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Business Law Final
New Material Only
84
Business
Undergraduate 3
12/06/2009

Additional Business Flashcards

 


 

Cards

Term
Chapter 29: Secured Transactions
Definition
Term
What article of the UCC is the Secured Transactions section located?
Definition
Article 9
Term
Security Interest
Definition
Interest in personal property or fixtures which secures payment or performance of an obligation
Term
Fixtures
Definition
Personal property permanently attatched to real estate
Term
Collateral
Definition
Property subject to a security interest
Term
Debtor
Definition
Party owing money or an obligation secured by the security interest.
Term
Secured Party
Definition
Person who holds (owns) security interest
Term
Financing Statement
Definition
Notice of security interest filed with a gov't ofice
Term
Lien
Definition

Right to sell property on default

 

ex: mortages, some judgements and security interests

Term
Types of Collateral: Goods
Definition

things tangible and movable or fixtures

 

this adds fixtures to the article 2 definition

 

 

Term
Types of Collateral: Quasi Tangibles
Definition
Paper (insmnts) which in themselves evidence a right (holder in due course insmnts)
Term
Types of Collateral: Intangibles
Definition

Property with no aspect of physical existence

 

1) accounts receivable

2) goodwill of business

Term
Types of Collateral: Article 9--> When Applicable
Definition
Article 9 regulating security interests does NOT apply to real estate OR to perfection of security interests in motor vehicles (perfect thru title)
Term
What are the 3 Requirments for Creating a Security Interest?
Definition

1) Valid written security agreement or possession of the collateral:

i) Security Agreement:  

-with language transferring a security interest in collateral

-sighen by the debtor

-containing a description of colleteral sufficient to identify it

 

ii) An oral security agreement is enforceable if the secured party takes possession of the collateral.

 

2)  The secured party gives value:

i)Value: past or present consideration

 

3) Debtor has rights in the collateral:

i) ownership or permission from the owner to pledge the collateral

 

Term
Attatchment
Definition

Once the three requirements (valid written security agreement or possession of collateral, the secured party gives value, and debtor has rights in the collateral) are met the security agreement is said to attatch to the collateral. 

 

Attatchment is the movement in time when the security agreement becomes enforceable.

Term
Perfection
Definition

Def:  perfection is the process to make the security interest enforceable against third parties (parties other than the secured party and the debtor) who take a later interest in the collateral.

 

*Perfection tells the 3rd party that the collateral already has a claim.
"dibs!"
Term
What are 3 ways to perfect a security interest?
Definition

1) By possession
i) Common Law pledge

ii)Pawn shop

 

2) By attatchment of security interest--> is the holder has a purchase money security interest (PMSI) in consumer goods, other than motor vehicles or fixtures

i) buy a dishwasher at Sears and they put you on a installment plan (lender gives you money to buy something specific)

ii) Consumer goods: purchased for non-business use

 

3) By filing a financing statment (effective 5 years)--> typical way to perfect in business transactions

Term

Financing Statements

1) What it contains

2) When it is required

3) Where to file

Definition
Term

A) Contents:

i) name and address of debtor

ii) name and address of the secured party

iii) description of collateral (type of collateral enough-->puts public on notice)

 

B) When they are required:

i) required method of perfecting for most business transactions: must file if no possession of collateral and no PMSI in consumer goods

 

C) Where to file

i) Secretary of the State's Office

Definition
Term

Floating Liens

 

Proceeds, Future Advances, After-acquired property.

Definition

Proceeds: 

i) what ever is received by the debtor in exhcange for transferred collateral

ii) ex: anything you get in exchange for collateral (say Shaina trades her motorcycle for a boat)

 

Future Advances

i) loans (advances) to be made by a secured party in the future, that is some time after the promissory note is signed (collateral is security for line of credit)

-line of credit for a business

 

After-acquired property

i) property of a type similar to the collateral acquired by the debtor after the signing of the security agreement

ii) ex: inventory

Term

Priorities to Collateral

5 types of parties in order of priority

Definition

1) Buyer of goods in ordinary course of busines--> take free of security interests in sellers inventory

i) ex: buying a tube of toothpaste at Walmart, you do not have to give that back to Walmart's creditors if Walmart defaults

 

2) Purchase Money Security Interest (PMSI) non-inventory PMSI if perfected within 20 days of attatchement to receive priority over other perfected secured parties

i) ex: buy a fridge for business... business has 20 days to file for the collateral (perfect) even if someone else has perfected in that time period

