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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.

Chief Judge Catherine J. Furay

In re Weiner, Case No. 11-17754-12 (08/22/2013) -- Judge Catherine J. Furay 08/22/2013

Case Summary:
The Chapter 12 standing trustee objected to confirmation of the debtor’s amended plan on the grounds that it impermissibly provided for direct payment of an impaired secured claim. The Court recognized a split of authority among the circuits, and no Seventh Circuit authority directly on point. After evaluating the two most prominent approaches—one which categorically prohibited the direct payment of impaired secured claims and the other that permitted direct payments under certain circumstances—the Court overruled the Trustee’s objection and confirmed the amended plan. The Court endorsed the thirteen-factor test set forth in In re Pianowski, 92 B.R. 225 (Bankr. W.D. Mich. 1988), and concluded that proposals to make direct payments should be evaluated on a case-by-case basis.

Statute/Rule References:
11 U.S.C. § 1226(c) -- Payments

Key Terms:
Direct Payments

In re Devine, Case No. 08-15291-13 (07/15/2013) -- Judge Catherine J. Furay 07/15/2013

Case Summary:
Debtors' counsel filed an Application for Approval, Allowance and Payment of Compensation and Reimbursement of Expenses as an Administrative Creditor seeking reimbursement for a total of 17 hours of work. An examination of the billing entries showed that the bulk of the work was performed in the course of representing the Debtors against small claims actions in state court. The Court acknowledged that the attempt to resolve the matters quickly and inexpensively in state court was a logical choice, but noted that opting not to remove the matters to the bankruptcy court entailed a risk of prolonged litigation. It ruled that the additional fees that resulted from complications in the state court should not be paid by the bankruptcy estate, and denied the balance of Debtors' counsel's request beyond the initial amount budgeted for "a single appearance followed, perhaps, by one brief."

Statute/Rule References:
11 U.S.C. § 330 -- Compensation of Professionals

Key Terms:
Attorney Fees

Ocwen Loan Servicing, LLC, and Bank of America, N.A. v. AIG Federal Savings Bank, PNC Bank, N.A., HSBC Bank USA, and Paula Dean Laddusire (In re Laddusire), Adv. No. 13-0042, Case No. 12-16616-11 (06/20/2013) (494 B.R. 383) -- Judge Catherine J. Furay 06/20/2013

Case Summary:
When the Debtor filed bankruptcy in December 2012, an action to foreclose on her home had been pending in Oneida County Circuit Court since January 2009. She removed the foreclosure action to the bankruptcy court, and Bank of America filed a Motion to Remand, Abstain, or Dismiss. After analyzing the impact of removal and remand on the foreclosure action and the bankruptcy case in light of a fourteen-item list of factors, the bankruptcy court concluded that "permissive" abstention was appropriate under 28 U.S.C. § 1334(c)(1).

Statute/Rule References:
28 U.S.C. § 1334 -- Abstention
28 U.S.C. § 1452 -- Removal
Fed. R. Bankr. P. 9027 -- Removal

Key Terms:
Abstention
Removal

Paula Dean Laddusire v. Auto-Owners Insurance Company (In re Laddusire), Adv. No. 13-0043, Case No. 12-16616-11 (06/06/2013) (494 B.R. 373) -- Judge Catherine J. Furay 06/06/2013

Case Summary:
The Debtor sued her insurance company in state court seeking payment for damage to her house under a homeowners insurance policy. Eighteen months after the state court action commenced, the Debtor filed her bankruptcy petition. Four months later, she sought to remove the case to the Bankruptcy Court. The insurance company filed a motion for abstention or remand. After analyzing the impact of removal and remand on the state court action and the bankruptcy case in light of a fourteen-item list of factors, the Bankruptcy Court concluded that "permissive" abstention was appropriate under 28 U.S.C. § 1334(c)(1).

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

Key Terms:
Abstention

Judge Robert D. Martin

Condon Oil Company v. Michael Wood (In re Wood), Adv. No. 12-0181, Case No. 12-13442-7 (08/19/2013) (503 B.R. 705) -- Judge Robert D. Martin 08/09/2013
In re Nickeas, Case No. 11-12304-7 (08/06/2013) (503 B.R. 453) -- Judge Robert D. Martin 08/06/2013

