death
•
I
Intentional Tortfeasors remain100%
λ
for
Π
’s injuries
•
P
Property damage
•
S
Party who released HazardousSubstance (can be compelled to pay100% of
Π
’s judgment regardless of it’s apportioned share of fault)
VENUE
Venue is determined by
TLC
•
T
Transitory Action
•
L
Local Action
•
C
Action to Recover Chattel(Replevin)Local actions are
WASP MEN
•
W
Action for tort of Waste
•
A*
Action involving leasehold
•
S
Specific performance of real prop k
•
P
Partition of reality that’sconcurrently owned
•
M
Mortgage Foreclosure
•
E
Ejectment action
•
N*
Nuisance action
DISCOVERY
Use a
PAID MAID
for pre-trial discovery
•
P
Physical Exam
•
A
Request for Admissions
•
I
Written Interrogatories
•
D
Depositions (aka EBT’s‘examination before trial’)
•
M
Mental Exam
•
A
Demand for Addresses
•
I
Inspection of Evidence
•
D
Discovery of Evidence (“Discovery& Inspection”)Object to the form of an EBT question at
A CLAM BAR
•
A
Ambiguous Question
•
C
Compound Question (asking 2things at once)
•
L
Leading Question on direct exam
•
A
Argumentative & BadgeringQuestion
•
M
Misquoting an earlier statement
•
B
An overly Broad Question
•
A
Assuming a fact not in evidencewhen asking Question
•
R
Redundant Question on directexam (previously asked & answeredby witness)
BAR SAP
needs a ct order for EBT’s
•
B
Before action’s been commenced,to assist in bringing action or topreserve evidence
•
A
After case’s placed on trialcalendar & no objection’s made w/in20 days by other party that case’s notready for trial, no further discovery’sallowed unless moving party canshow ct “unusual or unanticipated”circumstances occurred subsequentto filing notice of issue & prejudicewould result if further discovery’s notpermitted.
•
R
Refusal to comply w/ EBT Demand
Pieper Bar Review Mnemonics8
•
S
Special Proceedings - Art. 78(except notices to admit arepermitted in special proceedings)
•
A
Arbitration requires extra-ordinarycircumstances for ct. to order pre-trialdiscovery
•
P
Prisoners
DRIPS
are a discovery punishment
•
D
Dismiss action against
DRIPS
Π
ororder default judgment against
DRIPS
∆
•
R
Resolve issues against a non-disclosing party
•
I*
Impose attorney’s fees & punitivesanctions against non-disclosing party
•
P
Preclude that party from offeringevidence on certain issues
•
S
Strike that party’s pleading or anypart thereof An expert witness must disclose
I.Q.S.O.S.
•
I
Expert’s Identity (except doctor’sidentity in med mal case doesn’t haveto be disclosed - to prevent retaliationby other doctors (peers)).
•
Q
Expert’s Qualifications
•
S
Subject matter on which expert willtestify
•
O
Substance of expert’s Opinion;AND
•
S
Basic Overall Summary of groundsthat form basis of Expert’s Opinion There’s a
BAN
on interrogatories
•
B
Bill of Particulars & Interrogatoriescan’t both be demanded (except inmatrimonial actions)
•
A
Π
can’t demand interrogatoriesfrom
∆
until after
∆
’s time to Answerhas expired.
•
N
Where
ℵ
is sole basis of
Π
’s claiminterrogatories or EBT’s can bedemanded but not both.BP is demanded only for
LAP
•
L
Limits proof that can be offered attrial
•
A
Amplifies pleading
•
P
Prevents surprise at trial
Pieper Bar Review Mnemonics9
ARBITRATION
Arbitration awards may be vacated if they are
FABLES
•
F
Fraud, misconduct or corruption of arbitration
•
A
Procedure used violated Art. 75
•
B
Bias of arbitration.
•
L
Award Lacked rationality.
•
E
Arbitration Exceeded authority oracted contrary to pp
•
S
Service of demand to arbitrationwasn’t properly made, thus party whodidn’t participate in arbitration causeshe wasn’t properly served may haveaward vacated.