 

3) Secondhand Purchaser of consumer goods--takes free of security interest perfected by attatchment

i) "Garage Sale Rule"

 

*4) FIRST TO PERFECT OR BECOME LIEN CREDITOR (general rule)

a) perfection of a S.I. in any of the three ways: possession of collateral, attatchment or filing

b) Lien creditor--> creditor who has obtained a judgement and an execution lien; a trustee in Bankruptcy is the most common example of a lien creditor

 

5) First to attatch if no secured parties have perfected

Term
Ignore the Security Interest
Definition

a secured party may obtain a judgement based upon the amount owed rather than repossessing the collateral

-any creditor can file a lawsuit, even if they are unsecured!

eg: Finance company finances a car--but the engine blows (now only worth $100), so they sue and ignored collateral since they were owed $5000

 

 

Term
Repossession
Definition

1) a secured party may take possession of collateral covered by a secured agreement

 

2) No breach of peace is allowed when repossessing collateral.

 

3) ex: can't break into a house or garage.  can't beat up debtor.  However, minor trespass is not breach of peace

 

Term
Repossession Sale
Definition
A secured party may dispose of collateral and apply the proceeds to the obligation
Term
Retaining Collateral
Definition
A secured pary may sometimes keep the collateral as satisfaction (payment in full) of the obligation.  This requires notice, a right to redeem the collateral and proper protection of consumers.
Term

Effect of Disposition of Collateral at a Repo Sale

 

Transfer of Good Title

Definition
A purchaser at a valid repo sale takes title free of ownership claims of the debtor and the secured party
Term

Effect of Disposition of Collateral at a Repo Sale

 

Order of Distribution of Proceeds

Definition

1) Expenses of the repo sale (possessing, holding and preparing collateral for sale, including attorny fees)

2) Satisfaction of Debt of 1st Lienholder

3)Subordinate security interest holders who gave written notification (2nd lien, then 3rd lien, etc.)

4) Debtor is entitled to any surplus. *usually a debtor is responsible for a deficiency)

Term
Termination Statement
Definition
when the debt is paid or other obligation satisfied, the secured party files a termination statement in the office where the original financing statement was filed.  A termination statement gives notice that the creditor no longer has a lien on the property.
Term
Chapter 48: Real Estate and Financing
Definition
Term
Marketing and Listing Agreements
Definition

1) a listing agreement is an agreement with a realtor to be the seller's agent for the purpose of selling the property

2) Exclusive Listings: seller of real estate gives realtor the exclusive right to sell the property.

Term

What happens if seller finds buyer:

 

(if realtor has no contact with buyer)

Definition
Seller still owes commission
Term
What if the seller changes mind after buyer is found?
Definition
Seller still owes commission to realtor.  Realtor produces ready, willing and able buyer @ listed price.
Term
Cash on Closing
Definition

Purchase price is pain in full at closing; title is transferred immediately

 

this happens 99% of the time

Term
Installment Land Contract
Definition

Also called contract for deed.

 

Seller finances purchase and retains title and deed until consideration is paid in full.

 

If you default anything you paid is gone, like you were renting

Term
Grantor, Grantee
Definition

Grantor: transfers interest in land

 

Grantee: receives interest in land

Term
Warranty Deed, Quitclaim Deed
Definition

Warranty Deed: title is guaranteed

 

Quitclaim Deed: title is not guaranteed

-gift transfer land for Trust, title may not be clear

Term
Requirements for a Deed
Definition
Written deed transferring described property, signed, notarized and delivered.
Term
Types of Ownership Interests: Fee Simple Defeasible
Definition

a) entire ownership, subject to a condition

b) ex: Schoolhouse land given as long as land is used for "school purposes".  Once it went abandoned the original owner gets it back

Term
Types of Ownership Interests: Partial Interests (3 types)
Definition

1) Easements: right to use a portion of real estate without owning it

i) ex: roadways, utilities

 

2) Profits: right to enter land and remove something from it

i) ex: mineral or timber rights

 

3) Licenses: revocable, temporary right to use real estate

i) ex: football ticket, license to hunt on another's land, or use their lake

 

 

Term

Types of Ownership Interests:

Life Estate

Definition
Right to exclusive possession of real estate based on the lifespan of a named person; aka life tenancy
Term

Types of Ownership Interests:

Future Interest

Definition

1) an ownership interest in land which becomes tangible in the future

 

2) ex: reversionary interest in which possession of land reverts to a grantor after a life estate

Term
Abstract of Title and Title Opinion
Definition

1) Abstract: a summary of transactions pertaining to the land since title came from the gov't

 

a history of title

 

2) Title Opinion: a lawyer's opinion on marketability of the title after examining the abstract

(who's title is it really?)

