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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

Brenda Zimmerman-Thorpe v. Daniel A. Gacke (In re Gacke), Adv. No. 10-0232, Case No. 10-13991-7 (12/02/2010) – Judge Thomas S. Utschig 12/02/2010

Case Summary:
The creditor brought an adversary proceeding and requested that her claim against the debtor be declared nondischargeable. She had borrowed money to help the debtor consolidate his debts, but he subsequently filed for bankruptcy before repaying her in full. The creditor initially alleged that the debtor had defrauded her, but withdrew those allegations at the time of trial. Given that she had not alleged any statutory basis for excepting her claim from discharge, and as her claim fell within the broad category of claims subject to discharge, the debtor’s motion to dismiss would be granted.

Statute/Rule References:
11 U.S.C. § 727 -- Discharge

Key Term:
Discharge

Randi L. Osberg, Trustee v. Robert J. Risler and Jerry Risler (In re Risler), Adv. No. 09-0132, Case No. 08-15716-7 (12/02/2010) (443 B.R. 508) – Judge Thomas S. Utschig 12/02/2010

Case Summary:
The chapter 7 trustee sought authority to sell property the debtor co-owned with his son. The son had purchased the property and had made all the payments on it; the father had not paid anything toward the purchase and he had never lived in the home. The defendants argued that the father’s name was on the deed largely as an accommodation because the son believed he might need someone’s help managing the property because of his health problems. The trustee contended that he was entitled to rely upon the face of the deed in determining ownership, and that the debtor’s 50% titled interest in the home was property of the estate. The court agreed with the trustee, finding that where a deed is unambiguous, it is conclusive proof of ownership. On the face of the deed, the father was a coequal owner of the property and the trustee was entitled to sell the property in order to realize the value of his interest for the benefit of creditors.

Statute/Rule References:
11 U.S.C. § 363(f) and (h) -- Sale of Co-Owned Property

Key Terms:
Property of the Estate
Sale of Co-Owned Property

John Iwaszczenko, Jr. v. Scott R. Neale and Holly M. Neale (In re Neale), Adv. No. 10-0185, Case No. 09-16668-7 (11/18/2010) (440 B.R. 510) – Judge Thomas S. Utschig 11/18/2010

Case Summary:
The creditor filed an adversary proceeding alleging that his investment in a failed real estate development was procured by fraud on the part of the debtor/defendant. The debtors moved to dismiss the case for failure to state a claim upon which relief can be granted, and for failure to allege fraud with sufficient particularity. A complaint need not contain exhaustive factual allegations, but the plaintiff’s obligation to demonstrate relief requires more than labels and conclusions. The plaintiff’s complaint failed to provide the “content” of the alleged misrepresentation, and the failure to identify the fraudulent statements or the reasons why they were fraudulent did not satisfy the particularity requirements of the federal rules. As such, the complaint was properly dismissed. As the plaintiff had already been afforded an opportunity to amend the complaint, dismissal would be with prejudice.

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

Key Terms:
Fraud
Motion to Dismiss

Mark Westlund v. Kelly Marie Casper (In re Casper), Adv. No. 09-0071, Case No. 08-16947-7 (11/02/2010) (440 B.R. 500) – Judge Thomas S. Utschig 11/12/2010

Case Summary:
The creditor sought a determination of nondischargeability under 11 U.S.C. § 523(a)(2). The creditor had invested money in the debtor’s real estate venture, essentially a scheme that involved the “flipping” of real property in an attempt to make a profit in the speculative market. On summary judgment, the court found that even if the creditor had loaned money to the debtor in reliance upon a representation that the funds would be used for the specific purpose of purchasing certain properties in Texas, he failed to demonstrate justifiable reliance upon the representation. Even the creditor’s own statements indicated that he was far more interested in the timing of his proffered return on his investment and was not concerned with the specific use of the funds. His personal background and experience in real estate speculation, as well as the facts surrounding the transaction in question, required the conclusion that the plaintiff did not justifiably rely upon any representation by the debtor. Summary judgment in favor of the debtor was granted and the debt was discharged.

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

Key Terms:
Fraud

In re Holmdahl, Case No. 10-12245-13 (11/03/2010) (439 B.R. 876) – Judge Thomas S. Utschig 11/03/2010

Case Summary:
The debtors’ home was sold at a sheriff’s sale. The successful bidder deposited the required 10% down payment of $27,500.00 but backed out of the transaction prior to confirmation of the sale. The confirmation hearing was canceled and the state court entered an order authorizing the transfer of the down payment to the creditor as a payment on its judgment claim. The debtors then filed chapter 13. Under their plan they sought to de-accelerate the mortgage debt and resume making payments. They also requested that the court apply the forfeited deposit to the arrearage the debtors owed on the mortgage, thus reducing the arrearage to be paid under the plan. The creditor objected to this treatment. The court concluded that while the debtor did not have a legal right to compel this result, the contract itself dictated that this payment be applied to the periodic payments of principal and interest as they came due - in other words, to the arrearage. The debtors’ motion was granted.

