Equity

Question 1

Preliminary Injunction

Answer 1

To obtain a preliminary injunction, must clearly show: (1) likelihood of success on the merits (2) irreparable harm without it (3) its in the public interest (4) balance of equities tips in your favor.

Question 2

Jury Trial of Equitable Claims

Answer 2

• No Constitutional right to a jury trial on any claims for equitable relief or claims based on a cause of action that was traditionally equitable.

Question 3

Mixed Equity and Legal Claims

Answer 3

Jury Decides the legal claims. Judge Decides the equitable claims. The legal/jury claims must be decided first, so that the judge is bound by any fact finding the jury makes on issues.

Question 4

Review of Decisions on Equitable Claims

Answer 4

A motion to suspend, modify, or vacate the judgment or decree - must be decided within 21 days after entry of the decree Bill of Review - must be filed within 6 months of the entry of an equitable final judgment or decree * Must be based on: (a) new evidence (b) error of law * If based on new evidence, must prove: (i) evidence could not be discovered with reasonable diligence (ii) not merely cumulative or collateral, and (iii) is material and would produce a different result at trial.

Question 5

Mechanics of Appeal

Answer 5

Notice of Appeal filed in trial court within 30 days from date of decree. (Only domestic relations cases have an appeal as a matter of right) All other claims (whether equitable or legal) appeal is ONLY available to the Supreme Court and ONLY on a discretionary basis. * must file a petition to Supreme Court to grant leave to have an appeal. * S.Ct.will grant a writ which means the appeal has been permitted.

Question 6

Eligibility for Equitable Remedies

Answer 6

Two General Requirements: (1) The legal remedy must be inadequate * When money damages would not make plaintiff whole, examples include: (a) Unique subject matter (b) Speculative damages (c) Insolvent Defendant (d) Irreparable Harm would occur (2) The equitable remedy must be feasible * To be feasible - must have jurisdiction over the person ordered to act, or property involved. * Also, equity will not be enforced if - enforcement requires extensive supervision or court would lack standards to measure compliance. (The fact that a court may grant or deny relief illustrates the idea that equitable relief is always discretionary.)

Question 7

Injunctions

Answer 7

Must first be ELIGIBLE for equitable remedy (refer above) * Is the tort one for which injunctive relief is normally available? (1) Trespass to land (2) Conversion of unique Chattel (3) Stop Unfair competition * Is the tort one in which injunctive relief is sometimes available? (1) to eliminate a public nuisance (2) to prevent waste (damage to real property) * Is the tort one for which injunctive relief is not available? (1) defamation (2) commercial defamation (3) invasion of privacy (Court will balance the hardships between the parties - court discretion)

Question 8

Temporary Injunctive Relief

Answer 8

Injunctive relief necessary to preserve the status quo for the time period needed to determine the issues in litigation.

Question 9

Temporary (Preliminary) Injunction

Answer 9

Designed to maintain the status quo until the court can determine the controversy presented in litigation. Must Show: (1) Substantial likelihood of winning (2) Irreparable Harm Unless status quo is maintained (3) harm to the moving party outweighs the hardship of injunction on restrained party, and (4) no adverse effect on public interest. Mechanics: * Usually - preliminary injunction is given after a hearing * BUT - may be granted without a hearing if you show such an immediacy of injury as to justify proceeding without a hearing.

Question 10

Specific Performance of a Contract

Answer 10

Equitable remedy which a party to a K is ordered to perform according to its terms. 3 Key Requirements: (1) A valid K exists - off/acceptance; consideration; reasonably definite terms. (2) All K conditions have been met, and *look out for time is of the essence provisions and marketable title. (3) Mutuality of remedy exists - both parties able to perform and both can be bound by K.