Term
Title Insurance
Definition

*more efficient than abstract or title opinion

 

1) insurance company guarantees good title

2) make sure to check exclusions carefully

Term
Define: mortgagor, mortgagee
Definition

Mortgagor: transfers a mortgage (borrower)

 

Mortgagee: receives and holds a mortgage (lender)

Term
Title Theory v. Lien Theory
Definition

i) title theory: titile and possession in mortgagee

(didn't get to live on land until you paid lender back)

 

*ii) Lien Theory: title and possession in mortgagor (borrower)

-if they default, the mortgafee can foreclose however

Term
What are the Different Financing Vehicles for a Mortgage? (3 types)
Definition

1) Cash on closing with mortgage

2) installment land contract

3) lease with option to buy (used if borrower does not have credit to get a loan)

Term

2 Types of Financing Insmnt and which is most used in MO?

 

Definition

1) Mortgage: a lien on real estate where the mortgagee personally exercises foreclosure rights

 

*2) Deed of Trust: a lien on real estate where a third party, the trustee exercises foreclosure rights

 

*most used in MO

 

 

 

 

Term
Requirements for Valid Mortgage?
Definition

Signed

notorized,

delivered

writing just as with deeds

Term
Opend-end Mortgage (line of credit)
Definition
Mortgage secures future advances
Term
Second Mortgage
Definition

1) Lower in priority and usually later in time than the first

2) may also have 3rd or 4th mrtge etc

Term
What are the 5 types of clauses in Mortgages?
Definition

A) Acceleration:  allows declaration that entire balance is due if there is a default on a loan (eg not wait 30 yrs)

 

B) Due on Sale: allows acceleration if interest in land is sold

 

C) Power of Sale:  allows private foreclosrue (nonjudicial foreclosure-->no court hearing)

 

D) Points:  Loan origination fee where one point equals one percent of loan amount

i)pay more points for a lower intrst rate

ii)pay fewer points for a higher inrst rate

 

E) Prepayment Priveleges: allows early payment without penalty--> typically unless borrower has bad credit.

Term
Default: Creditor's Rights
Definition

1) Accleration

2) Private or Judicial Foreclosure

3) Deficiency Judgment-sueing to get money still owed after a repo sale

 

Term
Debtor's Rights
Definition

1) Statutory notice of forclosure sale (certified mail)

 

2) Equity of Redemption: right to repurchase the real estate prior to foreclosure

i) by paying the entire balance due to mortgagee

 

3) Statutory Redemption: right to repurchase after foreclosure

i) this right is very limited in MO.

Term
Race Statute
Definition

1) Fisrt to record a mortgage or deed wins

 

i) Race to the courthouse

ii) Record with the recorder of deeds for county where land is located

Term
Notice Statue
Definition

1) on who has notice of another's interst prior to receiving an interest in land cannot defeat the other's interest

i) once someone records a notice, the entire world is said to be "aware" of the notice

 

2) Recording is one way to provide notice

Term
Notice-Race
Definition

1) First to record without notice of another's interest wins

*2) This is the MO rule! (on test)

Term
Tenancy for Years
Definition
a tenancy for any specific period of time, even less than one year
Term
Periodic Tenancy
Definition

month to month

 

a tenancy for automatically renewable successive periods of time

Term
Tenancy at Will
Definition

no specific time frame

 

terminable by either party at any time

Term
Tenancy at Sufferance
Definition

Wrongful possession land by a tenant

 

*wrongful holding over after a lease term

Term
MO Rule for Tenancy
Definition
a periodic tenancy, tenancy at will, tenancy at sufferance, or an oral lease are all converted to month to month unless the lease is for agricultural land, then they are converted to year to year
Term

Covenenats in Lease

 

Dependent and Independent Covenants

Definition

1) Dependent: breach is material, non-breaching party is released.

