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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

Rob’s Automotive, LLC v. Jacob Lazarz (In re Lazarz), Adv. No. 20-0049, Case No. 19-13756-13 (01/13/2021) -- Judge Catherine J. Furay 01/13/2021

Case Summary:
Plaintiff was a Wisconsin limited liability company that performed auto repairs, body and paint work, detailing of cars, and the buying and selling of used cars. Plaintiff and Defendant entered into a business relationship. The business relationship ended that was followed by litigation in state court. Plaintiff filed an adversary proceeding seeking a determination that various debts owed to Plaintiff are not dischargeable under 11 U.S.C. § 523(a)(2), (4), or (6). Plaintiff moved for summary judgment.

First, the Court granted summary judgment pertaining to unpaid payroll reimbursements that Plaintiff alleged constituted breach of contract because there was no dispute about the amount at issue owed to the Plaintiff. Second, the Court denied Plaintiff's request for summary judgment for a claim of over-reimbursement of checks under a theory of false representation because the Plaintiff presented no evidence that (1) the Defendant knew he was making false representations when the checks were written and that (2) Plaintiff relied on the representations as required by 11 U.S.C. § 523(a)(2)(A). Third, the Court denied Plaintiff's request for summary judgment for a claim that the Defendant kept proceeds from the sale of an automotive hoist purchased using Plaintiff's credit card because there were material disputes of fact pertaining to these claims. Fourth, the Court denied Plaintiff's summary judgment for a claim that Plaintiff suffered damages by paying for a client database stored on a hard drive that was in Defendant's possession because Plaintiff presented no facts to prove either that Plaintiff suffered any actual damages or that Defendant used the data.

The Court also denied Plaintiff's request for summary judgment under 11 U.S.C § 523(a)(4), defalcation while acting in a fiduciary duty, because Plaintiff failed to establish any evidence of a fiduciary duty on the part of the Defendant. The Court held that repeated conclusory assertions that there was a fiduciary duty does not constitute evidence of any difference in power or ascendancy between Plaintiff and the Defendant, nor is it evidence of the imposition of particular duties imposed on Defendant that would arise to the level of a fiduciary capacity. Summary judgment on a 11 U.S.C § 523(a)(4) claim for embezzlement was also denied because Plaintiff did not offer evidence that satisfies the requisite intent of embezzlement; simply alleging that the "only reasonable conclusion" for checks being written for greater amounts than the legitimate expenses is that Defendant did so with fraudulent intent" does not satisfy Plaintiff's burden of proof.

Finally, the Court denied Plaintiff's summary judgment request for claims that over-reimbursed checks are nondischargeable under 11 U.S.C. § 523(a)(6) on the grounds that the drafting of the checks were done willfully and with malice. The Court held that Plaintiff failed to satisfy the requirement that defendant acted willfully because Plaintiff offered no evidence Defendant knew there was an over-reimbursement when the checks were drawn.

Statute/Rule Reference:
11 U.S.C. § 523(a)(2)(A) -- Nondischargeability - false pretenses, false representation, or fraud
11 U.S.C. § 523(a)(4) -- Nondischargeability – fraud or defalcation in fiduciary capacity; embezzlement
11 U.S.C. § 523(a)(6) -- Nondischargeability - willful and malicious injury

Key Terms:
Defalcation While Acting as a Fiduciary
False Representation
Fiduciary Capacity
Summary Judgment
Willful and Malicious

In re Spindler, Case No. 20-11642-12 (12/28/2020) (623 B.R. 543) -- Judge Catherine J. Furay 12/28/2020

Case Summary:
Debtors filed a Chapter 12 plan proposing to reamortize debt on personal property and the mortgage on Debtors’ homestead. Debtors proposed making these payments directly to the Creditor. The Trustee objected asserting that the re-amortized debt should be paid through the Trustee. Debtors filed an amended plan proposing the personal property debt be paid through the Trustee and the reamortized mortgage debt be paid directly to the Creditor. The Trustee maintained the objection. The Court held that direct payments, like the one proposed in the plan, must be evaluated on a case-by-case basis especially given the purpose of Chapter 12. Applying the factors used in Pianowski, the Court determined the amended plan struck an appropriate balance and could be confirmed over the Trustee’s objection. 