Question 11

Relief for Unlawful Competition

Answer 11

…

Question 12

Covenant Not to Compete

Answer 12

If there is a covenant not to compete equity will grant specific performance if the restrictions are reasonable: 1) employer’s legitimate interest in protection its business 2) Employee’s fair opportunity to accept other jobs in the industry 3) The public interest i.e. will it interfere with health and safety. Elements of an Enforceable Noncompete: 1) Specific Job Duties Prohibited 2) Geographic Scope is reasonable, and 2) Duration is reasonable (1 or 2 years okay; 5 years not okay)

Question 13

Recision or Reformation

Answer 13

Recision - remedy by which a voidable contract is put to an end and the parties are treated as though it had never been made. Reformation - treats the contract as valid, and changes a writing setting forth or implementing the agreement to conform to the originally intended agreement.

Question 14

Obtaining Recision

Answer 14

Equity will cancel a contract if at the time it was entered there was: (1) Mutual Mistake as to a material fact, or (2) Unilateral Mistake coupled with * Any form of misrepresentation or inequitable conduct. (3) Also Duress, Undue Influence, lack of capacity or failure of consideration. If an agreement is rescinded - party obtains restitution relief

Question 15

Obtaining Reformation

Answer 15

A valid contract will be reformed: (if shown by clear and convincing evidence) 1) For any mutual mistake; or 2) Unilateral Mistake coupled with knowing misrepresentation

Question 16

Restitution

Answer 16

Remedy for unjust enrichment Claim for restitution exists if plaintiff shows that the defendant: (1) obtained a BENEFIT from the plaintiff, and (2) defendant should have known that plaintiff expected compensation

Question 17

Restitution not available against Commonwealth

Answer 17

The Commonwealth can be sued for breach of contract and torts under the Tort Claims Act, BUT is immune from suit for equitable causes of action. Counties and Cities and Towns are NOT immune however.

Question 18

Equitable Defenses

Answer 18

An equitable defense prevents a plaintiff from obtaining an equitable remedy otherwise available. Unclean hands - available if the plaintiff is guilty of improper conduct proximately related to the same transaction for which the plaintiff seeks equitable relief. Time-bar (Laches) - Available where plaintiff has delayed bringing suit if: (a) plaintiff waits unreasonable amount of time before suing (b) Delay was prejudicial to defendant. Unconscionability - Any arrangement which is fundamentally unfair may unconscionable (consideration for a K is grossly out of proportion to the true value of the deal) Fraud - where plaintiff has tricked their contract partner into a deal - using conduct that approaches fraud (defense to a specific performance action) * General Showing for Fraud - knowing misrepresentation about present facts, seeking reliance by the other party.

Question 19

“Default Divorce” in VA

Answer 19

By statute, No divorce or annulment case can be resolved by default - an evidentiary submission must be made by plaintiff so proper grounds of divorce are presented to judge

Question 20

Procedural Niceties and Waiver of Notice Rights in Divorce and Annulment Suits

Answer 20

2012 Statutory change abolished rule requiring notice of all proceedings, and Defendant who fails to make a timely appearance is treated like a D in any other civil case

Question 21

Jury Trial of Equitable Claims

Answer 21

No Constitutional right to a jury trial on any claims for equitable relief or claims based on a cause of action that was traditionally equitable

Question 22

Jury Trial of “Mixed” Cases

Answer 22

Legal/jury claims need to be decided first, so that the judge is bound by any fact finding the jury makes on the issued to which the jury right applies

Question 23

Statutory Rights to Jury hearings in equity

Answer 23

1) Quiet title, and 2) Where a defendant files a plea to an equitable claim

Question 24

Definition of a Defendant’s Plea to an Equitable Claim

Answer 24

A defensive pleading which sets forth a single dispositive state of fact which, if proven, would provide defendant a complete exoneration on plaintiff’s claim

Question 25

Advisory Juries in Equity

Answer 25

Trial judge has discretion to seat a jury re: a hotly disputed factual issue, but their verdict is not binding (Judge must make independent decision)

Question 26

Three means to review final decree in equitable action

Answer 26

1) A motion to suspend, modify or vacate the judgment or decree; 2) A bill of review; or 3) Appeal

