Here we go! Post away for any of the MBE questions.
I’ll start:
The MBE wants to drill in my head that the mortgagor is ALWAYS personally liable regardless of what future grantees accept re personal liability. Is that right? It’s hard to believe there isn’t a normal mechanism to indemnify the original mortgagor. Am I missing something?
As far as I know (which is not that far haha), the future grantee can either take “subject to” the mortgage, or can “assume” the mortgage. In either of those cases, original mortgagor/grantor remains liable primarily and secondarily, respectively.
There MAY be some other mechanisms that get rid of personal liability for the original mortgagor/grantor entirely, but we we only need to know these two methods, because they’re the only ones mentioned in the NCBE content outline:
“Transfers
1.By mortgagor
-----Assumption and transfer subject to”
Also side note, indemnification wouldn’t affect personal liability I think? Even if there were ways for original mortgagor/grantor to seek indemnity, she would still be personally liable to the mortgagee and could sort out her indemnity claim (if any) through impleader or a subsequent suit (which would be a pretty neat Property/Civ Pro combo essay).
The mechanism to completely relieve the original mortgagor from any liability on a loan is, subrogation. It isn’t covered in the real property stuff and I think beyond the scope of what we’re tested on, but that’s the mechanism.
This thread is a good idea- here’s one for y’all. For non-mutual offensive issue preclusion, which law determines the preclusive effect of a judgment in the subsequent action? I know that if the first judgment was a federal question, fed. common law governs, but what if the first judgment was based on diversity?
I don’t think the Eerie analysis is necessary for issue preclusion, is it? The fact that the issue itself was necessary to the final judgment (and actually litigated) would be the question The fed court will consider whatever law is in front of them to meet Eerie.
I’m also assuming from this there are no due process issues because offensive issue preclusion usually runs totally afoul of the Constitution (that whole right to be heard thing even if it results in inefficiency).
There’s actually a case on point, Semtek International v. Lockheed Martin (holding that where rendering court is a federal court sitting in diversity, Federal Common Law says that the res judicata rule is the one applied by the rendering court’s state courts, except where state law is incompatible with federal interests).
So federal common law governs the preclusion issue, but it is deemed to adopt the preclusion law of the state.
So that means that if the district court in Virginia issues a judgment sitting in diversity, the district court in New York may not allow a nonparty plaintiff use it to preclude defendant’s litigation, EVEN IF the Parklane Hosiery test is met (i.e. no due process violations). This is because though federal common law controls the issue of preclusion, it adopts Virginia law under Semtek.
Adaptibar contracts question 479:
QUESTION
QUESTION:
The inventor of the LBVC, a laser-beam vegetable chopper, ran a television ad that described the chopper and said, “The LBVC is yours for only $49.99 if you send your check or money order to Box 007, Greenville. Not available in stores.” The owner of a retail specialty shop, wrote the inventor, “What’s your best, firm price for two dozen LBVCs.” The inventor sent a written reply that said in its entirety, “We quote you for prompt acceptance $39.99 per unit for 24 LBVCs.” The owner of the retail specialty shop subsequently mailed a check to the inventor in the appropriate amount, with a memo enclosed saying, “I accept your offer for 24 LBVCs.”
The inventor shipped 24 LBVCs to the owner of the retail specialty shop after receiving his check and memo, and with the shipment sent the owner of the retail specialty shop an invoice that conspicuously stated, among other things, the following lawful provision: “These items shall not be offered for resale at retail.” The owner of the retail specialty shop received and read but disregarded the invoice restriction and displayed the 24 LBVCs for resale.
The inventor has a cause of action against the owner of the retail specialty shop for breach of contract only if
A. The inventor, as inventor of the LBVC, was not a merchant.
B. the invoice restriction was a material alteration of the pre-existing terms.
C. the inventor’s written reply that quoted $39.99 per LBVC, but did not contain a restriction on retail sales, was not an offer that the owner of the retail specialty shop accepted by ordering 24 LBVCs.
D. the owner of the retail specialty shop was consciously aware when taking delivery of the goods that the television ad had said, “Not available in stores.”
You answered A. The correct answer is C.
EXPLANATION:
Answer C is correct. If the inventor’s written reply was construed as an offer, the owner of the retail specialty shop accepted that offer when it tendered the requested payment and did not attempt to state additional or different terms in its acceptance. The inventor’s letter with shipment, which contained an additional provision, would have no legal effect, and the inventor would not have a cause of action against the owner of the retail specialty shop. However, answer C assumes that the inventor’s written reply that quoted $39.99 was not an offer. Based on that assumption, the inventor’s shipment of the LBVCs with the attached invoice stating “these items shall not be offered for resale at retail” would be considered an offer and the owner of the retail specialty shop’s acceptance and display of the products after reading the invoice would be considered an acceptance of the offer. Because the owner of the retail specialty shop accepted the offer, which included the provision restricting resale of the products, the inventor would have a cause of action against the owner.
