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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

Robert P. Fisher and Kathleen S. Fisher v. Dianne Niemi-Hart (In re Fisher), Adv. No. 98-1023, Case No. 96-15255-7 (08/10/1999) -- Judge Thomas S. Utschig 08/10/1999

Case Summary:
Debtor filed an adversary proceeding seeking to discharge a judgment entered in state court in favor of his former spouse.  The judgment consisted of unpaid child support dating from the 1970s, together with accrued interest.  The debtor contended that the court should discharge the obligation as it did not represent support and was no longer necessary to support debtor’s children, who were now in their mid-30s.  Based upon 11 U.S.C. § 523(a)(5), the court concluded the debt was nondischargeable.

Under § 523(a)(5), the court’s focus is upon the parties’ intent at the time of the divorce.  Subsequent circumstances are irrelevant.  As the debtor admitted the debt was originally in the nature of child support, it could not be discharged.  The accrued interest was ancillary to the primary debt, and likewise nondischargeable.

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

Key Terms:
Divorce Decrees – Maintenance or Property Division
Settlement

In re Klug Farm Partnership, Case No. 99-50046-12 (05/27/1999) -- Judge Thomas S. Utschig 05/27/1999

Case Summary:
Partnership which had been previously dissolved by the agreement of the partners filed bankruptcy.  The primary secured creditor moved to dismiss the case, contending that (i) a dissolved partnership was not eligible to proceed under chapter 11 or 12, and (ii) that the individual partners’ own prior bankruptcies prevented them from acting on behalf of the partnership.  The court found that at least in the context of a family farm partnership operated solely by a husband and wife, the dissolution did not necessarily terminate the business operation or mandate that the partnership “wind up” its affairs.  Rather, the agreement of the partners dictates whether the partnership can continue reorganization efforts.  Likewise, while state law would normally preclude a bankrupt partner from acting on behalf of the partnership, the partners can agree otherwise.  The motion to dismiss was denied.

Statue/Rule References:
11 U.S.C. § 1208(c) -- Dismissal
Wis. Stat. § 178.03 -- Partnership
Wis. Stat. § 178.25(2) -- Dissolution of Partnership

Key Terms:
Dismissal
Partnerships

Nipulchandar Patel v. Robert J. Bukowski and Christine F. Bukowski (In re Bukowski), Adv. No. 96-2635, Case No. 96-25586 (05/26/1999) -- Judge Thomas S. Utschig 05/26/1999

Case Summary:
Former business partner sued the debtors, contending that his judgment against the debtors was nondischargeable under §§ 523(a)(4) and (a)(6).  Creditor also claimed the debtors’ discharge should be denied for alleged misrepresentations and other activities related to valuation of their assets, primarily their stock interest in a company which the debtors valued at “$0" in their schedules.  The court found that the debtors’ use of a “liquidation value” rather than a “going concern” value was appropriate under the circumstances, and as a result there was no basis to deny the debtors’ discharge under § 727(a).  Likewise, the court concluded that there was no “fiduciary capacity” between the parties under § 523(a)(4).  However, the state court jury did find that the debtor acted in a manner which qualified as “willful and malicious” conduct under § 523(a)(6), and the debt was excepted from discharge on that basis.

Statute/Rule References:
11 U.S.C. § 523(a)(4) -- Nondischargeability - Fraud in Fiduciary Capacity
11 U.S.C. § 523(a)(6) -- Nondischargeability - Willful and Malicious Injury
11 U.S.C. § 727 -- Discharge

Key Words:
Discharge
Fraud – Fiduciary Capacity
Willful and Malicious

In re Fisher, Case No. 96-15255-7 (02/12/1999) -- Judge Thomas S. Utschig 02/12/1999

Case Summary:
Trustee sought approval of stipulation with debtors concerning the nonexempt portion of their homestead.  The stipulation proposed that the debtors would “buy back” the nonexempt portion for $29,000.00, secured by a promissory note and mortgage.  The largest creditor objected, contending that the settlement was unreasonable and should not be approved.  The court held that while the best interests of the estate is the “benchmark” for determining the propriety of a settlement, a creditor’s views are not controlling.  Rather, the court must determine whether the settlement falls below the lowest point in the realm of reasonableness.  The settlement agreement was not so unreasonable, and would be approved.

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

Key Terms:
Divorce Decrees – Maintenance or Property Division
Settlement

In re Lawrence, Case No. 97-14687-7 (02/01/1999) (235 B.R. 498) -- Judge Thomas S. Utschig 02/01/1999

Case Summary:
Debtor, who had previously been denied a discharge, sought to exempt approximately $450,000.00 held in a pension plan.  The trustee objected to the exemption, contending that the plan was not compliant with either ERISA or the Internal Revenue Code.  The court found that the insubstantial presence of one other employee as a participant in the plan did not render it ERISA-qualified; ERISA excludes plans which benefit only sole shareholders such as the debtor, and this was therefore a “plan without employees” and not covered by ERISA.  Similarly, the failure to maintain or update the plan to conform with the tax laws meant that the plan was not “IRS-qualified.”  Accordingly, the debtor’s exemption claim was denied.

