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Opinions

The Western District of Wisconsin offers a database of opinions for the years 1986 to present, listed by year and judge. For a more detailed search, enter a keyword, statute, rule or case number in the search box above.

Opinions are also available on the Government Printing Office website for Appellate, District and Bankruptcy cases. The content of this collection dates back to April 2004, though searchable electronic holdings for some courts may be incomplete for this earlier time period.

For a direct link to the Western Wisconsin Bankruptcy Court on-line opinions, visit this link.

Chief Judge Catherine J. Furay

Paula Laddusire v. Auto-Owners Insurance Company, et al. (In re Laddusire), Adv. No. 15-0145, Case No. 15-13316-13 (11/19/2015) (541.B.R. 697) -- Judge Catherine J. Furay 11/19/2015

Case Summary:
Debtor Paula Laddusire sought to remove a state court proceeding to the Bankruptcy Court. Defendant Northstar Cleaning & Restoration, Inc., filed a motion to remand. Debtor asserts that removing the case is necessary because it involves property of the bankruptcy estate. Defendants argued that the claim, a tort claim, is based on state law and should remain in state court. The Court found that abstention was proper under 28 U.S.C. § 1334. Further, the Court remanded the case pursuant to 28 U.S.C. § 1452(b). Based on considerations of judicial economy, comity, respect for the decision making ability of the state court, the predominance of state law issues, and the effect of remand on the administration of the bankruptcy case, the Court concluded that abstention is appropriate under 28 U.S.C. § 1334(c)(1) and remands the case to the state court under 28 U.S.C. § 1452(b).

Statute/Rule References:
28 U.S.C. § 1334 -- Abstention
28 U.S.C. § 1452 -- Removal

Key Terms:
Abstention
Remand
Removal

Thomas Kriescher, Vicky Kriescher, and Marjac, Inc. v Marjorie Ellen Gibson (In re Gibson), Adv. No. 14-0034, Case No. 13-15635-7 (11/03/2015) -- Judge Catherine J. Furay 11/03/2015

Case Summary:
Marjorie Gibson brought this matter before the Court to vacate a prior order granting partial summary judgment and to alter or amend the findings of fact and conclusions of law. Gibson claimed that there may have been additional evidence that could have been presented at trial. The Court first determined that the motion to vacate was timely filed. The time limit to file such a motion in Fed. R. Civ. P. 52(b) did not begin to run until judgment was entered on all claims, not when the partial summary judgment was entered. Next, the Court determined there was no reason to vacate the award of partial summary judgment or alter the findings. There was never any dispute about the facts. Gibson presented only hypotheticals without any real evidence that could have arisen at trial. If there were other facts or evidence supporting opposition to the award of partial summary judgment, they should have been presented at that time. No such facts or evidence were presented, and therefore the motion to vacate was denied.

Statute/Rule References:
Fed. R. Bankr. P. 7052(b) -- Amended or Additional Findings
Fed. R. Civ. P. 52(b) -- Amended or Additional Findings

In re Simpson, Case No. 14-13126-7 (09/23/2015) -- Judge Catherine J. Furay 09/23/2015

Case Summary:
The Court overruled the Trustee’s objection to the Debtor’s claim of exemptions. The Debtor claimed an exemption in a personal injury claim 10 months after filing the bankruptcy petition, even though the claim arose pre-petition and the Trustee gave the Debtor repeated reminders to claim the exemption on his schedules. The Trustee argued that the exemption was not timely filed under Wis. Stat. § 815.18(6)(a). Section 815.18(6)(a) states an exemption may be claimed within a reasonable time after seizure, but shall be claimed prior to disposition of the property. Harmonizing Wis. Stat. § 815.18(6)(a) with Rule 1009, the closure of the case is a reasonable time after seizure. Therefore, § 815.18(6)(a) is to be read broadly, in conjunction with Rule 1009, to allow a debtor to amend his exemptions to add additional claims up until the time the case is closed.

Statute/Rule References:
Wis. Stat. § 815.18 -- Exemptions

Key Terms:
Exemptions

In re Achtor, Case No. 14-13286-13 (08/03/2015) -- Judge Catherine J. Furay 08/03/2015

Case Summary:
The Debtors objected to two proofs of claim filed by a credit card company. They asserted their corporation incurred the debt, they were guarantors, and the claims should be disallowed because they were “not non-contingent AND liquidated.” The Court found that under the terms of the credit card agreements, the Debtors were personally jointly and severally liable for the credit card debt. There was no evidence to the contrary. The agreement was enforceable, so the objection was overruled and the claims were allowed.

Statute/Rule References:
11 U.S.C. § 502 -- Allowance of Claims or Interests
Fed. R. Bankr. P. 3001(f)

Key Terms:
Claims - Allowances

In re Rapraeger, Case No. 13-10869-7 (07/16/2015) (534 B.R. 778) -- Judge Catherine J. Furay 07/16/2015

Case Summary:
The holder of a fourth-priority mortgage on property filed a motion to vacate an order approving sale of the property after it did not get paid in full from the proceeds. The Court had granted a motion to shorten time for notice and a motion to sell in turn after no objection was filed to either. The fourth-priority mortgagee asserted it had relied on a statement in an affidavit from the Debtors’ counsel in support of the motion to shorten time indicating the sale would pay secured creditors in full. The Court denied the motion to vacate, finding that it was not made within a reasonable time under Rule 60(c) and further finding that even if it had been, the creditor had not stated grounds justifying relief under Rule 60(b)(1), (3), or (4)-(6).