Statute/Rule References:
11 U.S.C. § 1322(c)(1) -- Plan Payment

Key Terms:
Plan Payment

Elizabeth Wadzinski and Steve Wadzinski v. Brad J. Rieck (In re Rieck), Adv. No. 09-0136, Case No. 09-12461-7 (10/28/2010) (439 B.R. 698) – Judge Thomas S. Utschig 10/28/2010

Case Summary:
Debtor sought summary judgment in a nondischargeability adversary proceeding that alleged a violation of Wisconsin’s theft by contractor statute, Wis. Stat. § 779.02(5). The debtor contended that the plaintiffs’ previous state court settlement with the other principal in their limited liability company constituted a release of any claim against him as well. The Wisconsin trust fund statute makes a contractor the trustee of the funds received from a property owner until various claims are paid. Under Wisconsin law, there are certain instances in which the release of one tortfeasor may lead to the release of a non-settling tortfeasor’s liability as well because the non-settling party’s right to contribution or indemnification is imputed against the plaintiff. However, only a negligent tortfeasor is entitled to contribution or indemnification from an intentional tortfeasor. In this case there was a dispute as to which of the contractors was the “intentional” tortfeasor. This dispute precluded the granting of summary judgment as there was a genuine issue of material fact as to a main component of the debtor’s defense.

Statute/Rule References:
11 U.S.C. § 523(a)(4) -- Nondischargeability - Fraud in Fiduciary Capacity
Wis. Stat. § 779.02(5) -- Theft by Contractor

Key Terms:
Fraud - Fiduciary Capacity
Theft by Contractor

Barbara A. Gale v. Educational Credit Management Corporation (In re Gale), Adv. No. 10-0062, Case No. 10-11135-7 (10/26/2010) – Judge Thomas S. Utschig 10/26/2010

Case Summary:
The debtor owed approximately $14,500.00 in student loans. She was 56 years old and suffered from a host of medical conditions which had resulted in a determination of permanent disability for which she collected social security disability payments. She was unemployed due to her disability. The court found that she was unable to work due to her chronic pain and disability. Her dire financial situation was likely to persist for a significant portion of the repayment period, thus satisfying the “certainty of hopelessness” mandated by the Seventh Circuit in In re Roberson, 999 F. 2d 1132 (7th Cir. 1993), and Goulet v. Educ. Credit Mgmt. Corp., 284 F. 3d 773 (7th Cir. 2002).

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

Key Terms:
Student Loans

In re Lark, Case No. 10-10101-7 (08/27/2010) (438 B.R. 652) – Judge Thomas S. Utschig 08/27/2010

Case Summary:
The debtors received their 2009 tax refunds after they filed bankruptcy. They filed amended schedules in which they sought to exempt the tax refunds as “depository accounts” under Wis. Stat. § 815.18(3)(k). The bankruptcy trustee objected to the exemption, contending that the refunds did not constitute a “depository account” as defined by § 815.18(2)(e). While recognizing that the exemption laws are to be liberally construed in favor of the debtors, the Court also noted that under Wisconsin law courts are obligated to enforce the statute as written and not create exemptions which the legislature has not authorized. While some people may use their tax withholding as a form of forced savings, a tax refund is not sufficiently akin to the sorts of accounts listed in Wis. Stat. § 815.18(2)(e), nor is the government sufficiently similar to the types of financial institutions contemplated by the statute. At the time of filing, the debtors held a right to receive a tax refund which was property of the estate and did not qualify for exemption under Wis. Stat. § 815.18(3)(k). The trustee’s objection was sustained.

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

Key Terms:
Exemptions (Tax Refunds)

Rice, Heitman & Davis, S.C. v. Layne Dean Sasse (In re Sasse), Adv. No. 09-0219, Case No. 09-15128-7 (08/13/2010) (438 B.R. 631) – Judge Thomas S. Utschig 08/13/2010

Case Summary:
Attorney who had represented the debtor in a pre-petition state court action filed an adversary proceeding, contending that his law firm’s claim for attorney’s fees was nondischargeable under § 523(a)(2)(A). The attorney argued that he had relied upon the debtor’s fraudulent representation, made approximately two years prior to the petition date, that he would not file for bankruptcy protection. The creditor also argued that the debtor had improperly prepared his means test form, and that the case should be dismissed under § 707(b)(2). The Court first considered the request that the case be dismissed for “presumed abuse” under § 707(b)(2) and concluded that the motion was untimely. Even had it been filed in a timely fashion, there was no substantive basis for dismissal of the case. The plaintiff argued that the debtor should have included his girlfriend’s income in the calculation of his current monthly income for purposes of the means test, but even if the debtor had done so, he would have been entitled to increase his household size, which would still mean that the debtor was below-median income and the case could not be presumed abusive. As for the fraud claims, the Court concluded that even if the debtor did promise not to file bankruptcy, the plaintiff did not demonstrate that the debtor acted with fraudulent intent or that the plaintiff justifiably relied upon the promise. Consequently, the Court granted judgment in favor of the debtor and awarded attorney’s fees to the debtor as the complaint was not “substantially justified.”

Statute/Rule References:
11 U.S.C. § 523(a)(2)(A) -- Nondischargeability - Fraud
11 U.S.C. § 707 -- Dismissal
11 U.S.C. § 727(d) -- Discharge - Revocation

Key Terms:
Discharge - Revocation
Dismissal (Presumption of Abuse)
Fraud

Judge Robert D. Martin

Kay M. Lokowich v. New Century Mortgage Corporation et al. (In re Lokowich), Adv. No. 09-0317, Case No. 09-14739-13 (11/19/2010) -- Judge Robert D. Martin 11/19/2010

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