Statue/Rule References:
11 U.S.C. § 522(d) -- Exemptions - Federal
11 U.S.C. § 541 -- Property of the Estate

Key Terms:
Exemptions
Property of the Estate

Alan L. Goldberg, Trustee v. Stephan Jay Lawrence (In re Lawrence), Adv. No. 98-1211, Case No. 97-14687-7 (09/23/98) (227 B.R. 907) -- Judge Thomas S. Utschig 09/23/1998

Case Summary:
Bankruptcy trustee sought to compel answers to various discovery questions which the debtor had answered in a vague and evasive fashion.  The court granted the motion.  Thereafter, the trustee sought answers to these questions in a hearing before the court.  At the conclusion of the hearing, the trustee requested default judgment on his complaint objecting to the debtor’s discharge on the basis that the debtor continued to refuse to answer the discovery questions.  The court held that the debtor’s failure to respond justified imposition of the extreme sanction of judgment on the pleadings.  The debtor had received ample opportunity to make full disclosure to the court and the trustee.  Accordingly, judgment was entered denying the debtor’s discharge.

Statue/Rule Reference:
11 U.S.C. § 727 -- Discharge
Fed. R. Civ. P. 37 -- Failure to Make Disclosure or Cooperate in Discovery: Sanctions

Key Terms:
Discharge

In re Bruski, Case No. 97-56040-7 (09/11/1998) (226 B.R. 422) -- Judge Thomas S. Utschig 09/11/1998

Case Summary:
Trustee’s objection to debtors’ exemption of a “Flexible Premium Retirement Annuity” was overruled.  The debtors purchased the annuity on the eve of bankruptcy, using proceeds of a loan they obtained by pledging non-exempt assets as collateral.  The trustee’s objection was based upon the belief that the annuity could not be exempt because there was no limit on the amount of annual contributions.  However, the Wisconsin legislature said “any annuity” in Wis. Stat. 815.18(3)(j), and placed no limitation upon the exemption other than that it “comply” with the Internal Revenue Code.  The court would enforce the provision as written.

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

Key Terms:
Exemptions
Retirement/Pension Plans

In re Karis, Case. No. 96-24595-12 (03/20/1997) (208 B.R. 913) -- Judge Thomas S. Utschig 03/20/1997

Case Summary:
Debtors filed motion seeking to hold Farm Service Agency in contempt for purported violation of 11 U.S.C. § 362.  They sought an award of damages under § 362(h) for the creditor’s actions in selling certain cattle after the petition was filed.  The court initially questioned whether any violation could be considered “willful” when the debtors filed on the morning of an auction and did not provide the creditor with any documentation of the filing beyond their oral statements.

The court did not reach this issue, however, as it concluded the cattle were not property of the debtor’s estate under § 541 at the time the case was filed.  The cattle were seized pursuant to a replevin judgment prior to the bankruptcy filing.  Accordingly, the debtor’s rights and ownership interests in the cattle were terminated at that time, and the subsequent bankruptcy filing could not resuscitate those rights.

Statue/Rule References:
11 U.S.C. § 362 -- Automatic Stay
11 U.S.C. § 362(h) -- Damages for Willful Stay Violations
11 U.S.C. § 541 -- Property of the Estate

Key Terms:
Automatic Stay
Property of the Estate

In re Ehlen, Case No. 95-14204-7 (10/16/1996) (202 B.R. 742) -- Judge Thomas S. Utschig 10/16/1996

Case Summary:
Debtors/farmers filed motion to avoid the lien of Farm Service Agency in “tools of the trade.”  The equipment in question had been claimed as exempt property under the Wisconsin exemption statutes, Wis. Stat. § 815.18(3)(b).  FSA objected to the motion, contending that 11 U.S.C. § 522(f)(3) created a federally mandated “cap” on lien avoidance on tools of the trade.  According to FSA, the debtors should only be entitled to lien avoid $5,000.00 each of its lien, rather than the $7,500.00 allowed by the state exemption.

Court held that § 522(f)(3) did not apply in Wisconsin because Wisconsin did not allow unlimited exemptions in tools of the trade and also did not expressly prohibit lien avoidance.  Declined to follow In re Parrish, 186 B.R. 246 (Bankr. W.D. Wis. 1995), and adopted the reasoning of the court in In re Zimmel, 185 B.R. 786 (Bankr. D. Minn. 1995).

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

Key Terms:
Exemptions
Lien Avoidance

Chevy Chase Bank v. David M Briese and Noreen K. Briese (In re Briese), Adv. No. 95-0116, Case No. 95-10989-7 (05/06/1996) (196 B.R. 440) -- Judge Thomas S. Utschig 05/06/1996

Case Summary:
Credit card company brought adversary proceeding against debtors, contending that credit card debt was nondischargeable under 11 U.S.C. § 523(a)(2).  Court rejected assumption of the risk approach to credit card debt, the implied representation theory, and the totality of the circumstances test.  Instead, court found that the relevant inquiry focuses upon common law of fraud, citing Field v. Mans, 516 U.S. 59, 116 S. Ct. 437, 133 L. Ed. 2d 351 (1995).  Under common law of fraud, a promise of future performance is actionable as fraud if, at the time the statement or representation was made, the debtor never actually intended to honor the statement.

Further, the court found that the absence of face to face contact was irrelevant to the inquiry.  Debtors still make a representation to the creditor by using the card, given the broad meaning of the term “representation.”  That representation, however, is only actionable if the debtors did not intend to honor the promise to pay.  Intent is based upon a subjective standard, not an objective reasonable person test.  Under this test, the debtors lacked an intent to deceive.  Furthermore, the creditor failed to demonstrate justifiable reliance upon any misrepresentations made by the debtors. 

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

Key Terms:
Fraud -- Credit Cards

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