Question 27

Motion to suspend, modify or vacate judgment or decree

Answer 27

1) Must be decided within 21 days after the entry of decree, and 2) May be based upon new evidence or any error of law or fact

Question 28

Bill of Review

Answer 28

Must be Filed within 6 months of the entry of decree and based upon: 1) Newly discovered (critical) evidence, or 2) An error of law when it appears on the face of the record

Question 29

Mechanics of Appeal of final decree

Answer 29

In all cases, notice of appeal is filed in the trial court and must be lodged within 30 days from the date of decree

Question 30

Domestic Relations Appeal

Answer 30

Appeal as matter of right to Court of Appeals

Question 31

Appeal of all non-domestic relations Equity matters

Answer 31

Appeal only available to the Supreme Court AND ONLY on a discretionary basis

Question 32

Two general requirements for Equitable Remedy Eligibility

Answer 32

1) The legal remedy must be inadequate, and 2) Equitable relief must be feasible

Question 33

What does it mean that Legal Remedies are Inadequate?

Answer 33

Money damages must be unable to make a plaintiff whole

Question 34

What does it mean for an equitable remedy to be feasible?

Answer 34

1) There must be present in the forum state either: (a) The person who would be ordered to act, or (b) The property subject to suit; and 2) Court must have capacity to determine or supervise compliance: (a) Enforcement should not require extensive supervision, or (b) Lack standards to measure compliance

Question 35

Injunctions are Normally Available for Torts of :

Answer 35

1) Continuous or repeated trespass to land, 2) Conversion of a unique chattel, or 3) To stop unfair competition

Question 36

Injunctions are NOT Available for Torts of :

Answer 36

1) Defamation, 2) Commercial defamation (trade libel), or 3) Invasion of privacy, unless it involves unauthorized use of a person's name or picture

Question 37

Obtaining Temporary (Preliminary) Injunctive Relief

Answer 37

Show: 1) Substantial likelihood the moving party will win the lawsuit; 2) Irreparable harm to the movant unless the status quo is maintained; 3) Harm to the moving party outweighs the hardship the injunction will cause; and 4) The public interest will not be adversely affected by an injunction

Question 38

To obtain specific performance you must show:

Answer 38

1) A valid contract exists - including offer and acceptance, 2) All contract conditions have been met, and 3) Mutuality of remedy exists

Question 39

Failure to Comply with Time of Essence provision may prevent specific performance unless Court ignores strict enforcement because:

Answer 39

1) The delay was very slight (a few hours or days at most); 2) The other party suffered no injury on account of the delay; 3) Invalidating the contract would work extreme hardship on the late party, or 4) Requirement has been waived

Question 40

Definition of Mutuality of Remedy

Answer 40

One party to a contract is not entitled to specific performance unless the other parties would also be entitled to have the contract specifically enforced

Question 41

Two elements of Trade Secret

Answer 41

Information is: 1) Confidential and not otherwise available, and 2) Gives the owner a competitive advantage

Question 42

Equity will enforce Non-compete covenant if -

Answer 42

Restrictions are reasonable as to: 1) Employer's legitimate interests in protecting its business, 2) Employee's fair opportunity to accept other jobs in the industry, and 3) Any relevant public policy interest

Question 43

Remedy of Rescission ("cancellation")

Answer 43

Remedy by which a voidable contract is put to an end and the parties are treated as though it had never been made

Question 44

Remedy of Reformation

Answer 44

Remedy that treats contract as valid, and changes a writing setting forth or implementing the agreement to conform to the originally intended agreement

Question 45

Equity will cancel/rescind a contract if, at the time it was entered into, there was:

Answer 45

1) Mutual mistake re: a material fact, or 2) Unilateral mistake + misrepresentation or inequitable conduct, or 3) other grounds (such as duress, undue influence, lack of capacity...)

