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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 Lyrek, Case No. 94-11572-12 and 94-11573-12 (10/31/1994) -- Judge Thomas S. Utschig 10/31/1994

Case Summary:
Bank objected to debtors’ treatment of it in a chapter 12 plan on the basis that it held no “claim” against the debtors.  The debtors were the assignees of a parcel of real property on which the bank had a mortgage.  The bank contended that since it held no claim against the debtors (its only claim being against the prior owner of the property), it was not a “creditor” within the meaning of the bankruptcy code and could not be subjected to a reorganization plan.

Court held that the debtors did hold rights in the property when they filed bankruptcy.  As a result, the purported lack of a “debtor-creditor” relationship was not relevant.  Given the Supreme Court’s decision in Johnson v. Home State Bank, 501 U.S. 78 (1991), in which the Court held that the debtor’s lack of personal liability upon a mortgage debt did not preclude the reorganization of that debt, the mere fact that the Lyreks were not personally obligated to the bank also did not preclude reorganization of the mortgage debt in this case.  A “claim” is a “right to payment,” and the creditor had a right to payment in the form of a right to the proceeds of the sale of the debtors’ property. See 11 U.S.C. § 101(4)(A).

Statute/Rule References:
11 U.S.C. § 101(4)(A) -- Definition of Claim

Key Terms:
Claims -- Definition

In re Derrick, Case No. 93-10404-12 (10/06/1994) -- Judge Thomas S. Utschig 10/06/1994

Case Summary:
Trustee objected to debtor’s voluntary dismissal of case.  Court concluded that under 11 U.S.C. § 1208, the court “shall” dismiss a case upon the debtor’s request.  The only basis for delaying dismissal would be an allegation of fraud on the debtor’s part, which was not raised by the trustee.  A chapter 12 debtor has a right to the immediate dismissal of the case, without notice or a hearing, unless there is evidence that the debtor engaged in fraud which would render the dismissal unjust.

Statue/Rule References:
11 U.S.C. § 349 -- Dismissal

Key Terms:
Dismissal
Judicial Liens
Satisfaction of Judgment

In re F.F. Mengel Company, Case No. 93-52312-7 (09/23/1994) -- Judge Thomas S. Utschig 09/23/1994

Case Summary:
Amounts sought by bank for “residual value” of leased equipment were not provided for in lease agreement.  The bank contended that it was entitled to not only the rents “lost” as a result of the debtor’s failure to comply with the lease, but also an additional amount which constituted the expected value of the items at the end of the lease term.  As the contract did not specify that such damages were to be awarded in the event of default, court would construe the agreement against its drafter (the bank’s predecessor).  Accordingly, the objections to the bank’s proof of claim were sustained.

Key Terms:
Contract Disputes

In re Voelker, Case No. 92-52524-13 (12/23/1993) (164 B.R. 308) -- Judge Thomas S. Utschig 12/23/1993

Case Summary:
Bankruptcy court found that federal tax lien does not attach to items claimed exempt by debtor under 26 U.S.C. § 6334(a).  Exemption statutes are to be liberally construed in favor of debtors.  Enumerated items in § 6334(a) are not only exempt from levy, but from reach of federal tax lien as well.  26 U.S.C. § 6331(b) defines "levy" as "the power of distraint and seizure by any means."  District court reversed the bankruptcy court ruling and remanded for further proceedings. The Seventh Circuit affirmed the district court’s decision, concluding that the tax lien did indeed attach to exempt property.

Statue/Rule References:
11 U.S.C. § 522(c) -- Exemptions - As Against Federal Tax Liens
28 U.S.C. § 6331(b) -- IRS Levy
28 U.S.C. § 6334(a) -- Exemptions From Federal Tax Liens

Key Terms:
Exemptions
Taxes -- Liens

In re Houligan's of Eau Claire, Inc., Case No. 93-11291-11 (12/06/1993) -- Judge Thomas S. Utschig 12/06/1993

Case Summary:
Debtor's motion to appoint W.J. Baumann Associates, Ltd. as its accountant during the pendency of its chapter 11 case is granted.  Fact that accounting firm was a prepetition creditor of debtor in the amount of $1,504.44 does not preclude it from employment by debtor on the basis of "disinterested" requirement of 11 U.S.C. § 327(a).  Courts should examine such applications on a case-by-case basis.  Here, the prepetition claim was very small -- comprising 6.25% of the total unsecured debt in the estate, the only objecting party was the U.S. Trustee, the creditors' committee supported the debtor's motion, and statutory purpose behind "disinterested" requirement is not hindered by this result in this case.