Statute/Rule References:
Fed. R. Bankr. P. 9024 -- Relief from Judgment or Order
Fed. R. Civ. P. 60(b) -- Relief from a Judgment or Order

Key Terms:
Relief from Judgment or Order

In re Spencer, Case No. 15-11204-13 (05/15/2015) (531 B.R. 208) -- Judge Catherine J. Furay 05/15/2015

Case Summary:
The Court found a bank demonstrated it had standing to seek relief from stay. Its foreclosure judgment demonstrated it had a “colorable claim” to property. The Debtor did not meet her burden of showing making a payment in the amount of the regular monthly mortgage payment to the Debtor’s attorney’s trust fund adequately protected the bank’s interest. Thus, the bank was entitled to relief from stay for cause under section 362(d)(1). It was also entitled to relief under section 362(d)(2). The Debtor stipulated she had no equity in the property, and she failed to meet her burden of proving it was necessary for an effective reorganization. Her proposed sale of the property would not result in proceeds available for any other creditor, nor would it generate exempt proceeds for purchase of a new home. Her personal liability for the debt had previously been discharged.

The Court also granted in rem relief from stay as to the property, finding the filing of the petition was part of a scheme to hinder, delay, or defraud creditors involving multiple bankruptcy filings affecting the property.

Statute/Rule References:
11 U.S.C. § 362 -- Automatic Stay
11 U.S.C. § 362(g) -- Automatic Stay - Burden of Proof

Key Terms:
Automatic Stay
In Rem Relief
Rooker-Feldman

Sheila Marie Spencer v. Federal Home Loan Mortgage Corporation, a/k/a Freddie Mac, et al. (In re Spencer), Adv. No. 15-0060, Case No. 15-11204-13 (05/15/2015) (532 B.R. 303) -- Judge Catherine J. Furay 05/15/2015

Case Summary:
At the time this adversary proceeding was filed, a motion for relief from stay was pending in the main case. The Debtor’s arguments in opposition appeared to require the conclusion that until a determination was reached in the adversary proceeding, it was impossible to determine whether the movant had standing to seek relief from stay. Thus, the Court reviewed the adversary complaint. Because the review suggested the Debtor was challenging the validity of a foreclosure judgment, the Court ordered the Debtor to explain why the Rooker-Feldman doctrine would not bar the claims. After considering her response and other submissions, the Court determined it lacked subject-matter jurisdiction and dismissed the complaint.

Statute/Rule References:
11 U.S.C. § 362 -- Automatic stay
11 U.S.C. § 362(g) -- Automatic stay - Burden of Proof

Key Terms:
Automatic Stay
In Rem Relief
Rooker-Feldman

In re Adolphson, Case No. 14-11773-7 (02/27/2015) -- Judge Catherine J. Furay 02/27/2015

Case Summary:
The Court sustained the Chapter 7 trustee’s objection to Debtors’ claim of exemptions. The Debtors claimed an exemption in a dairy cooperative equity revolvement account under 11 U.S.C. § 522(d)(10)(E). The cooperative bylaws were clear that redemption of the Debtors’ equity was entirely within the discretion of the board of directors. Neither illness, disability, death, nor age would trigger redemption of the Debtors’ equity. Although the Debtors may have accumulated their patronage equity over time, the Court also determined they did not have a right to receive payment because of their length of service. This term connotes tenure, in the sense of plans conferring benefits based on the number of years of employment.

Statute/Rule References:
11 U.S.C. § 522(d)(10)(E) -- Federal Exemptions - Stock Bonus, Pension, Profitsharing, Annuity

Key Terms:
Exemptions

In re Minor, Case No. 14-13002-7 (02/26/2015) (526 B.R. 305) -- Judge Catherine J. Furay 02/26/2015

Case Summary:
The Court sustained the Chapter 7 Trustee’s objection to Debtors’ claim of exemptions. The Debtors claimed an exemption in two non-contiguous lots under Wis. Stat. § 815.20. Each lot was improved with a two-bedroom residence. The Debtors argued both lots constituted their homestead because they occupied one or another of the lots, and sometimes separated and occupied both simultaneously. The Court determined the lots taken together did not qualify as one homestead. Although a person may have multiple houses, only one is his home, and thus only one may qualify as a homestead. The Debtors also could not exempt the lots under a theory that each debtor had established a separate homestead, even if Wisconsin law permitted such an exemption. The Debtors had not separated with the intent to remain apart when they filed their bankruptcy petition.

Statute/Rule References:
Wis. Stat. § 815.20 -- Homestead Exemption
Wis. Stat. § 990.01(14)

Key Terms:
Exemptions
Homestead Exemption

Thomas Kriescher, Vicky Kriescher, and Marjac, Inc. v. Marjorie Ellen Gibson (In re Gibson), Adv. No. 14-0034, Case No. 13-15635-7 (11/6/2014) (521 B.R. 645) -- Judge Catherine J. Furay 11/06/2014

Case Summary:
On summary judgment, collateral estoppel applied to render part of a state court judgment award nondischargeable under section 523(a)(4). The findings leading to the award established the defendant was a fiduciary. They also established she committed defalcation by retaining, commingling, and expending funds. As to whether the amount of the state court awards on the remaining claims were non-dischargeable, issues of fact remained, as necessary findings in the judgment did not satisfy the elements of sections 523(a)(2)(A), 523(a)(4), or 523(a)(6).

Statute/Rule References:
11 U.S.C. § 523(a)(4) -- Nondischargeability - Embezzlement

Key Terms:
Collateral Estoppel
Defalcation while Acting as a Fiduciary
Dischargeability
Embezzlement
Fiduciary Capacity
Fraud - Fiduciary Capacity
Issue Preclusion
Nondischargeable Debt

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