May 26th Notes

Complex Litigation
May 26, 2010

NEWS
Final June 2nd
--------------------------

Bankruptcy
-meant to help debtors

Discharged when you are free of the obligations.
Myth, bankruptcy helps your credit
    -you can't file again in 7 years (not true)

Truth:
If you were discharge under Chapter 7, 11, 12 and want a 13?
---wait 4 years until it can be filed again

If you were discharge under Chapter 13?
--wait 2 years to file again

If no discharge at all OR did get a discharge but 2nd filing will not be a Chapter 13?
--no waiting period

---ruins credit score though for sometimes a decade

BAD ACTS
Non-dischargable claims
--the creditor's claim can be held
section 523

1. Taxes/Fines
2. Obtaining money by fake pretenses
3. Willful/Malicious Injury (recently added)
4. Alimony/Child Support
5. Embezzlement/Larceny
6. Student Loans due within 5 Years
7. Failure to schedule creditor (needs participation)
8. Secured claim in exempt asset (lay away)

REALLY BAD ACTS
Discharge
--the debtor commits one of these, they are thrown out of court to the creditors, you lose protection
section 727

1. Falsifying/Concealing/Destroying records
2. Concealing Property
3. Failure to fully/Accurately account
4. Failure to obey a court order
5. False statements/Claims

2005 Presumed Non-dischargable
1.More than $500 in luxury goods within 90 days of filing
2.Pulling cash out withdrawals in 70 days, lots of money

Chapter 11 Bankruptcy
-emerge the same company going in
-purpose to get healthy again
-always a trustee in a Chapter 7, in Chapter 11 no trustee
    --debtor in possession (dip)

-Plan of Reorganization
    -debtor takes the lead
    -debtor has 120 days only the debtor can plan the reorganization
        -after that time anyone can plan the reorganization
    -need to see if Chapter 7 liquidation is worthwhile
        -do the creditors get more in 11 than in 7?
    -To vote yes on your plan you need
        -½ in # (5) +  2/3rd in Amount ($30,000)
        -NEED BOTH
    -Need agreement of the creditors
    -Can change and revise plans

10 creditors totaling $45,000
$500
$750
$1,000
$1,000
$1,750
$,3000
$4,000
$5,000
$8,000
$20,000

Family Farms Bankruptcy
Chapter 12
-similar to Chapter 13
-like a Chapter 11 with payments

What is a family farm?
1.50% debt arises from the farm operations
2.$3.237 million
3.50% of income generated by farm

Chapter 13
-like a Chapter 11 payments
-wage earner bankruptcy now called regular income bankruptcy
-you need some sort of regular income

-unsecured debt is $336,000
-secured $1,010, 650

Rules:
1.make payments to them for a minimum of 36 months (3 years max of 5 years)
2.must use all disposable income towards debts

-more property to get to keep
-must start making payments in 30 days of filing
-if you can pay $6,000 to your creditors in 60 months you can't use Chapter 7


Review for the Final
------------------------------
on the exam basic formula
-start with the law (bankruptcy, first amendment, etc.)
-do not get hung up on the law
-show the facts
-then apply the law to the facts
-rather hear how it works on the case at hand

Product question
    -show all the types of losses
    -pick a loss, pick a theory of recoveries (contract, tort, strict liability)
    -warranties, express warranties (puffing up ego is not express warranty)
    -implied warranty (always apply unless it is disclaimed)
    -reliance must be reasonable
    -look at design
    -foreseeable misuse, failure to warn or instruct on test

Comparative Negligence
Assumption of the Risks
    -voluntarily assumed
Disclaimers
    -as is
    -merchantability

No state of the art on the test

Look at the dates of sales (they might be important)


Bankruptcy question
    -talk about their claims
    -start with “one of the purposes of bankruptcy is …”
   
First Amendment
-religion questions
    -is it an establishment or an exercise?
        -start with the difference
        -Yes you can bring constitution with you
    -establishment
        -separationist (not as common)
            OR
        - accommodationist (lemon test) apply 3 rungs
            -
        -could be both

Free exercise
    -know the 4 concepts    (more likely to test on this)
    -compelling interest for government to be interested
    -make sure you back up your arguments
   
Cross over or religion and speech concepts for an essay

Speech
-know your 6 exceptions

fighting words, obscenity, clear and present danger
    -might be the others probably not

-must show the law first then in-sighting imminent lawless action not protected

can not get fighting words unless it is specifically directed at you

vagueness
    -(that do not clearly define the speech)

over breadth

prior restraints
    -(on test) are presumptively unconstitutional
    -(injunctions, usually in permits for a rally and gets denied for clear and present danger)

symbolic speech
    -is protected
    -conveying message through actions
    -no speech all action, least amount of protection

traditional forums
    -where is it taking place (almost always there)
    -area used for communication of ideas and exchange of information and exercise of 1st amendment

police powers
    -discuss both sides

Read Edwards v. North Carolina (1963)
    -how he brings all the concepts in

tries to get 5 of the concepts in there