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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.

Judge Thomas S. Utschig

In re Bolles, Case No. 92-10883-7 (02/01/1993) -- Judge Thomas S. Utschig 02/01/1993

Case Summary:
Debtor is entitled to exempt $12,808 in personal injury award proceeds -- $6,904 pursuant to Wis. Stat.  § 815.18(3)(i)(c) [pain and suffering exemption] and $5,904 pursuant to Wis. Stat. § 815.18(3)(i)(d) [loss of future earnings exemption]. Debtor's exemption rights are to be determined on the basis of conditions as they existed on the date of bankruptcy filing; court refuses to retroactively apply Wisconsin exemption statutes to debtor's prepetition expenditures.  Prepetition expenditures from two separate award amounts (one for pain and suffering and the other for loss of future earnings) are to be allocated pro-rata between both amounts for purposes of determining exemption rights under Wisconsin law.

Amount "reasonably necessary for the debtor's support" for exemption purposes is to be determined on the basis of the debtor's present circumstances and income, other exempt property, and any other relevant factors.  Citing In re Haga, 48 B.R. 492, 496 (Bankr. E.D. Tenn. 1985).

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

Key Terms:
Exemptions
Personal Injury Proceeds

Gross Common Carrier, Inc. and Official Unsecured Creditors Committee of Gross Common Carrier, Inc. v. GSG Holdings, et al. (In re Gross Common Carrier), Adv. No. 92-5033, Case No. 91-52860-11 (12/23/1992) -- Judge Thomas S. Utschig 12/23/1992

Case Summary:
On cross motions for summary judgment, court grants defendants' motion as to counts II, III, VI and VII of plaintiff's complaint.  As to count II, plaintiff, a subsidiary and creditor of defendant, lacks standing to bring ultra vires claim pursuant to Wis. Stat. § 180.0304.  As to count III, plaintiff has not established that any transfers of property to the defendants occurred within one year preceding the bankruptcy filing.  Such a showing is necessary to prevail on a claim for fraudulent conveyance pursuant to 11 U.S.C. § 548.  As to count VI, plaintiff has failed to show that any transfers to defendants occurred within one year of filing; such showing is likewise necessary to prevail on a 11 U.S.C. § 547 preference claim.  As to count VII, plaintiff has failed to support its allegations of inequitable conduct by the defendants with the requisite "substantial factual showing" sufficient to overcome summary judgment motion on equitable subordination claim under 11 U.S.C. § 510(c).

Defendants' summary judgment motions as to counts I, IV and V are taken under advisement pending further court order or trial.  Plaintiff's summary judgment motion is likewise taken under advisement.

Statue/Rule References:
11 U.S.C. § 510(c) -- Equitable Subordination
11 U.S.C. § 547 -- Preference
11 U.S.C. § 548 -- Fraudulent Conveyance
Fed. R. Bankr. P. 7056 -- Summary Judgment
Wis. Stat. § 180.0304 -- Ultra Vires Acts by Corporation

Key Terms:
Equitable Subordination
Fraudulent Conveyance
Preferences
Summary Judgment
Ultra Vires Act by Corporation

Linda M. Friske v. Daniel R. Friske (In re Friske), Adv. No. 92-5089, Case No. 92-50616-7 (12/07/1992) -- Judge Thomas S. Utschig 12/07/1992

Case Summary:
Amounts constituting a MasterCard obligation and state and federal income tax obligations paid by debtor's ex-wife are dischargeable in debtor's bankruptcy.  This is in spite of the state court judge's approval of a stipulation between the parties which explicitly provided that any such amounts paid by one spouse above and beyond that spouse's 50% share would constitute a maintenance obligation of the non-paying spouse.  Court applied the factors identified in In re Messnick, 104 B.R. 89, 92 (Bankr. E.D. Wis. 1989).