Question 46

Rescission and Restitution

Answer 46

If an agreement is rescinded, restitution is generally available to recover any value exchanged prior to rescission (unjust enrichment)

Question 47

Writings will be reformed if there was:

Answer 47

1) Mutual mistake, or 2) Unilateral mistake coupled with knowing misrepresentation, and 3) A valid contract

Question 48

Definition of Restitution

Answer 48

Equitable claim to recover unjust enrichment (analogous to quasi-contract)

Question 49

Equitable Claims against Commonwealth

Answer 49

The Commonwealth is immune from suit for equitable causes of action, but localities, including Counties, are not

Question 50

Equitable liens on realty in VA

Answer 50

Requires the existence of a writing indicating the intention to subject the property to a lien + unjust enrichment as to that property

Question 51

Equitable Accounting

Answer 51

Court may order a study of the finances of a person or organization to determine the amount of any award appropriate under the facts of any case

Question 52

Order of Receiver

Answer 52

Court may appoint a person to manage a business or property pending ultimate disposition (undertaken only where the court finds it necessary)

Question 53

Limitation on raising equitable defenses

Answer 53

Cannot be raised against Governmental Bodies

Question 54

Defense of unclean hands

Answer 54

Available if the plaintiff is guilty of improper conduct proximately related to the same transaction for which the plaintiff seeks equitable relief

Question 55

Defense of laches

Answer 55

Available where plaintiff has delayed bringing suit if: 1) An adult plaintiff waits an unreasonable time before suing, considering when plaintiff obtained knowledge of the wrong, and 2) The delay was prejudicial to the defendant

Question 56

Defense of Equitable Estoppel

Answer 56

Party who makes a representation which foreseeably induces someone to act in reasonable reliance, to his detriment, may be barred from asserting rights inconsistent with the representation

Question 57

Presiding Judicial Officer

Answer 57

Name for the circuit court judge in equitable proceedings. They may call him chancellor.

Question 58

Divorce and Annulment and Default

Answer 58

No divorce or annulment case can be resolved by default.

Question 59

Divorce and Annulment and Default Regarding Notice

Answer 59

D in default is NOT entitled to notice of any further proceedings in the case, including notice to take depos, except notice goes to counsel of record if there is one. -So if they don't respond w/in 21 days, they get no further notice.

Question 60

Jury Trial of Equitable Claims

Answer 60

No constitutional right to a jury trial on any claims for equitable relief.

Question 61

Mixed Cases (Jury)

Answer 61

Any party who makes a timely demand for a jury to hear the legal claims will be entitled to a jury decision on those matters. The legal parts are decided first. Only the judge decides the equitable matters.

Question 62

Exception to No Jury Rule in Equity (3)

Answer 62

1) Quiet title action, 2) Where D files a plea to an equitable claim 3) Advisory juries

Question 63

Plea in an Equitable Claim

Answer 63

Plea is a defensive pleading which sets forth a single dispositive state of facts which, if proven, would provide D a complete exoneration of P's claims E.g. illegality, time bar, res judicata, infancy, etc.

Question 64

Advisory Juries

Answer 64

Judge has discretion to seat a jury to hear hotly disputed factual issues, but the decision is not binding.

Question 65

Procedure for Advisory Juries

Answer 65

P, D, or Court can request this to inform the conscience of the court. Judge CANNOT merely accept the verdict, he has to make an independent decision and get it on the record that he has done so.

Question 66

Review of Decisions on Equitable Claims (3 ways)

Answer 66

1) A motion to suspend, modify, or vacate the judgment or decree, which must be DECIDED within 21 days after the entry of the decree 2) Bill of Review filed within SIX MONTHS of the entry of an equitable final judgment based upon newly discovered evidence or error of law on the face of the record 3) Appeal

Question 67

Newly discovered evidence

Answer 67

1) Could not have been found with due diligence, 2) Outcome determinative 3) Not merely collateral or cumulative

Question 68

Appeal Mechanics of Equitable Claims

Answer 68

1) File notice with trial court within 30 days -Domestic relations goes to Court of Appeals as a matter of RIGHT -All other cases to Virginia Supreme Court by petition. Must follow up with petition within 3 calendar months.