CONTRACTS
The ingredients for a
TACO
make acontract
•
T
Definite Terms, expressed orimplied
•
A
Acceptance of Terms
•
C
Consideration Supports k
•
O
Offer inviting acceptanceAn offer expires when it gets
TIRED
•
T
ℜ
Time after offer’s made or afterexpressly stated in offer
•
I
Mental Incapacity or Death of offeror or offeree
•
R
Revocation of offer communicatedto offeree before accepted
•
E
Express or implied rejectioncommunicated to offeror
•
D
Destruction of subject matter of offer or intervening illegality,terminates offer by operation of lawOptions can
DIE
•
D
Destruction of Subject Matter of Option
•
I
Intervening Illegality
•
E
Expiration of stated option timeextinguishes option
POP
needs no consideration, only signedwriting (NY)
•
P
Pre-existing duty (modification of kprice)
•
O
Options
•
P
Past Consideration provided it’sexpressed in signed writing
SMART FLYS
must subscribe to anagreement
•
S
Surety Contracts
•
M
Marriage Contracts
•
A
Answer for debts discharged inbankruptcy
•
R
Real Estate Contracts
•
T
Testamentary Promises (NY only)
•
F
Finders Fee Arrangements
Pieper Bar Review Mnemonics10
•
L
Leases Longer than 1 year
•
Y
Contracts Not Capable of CompletePerformance w/in a Year
•
S
UCC Art. 2 Sales ContractsUse a
COMB
for promissory estoppel inNY
•
C
Charitable Pledges
•
O
To avoid OutrageouslyUnconscionable Results
•
M
Oral Marriage Contracts
•
B
Promises by Gratuitous Bailees toobtain insurance on bailed goodsA constructive trust is a
T-CUP
•
T
Transfer of property in reliance onpromise;
•
C
Existence of Confidential orFiduciary Relationship
•
U
Unjust Enrichment to Transferee of Prop or to some other 3P; AND
•
P
Promise, express or implied to holdproperty for
Π
’s benefit which promisehas been breached3 types of k beneficiaries are
CID
•
C
Creditor Beneficiary
•
I
Incidental Beneficiary (not really3PB)
•
D
Donee BeneficiaryCan’t modify the k, if a 3PB is
MAD
•
M
Manifested assent called for in 3PBk (accepts offer)
•
A
Commences Action againstPromisor for Breach of 3PB k; OR
•
D
Detrimentally Relies on K byMaterially Changing PositionContract assignments involve
A.D.A.
•
A
Assignment of beneficial rights (ex.right to receive payment)
•
D
Delegation of performance of aduty; OR
•
A
Assumption of duties & liabilities bya 3P
Pieper Bar Review Mnemonics11
SIR-P
can’t assign
WASP
•
S
Statute prohibits assignment of right to receive certain payments(
WASP
):
W
Worker’s Comp.
A
Alimony or Child Support
S
Spendthrift Trust Income
P
Personal Injury or WrongfulDeath cause of actions
•
I
Where Coupled w/ ImproperDelegation of k duty to an unqualifiedperson
•
R
Where Risk to obligor is altered byassignment
•
P
Where services are of highlyPersonal nature, person receivingservices can’t assign away right, itwould require other person to performservices for someone else materiallyaltering that person’s obligation.
HAIL
, a “substantial” breach of k
•
H
Hardship on breaching party, if totalmaterial breach is declared
•
A
Amount of benefit bestowed onnon-breaching party (greater benefit,less likely ct. is to find materialbreach)
•
I
Whether breach was Innocent.
•
L
Likelihood of full performance beingachieved“
I
3
FU
2
MED & I SIP
” a breach of kdefense
•
I
Infancy
•
I
Insanity
•
I
Intoxication
•
F
Fraud
•
U
Unconscionability
•
U
Undue Influence
•
M
Mistake
•
E
Equitable Defenses
•
D
Duress&
•
I
Impossibility of Performance
•
S
SOF
•
I
Illegality
•
P
Parol Evidence Rule (PER)
Pieper Bar Review Mnemonics12
The other
SI
2
R M
is a fraud
•
S
Scienter,
∆
Knew the Statement wasFalse
•
I
Lie was Made w/ Intent to Defraud orMislead
Π
•
I
Resulting Econ. Injury to
Π
becauseof Fraud
•
R
Π
’s
ℜ
Reliance on Misstatement /Lie
•
M
Lie Involved False Material Factwhich Induced
Π
to Enter K Unilateral mistake
COPS
out w/ theEquity of Rescission
•
C
Mistake was Communicated toOther Party Before he detrimentallyrelied on Mistaken Figures & ChangedPosition
•
O
Mistake Involved Ordinary
ℵ
•
P
Prompt Notice of Mistake Was Givento Other Party
•
S
Mistake Would Impose SubstantialHardship if Not CorrectedA
THUG
may render a k illegal
•
T
Type of Illegality & extent public’sharmed
•
H
Harm that forfeiture would cause if k was declared unenforceably illegal,ct. looks to see whether contractsbeen substantially performed.