Statute/Rule References:
11 U.S.C. § 1222(a)(1) -- Contents of plan - future earnings
11 U.S.C. § 1225 -- Confirmation of plan
11 U.S.C. § 1226(c) -- Payments

Key Terms:
Chapter 12 plan
Direct payment
Pianowski factors     

Dells Land and Cattle Company II, LLC v. Jason J. Krus and Trina B. Krus (In re Krus), Adv. No. 19-00048, Case No. 17-12413-13 (10/23/2020) -- Judge Catherine J. Furay 10/23/2020

Case Summary:
Debtors dismissed their Chapter 13 case while an adversary proceeding initiated by Plaintiffs was pending. Debtor defendants argued that although the Court had the ability to retain jurisdiction of the adversary proceeding, it should exercise its discretion and dismiss the adversary. The Plaintiffs argued jurisdiction should be retained because of the substantial time the parties had devoted to the issue. The Court found that the considerations of retention (i.e., judicial economy, federal interest, effect of the proceeding on the bankruptcy case) did not weigh in favor of the Court retaining jurisdiction. The Court found that the remaining issues were solely state law claims and the adversary proceeding had not advanced to a point where it would be unfair to the parties to litigate the matter in state court as exhibits had not been filed and a hearing had not yet occurred. The Court exercised its discretion and dismissed the adversary proceeding.

Key Terms:
Federal Interest
Judicial Economy
Jurisdiction of Adversary Proceedings
Retaining Jurisdiction

In re Rusch, Case No. 18-14155-7 (10/22/2020) -- Judge Catherine J. Furay 10/22/2020

Case Summary:
Debtor, for the second time, moved for reconsideration of the Court’s decision to approve the Trustee’s motion to sell property free and clear of liens and encumbrances. Just as in the first motion to reconsider, Debtor asserted that, although he was present on the phone, he was muted and so his questions and statements were not addressed. Debtor also, again, challenged the validity of the state court judgment against him. At the hearing referenced by the Debtor, his attorney was present and withdrew the objection to the motion. The Trustee’s motion was then approved. The Court, as a courtesy, heard Debtor’s first motion to reconsider and allowed the Debtor to voice his questions and concerns. The Court, after considering the Debtor’s position, denied the motion. The second motion for reconsideration repeats the same grounds as the first motion. The second reconsideration motion was denied.

Statute/Rule References:
Fed. R. Civ. P. 54(b); Fed. R. Bankr. P. 7054

Key Terms:
Reconsideration

Travis P. Krizan and Ronald V. Krizan v. Dale A. Krizan (In re Krizan), Adv. No. 20-0016, Case No. 20-10232-7 (10/16/2020) -- Judge Catherine J. Furay 10/16/2020

Case Summary:
Plaintiffs sought a determination that the debt owed to them is nondischargeable under 11 U.S.C. § 523(a)(2)(A). Debtor moved to dismiss under Fed. R. Civ. P. 12, made applicable by Fed. R. Bankr. P. 7012. He asserted the complaint failed to state a cause of action and the Plaintiffs were collaterally estopped.  The Debtor also filed various affidavits. Plaintiffs responded to the motion with supporting affidavits. The submission of affidavits and documents converted the motion to dismiss to a summary judgment motion (pursuant to Fed. R. Bankr. P. 56, made applicable by Fed. R. Bankr. P. 7056). The Court further determined collateral estoppel did not apply because the state court did not address Plaintiffs’ causes of action for fraud and misrepresentation. The motion was denied.

