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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

In re Klug, Case No. 21-10532-12 (09/16/2021) (633 B.R. 883) -- Judge Catherine J. Furay 09/16/2021

Case Summary:
Joint Debtors filed a Chapter 12 petition. Later, they amended their summary of assets and liabilities as well as schedules A/B and C. The amendment detailed a claim of exemption in tools of the trade. The Debtors elected to use state exemptions, asserting a $27,500 exemption in tools of the trade under Wis. Stat. § 815.18(3)(b). Further, they sought to avoid a secured creditor’s (“Creditor”) lien on tools of the trade, arguing it impairs their exemption under 11 U.S.C. § 522(f)(1)(B)(ii). Creditor objected to the avoidance action. Creditor argued that Wis. Stat. § 815.18(12) prohibits avoidance of a nonpossessory, non purchase-money security interest on tools of the trade as stated in 11 U.S.C. § 522(f)(3)(B), triggering the lien avoidance cap of $6,825 per debtor in 11 U.S.C. § 522(f)(3). The Debtors argued that neither subpart of § 522(f)(3) was met, making § 522(f)(3) inapplicable. Creditor argued that both subparts were met. The Court found that because Wis. Stat. § 815.18(12) does not explicitly prohibit avoidance of a nonpossessory, non purchase-money security interest on tools of the trade, the second subpart of 11 U.S.C. § 522(f)(3)(B) is not met and thus the Debtors could avoid Creditor’s lien to the full extent of the exemption available under Wis. Stat. § 815.18(3)(b).

Statute/Rule References:
11 U.S.C. § 522(f)(3) -- Exemptions
Wis. Stat. § 815.18(3)(b) -- Business and Farm Property
Wis. Stat. § 815.18(12) -- Limitations on Exemptions

Key Terms:
Exemptions
Lien Avoidance

Travis P. Krizan and Ronald V. Krizan v. Beverly A. Krizan (In re Krizan), Adv. No. 20-00015, Case No. 20-10231-7 (07/15/2021) -- Judge Catherine J. Furay 07/15/2021

Case Summary:  
Plaintiffs sought a determination that the debt owed to them is nondischargeable under 11 U.S.C. § 523(a)(2)(A). Debtor opposed Plaintiff’s assertion and argued Plaintiffs were collaterally estopped. The Court found collateral estoppel was inapplicable. After a trial on the issue, the Court determined Debtor’s debt to Plaintiffs was nondischargeable because it was obtained by fraudulent misrepresentation.

Statute/Rule References:
11 U.S.C. § 523(a)(2)(A) -- False pretenses, false representation, or actual fraud

Key Terms:
Nondischargeability

Travis P. Krizan and Ronald V. Krizan v. Dale A. Krizan (In re Krizan), Adv. No. 20-00016, Case No. 20-10232-7 (07/15/2021) -- Judge Catherine J. Furay 07/15/2021

Case Summary:
Plaintiffs sought a determination that the debt owed to them is nondischargeable under 11 U.S.C. § 523(a)(2)(A). Debtor opposed Plaintiff’s assertion and argued Plaintiffs were collaterally estopped. The Court found collateral estoppel was inapplicable. After a trial on the issue, the Court determined Debtor’s debt to Plaintiffs was dischargeable because Plaintiffs did not sufficiently establish Debtor’s participation in the fraudulent misrepresentation that led to incurring the debt.

Statute/Rule References:
11 U.S.C. § 523(a)(2)(A) - False pretenses, false representation, or actual fraud

Key Terms:
Nondischargeability

Travis P. Krizan and Ronald V. Krizan v. Scott A. Krizan (In re Krizan), Adv. No. 20-00017, Case No. 20-10233-7 (07/15/2021) -- Judge Catherine J. Furay 07/15/2021

Case Summary:
Plaintiffs sought a determination that the debt owed to them is non-dischargeable under 11 U.S.C. § 523(a)(2)(A). Debtor opposed Plaintiff’s assertion and argued Plaintiffs were collaterally estopped. The Court found collateral estoppel was inapplicable. After a trial on the issue, the Court determined Debtor’s debt to Plaintiffs was nondischargeable because it was obtained by fraudulent misrepresentation.

