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Monthly Archives: April 2015

Benefit of the Bargain Contract Damages, Lost Profits

If a plaintiff is successful in a breach of contract claim, he/she may recover the “benefit of the bargain,” as well as damages naturally and proximately caused by the breach and damages that could have been reasonably contemplated by the defendant at the time of the agreement. Birdsong v. Bydalek, 953 S.W.2d 103, 116 (Mo. Ct. […]

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Interpretation of Title Insurance Policies re: Real Estate

Real estate title insurance is different than most other types of insurance. As opposed to assuming the risk of loss for future events (e.g., life insurance, property & casualty insurance), it eliminates risk of loss from past events (i.e., a real estate’s title at the time of purchase). A title insurance policy comes about when […]

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Oral Agreements to Modify, Postpone Debt Payments

Often times there are apparent attempts to modify loan agreements (e.g., promissory notes, repayment contracts, purchase agreements, etc.) orally. This is especially true with promissory notes or mortgages when the debtor/paying party requests more time to make payments. In Missouri, however, oral modifications to credit agreements are not valid unless they are in writing. Section […]

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Challenging Nonprobate Transfers (Beneficiary Designations, Transfer on Death, Pay on Death)

Nonprobate transfers are becoming increasingly popular in estate planning. They are simple, avoid probate and allow certain people to receive your properly immediately upon your death. They can be used by themselves or in conjunction with trust or will-centered estate plans. In application, they  function by automatically and contractually conveying all ownership of a particular item […]

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Trustee Loyalty, Administration, Business Transactions

A trustee has a fiduciary duty of loyalty in administering a trust. In the context of litigation, “the presumption is that a trustee has acted in good faith and the burden is on the one questioning his [or her] actions and seeking to establish a breach of trust to prove the contrary.” Jarvis v. Boatmen’s Nat’l bank […]

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Removal of Conservator, “Interested Persons”

Like with any fiduciary (e.g., trustee, guardian, attorney-in-fact), a conservator appointed to represent the property/assets of a minor or legally incapacitated adult may be removed for cause. Section 475.082.5, RSMo allows any “interested person” to file a motion/petition alleging that a conservator is not discharging his/her statutory responsibilities and duties or has not acted in the […]

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Joint Tenancy with Right of Survivorship, Severance

Real estate can be held and titled in several different ways. When there is more than one owner, one of the most common ways the property is held is as joint tenants with rights of survivorship. If property is held this way, the co-owners share one undivided estate, with the distinctive characteristic of the right […]

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