Statute/Rule References:
Fed. R. Civ. P. 12(c); Fed. R. Bankr. P. 7012 -- Judgment on the Pleadings
Fed. R. Civ. P. 56(c); Fed. R. Bankr. P. 7056 -- Summary Judgment

Key Terms:
Collateral Estoppel
Conversion of Motion to Dismiss
Issue Preclusion
Summary Judgment

In re Hazelton, Case No. 16-12372-7 (09/25/2020) (622 B.R. 354) -- Judge Catherine J. Furay 09/09/2020

Case Summary:
Debtors filed a motion for contempt and sanctions against University of Wisconsin-Stout for violating the final discharge order in their Chapter 7. The parties disagreed whether the unpaid tuition had been discharged. The District Court found the unpaid tuition was not a qualified educational loan and remanded for further findings. Creditor appealed to the Seventh Circuit, but the appeal was dismissed as an appeal of an interlocutory order and thus not final. Bound by the decision of the District Court, the Court determined that, under Taggart, sanctions could not be awarded because the offending creditor had a fair ground of doubt to conclude that their conduct was not barred by the discharge injunction. The Court also concluded that even if sanctions were appropriate, the Debtors would only be entitled to the return of the seized tax refund because there was no indication on the record what other damages Debtors may have incurred, and the Creditor was immune from an award of punitive damages.

Statute/Rule References:
11 U.S.C. § 105(a) -- Contempt Power
11 U.S.C. § 106 -- Sovereign Immunity
11 U.S.C. § 524(a) -- Discharge Injunction

Key Terms:
Contempt
Discharge Injunction
Sanctions
Taggart Standard

In re Hoel, Case No. 20-10509-12 (07/20/2020) (617 B.R. 636) -- Judge Catherine J. Furay 07/20/2020

Case Summary:
Chapter 12 Trustee filed a motion to dismiss the Debtors’ case due to the Debtors’ insufficient income from farming operations to satisfy Chapter 12 eligibility requirements. Debtors’ gross farm income in 2019 was $47,650. Their farm income has two components: (1) cattle sales and breeding ($14,650), and horse boarding ($33,000). While recognizing the recent evolutions of farming and the agriculture industry, the Court determined the Debtors’ horse boarding operation was not a farming operation because the Debtors did not bear the risks traditionally associated with farming activity. Debtors did not raise the horses or sell them. They simply boarded horses for other individuals and took care of neglected horses through their non-profit entity that is funded through donations and fundraising events. Debtors’ 2019 farm income was insufficient to meet the Chapter 12 eligibility requirements. Debtors’ case was dismissed.

Statute/Rule References:
11 U.S.C. § 101(18) -- Definition of Family Farmer
11 U.S.C. § 101(21) -- Definition of Farming Operation
11 U.S.C. § 109(f) -- Chapter 12 Eligibility

Key Terms:
Custom Framing
Farming Operation
Horse Boading

Park Street Apartments, LLLP, and Cedar Crest Associates, LLLP v. Michael Harvey (In re Harvey), Adv. No. 19-0003, Case No. 18-13398-7 (07/10/2020) -- Judge Catherine J. Furay 07/10/2020

Case Summary:
Plaintiffs contracted with Defendant’s business entity to install solar panels. Each Plaintiff made advance payments of $77,083.50 between July and September 2017. However, the solar panels were not installed as promised and the Plaintiffs did not receive refunds. Plaintiffs motioned for summary judgment on their claims. The Court took judicial notice of its own prior litigation during the United States Trustee’s trial denying the Defendant a discharge under 11 U.S.C. §§ 727(a)(3) and (a)(5) in September 2019. The Court also took judicial notice of a Minnesota State Court proceeding involving the Defendant and his business entity. Here, the Court determined there was no genuine dispute as to any material fact that the debt owed to the Plaintiffs, in the total amount of $124,618.32, was exempted from discharge under sections 523(a)(2)(A) and 523(a)(4). The facts and evidence of this case resembled the Defendant’s troubling business practices established through the United States Trustee’s trial. Plaintiffs’ Motion for Summary Judgment was granted.

