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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 Kedrowski, Case No. 00-54870-7 (08/28/2002) (284 B.R. 439) -- Judge Thomas S. Utschig 08/28/2002

Case Summary:
Chapter 7 trustee sought turnover of debtor’s “per capita” distribution from tribal revenues.   The debtor was an “enrolled member” of the Ho-Chunk Nation and as such was entitled to receive a per capita distribution from gaming revenues if the tribe elected to make a distribution.  In the past, she had received approximately $8,000 a year.  The court concluded that the debtor’s “right” to receive this money constituted property of the estate, much as if the debtor held stock in a business.  The trustee’s motion for turnover was granted.

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

Key Terms:
Property of the Estate

George C. Mallinckrodt v. Chemical Bank, Nellie Mae, Sallie Mae, The Education Resources Institute, Inc and USA Group Loan Services, Inc. (In re Mallinckrodt), Adv. No, 00-1220, Case No. 00-10957-7 (03/28/2001) (260 B.R. 892) -- Judge Thomas S. Utschig 03/28/2001

Case Summary:
Debtor brought adversary proceeding to determine whether his student loans should be discharged as an “undue hardship” within the meaning of 11 U.S.C. § 523(a)(8).  The court concluded that the debtor’s financial condition was such that he would not be able to maintain a minimal standard of living if required to repay the loans.  Further, this condition was likely to persist for the foreseeable future, and the debtor had acted in good faith.  There is also no basis for restructuring or deferring the debt.  Reversed on appeal.

Statue/Rule References:
11 U.S.C. § 523(a)(8) -- Nondischargeability - Student Loans

Key Terms:
Student Loans

Kenneth J. Salinas v. United Student Aid Funds, Inc. (In re Salinas), Adv. No. 98-5159, Case No. 98-53293-7 (02/14/2001) (258 B.R. 913) -- Judge Thomas S. Utschig 02/14/2001

Case Summary:
On remand of district court’s order reversing prior order granting discharge of student loan debts, the bankruptcy court again considered the debtor’s financial condition.  Debtor did not have significant income, and had in fact been unemployed for a period of time.  The court concluded that the debtor had demonstrated an “undue hardship” within the meaning of U.S.C. § 523(a)(8).  The court also rejected the suggestion that the court could further defer or reduce the debtor’s loan obligations.

Statue/Rule References:
11 U.S.C. § 523(a)(8) -- Nondischargeability - Student Loans

Key Terms:
Student Loans

Coralynn F. Nelson v. La Crosse County District Attorney (State of Wisconsin) and Tim Gruenke (In re Nelson), Adv. No. 99-2189, Case No. 99-21588-7 (09/18/2000) (254 B.R. 436) -- Judge Thomas S. Utschig 09/18/2000

Case Summary:
Debtor brought proceeding to prevent state criminal proceedings.  Debtor contended that the criminal prosecution was merely a pretext for collecting a debt which had been discharged in bankruptcy.  The state moved to dismiss the adversary proceeding on the grounds that the Eleventh Amendment to the U.S. Constitution precluded suits against states.  The state cited Seminole Tribe v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996), for support.  The bankruptcy court concluded the Eleventh Amendment did not constitute a bar to the proceeding.  On appeal, the district court reversed.

Key Terms:
Eleventh Amendment
Sovereign Immunity

In re Calaway, Case No. 99-54197-7 (06/30/2000) -- Judge Thomas S. Utschig 06/30/2000

Case Summary:
Trustee moved for turnover of debtor’s interest in a trust.  The debtor argued that the trust was a “spendthrift trust” that was excluded from the bankruptcy estate by virtue of 11 U.S.C. § 541(c)(2).  The court, however, agreed with the trustee that since creditors could reach the trust res, it was not a true spendthrift trust.  The motion for turnover was granted.           

Statute/Rule References:
11 U.S.C. § 541 -- Property of the Estate
Wis. Stat. § 701.06 -- Spendthrift Provisions and Rights of Creditors of Beneficiaries

Key Words:
Trusts - Generally
Turnover of Property

In re Lawrence, Case No. 97-14687 (06/02/2000) -- Judge Thomas S. Utschig 06/02/2000

Case Summary:
Trustee brought sanctions motion against former counsel for bankruptcy debtor.  The debtor’s discharge had been denied for his conduct during the discovery process.  The trustee sought sanctions against various attorneys for their participation in “scorched earth” litigation.  These attorneys filed motions to dismiss and/or strike the sanctions request.  The court concluded that bankruptcy courts are “courts of the United States” for purposes of 28 U.S.C. § 1927 and can award sanctions pursuant to that statute.  Further, similar power exists under 11 U.S.C. § 105(a).  The motions to strike were denied, and the matter set for an evidentiary hearing.