Statue/Rule References:
11 U.S.C. § 523(a)(5) -- Nondischargeability - Divorce Decrees

Key Terms:
Divorce Decrees – Maintenance or Property Division

In re The Company Store, Inc., Case No. 92-21810-11 (10/05/1992) -- Judge Thomas S. Utschig 10/05/1992

Case Summary:
Debtors' motions to extend exclusivity periods for filing their plans and for obtaining acceptances to those plans are granted.  Case is large and complex and involves significant amounts of litigation; debtors are not merely attempting to prolong the reorganization process for the purpose of pressuring creditors to accede to their plans; objecting creditors will not be unduly prejudiced by the reasonable extensions requested.

Statue/Rule References:
11 U.S.C. § 1121(d) -- Exclusivity Period - Extension

Key Terms:
Exclusivity Periods -- Extension

Joseph R. Miller and Lana G. Miller v. Richard Chapek, et al. (In re Miller), Adv. No. 92-1014, Case No. 92-1014-12 (09/11/1992) -- Judge Thomas S. Utschig 09/11/1992

Case Summary:
For purposes of resolving a priority dispute, State of Wisconsin, Department of Agriculture, Trade & Consumer Protection's recording of a farm preservation agreement on October 13, 1985, did not create a lien as of that date against the debtor's property.  Interpreting the mere recording of such an agreement to have this effect would render other portions of the statutory scheme superfluous.  Wisconsin statutes provide a process through which a lien can be filed against property on the basis of a farm preservation agreement.  That process was not involved here.  Given the current contingent nature of any ultimate lien, court finds it would be manifestly unfair to State Bank of Arthur (a competing creditor) to prematurely fix the value of the state's contingent lien and thereby "cram down" the amount of the bank's secured claim.

Statue/Rule References:
11 U.S.C. § 362(h) -- Damages For Willful Stay Violations
11 U.S.C. § 506(a) -- Valuation
11 U.S.C. § 522(c) -- Exemptions - As Against Federal Tax Liens
11 U.S.C. § 553 -- Setoff
Wis. Stat. § 91 -- Farm Preservation Agreements

Key Terms:
Agricultural Programs
Automatic Stay
Exemptions
Farm Preservation Agreement
Priority
Setoff

Randi L. Osberg v. Lyman Lumber of Wisconsin, Inc. (In re Syverson), Adv. No. 92-1066, Case No. 91-00606-7 (09/04/1992) -- Judge Thomas S. Utschig 09/04/1992

Case Summary:
Chippewa County judgment docketed against property of debtors in Williams County, North Dakota, within 90 days of debtors' bankruptcy filing constitutes a "transfer" of property of the debtor for purposes of preference determination pursuant to 11 U.S.C. § 547(b).  Docketing of judgment creates a lien under North Dakota law.  "Transfer" is broadly defined under 11 U.S.C. § 101(54); case precedent supports finding that a docketing constitutes a "transfer" for preference purposes.  Other elements of preference are present here as well.

Trustee did not waive his right to challenge creditor's lien by signing stipulation which enabled court to enter agreed order avoiding lien of creditor to extent of debtors' allowed exemption in the property.  Trustee correctly asserted that he did not raise the preference issue at time of debtors' motion to avoid lien nor was he obligated to do so.  Trustee may therefore void the lien of creditor; creditor will share in any ultimate distribution to unsecured creditors.

Statue/Rule References:
11 U.S.C. § 101(54) -- Transfer
11 U.S.C. § 547 -- Preference
11 U.S.C. § 544 -- Trustee as Lien Creditor

Key Terms:
Preferences
Lien Avoidance

Gross Common Carrier, Inc. v. Ronald DeSotelle, et al. (In re Gross Common Carrier), Adv. No. 91-5242, Case No. 91-52860-11 (08/14/1992) -- Judge Thomas S. Utschig 08/14/1992

Case Summary:
Proceeds from a stop-loss insurance policy paid to debtor for services rendered by defendant hospital to wife of one of debtor's employees are not property of debtor's bankruptcy estate.  Policy proceeds (in excess of $80,000) are deemed to constitute a constructive trust under Wisconsin law for the assignee health-care provider -- St. Joseph's Hospital.  Representations made by the debtor to its employees concerning health-care coverage, the employer-employee relationship between the parties, general considerations of equity and the legislative history to § 541 of Bankruptcy Code support this result.