Statue/Rule References:
11 U.S.C. § 327(a) -- Employment of Professionals
11 U.S.C. § 1107(b) -- Professionals - "Disinterested" Requirement

Key Terms:
"Disinterested" Requirement – Professionals
Professionals -- Employment Of

Sears, Roebuck & Company v. Bruce A. Johannsen and Terri L. Johannsen (In re Johannsen), Adv. No. 93-1039, Case No. 92-13915-7 (09/29/1993) (160 B.R. 328) -- Judge Thomas S. Utschig 09/29/1993

Case Summary:
Debtor who purchased $1110.71 worth of Barbie doll items within forty days of her bankruptcy filing successfully rebutted presumption of fraudulent intent under 11 U.S.C. § 523(a)(2)(C) -- the "luxury goods" exception.  Purchases were Christmas gifts for debtor's daughter; debtor's bankruptcy filing was done on advice of counsel and precipitated by ex-husband's filing; and debtor intended to pay for items in installments.  This was not a case of "loading up" in anticipation of filing bankruptcy -- the type of activity which § 523(a)(2)(C) was intended to prevent.  Citing J.C. Penney Co. v. Leaird (In re Leaird), 106 B.R. 177 (Bankr. W.D. Wis. 1989).

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

Key Terms:
Luxury Goods

In re Radandt, Inc., Case No. 90-12157-7 (09/03/1993) (160 B.R. 323) -- Judge Thomas S. Utschig 09/03/1993

Case Summary:
Wisconsin DNR's motion for allowance of priority administrative expense claim pursuant to 11 U.S.C. § 503(b)(1)(a) is denied.  No clean-up costs for environmental damage have yet been incurred -- allowing administrative expense status for undetermined future costs would constitute an advisory opinion; case is not ripe for judicial review.  In addition, clean-up costs would not constitute funds necessary to "preserve" the estate pursuant to § 503(b)(1)(a); trustee had already declared intent to abandon pursuant to 11 U.S.C. § 554(a).  Presence of unencumbered assets in the estate does not change this result.

DNR was not entitled to priority lien on environmentally contaminated property to pay for future clean-up costs.  Absent clear statutory authority to do so, court refuses to fashion a remedy to redress environmental damage in light of fact that no evidence established that property presented imminent danger to public.

Statue/Rule References:
11 U.S.C. § 503 -- Administrative Expenses
11 U.S.C. § 554(a) -- Abandonment

Key Terms:
Abandonment
Administrative Expenses
Environmental Clean-Up Costs

Integrity Group Insurance Company v. Scott M. Stelzer (In re Stelzer), Adv. No. 92-1234, Case No. 92-12852-7 (06/10/1993) -- Judge Thomas S. Utschig 06/10/1993

Case Summary:
Plaintiff insurance company's claim that $638.26 it paid for damages done to house of its insured by debtor driving while intoxicated should be nondischargeable is dismissed.  Debtor's actions did not constitute "willful and malicious" injury pursuant to 11 U.S.C. § 523(a)(6) because he did not intentionally or knowingly damage the insured's house.  Drunk driving is not per se "willful and malicious."  There may be fact situations involving drunk driving so egregious as to constitute "willful and malicious" injury, but this is not such a case.  Agreeing with Cooper v. Noller (In re Noller), 56 B.R. 36 (Bankr. E.D. Wis. 1985).

Plaintiff's claim for nondischargeability pursuant to 11 U.S.C. § 523(a)(7) is likewise dismissed.  First-time offense under Wis. Stat. § 346.63 (driving while intoxicated) is technically not a criminal act.  State court judgment cannot therefore be found to be "payable to or for the benefit of a government unit" as required by § 523(a)(7).

11 U.S.C. § 523(a)(9) is inapplicable because this case involved damage to property rather than to a person.

Statue/Rule References:
11 U.S.C. § 523(a)(6) -- Nondischargeability - Willful and Malicious Injury
11 U.S.C. § 523(a)(7) -- Nondischargeability - Fines/Penalties/Forfeitures
11 U.S.C. § 523(a)(9) -- Nondischargeability - Drunk Driving

Key Terms:
Drunk Driving
Fines/Penalties/Forfeiture
Willful and Malicious

In re The Company Store, Case No. 92-21810-11 (06/02/1993) -- Judge Thomas S. Utschig 06/02/1993

Case Summary:
Debtors' objection to numerous claims for priority status is granted.  Claims represented fees for modeling services performed by numerous minors for debtors' catalog.  Claims for priority wage status not warranted on the basis of clear statutory language of 11 U.S.C. § 507(a)(3) -- which limits priority status to wages earned within ninety-day period before filing.  Wages at issue were earned outside of ninety-day period.

Statue/Rule References:
11 U.S.C. § 507(a)(3) -- Priority of Claims - Wages

Key Terms:
Claims -- Priority
Exclusivity Periods -- Extension
Wage Claims

Jacqueline J. Haseker v. Great Lakes Higher Education Corporation (In re Haseker), Adv. No. 92-5239, Case No. 92-53028-7 (04/16/1993) -- Judge Thomas S. Utschig 04/16/1993

Case Summary:
Failure to discharge debtor's student loan debt of $15,359 would constitute an "undue hardship" pursuant to 11 U.S.C. § 523(a)(8); student loan debt is therefore dischargeable.  Debtor is 57 years old, unmarried and without children.  She owns no real property nor a car and she earns approximately $500 per month at part-time minimum wage jobs.  Her monthly expenditures total over $800.  Expense budget does not include any amounts for medical or dental expenses, insurance or recreation and entertainment.  Requiring debtor to pay her student loan would therefore constitute an "undue hardship" for her.

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

Key Terms:
Student Loans

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