Case Summary:
Debtors sought to avoid a lien on a liquor license under 11 U.S.C. § 522(f)(1)(B)(ii) as a “tool of the trade.” The license had been exempted under 11 U.S.C. § 522(d)(5), the “wildcard” exemption. The Debtors owned a golf course, and there was no dispute that the liquor license was necessary for the success of the business. The Bankruptcy Court determined that the lien could not be avoided because the license was not a tool of the trade. The Court explained that in the Seventh Circuit, the reference to “tools of the trade” in § 522(f) takes on the meaning of either the federal tools of the trade exemption under § 522(d)(6) or the state tools of the trade exemption, depending on which the Debtor has elected. In re Thompson, 867 F.2d 416, 420 (7th Cir. 1989). In this case, the Debtors elected the federal exemptions, and therefore were limited to the narrow definition of the federal tools of the trade exemption as set forth by the Seventh Circuit Court of Appeals in In re Patterson, 825 F.2d 1140, 1146 (7th Cir. 1987). Patterson stated that the purpose of the tools of the federal tools of the trade exemption is to enable an artisan to retain tools of modest value, like rakes and other hand tools, so that he is not forced out of his trade. The Bankruptcy Court held that under this reasoning, a liquor license is not a tool of the trade.

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

Key Terms:
Lien Avoidance
Tools of the Trade

Bradley A. Myhre v. U.S. Department of Education (In re Myhre), Adv. No. 12-0169, Case No. 12-14088-7 (07/25/2013) (503 B.R. 698) -- Judge Robert D. Martin 07/25/2013

Case Summary:
Mr. Myhre sought to have his student loan discharged. Mr. Myhre was injured in a swimming pool accident in which he broke his neck and became a quadriplegic. Since the accident he has required a live-in caregiver for assistance with all daily needs, including eating, dressing, and bathing. After several years of depending on Social Security disability payments, he decided to attend school and learn computer programming in an attempt to support himself. He received an associate’s degree but was still unable to find work for five years. After returning to school again to further his computer programming education, he finally secured a full-time position. The U.S. Department of Education argued that Mr. Myhre should have to repay his student loan because he had full-time employment. The Bankruptcy Court found that with the increased cost of living as a quadriplegic, Mr. Myhre was unable to afford even a minimum payment on his student loan. Even without making any payment on his student loan, Mr. Myhre was unable to make ends meet and was depending on the generosity of his caregiver to get by. The bankruptcy noted that the Seventh Circuit Court of Appeals recently injected common sense into its consideration of § 523(a)(8) in Krieger v. Educ. Credit Mgmt. Corp., 713 F.3d 882 (7th Cir. 2013), declining to require that certainty of hopelessness and proof of prior payment overwhelm the inquiry into the future burden of the debt in question to the Debtor’s anticipated livelihood. In light of Krieger, the Bankruptcy Court held it would be an undue hardship on Mr. Myhre to require him to pay back his student loan.

Statute/Rule References:
Wis. Stat. § 409.108 -- Sufficiency of Description
Wis. Stat. § 409.203 -- Security Interests - Attachment and Enforceability

Key Terms:
Security Interests - Attachment

Andrew J. and Cheryl L. Cikar v. Blackhawk Community Credit Union (In re Cikar), Adv. No. 13-0013, Case No. 12-14328-7 (06/11/2013) -- Judge Robert D. Martin 06/11/2013
Jamie L. Thrun v. Blackhawk Community Credit Union (In re Thrun), Adv. No. 12-0231, Case No. 12-14405-7 (06/11/2013) -- Judge Robert D. Martin 06/11/2013
Patricia A. Johnson, et al. v. Andrew J. Weihert (In re Weihert), Adv. 12-0105, Case No. 12-10893-7 (05/31/2013) (493 B.R. 61) -- Judge Robert D. Martin 05/31/2013

Case Summary:
Plaintiffs objected to the bill of costs filed by the prevailing defendant, specifically to expert witness fees in the amount of $ 3,250 for the medical examiner. Under Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987), outside of court-appointed expert witnesses, an award of expert witness fees is limited to the amount in 28 U.S.C. § 1821 unless the parties have contracted otherwise or there is explicit statutory authority to the contrary. The Plaintiffs argued that the expert witness fees for the medical examiner should be limited to the amounts set forth in § 1821. The Defendant argued that the fees were authorized by Wisconsin Statutes §§ 59.36 and 59.38. The Bankruptcy Court held that rate setting is not the type of statutory authorization to which Crawford was referring. While these provisions authorized the medical examiner’s fees in the sense that they authorized how much he may charge for his services as a medical examiner, the Supreme Court in Crawford meant that there must be statutory authorization for the fees to be taxed as costs. Therefore, the Defendant’s award of costs was limited to the amounts set forth in § 1821.

Statute/Rule References:
28 U.S.C. § 1821
28 U.S.C. § 1920
Fed. R. Bankr. P. 7054
Wis. Stat. § 59.38
Wis. Stat. § 59.36

Key Terms:
Expert Witness Fees
Fee Dispute

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