Statue/Rule References:
11 U.S.C. § 105 -- Power of Court
28 U.S.C. § 1927 -- Counsel’s Liability for Excessive Costs
Fed. R. Bankr. P. 9011 -- Sanctions

Key Terms:
Sanctions

Cummins Great Lakes, Inc. v. CAM Construction Co., Inc (In re CAM Construction Co., Inc), Adv. No. 99-5145, Case No. 98-56035-11 (02/15/2000) (248 B.R. 134) -- Judge Thomas S. Utschig 02/15/2000

Case Summary:
The debtor’s plan treated the creditor as unsecured.  The creditor contended that it had a mechanic’s lien associated with certain repair services performed on the debtor’s equipment.  The court interpreted Wis. Stat. § 779.41(1) to require that the mechanic retain “actual physical possession” of the property in order to maintain a mechanic’s lien claim.  As the services here were performed on the debtor’s premises, the creditor never had possession of the property and therefore had no lien.  The creditor’s claim was unsecured.

Statute/Rule References:
Wis. Stat. § 779.41 -- Mechanic’s Liens

Key Words:
Mechanic’s Liens
Security Interests -- Creation

Schubbe Resch Chiropractic & Physical Therapy Centers and Schubbe Family Chiropractic v. Christine M. Norton (In re Norton), Adv. No. 99-5131, Case No. 99-51961-7 (02/15/2000) (248 B.R. 131) -- Judge Thomas S. Utschig 02/15/2000

Case Summary:
Creditors filed adversary proceeding under 11 U.S.C. § 523(a)(2)(A).  The debtor had been treated by the creditors for injuries she had suffered.  The debtor executed a “Financial Responsibility Form” under which she agreed to repay the creditors from any personal injury settlement she received.  Although she did ultimately receive a settlement, she did not pay the creditors.  The creditors contended that her actions constituted fraud under § 523(a)(2)(A).  They also asserted a hospital lien.  The court found that the documents in question did not rise to a lien, equitable or otherwise.  Further, there was no evidence that the debtor executed the Financial Responsibility Form with an intent to deceive.  Adversary proceeding dismissed.

Statue/Rule References:
11 U.S.C. § 523(a)(2)(A) -- Nondischargeability - Fraud

Key Terms:
Fraud
Security Interests - Creation

Kenneth J. Salinas v. United Student Aid Funds, Inc. (In re Salinas), Adv. No. 98-5159, Case No. 98-53293-7 (09/15/1999) (240 B.R. 305) -- Judge Thomas S. Utschig 09/15/1999

Case Summary:
Debtor filed adversary proceeding contending student loan debt constituted an "undue hardship" under 11 U.S.C. § 523(a)(8). The Court concluded that the debtor could not maintain a minimal standard of living, especially given the presence of other student loans the debtor conceded were nondischargeable. The debtor had done everything he could to maximize income and minimize expenses. His expenses still exceeded his income by a considerable amount. Accordingly, the debt was an "undue hardship" under § 523(a)(8) and dischargeable.  [Reversed on appeal, 262 B.R. 457 (W.D. Wis. 1999)]

Statue/Rule References:
11 U.S.C. § 523(a)(8) -- Nondischargeability - Student Loans

Key Terms:
Student Loans

The Olsten Corporation v. Patricia G. Hass (In re Hass), Adv. No. 97-2247, Case No. 97-23003-7 (08/18/1999) -- Judge Thomas S. Utschig 08/18/1999

Case Summary:
Creditor filed adversary proceeding alleging that a state court judgment and criminal restitution award were nondischargeable.  Both the judgment and the restitution award stemmed from the same conduct – the debtor’s alleged conversion or embezzlement of funds, which the plaintiff alleged was nondischargeable under either 11 U.S.C. § 523(a)(4) or (a)(6).

The court concluded that the restitution award was entitled to preclusive effect under principles of collateral estoppel.  Despite the fact that the debtor pled guilty without admitting any wrongdoing, the state court record was replete with additional factual findings which mandated preclusive effect.  The jury verdict in the civil suit, however, did not establish that the debtor’s conduct was willful and malicious, in that the jury could have concluded that the debtor was guilty of mere “reckless” conduct.  Summary judgment was entered under § 523(a)(4) and denied under § 523(a)(6).

Statue/Rule References:
11 U.S.C. § 523(a)(4) -- Nondischargeability - Embezzlement
11 U.S.C. § 523(a)(6) -- Nondischargeability - Willful and Malicious Injury

Key Terms:
Collateral Estoppel
Embezzlement
Willful and Malicious

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