Question 69

How to Approach Equitable Remedies Questions (3 steps)

Answer 69

1) Are the general requirements to be eligible sustained (legal remedy inadequate, equitable relief is feasible) 2) Requirements for particular forms of relief 3) Defenses

Question 70

Equitable Relief is....

Answer 70

ALWAYS DISCRETIONARY

Question 71

General Requirements for Equitable Relief

Answer 71

1) Legal remedy is inadequate 2) Equitable remedy must be feasible

Question 72

Legal remedy inadequate when...

Answer 72

Money damages would not make plaintiff whole, such as: 1) Subject matter is unique or rare 2) Setting an amount of damages would be speculative 3) Defendant is insolvent, 4) Multiple lawsuits would be required to protect P 5) Irreparable harm will occur

Question 73

Feasibility

Answer 73

To be feasible, there must be present in the forum state: 1) The person who would be ordered to act, 2) The property which is subject to suit Court must be able to determine or supervise compliancy. So if it requires extensive supervision or they lack the standards to measure compliance, it might decline to exercise relief.

Question 74

Two Kinds of Injunctions

Answer 74

1) Prohibitory: prohibits something 2) Mandatory: requires something

Question 75

Obtaining Injunctive Relief

Answer 75

May only use if the burden or hardship on the person enjoined is disproportionate to any benefit to the person seeking injunctive relief. "equity will balance the hardships"

Question 76

Injunctions Normally Available for the Following Torts:

Answer 76

1) Continuous or repeated trespass to land 2) Conversion for a unique chattel (artwork, e.g) 3) To stop unfair competition

Question 77

Injunctions Sometimes Available for...

Answer 77

1) To eliminate nuisance (but must be private nuisance) 2) To prevent waste (but not ameliorative) 3) Threatened criminal proceedings in extraordinary circumstances

Question 78

Injunctions Usually Not Available in...

Answer 78

1) Defamation 2) Commercial defamation (trade libel) 3) Invasion of privacy (because there is no such tort in VA, but can use for appropriation!) 4) Pending criminal proceedings

Question 79

Temporary Injunctive Relief

Answer 79

When it is necessary to preserve the status quo for the time period needed to determine the issues in litigation

Question 80

For temporary injunctive relief, must show

Answer 80

1) Substantial likelihood that the moving party will win the lawsuit 2) Irreparable harm to the movant unless the status quo is maintained 3) Harm to the moving party outweighs the hardship the injunction will cause, and 4) The public interest will not be adversely affected by an injunction

Question 81

Mechanics of Temporary Injunctive Relief

Answer 81

1) Must hear both sides (can only do ex parte for very short time periods) 2) Injunction bond normally required 3) To obtain a temporary order you must show an immediacy of injury as to justify proceeding without hearing. **Tell bar examiners to balance the hardship.

Question 82

Specific Performance

Answer 82

Equitable remedy by which a party to a K is ordered to perform according to its terms.

Question 83

Obtaining Specific Performance

Answer 83

1) Money damages inadequate 2) Feasibility 3) No defenses

Question 84

Requirements for Specific Performance

Answer 84

1) A valid contract exists, including offer and acceptance 2) All contract conditions have been met, and 3) Mutuality of remedy exists

Question 85

Valid Contract? Must demonstrate...

Answer 85

1) Certainty of terms 2) Existence of consideration

Question 86

Certainty of Terms

Answer 86

1) Subject matter of the deal, 2) Price, or other consideration, 3) Duties or performance required, 4) Period for performance

Question 87

Existence of consideration

Answer 87

Amount of consideration is not considered unless the inadequacy is SO extreme the K is unconscionable (hard to show in VA). Really just need SOME consideration.

Question 88

Time is of the essence & specific performance

Answer 88

Failure to comply with this will prevent specific performance unless: 1) The delay was very slight 2) The other party suffered no injury on account of the delay 3) Invalidating the K would work extreme hardship on the late party, or 4) Requirement has been waived (agt. or conduct)

Question 89

Marketable Title & Specific Performance

Answer 89

If seller can't convey marketable title, specific performance usually denied unless: 1) If deficiency of title is minor, in which case specific performance may be granted with a reasonable reduction in the price 2) Buyer waives the deficiencies, may be granted with a reasonable reduction in price

Question 90

Does Mutuality of Remedy Exist for Specific Performance?

