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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 Thompson, Case No. 87-01729-7 (02/01/1988) (82 B.R. 985) -- Judge Thomas S. Utschig 02/01/1988

Case Summary:
Debtors' motion to avoid liens pursuant to 11 U.S.C. § 522(f)(2) on various farm tools and implements is granted.  Farm implements of substantial value constitute "tools" or "implements" of debtor-farmer.  Bankruptcy code provision allowing debtors to avoid nonpurchase money liens which impair exemptions does not provide for unconstitutional taking of creditor's property without just compensation; nor does it violate due process clause of Fifth Amendment.

Statue/Rule References:
11 U.S.C. § 522(f) -- Lien Avoidance

Key Terms:
Lien Avoidance

Cosmos Trust v. United States of America and State of Wisconsin, Department of Revenue v. Carlton J. West (In re Cosmos Trust), Adv. No. 86-0237, Case No. 84-00339-11 (12/18/1987) -- Judge Thomas S. Utschig 12/18/1987

Case Summary:
Defendant-debtor's motion for default judgment as to its counterclaim against plaintiff USA-IRS is granted.  Plaintiff failed to timely answer defendant's counterclaim and has not met standard for excusable neglect pursuant to Fed. R. Bankr. P. 9006(b).  Citing Redfield v. Continental Casualty Corp., 818 F.2d 596 (7th Cir. 1987).

Statue/Rule References:
Fed. R. Bankr. P. 9006 -- Time

Key Terms:
Default Judgment

In re Rondeau, Case No. 82-00736-11 (11/04/1987) -- Judge Thomas S. Utschig 11/04/1987

Case Summary:
Creditor's motion to convert case from chapter 11 to chapter 7 for failure to file plan and disclosure statement is denied.  Decision whether to dismiss or convert is within discretion of court.  Continuation of case would not result in any substantial benefit to creditors or to the estate; case will therefore be dismissed.  Moving creditor can pursue its remedies in state court.

Statue/Rule References:
11 U.S.C. § 348 -- Conversion

Key Terms:
Dismissal

In re Duss, Case No. 87-00830-7 (10/30/1987) (79 B.R. 821) -- Judge Thomas S. Utschig 10/30/1987

Case Summary:
Debtors' motion to avoid lien of FmHA pursuant to 11 U.S.C. § 522(f)(2)(A) on 30 acres of hay is denied.  Hay is not consumable and cannot be considered to be held primarily for personal, family or household purposes.

Debtors' motion to avoid lien of FmHA pursuant to 11 U.S.C. § 522(f)(2)(A) on various items of farm equipment claimed as exempt is granted.  Term "tools and implements of trade" in lien avoidance provision is not restricted to small hand tools and modest implements.

Debtor choosing state law exemptions pursuant to 11 U.S.C. § 522(b)(2) is not limited to the value limitations of the federal exemptions contained in 11 U.S.C. § 522(d) when seeking to lien avoid on exempt property pursuant to 11 U.S.C. § 522(f).

Statue/Rule References:
11 U.S.C. § 522(b) -- Exemptions - State Law
11 U.S.C. § 522(f) -- Lien Avoidance

Key Terms:
Exemptions
Lien Avoidance

In re Jarocki, Case No. 87-01740-12 (10/28/1987) -- Judge Thomas S. Utschig 10/28/1987

Case Summary:
Creditor Federal Land Bank's motion for relief from stay is denied.  Creditor's contention that exclusive method of providing adequate protection on mortgaged farmland is to pay secured creditor the reasonable rental value of that land is in error.  11 U.S.C. § 1205 provides four alternative methods for providing adequate protection in chapter 12 cases.  Debtor is complying with § 1205(b)(1) by making monthly cash payments to an escrow account to protect against any decrease in value of property securing creditor's claim.

Statue/Rule References:
11 U.S.C. § 362(d) -- Relief From Stay
11 U.S.C. § 1205(b) -- Adequate Protection

Key Terms:
Adequate Protection
Relief From Stay

In re Shepler, Case No. 86-02661-7 (08/20/1987) (78 B.R. 217) -- Judge Thomas S. Utschig 08/20/1987

Case Summary:
Debtor's motion to avoid the lien of Bank of Holmen on certain office equipment pursuant to 11 U.S.C. § 522(f) is denied.  Bank legally took possession of collateral upon default of debtor prior to bankruptcy filing.  In so doing, bank's security interest became "possessory".  Bank's security interest, therefore, is no longer voidable, due to "nonpossessory, nonpurchase-money security interest" requirement of § 522(f).