•
U
Unjust Enrichment (a windfall) toparty asserting illegality defense
•
G
Relative Guilt of Each Party
4-D’s
are impossible
1)
D
Death of Performing Party
2)
D
Danger to life or ill health of performing party
3)
D
Destruction of Subject Matter of K
4)
D
Delay’s temporarily causingperformance to become impossible orimpracticableNo damages recovery when wearing
CAPS
•
C
To recover consequential damages,they must have been w/inContemplation of both parties when kwas executed
•
A
Damages that party could’veAvoided.
•
P
Damages for Pain & suffering oremotional distress resultingfrom breached k even if such damageswere foreseeable
•
S
Speculative damages aren’trecoverable, must be prove w/
ℜ
certainty
PLUS
terms don’t belong in Contracts
•
P
Terms which violate NY’s Publicpolicy (usurious rate of interest)
•
L
Unreasonably high Liquidateddamages clause
•
U
Unconscionable terms
•
S
Clause in k agreeing to seek specificperformance in event of breachdoesn’t have to be enforced by ct.Apply
TISSUE
to an employmentrestriction
•
T
Time restriction must be
ℜ
in length
•
I
Inability of employee to workelsewhere.
•
S
Geographic Space must be asnarrow as possible, extending only tothose areas that protects theemployer’s interest.
•
SUE
The employee’s services must beSpecial, Unique or Extraordinary.If assignor assigns same right twice,assignee 1
st
in time prevails, unless 2
nd
took assignment in GF, paid value & was1
st
to
JPNC
(MBE)
•
J
Obtain a Judgment
•
P
Get Paid
•
NC
Enter New Contract w/ the obligor
Pieper Bar Review Mnemonics13
SALESO-CAN
can’t accept
J STRAW
’s additionalterms
•
O
Offeror Objects to additional termsw/in
ℜ
time
•
C
Offer Expressly Conditionsagreement exclusively to terms inoffer.
•
A
If Additional terms MATERIALLYALTER offer terms don’t become partof k
•
N
Either or both parties are non-merchants.
J STRAW
Materially Alters offer if it wouldcause SURPIRSE OR HARDSHIP if offerorwasn’t made aware of its existence:
•
J
Clause bestowing Jurisdiction onparticular ct. or requiring offeror toconsent to jurisdiction in particularstate.
•
P
Part payment
•
S
Shortening SOL to sue for non-conforming goods
•
T
Limiting Tort
λ
•
R
Altering UCC rules for ROL
•
A
Adding Arbitration clause unless it’scustomary practice in trade
•
W
Clause negating
M FEET
Warranties such as those of merchantability or fitness You don’t need SOF’s in a
SWAMP
•
S
Contracts for SpeciallyManufactured Goods
•
W
Wavier
•
A
Judicial Admission of K
•
M*
“Merchant Memo”
•
P
Part-Performance
OF MICE
permits parol evidence
•
O*
Establish Oral condition precedentto legal effectiveness of k, provided itdoesn’t contradict express term of k
•
F
Party can’t invoke PER to shield thatparty from allegations of Fraud orMisrepresentation
•
M
Mutual Mistake or claim forReformation of k
•
I
Illegality
•
C
Failure of Consideration
•
E
Explain Ambiguous or Missing Terms or Show No EnforceableAgreement was ever intended
Pieper Bar Review Mnemonics14
Sales Contracts imply
CIDER
•
C
S’s not obligated to extend Credit.
•
I
B has right to Inspect tenderedgoods before accepting them, unless kexpressly provides otherwise orinvolves order bill of lading.
•
D
Tender of Delivery’s implied at S’splace of business, unless both partiesknow goods are located elsewhere.
•
E
B & S must Exchange performancesconcurrently.
•
R
ROL’s on party in best position tobear risk (person most likely to havetaken precautions to protect goodsfrom loss
→
Insurance)
SOAL-V
and
SORE-V
effect ROL
S
ale
O
n
A
pproval
L
ate
V
esting-Goods held by B are not subject toclaims of B’s creditors.