Statute/Rule References:
11 U.S.C. § 523(a)(2)(A) - False pretenses, false representation, or actual fraud

Key Terms:
Nondischargeability

In re Henricks, Case No. 14-12042-7 (07/12/2021) (632 B.R. 744) -- Judge Catherine J. Furay 07/12/2021

Case Summary:
Debtor sought contempt remedies for violations of the automatic stay and discharge injunction related to the Government’s attempt to satisfy restitution owed by Debtor’s husband with sequestered property, tax refunds, and Debtor’s pension. The district court made determinations about Debtor’s interest in the property and returned to this Court for sanctions. Debtor argued the Government violated the automatic stay and discharge injunction when it sought to collect restitution from Debtor’s interest in property. Further, Debtor seeks sanctions for the Government’s refusal to release a lien on property she owns with her father. The Government contended its argument in district court, that Debtor had no legitimate interest in any of the tax refund or her retirement account, was not a violation of the automatic stay or discharge injunction. Further, the Government asserted its lien on the property at issue was proper. The Court found there was no violation of the automatic stay as to the sequestered property. The Court did find violations of the automatic stay and discharge injunction in the Government’s pursuit of 100% of the tax refunds and 100% of Debtor’s pension. Further, the Court found the Government’s conduct relating to the lien on the property violated the discharge injunction.

Statute/Rule References:
11 U.S.C. § 105 -- Powers of court
11 U.S.C. § 362(a) -- Automatic stay
11 U.S.C. § 362(k)(1) -- Automatic stay violation damages
11 U.S.C. § 524(a) -- Discharge injunction

Key Terms:
Automatic Stay
Contempt
Discharge Injunction
Taggart Standard

In re Cargill, Case No. 20-12261-7 (05/21/2021) -- Judge Catherine J. Furay 05/21/2021

Case Summary:
The United States Trustee brought a motion to examine an attorney’s fees and sought disgorgement of $800 due to counsel’s repeated failure to provide routinely provided documents in their entirety. Counsel disclosed compensation of $2,000 and asserted disgorgement was not appropriate and that the United States Trustee should not be allowed to “proscribe” counsel’s fees. Counsel provided the Court with time records. The Court ordered disgorgement of $800 finding counsel’s lack of attention to detail and poor communication with Debtor imperiled Debtor’s opportunity for a fresh start and discharge which warranted disgorgement of some of counsel’s fees. 

Statute/Rule References:
11 U.S.C. § 329 -- Debtor’s transactions with attorneys
11 U.S.C. § 330(a)(3) -- Compensation of professionals
Fed. R. Bankr. P. 2017 -- Examination of Debtor’s Transactions with Debtor’s Attorney

Key Terms:
Disgorgement
Attorney Fees - reasonable compensation

In re Leaver, Case No. 20-11122-12 (03/24/2021) (627 B.R. 517) -- Judge Catherine J. Furay 03/24/2021

Case Summary:
Creditor filed a proof of claim in the secured amount of $106,448.84 in Debtor’s Chapter 12 bankruptcy. The basis for the claim was a boarding lien. Shortly after the Debtor filed his Chapter 12 plan, a stipulation between Creditor and Debtor providing for the release of livestock was filed (“Stipulation”). The Stipulation also contained an agreement that Creditor would retain its lien rights. The Creditor objected to the Chapter 12 plan shortly thereafter, arguing the plan did not provide for its lien as stipulated or to treat the claim as an administrative expense.  Debtor then filed an amended plan. The amended plan, however, did not change the treatment of Creditor. The Court found that because Wis. Stat. § 779.43(3) (governing the liens of keepers) requires possession for perfection of a lien, Creditor no longer held a secured claim based on its pre-petition or post-petition statutory lien because it surrendered possession of the livestock. Similarly, when possession was relinquished, perfection of Creditor’s lien required a financing statement pursuant to Wis. Stat. § 409.310. Because this requirement was not met, perfection of Creditor’s lien was lost. Further, the Court found that Creditor was entitled to an administrative expense claim for its entire claim because Creditor’s surrender of the livestock to Debtor permitted Debtor to have possession of animals necessary for the operation of his business pursuant to 11 U.S.C. § 503(b)(1)(A).

Statute/Rule References:
11 U.S.C. § 503(b)(1)(A) -- Administrative expenses
Wis. Stat. § 409.310 -- When filing required to perfect security interest or agricultural lien
Wis. Stat. § 779.43(3) -- Liens of keepers

Key Terms:
Administrative Expenses
Perfection (Lien Perfection)

In re Beutel, Case No. 19-12690-13 (03/17/2021) -- Judge Catherine J. Furay 03/17/2021

Following dismissal of an adversary proceeding for nondischargeability of debt under a voluntary Chapter 13 bankruptcy, Debtor’s attorney applied for compensation (“Application”). The Standing Chapter 13 Trustee (“Trustee”) objected to the Application. The Trustee asserted that although the services provided were beneficial and necessary to the Debtor pursuant to 11 U.S.C § 330(a)(4)(B), they were not “necessary to the administration of, or beneficial at the time which the service was rendered toward the completion of” the case pursuant to 11 U.S.C. § 330(a)(3)(C). The Trustee made this assertion because the adversary proceeding related to the nondischargeability of debt, and although the debt was found to be dischargeable, such a finding did not lead to a reduction of the debt and no attorneys’ fees were awarded. The Debtor’s counsel responded by arguing that the language of 11 U.S.C. § 330(a)(4) is clear and there is no requirement that an application for compensation satisfy (4)(A) and provide a benefit for the estate/necessary for the administration, as well as satisfy (4)(B) to provide services that provide a benefit and are necessary to the Debtor.