Statue/Rule References:
11 U.S.C. § 522(f) -- Lien Avoidance

Key Terms:
Lien Avoidance
Security Interests - Perfection

Susan Hoivik-Olson v. Jeffrey P. Hoivik, et al. (In re Hoivik), Adv. No. 86-0301, Case No. 86-02143-7 (07/01/1987) (79 B.R. 401) -- Judge Thomas S. Utschig 07/01/1987

Case Summary:
Debtor's former wife's claim pursuant to 11 U.S.C. § 523(a)(5) that certain obligations incurred by debtor under the terms of divorce decree are nondischargeable is dismissed.  Debtor's obligation to make two house payments for his former wife is dischargeable as being in the nature of property division.  Additionally, debtor's obligation to hold former wife harmless for various marital obligations is in nature of property division and is therefore dischargeable.

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

Key Terms:
Divorce Decrees – Maintenance or Property Division

Richard Kemis v. Wayne C. O’Loughlin and Judith A. O’Loughlin (In re O’Loughlin), Adv. No. 85-0305, Case No. 85-01543-7 (06/29/1987) -- Judge Thomas S. Utschig 06/29/1987

Case Summary:
Plaintiff's complaint seeking to have obligation of debtor to him declared nondischargeable on basis of 11 U.S.C. §§ 523(a)(2)(A), (a)(4) and (a)(6) is dismissed.  Plaintiff was former partner of debtor and creditor of debtor on basis of prepetition dissolution agreement executed October 2, 1984.  Business subsequently failed in June 1985, and substantial liabilities remained.  Plaintiff presented no evidence of fraud by debtor nor any evidence of willful or malicious conduct by debtor.  Term "fiduciary capacity" in § 523(a)(4) is limited to technical or express trusts.  Citing In re Donny, 19 B.R. 354 (Bankr. W.D. Wis. 1982).  No such trust existed here.

Debtor's trial motion to dismiss his wife from proceeding is granted.  Evidence revealed she was not a partner in business enterprise nor was she involved in any fraudulent activity.

Statue/Rule References:
11 U.S.C. § 523(a)(2)(A) -- Nondischargeability - Fraud
11 U.S.C. § 523(a)(4) -- Nondischargeability - Fraud in Fiduciary Capacity
11 U.S.C. § 523(a)(6) -- Nondischargeability - Willful and Malicious Injury

Key Terms:
Dismissal
Willful and Malicious

Emily Garton v. Martin J. Zoglman (In re Zoglman), Adv. No. 86-0144, Case No. 86-00502-7 (06/26/1987) (78 B.R. 213) -- Judge Thomas S. Utschig 06/26/1987

Case Summary:
Obligation to debtor's former wife, stemming from wife's payment of tax assessment for which she and debtor were jointly liable, is excepted from discharge.  Former wife did not act as "volunteer" when she paid tax assessments; wife can therefore invoke equitable doctrine of subrogation to assert nondischargeability claim against debtor's bankruptcy estate.  Persons who have interests of their own to protect are not "volunteers" for subrogation purposes.  Former wife is therefore subrogated to the claim of the IRS.  Since debtor's obligation to IRS would have been excepted from discharge had it not been paid, debt owed to former wife stemming from that obligation is excepted from discharge.

Statue/Rule References:
11 U.S.C. § 509 -- Subrogation

Key Terms:
Subrogation

Fond du Lac Service Motor Company, Inc. v. Malen A. Juzwiak and Juzwiak Implement, Inc. (In re Juzwiak), Adv. No. 86-0265, Case No. 86-01287-7 (06/26/1987) (75 B.R. 215) -- Judge Thomas S. Utschig 06/26/1987

Case Summary:
Debtor's motion to dismiss untimely filed nondischargeability complaint of creditor is granted.  Alleged lack of notice to creditor of deadline for complaints objecting to discharge did not suspend running of time period for filing objections; creditor had notice of bankruptcy more than two weeks prior to deadline for filing complaints.

Statue/Rule References:
Fed. R. Bankr. P. 4007(c) -- Time for Filing Nondischargeability Complaint

Key Terms:
Complaints - Nondischargeability - Late - Filed
Notice - Adequacy/Lack Of

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