Answer 90

Mutual if: 1) Both parties are able to perform, or 2) Both parties can be bound (usually involves a minor or someone out of state)

Question 91

Tort Aspect of Unlawful Competition

Answer 91

Can involve passing off your product as that of another or interfering with existing business relationships. -Usually involves using confidential information appropriate from a former employer to competitively injure that person (trade secret)

Question 92

Trade Secret Attributes

Answer 92

1) Confidential and not otherwise available, and 2) Gives owner a competitive advantage **These are low thresholds

Question 93

Contract Aspect of Unfair Competition

Answer 93

Using convenants not to compete (would forbid acts which would be unfair competition in the tort sense)

Question 94

Obtaining an Equitable Remedy for Unlawful Competition

Answer 94

Usually use because damages rom profits lost would be speculative

Question 95

Equitable Remedy for Tort of Unlawful Competition

Answer 95

Injunction--enjoin the conduct

Question 96

Equitable Remedy for Convenant not to Compete in Unlawful Competition

Answer 96

Specific performance, if the restrictions were reasonable as to: 1) The employer's legitimate interest in protecting his business 2) The employee's fair opportunity to accept other jobs in the industry 3) Public interest aspect to this

Question 97

Three Aspects of Covenant Not To Compete Are:

Answer 97

1) Specific job duties prohibited 2) Geographic area of restriction, and 3) Duration of the restriction

Question 98

Rescission

Answer 98

Remedy by which a voidable K is put to an end and the parties are treated as though it had never been made

Question 99

Reformation

Answer 99

Treats the K as valid, and changes a writing setting forth or implementing the agreement to conform to the originally intended agreement

Question 100

Obtaining Rescission

Answer 100

Equity will cancel a K if, at the time it was entered into, there was: 1) Mutual mistake as to a material fact, 2) Unilateral mistake coupled with any form of misrepresentation (even innocent), or some other form of inequitable conduct 3) Other grounds like duress, undue influence, lack of capacity or failure of consideration

Question 101

Alternative Theories in Rescission

Answer 101

Cannot get recovery of damages through fraud and move for rescission of the agreement based on the same fraud.

Question 102

Rescission and Restitution

Answer 102

If agreement is rescinded, restitutionary relief is generally available to recover any value exchanged prior to rescission.

Question 103

Tender and Rescission

Answer 103

Tender is NOT required to bring a rescission claim. Tender = pay back all consideration to apply for rescission.

Question 104

Obtaining Reformation

Answer 104

Writings will be reformed if there was: 1) Mutual mistake, or 2) Unilateral mistake coupled with knowing misrepresentation **These grounds must be show by clear and convincing evidence **SOF will not be a bar if grounds for reformation are shown

Question 105

Restitution

Answer 105

-Deals with unjust enrichment. -Claim exists when P can show that D: 1) obtained a benefit from the P, and 2) upon request of the D, or in circumstances showing that D should have known that P expected recompense.

Question 106

Legal and Equitable Theory of Restitution

Answer 106

Legal = quasi contract Equitable = restitution

Question 107

Equitable Claims against the Commonwealth and Against Cities, Towns, and Counties

Answer 107

Commonwealth = IMMUNE from suit for equitable causes of action Counties, cities, and towns = NOT immune and may be sued on equitable claims

Question 108

Remedies in Equity to Achieve Restitution (4)

Answer 108

1) Dollar damages awards 2) Constructive trusts 3) Equitable liens 4) Specified restitution

Question 109

Constructive Trusts

Answer 109

If property D wrongfully obtained can be traced to some asset D still has, the court may impose a constructive trust which declares P is the beneficial owner of the asset and that the D must disgorge it in a specified form

Question 110

Equitable Liens

Answer 110

Where P's money has gone into property of the D, the court may give P a lien on the property. If on realty, the existence of a writing indicating the intention to subject the property to a lien is required.