Answer A is incorrect because merchant status does not govern all transactions involving the sale of goods and is not necessary for the owner of the retail specialty shop’s acceptance to be valid. B is incorrect because the relevance of the invoice as a material alteration under the UCC battle of the forms provision, 2-207, is relevant only if the inventor was determined to be the offeree. Here, the owner of the retail specialty shop was the offeree and its acceptance was valid. D is incorrect because the language, “Not available in stores,” could not reasonably be construed as a prohibition on resale, and the inventor’s letter to the owner of the retail specialty shop contained no such restriction.Am I missing something here? I picked A because if inventor was merchant, the additional terms he proposed "These items shall not be offered for resale at retail."would be adopted in the contract unless the owner timely protested, would it not? 
I believe you are misreading the call of the question.
Thanks, that’s helpful. One follow-up: if the district court in the first action applies the law of a state other than the state in which it sits (e.g., a fed. d. ct. in VA applies DE law because of a choice-of-law provision), which state’s preclusion doctrine applies? In that hypo, it’s still VA law that governs preclusion because the first court sat in VA (even though the claim involves DE law)?
Yes, I think it would still be VA law. From Semtek: “This is, it seems to us, a classic case for adopting, as the federally prescribed rule of decision, the law that would be applied by state courts in the State in which the federal diversity court sits.”
That’s a good question imo but I don’t think they’ll test us that far. It definitely showed up on our civ pro final though 
Mortgage Question:
Is a loan taken out to finance an addition to a house, and secured by the entire house, considered a Purchase Money Mortgage for that new portion of the house?
Can some one please explain this perpetuities issue? How does the remainder below violate the rule?
“to my friend for life, and then to his widow for her life, remainder to his children then alive”
I get that the friend might ultimately marry someone who was not alive at the time interest created (new widow), and that person might have kids with him after everyone is dead, but how does that invalidate the remainder? Her life is still important as the measuring life, right?
I think the problem is that the unborn widow is not the measuring life, the friend is, because unborn widow was- at the time of the creation of the gift, unborn, she can’t be a measuring life. The rule says: “No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.” If the friend ends up marrying someone who is unborn at the time of the interest was created (ie “the unborn widow”), she’s no longer the measuring life.
And theoretically- friend’s unborn widow can outlive friend for more than 21 years and since the gift doesn’t vest to children until the widow dies, the gift violates RAP because it could vest more than 21 years after the death of all the lives in being at the time of the creation of the gift (here the friend- who is the only measuring life), so the gift was invalid from the start.
A is only “may be” a reason for a cause of action (you can bring a case under UCC) but not “only if” (you can bring a case under common law). I think this is why B is similarly incorrect.
C is correct because if the inventor is to bring any cause of action, the $39.99 quote cannot be the offer that was accepted because otherwise he would not be able to enforce the later “not for resale” communication.
I don’t think so. Purchase-money loans are used to obtain title. Money to build an addition does not add any additional rights to land.
So say this was modified slightly to say: “to my friend for life, and then to his wife, karen for her life, remainder to his children then alive”
Does this avoid the issue? Now, assuming Karen is living when he dies, do we still have a perpetuities issue? I’m trying to get the basic rule and it seems to be “no one who is unborn can be a measuring life and anyone following that clause is invalid”
OK Evidence question:
Corporation VP sued for embezzlement. Claims he didn’t do it and that his salary was 75k last year.
Isn’t the banker testimony allowed for impeachment purposes? Answer from prep says it should be allowed as circumstantial evidence and that impeachment isn’t right because it would not serve to impeach VP testimony. I don’t see how that’s right. Huge deposits sure seem important to determining credibility, but maybe i’m missing something?
That should avoid the issue, provided Karen was already born at the time the interest was created. Yes, the rule to remember is from the language itself "no interest is good unles sit must vest if at all, not later than 21 years after some life in being at the creation of that interest so the unborn widow or anyone who is unborn at the time of the creation of the interest can’t be a measuring life.
It’s showing circumstantial evidence that the $700K doesn’t match (and is much larger) than his salary of $75K, so it’s more likely than not that the VP committed embezzlement. But to impeach VP in this example you’d need to show prior inconsistent statements, VP hasn’t said anything that is inconsistent with his current testimony so the banker’s testimony isn’t going to impeach the VP, the banker’s testimony is just serving as circumstantial evidence that the VP likely committed embezzlement and this is evidence for the fact-finder to consider- the VP could also have received the $700K from legal prize winnings, gift from family member, etc.
In other words- it’s not impeachment because VP never said he didn’t receive $700K in deposits last year- he’s saying he didn’t embezzle and his salary was only $75K, the fact that banker is testifying there was $700K in VP’s bank account doesn’t mean VP is lying in his testimony so you can’t impeach him because there’s no prior inconsistent statement to impeach VP with.
However, if VP had said “at no time last year did I ever have more than $75K in my bank account, I didn’t embezzle from the corporation”, then bringing Banker to show $700K in deposits in VP’s bank account would impeach VP because it would serve a direct contradiction of VP’s own prior words.
Hope that helps!
Awesome, thanks. Super helpful.
Welcome- don’t get too hungup on the weird nuanced RAP rules, you’ll likely only get 1 or 2 RAP questions max on the MBE. They are more focused on mortgages, covenants and equit. servitudes, and tenancy stuff now.