Statue/Rule References:
11 U.S.C. § 541 -- Property of the Estate
11 U.S.C. § 547 -- Preference

Key Terms:
Insurance Proceeds
Property Of The Estate
Trusts -- Constructive

In re Crossroads Hills, Case No. 91-53705-11 (08/05/1992) -- Judge Thomas S. Utschig 08/05/1992

Case Summary:
Secured claim of Resolution Trust Corporation was properly transferred to P.J. Investments.  Variances in exhibits attached to the proofs of claim filed by each entity did not affect a bifurcation of the claim.

Even a substantial variance between the price paid for a claim and the value of that claim against the estate does not, without more, warrant application of the court's equitable powers to reduce or limit the amount of the claim.  The Seventh Circuit has consistently required a showing of fraud, breach of fiduciary duty or improper insider dealings as justification for a judicial reduction of a claim.

Wisconsin law does not contain an election-of-remedies requirement and the fact that the creditor chose to proceed against the debtor on the basis of the promissory note does not preclude it from foreclosing on the mortgage.

Imposition of sanctions against the debtor is not warranted.  There is some limited support in the case law that courts in similar situations have used their equitable powers to reduce the amount of a claim filed against the bankruptcy estate.

Statue/Rule References:
Fed. R. Civ. P. 11 -- Sanctions
Fed. R. Bankr. P. 3002(c) -- Time for Filing Proof of Claim
Fed. R. Bankr. P. 3001(e) -- Transferred Claims

Key Terms:
Claims
Claims -- Equitable Reduction By Court
Election of Remedies
Remedies – Election Of
Sanctions

Bruce A. Schultz, et al. v. Raymond E. Schrank II, et al. (In re Schrank), Adv. No. 90-3199, Case No. 91-001036-7 (07/09/1992) -- Judge Thomas S. Utschig 07/09/1992

Case Summary:
Abstention is appropriate in what is essentially an action grounded on various state law fraud claims.  Factors supporting abstention in this matter are: 1) the effect or lack thereof on the efficient administration of the estate; 2) the extent to which state law issues predominate over bankruptcy issues; 3) the difficulty or unsettled nature of the applicable law; 4) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case; 5) the substance rather than the form of an asserted "core" proceeding; 6) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court; 7) the existence of a right to a jury trial; 8) the presence in the proceeding of a nondebtor party.  Citing Republic Reader's Service, Inc. v. Magazine Service Bureau, Inc. (In re Republic Reader's Service, Inc.), 81 B.R. 422, 429 (Bankr. S.D. Tex. 1987).

Statue/Rule References:
28 U.S.C. § 1334 -- Abstention

Key Terms:
Abstention

Dale L. Lenser v. Monica B. Zelenka (In re Lenser), Adv. No. 92-5001, Case No. 91-51990-7 (05/15/1992) -- Judge Thomas S. Utschig 05/15/1992

Case Summary:
Although state courts have concurrent jurisdiction to determine dischargeability issues, this court will retain jurisdiction to determine whether the debts arising from the state court divorce decree are dischargeable in the debtor-husband's bankruptcy.  Such issues are frequently determined by this court and the debtor's bankruptcy case had not yet been closed at the time he filed this adversary proceeding.  Considerations of judicial economy, efficiency and expediency warrant the court's retention of jurisdiction in this matter.

Statue/Rule References:
11 U.S.C. § 523(a)(5) -- Nondischargeability - Divorce Decrees

Key Terms:
Jurisdiction

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