S
ale
O
r
R
eturn
E
arly
V
esting-Title & ROL vest immediately in B eventhough B has right to rescind kSeller’s
SPARKLE
when B’s breach
•
S
Stopping Goods in Transit
•
P
Sue for Entire K Price
•
A
Demand Assurances
•
R
Re-sell goods to another B
•
K
Keep part of breaching B’s deposit,never more than $500
•
L
Sue for Lost profit
•
E
Exercise right to Reclaim GoodsDelivered to Insolvent B
CID’S WAR
is a buyer’s remedy
•
C
Cover
•
I
Incidental & Consequential Damages
•
D
Damages for Lost Bargain or forPrice Paid
•
S
Specific Performance of UniqueGoods
•
W
Breach of Warranty
•
A
Acceptance Revoked
•
R Reject non-conforming goods Pieper Bar Review Mnemonics15
M-FEET
Warranties are in a sales k
•
M*
Merchantability
•
F
Fitness for a Particular Purpose
•
E
Warranty against Encumbrances
•
E
Express Warranties
•
T
S’s Warranty of TitleExpress warranties are
SAD
•
S
Sample or model which is the basisof the bargain
•
A
Written/Oral Affirmation of fact orpromise made by S relating to goods
•
D
Description of goods inadvertisement, brochure or catalog
PINE
for defective product liabilities
•
P
Tort Theory in Strict Products
λ
•
I
K theory for Implied warranty
•
N
Tort theory of
ℵ
•
E
K theory for breach of a
SAD
Express Warranty
G. P
2
ALMS
is not
λ
for a breach of warranty
•
G
Gov’t Military K Defense
•
P
Lack of Privity of K
•
P
Federal Preemption
•
A
Assumption of Risk (can be assertedto any
PINE
claim)
•
L
Lack of Timely Notice to a Seller
•
M
Unforeseen Misuse of a Product
•
S
SOLA
DIM
product is defective
•
D
Defect in Design of Product
•
I
Inadequate Warning
•
M
Manufacturing Defect or Mistake infabrication process.
NEGOTIABLE INSTRUMENTS
One
MUST SOW
to be a negotiableinstrument
•
M
Must be payable in Money Only (USor Foreign Currency)
•
U
Promise to pay must beUnconditional
•
S
Must be payable in Sum Certain
•
T
Must be payable on Demand, @definite Time or after certain futureevent
•
S
Must be Signed by maker or drawer
•
O
Must be payable “
to the Order of
”:named person, “bearer”, OR “cash”
•
W
Must be in Signed Writing.
T-SAID
he warrants the endorsement
•
T
Has good Title
•
S
All Signatures are genuine
•
A
Instrument hasn’t been MateriallyAltered
•
I
No knowledge of any Insolvencyproceedings of maker or drawer
•
D
No Defenses are good against himAn H.D.C. can’t know the instrument is
ODD
•
O
Overdue (check (not note) is stale30 days from date of issuance)
•
D
Dishonored
•
D
Real or personal defenses toinstrument such as visible evidence of alteration, or holder had knowledgewhen she took check, that drawer haddefense to it’s payment.My
MUFFIN
bounces off an H.D.C.
•
M
Mistake
•
U
Unconscionability of underlyingtransaction
•
F
Failure of Consideration
•
F
Failure of Condition Subsequent orPrecedent
•
I
Inducement by Fraud
•
N
Non-delivery of completedinstrument
Pieper Bar Review Mnemonics16
Real
DAFFIDILS
stop an H.D.C. cold
•
D
Duress – threat of violence (notecon. duress)
•
A
Material Alteration of Instrument
•
F
Forgery
•
F
Fraud in Fact
•
I
Illegality – (gambling, usury)
•
D
Discharge in bankruptcy of makeror drawer
•
I
Infancy of maker or drawer
•
L
Lack of mental capacity
•
S
SOL has expired on the debt
SECURED TRANSACTIONS
A security interest can be perfected in a
PIG
•
P
Commercial Paper (NI’s, bonds orstock certificates).
•
I
Intangible Property
•
G
Goods
Pieper Bar Review Mnemonics17
CORPORATIONSTWIST
can pierce the corp veil
•
T
Ten largest shs are personally
λ
forunpaid wages or vacation pay,provided it’s corp. stock’s not sold onan exchange.
•
W
Corp officers are criminally strictly
λ
if corp failed to obtained Worker’sComp Insurance & employee’s injured.