Statute/Rule References:
11 U.S.C. § 523(a)(2)(A) -- Nondischargeability – False Pretenses, False Representation, or Fraud
11 U.S.C. § 523(a)(4) -- Nondischargeability - Embezzlement
Fed. R. Bankr. P. 7056 -- Summary Judgment
Fed. R. Civ. P. 56(a) -- Summary Judgment

Key Terms:
Collateral Estoppel
Judicial Notice
Nondischargeability
Res Judicata
Summary Judgment

Dells Land and Cattle Company II, LLC v. Jason J. Krus, Trina B. Krus, and Wisconsin Mutual Insurance Company (In re Krus), Adv. No. 19-0048, Case No. 17-12413-13 (06/10/2020) (617 B.R. 915) -- Judge Catherine J. Furay 06/10/2020

Case Summary:
Plaintiff filed this adversary proceeding to recover money from the Debtors for alleged damages to collateral under state law causes of action. Plaintiff had received a judgment of strict foreclosure in state court and discovered damages to the property after retaking possession. Plaintiff named the Debtors’ insurer as a co-defendant. The insurer moved for Judgment on the Pleadings to dismiss the claims asserted against it. The Court granted the motion because the Plaintiff’s allegations, as pled and asserted in its amended complaint, described intentional damages by the Debtors that did not trigger an initial grant of coverage under the insurance policy. The Court examined the substance of the allegations and determined that it was not bound to blindly accept the “negligence” labels attached to the Plaintiff’s claims. The Court also determined that the Plaintiff’s first-party property damage claim was barred by the twelve-month statute of limitations under Wis. Stat. § 631.83(1)(a). The Court’s decision made no findings about the merits of the Plaintiff’s adversary action against the Debtors.

Rule References:
Fed. R. Bankr. P. 7012(b) -- Judgment on the Pleadings
Fed. R. Civ. P. 10(c) -- Form of Pleadings
Fed. R. Civ. P. 12(c) -- Judgment on the Pleadings
Fed. R. Civ. P. 12(d) -- Presenting Matters Outside of Pleadings

Key Terms:
Facial Plausibility
Initial Grant of Insurance Coverage
Judgment on the Pleading

Osicka v. Office of Lawyer Regulation (In re Osicka), Adv. No. 19-0083, Case No. 11-15541-7 (05/15/2020) -- Judge Catherine J. Furay 05/15/2020

Case Summary:
Debtor was a licensed attorney in Wisconsin and the subject of multiple professional disciplinary proceedings brought by the OLR. Debtor was disciplined by the State Supreme Court in 2009 and was ordered to pay the OLR the costs of his disciplinary proceeding in the amount of $12,500.64. Debtor eventually filed bankruptcy and discharged this debt. Debtor petitioned to reinstate his law license, but the Wisconsin Supreme Court refused to act on the reinstatement petition until the dischargeability status of the disciplinary costs were determined by this Court. Debtor reopened his bankruptcy case and filed an adversary proceeding to determine that his debt was not excepted from discharge under 11 U.S.C. § 523(a)(7). Both the Debtor and the OLR agreed that summary judgment was appropriate to resolve this adversary. The Court found that the disciplinary costs were a fine or forfeiture that did not compensate the OLR for actual pecuniary loss. There was no genuine dispute as to any material fact that the debt owed to the OLR was excepted from discharge under 11 U.S.C. § 523(a)(7). The Court entered summary judgment in favor of the OLR. The Rooker-Feldman doctrine deprived the Court of subject matter jurisdiction over the Debtor’s constitutional claim under the Eight Amendment’s Excessive Fines Clause.

Statute/Rule References:
11 U.S.C. § 523(a)(7) -- Nondischargeability - Fines/Penalties/Forfeitures
Fed. R. Bankr. P. 7056 -- Summary Judgment
Fed. R. Civ. P. 56(a) -- Summary Judgment

Key Terms:
Attorney Disciplinary Costs
Nondischargeable Debt
Rooker-Feldman Doctrine
Subject Matter Jurisdiction

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