NM Bar Essays 3 — Questions and Answers
Question 1: A New Mexico essay presents a secured creditor who perfected a security interest in a debtor's equipment by filing a UCC-1. The debtor later files Chapter 7 bankruptcy. What is the creditor's status?
- Unsecured creditor because bankruptcy eliminates all security interests
- Secured creditor entitled to the value of the collateral up to the debt owed (Correct answer)
- Secured creditor entitled to full payment before the bankruptcy estate is opened
- Unsecured creditor because personal property cannot be collateral in bankruptcy
Correct answer: Secured creditor entitled to the value of the collateral up to the debt owed
A properly perfected security interest survives bankruptcy; the creditor remains secured up to the collateral's value and may be entitled to adequate protection.
Question 2: In a New Mexico constitutional law essay, the state legislature passes a law requiring all private employers to display only English in the workplace. A plaintiff challenges this under the First Amendment. What is the strongest argument against the law?
- The law violates the Establishment Clause by favoring English-speaking religions
- The law compels speech and restricts the communicative conduct of employers and employees (Correct answer)
- The law violates the Equal Protection Clause based on national origin
- The law is preempted by federal OSHA regulations
Correct answer: The law compels speech and restricts the communicative conduct of employers and employees
Compelled speech doctrine under the First Amendment protects against government mandates compelling or prohibiting particular expression, including language use.
Question 3: On a New Mexico evidence essay, a hearsay declarant is unavailable. The opposing party seeks to admit the declarant's prior testimony from a civil deposition. What foundational requirement must be satisfied?
- The testimony was given under oath and the opposing party had opportunity and motive to cross-examine (Correct answer)
- The testimony was given under oath and is corroborated by two other witnesses
- The declarant was unavailable due to death only, not other causes
- The deposition was conducted in a prior federal proceeding
Correct answer: The testimony was given under oath and the opposing party had opportunity and motive to cross-examine
Former testimony is admissible under the hearsay exception if given under oath at a prior proceeding where the opponent had opportunity and similar motive to develop the testimony.
Question 4: A New Mexico essay involves an employee fired the day before his pension vests after 10 years of service. He sues under ERISA. What claim is most viable?
- Wrongful termination under New Mexico public policy tort
- Interference with attainment of pension benefits under ERISA § 510 (Correct answer)
- Breach of implied employment contract under state law
- Age discrimination under the ADEA
Correct answer: Interference with attainment of pension benefits under ERISA § 510
ERISA § 510 prohibits discharging an employee to prevent the vesting of pension benefits, and this timing creates a strong inference of such interference.
Question 5: Under New Mexico law, a landlord fails to repair a defective heater in subfreezing weather after receiving written notice from the tenant. The tenant withholds rent. Which doctrine best supports the tenant?
- The doctrine of constructive eviction requiring the tenant to have vacated
- The implied warranty of habitability allowing rent withholding without vacating (Correct answer)
- The doctrine of repair and deduct requiring prior court approval
- The common law rule that tenants bear responsibility for all repairs
Correct answer: The implied warranty of habitability allowing rent withholding without vacating
New Mexico recognizes the implied warranty of habitability, and many jurisdictions following this doctrine allow tenants to withhold rent for uncured material breaches.
Question 6: A New Mexico bar essay tests adverse possession. A claimant has openly used a neighbor's land for 9 years, but the statutory period is 10 years. The original owner sells to a bona fide purchaser. Does the claimant's time period reset?
- Yes, because a BFP takes free of all unrecorded interests
- No, because adverse possession is not a recorded interest and the BFP takes subject to visible uses (Correct answer)
- Yes, because the sale interrupts the continuity of possession required by statute
- No, but the claimant must start over against the new owner from year one
Correct answer: No, because adverse possession is not a recorded interest and the BFP takes subject to visible uses
A BFP takes subject to interests discoverable by reasonable inspection; open and notorious adverse possession puts a purchaser on inquiry notice.
Question 7: On a New Mexico criminal procedure essay, police arrest a suspect and take him to the station. Before Miranda warnings, an officer says, 'Just tell me what happened and things will go easier for you.' The suspect makes incriminating statements. Are the statements admissible?
- Yes, because the officer's statement was merely encouraging cooperation, not coercive
- No, because custodial interrogation without Miranda warnings renders statements inadmissible (Correct answer)
- Yes, because the suspect was not formally charged at the time
- No, because the Sixth Amendment right to counsel had already attached
Correct answer: No, because custodial interrogation without Miranda warnings renders statements inadmissible
Custodial interrogation without prior Miranda warnings violates the Fifth Amendment, making resulting statements inadmissible in the prosecution's case-in-chief.
NM Bar Essays 3
A New Mexico essay presents a secured creditor who perfected a security interest in a debtor's equipment by filing a UCC-1.
The debtor later files Chapter 7 bankruptcy.
What is the creditor's status?