•
I
Illegal conduct by shareholders
•
S
Sales tax or corp income tax thatwasn’t paid renders o or d responsiblefor corp. finances personally
λ
totaxing authority
•
T
Tortuous conduct by corp officer’s,employees or shareholders who can’tuse corp. veil to hide from personal
λ
Place
PVT. McLAW
in the Certificate of Incorporation
•
P
Pre-Emptive Rights (PR’s)
•
V
If Value of “no par” shares is to befixed by shareholders, rather thandirectors
•
T
Stock Transfer Restrictions (placeon stock itself as well)
•
M
Maxi-Majority (MM) Voting orQuorum Requirements (Super-Majority)
•
C
Cumulative Voting for election of directors
•
L
Old Corps, Less than 2/3 of sharesOR New Corps, Less than majority of shares
→
to vote to voluntarilydissolve corp, or less than 10% sharescan vote to call sh meeting to discuss& vote on judicial dissolution.
•
A
Sh Agreement to:
Act w/o shareholders’ meeting byshareholders submitting writtenconsent to corp activity.
Vote in pre-determined way
Limit or restrict power of directors;OR
Shareholders direct mgmt (wherethere’s no Board of Directors forcorp)
•
W
Corp Dissolution @ Will or uponspecific event
Pieper Bar Review Mnemonics18
Shareholders must approve
DAMM’SLAP PLAN
•
D
Voluntary Dissolution of Corp.
•
A
To sell, Lease or ExchangeSubstantially All of Corp’s Assets.
•
M
To Amend CoI, Add or Delete sh MMvoting or quorum requirements.
•
M
Merger or Consolidation of corp w/another corp., LLC or Limited
•
S
Board of directors can bind corp asSurety on any debt that furthers corp’sbusiness, but to bind corp as surety fornon-corp purposes, shareholders mustapprove (2/3)
•
L*
CoI change of Location of corpoffice
•
A*
CoI change to appoint new Agenton who service can be sent by SOS
•
*
= these can be done by majority voteof directors or majority vote of shares,but both votes aren’t required(everything else requires both)
•
P
Amend CoI to change Corp Purpose
•
P
Amend CoI to create or abolish PR’sor cumulative voting
•
L
Corp Loan to d requires shareholderapproval, except in new corps whereBoard of Directors has adoptedgeneral overall plan for making loansto directors or Board of Directors votesdirector’s loan would be in corp’s bestinterest.
•
A
Amend CoI to Abolish or limitdirectors’
λ
for
ℵ
•
N
Amend CoI to change Corp. NameIf a dissenting sh goes to
CAMP
she getsAppraisal Rights
•
C
Abolish Cumulative Voting
•
A
Sell, Lease or ExchangeSubstantially all of Corp’s Assets.
•
M
Consolidate or Merge corp. intoAnother Corp.
•
P
Abolish PR’s, redemptive rights orother stock rights
Pieper Bar Review Mnemonics19
A ct. will attempt to
AIM
for fair value inappraisal rights
•
A
Net Asset Value – used in realestate investment holding corps, retailor wholesale corps holding substantialtangible assets
•
I
Investment Value - earning power of corp. stock.
•
M
Market Value for Stock based onarms length transaction in which ct.looks at sale of similar businesses insame community.A
PEACE
proxy is irrevocable
•
P
Pledged shares (for loan)
•
E
Person Entitled to shares becauseshe’s contracted to buy them or nowowns them, but who wasn’t owner of record on corp. books.
•
A
Agreement btwn shareholders tovote in particular way & executeirrevocable proxies for that purpose.
•
C
Creditor of corp who receivesirrevocable proxy for extending newcredit or continuing credit to corp.
•
E
Employee
COOTE
doesn’t have preemptive rights
•
C
Shares issued by corp forConsideration other than cash
•
O
Shares used to affect an OrganicChange such as consolidation ormerger w/ another business.
•
O
Shares Originally authorized in CoIwhich are sold by corp w/in 1
st
2 yearsof its existence, because PR’s don’tattach for 2 years from date CoI wasfiled
•
T
Treasury Shares
•
E
Shares issued to keep or attractCorp Employees. Judicial review’s precluded if the boardshopped at the
GAP
•
G
Acted in GF
•
A
Acted w/in scope of its authority
•
P
Acted in furtherance of Corp’sPurpose
Pieper Bar Review Mnemonics20