 

2) Independent: breach is immaterial, non-breaching party is still bound to the lease

i) ex: broken garbage disposal

Term
Lease Conditions
Definition

A breach of a condition may result in forfeiture--early termination of the lease

 

ex: having a dog when there is a "no-pet" policy

Term

Landlord Must Give Possession

 

English, American Rule

Definition

English Rule: acutal possession given to tenant

 

American Rule: legal right to possession (Wild West)

Term

Define Interference with Tenant's Possession

 

Define Nuisance

Definition

1) Interference by previous tenants

2) Nuisance: using one's land in a way which unjustifiably interfereds with the use or enjoyment of another's real estate

i) ex: neighbor has loud parties every night

 

Landlord must prevent this type of interference

Term
Reversionary Interest of Landlord
Definition
A future interest in the property in which the right of possession is returned to the landlord at the end of the lease
Term
Eviction
Definition
Removal of the tenant by the landlord.
Term
Actual Eviction
Definition
Occurs by eviction notice or legal action
Term
Constructive Eviction
Definition

1) Defect in premise cause substantial interference with ability to live there

2) Tenant notifies landlord who fails to remedy the defect

3)Tenant leaves the premise (this is considered wrongful eviction)

Term
Retaliatory Eviction
Definition

An eviction as a response to a complaint to a housing authority.

 

In MO may not evict for one year after complaint.

Term
Causes of Eviction (3)
Definition

1) Non-payment of Rent

2) Waste or prohibited alterations

3) Unlawful use or nuisance

Term

Landlord Duties of Repair

 

Common Law/Modern Rule

 

Implied Warranty of Habitability

Definition

Common Law: no duty of landlord to repair

 

Modern Rule:

i)Housing Codes require landlords to meet certain standards

ii) Implied Warranty of Habitability: requires residential landlord to keep the property fit for human habitation, that is the property must be free of defects which endanger life, health, or safety

 

iii) Duty to Keep Common Areas Safe

iv) contractual duties

 

*exculpatory clause: can be used for residents, but non-residents or children can't sign away their rights

Term
Landlord's Liability for Injuries
Definition

1) Common Areas: liable to 3rd parties, not liable for residents if they have an exculpatory clause

 

2) High Crime Areas: adequate lighting etc. somestimes held liable for inadequate security measures if a resident or 3rd party is a victim of a crime on their property

Term

Tenant's Obligation to Repair

 

Commercial, Residential, and Areas in Resident's Control

Definition

Commercial: entire obligation to repair often allocated to tenant

 

Residential: tenant's duty is reduced by housing codes and the implied warranty of habitability

i) tenant may contract to make certain repairs, also responsible for intentional or negligent actions which damage prprty

 

Areas in Tenant's Control:  must be kept safe for invited guests

i) ex: store open to public should wipe up spills so patrons don't slip

Term

Lease Clauses as to Payment:

 

Rent/Late Charges/Deposits/Taxes and Insurance

Definition

a) Rent: a dependent covenant (if you don't pay, landlord is released of obligation)

 

b) Late Charges: a type of liquidated damages

 

c) Deposits: secure against nonpayment of rent and against damages

 

d) taxes and insurance:  landlord usually pays, but in commercial leases or leases with options to buy, the tenant frequently pays all or part of these expenses

Term
Assignment
Definition

transfer by tenant of all first tenant's rights to second tenant (assignor to assignee)

 

-no reversionary rights

Term
Sublease
Definition

transfer of part of tenant rights to second tenant (sublessor to sublessee)

 

better for 1st tenant

Term
Missouri Rule
Definition
no sublease or assignment of a lease of less than 2 years duration without written approval of the landlord
Term
Release
Definition
agreement to release by landlord necessary to release first tenant from liability where sublease or assignment
Term

Notice to Quit

 

Month to Month

 

Year to Year

Definition

M to M: notice must be given before the first day of the month to terminate the lease at then end of the month

i) ex: the soonest I can get out would be 1/31/10

 

Y to Y: notice must be given 60 days prior to the end of the lease year to terminate the lease at the end of the year

Term

Holding Over After Lease Term:

 

With and Without Landlord's Approval

Definition

With Approval: lease reverts to month to month

 

Without Approval: the tenant is responsible for double rent

Term

Remedies: 

Summary Procedures

Landlord's Lien

Duty to Mitigate

Definition

a) summary procedures: allow a landlord to evict tenant quicker by providing for a quicker trial date and fewer defenses

 

b) landlord's lien: allows a landlord to keep tenants property as security for nonpayment or damages

 

c) Duty to Mitigate: duty to lessen tenant's damages, usually by seeking a new tenant

i) in MO there is no duty to mitigae unless the landlord keeps the security interest

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