Finding that a lack of benefit to the estate is not an absolute bar to compensation of a debtor’s counsel under § 330(a)(4)(B), the Court overruled the objection of the Trustee. The Court found that the magnitude of the claim in the adversary proceeding and its potential impact on the ability of the Debtor to achieve a fresh start were sufficient to determine that the services were a necessary benefit to the Debtor within the exceptions to the general rule that fees are compensable only if there is a benefit to the estate.

Statute/Rule References:
11 U.S.C. § 330 -- Compensation of professionals

Key Terms:
Compensation of Professionals

In re ATVT LLC, Case No. 20-11746-11 (03/12/2021) -- Judge Catherine J. Furay 03/12/2021

Case Summary:
Debtor was a kombucha producer who filed for bankruptcy under Chapter 11. Debtor concluded it could not make a decision regarding nonresidential real property lease assumption or rejection by the statutory deadline under 11 U.S.C § 365(d0(4)(A)(i). Debtor requested an extension of the deadline to permit Debtor adequate time to complete selling its assets. Debtor argued that if forced to assume within the statutory time, there may be unnecessary burden on the estate in the form of administrative expenses if it was later determined lease assumption is not required. Similarly, Debtor argued that premature rejection of the lease would leave the Debtor without the ability to operate its business and cripple the Debtor’s ability to maximize recovery efforts for the benefit of creditors. Plaintiff, Debtor’s landlord, opposed this request. Plaintiff’s attorneys then filed an Application for Allowance of Administrative Compensation. The Objectors to Application (which included the Debtor and Debtor’s primary secured creditor) argued that under 11 U.S.C. § 502(b)(6), a landlord’s claim for damages is limited to the amounts resulting from termination of a lease. Objectors to the Application also asserted that the requested sums do not qualify as administrative expense claims under § 503(b)(1) because the amounts were not actual or necessary costs and expenses of preserving the estate. The Court allowed the administrative expense claim of Debtor’s landlord. Based on the position taken by the Debtor, failing to extend the deadline to assume or reject the lease would have necessary implications for the sale process, could have impaired continued operation of the business, and would have impaired the ability to maximize the estate. Thus, the Court held that the work related to review of the lease and the motion for extension and its possible termination all align with the goals of preserving the estate by maximizing value for creditors, incentivizing creditors to do business with the Debtor, and preserving value.

Statute/Rule References:
11 U.S.C. § 502 -- Allowance of claims or interests
11 U.S.C. § 503 -- Administrative expenses

Key Terms:
Administrative Expenses

MM Education LLC, Mohamed Jaffer, and Yaseen Jaffer v. Todd Allen Barnhardt (In re Barnhardt), Adv. No. 20-00014, Case No. 19-13897-7 (02/26/2021) -- Judge Catherine J. Furay 02/26/2021

Case Summary:
The U.S. Trustee commenced an action seeking denial of discharge under 11 U.S.C. § 727 in a voluntary Chapter 7. Defendant-Debtor consented to a waiver of discharge and an order denying discharge was entered in the Debtor’s main case. Following a motion for summary judgment, the Court held it would abstain from the proceeding since discharge was waived by Debtor and discharge was denied. Plaintiffs indicated a desire that the Court continue with the scheduled trial to determine the amount of the debt owed by Defendant to Plaintiffs. The Court found that it lacks subject matter jurisdiction as it related to Plaintiffs’ claims because the debt was already established as nondischargeable. The amount of the debt is neither “arising out” of or related to Title 11 of the United States Code as required by 28 U.S.C. § 1334 and 11 U.S.C. § 157(c)(1). The Court further held that the Plaintiffs’ adversary proceeding is moot because the order waiving and denying discharge in Debtors’ case renders the Court unable to grant Plaintiffs any meaningful relief in addition to what they have already received.

Statute/Rule References:
28 U.S.C. § 157(c)(1) -- Core Proceedings
28 U.S.C. § 1334 -- Abstention

Key Terms:
Jurisdiction

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