Question 111

Specified Restitution

Answer 111

Specific items of property wrongfully obtained by D to be returned to P.

Question 112

Equitable Accounting

Answer 112

Court may order a study of the finances of a person or organization to determine the amount of any award appropriate

Question 113

Receiver

Answer 113

Person appointed by equity court to manage a business or property pending ultimate disposition. This is a drastic step.

Question 114

Requirements for Appointing a Receiver

Answer 114

1) Requires notice to affected parties prior to appointment 2) Need true emergency 3) Need to regulate the oversight of a receiver's activities

Question 115

Partition of Real Property

Answer 115

Preferred outcome is in kind by splitting the parcel if it can be done conveniently. If not, partition by sale.

Question 116

Subrogation

Answer 116

Any person who has paid the obligation of another may be permitted to pursue the rights of the person whose obligation was paid.

Question 117

Contribution

Answer 117

One joint tortfeasor or joint obligor who pays all of a claim can seek to recover from other joint tortfeasors. -Recovery is pro rata (so if 2, 50% each) - Cannot get for torts involving moral turpitude. -This is a separate COA!

Question 118

Equitable Indemnification

Answer 118

Provides complete reimbursement. It is available when a party who is without person fault is legally liable for damages caused by the negligence of another. (like agent/principal). -There must be a legal determination of negligence of the party on whose behalf the indemnification P makes payment

Question 119

Creditor's suits

Answer 119

Judgment creditors and lien creditors may file a creditors bill when efforts to enforce their rights under a judgment by normal remedies have failed. Usually look for: 1) Voluntary transfer 2) Fraudulent conveyance

Question 120

Voluntary Transfer Will be Voided if Creditor can prove....

Answer 120

1) That there was NOT adequate consideration 2) That the creditor became a creditor before the transfer, AND 3) That the debtor who made the transfer either was insolvent at the time of the transfer, or was rendered insolvent by the transfer **Do NOT need evil motive of transferor.

Question 121

Fraudulent Conveyances will be set aside if applicant can show that:

Answer 121

1) The transferor intended to defraud the creditor, and 2) That a transfer was made with the effect of hindering or defrauding the creditor **Will be set aside even if it affects the debtor's solvency.

Question 122

Definition of Equitable Defenses and who they may be brought against

Answer 122

Definition: Prevents a P from obtaining an equitable remedy otherwise available. May be brought against all classes of litigants except governmental bodies.

Question 123

Unclean Hands

Answer 123

If P is guilty of improper conduct proximately related to the same transaction for which the P seeks equitable relief. **Conduct need not be illegal or actionable.

Question 124

Laches

Answer 124

Available where P has delayed bringing suit if: 1) An adult P waits an unreasonable time before suing, considering when P obtained knowledge of the wrong 2) Delay was prejudicial to the D (lost witnesses, D made a big investment he would not have made if the claim was brought) **Need BOTH of these!

Question 125

Both SOL and Laches

Answer 125

If there is an applicable SOL found, laches can SHORTEN it, but it cannot extend it, even if the case is pled solely as an equitable claim!!

Question 126

Unconscionability

Answer 126

Fundamentally unfair. Consider if consideration is grossly disproportionate to the true value of the deal.

Question 127

Impossibility and Hardship

Answer 127

Equit will not order something that is not within the capacity of the person ordered to do it. Nor if the burden of the D is disproportionate to the gain of the P.

Question 128

Fraud

Answer 128

Defense to a specific performance action in VA. Showing fraud: one must generally allege knowing misrepresentation of a PRESENT FACT, seeking reliance by the other party. Must be proven by clear and convincing evidence.

Question 129

Equitable Estoppel

Answer 129

If party makes a representation which foreseeably induces someone to act in reasonable reliance to his detriment, the party making the representation may be barred by this defensive doctrine from asserting rights inconsistent with the representations.