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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

Jeremy Hoffman v. Paul H. Sabaska and Amy S. Sabaska (In re Sabaska), Adv. No. 08-0106, Case No. 08-11068-7 (02/06/2009) – Judge Thomas S. Utschig 02/06/2009

Case Summary:
Creditor brought an adversary proceeding seeking to deny the debtors’ discharge, arguing that the debtors had transferred assets with the intent to hinder, delay, or defraud creditors in violation of § 727(a)(2) or that they failed to satisfactorily explain a loss or diminution in assets in violation of § 727(a)(5). The debtor husband had previously operated a trucking business, and the creditor was a former business partner who had obtained a judgment against him. The creditor contended that the assignment of various leases for semi-trailers to a new entity owned by the debtor’s aunt was a transfer of assets, and the debtor intended to hinder, delay, or defraud creditors by doing so. The creditor also contended that the debtor failed to explain the loss of assets, including business revenues associated with the trucking business. The court found that the debtor wife had no involvement in the conduct in question, and consequently there was no evidence to support denial of her discharge. As to the husband, the court acknowledged that the assignment of leases was a “transfer” of property, but the plaintiff failed to demonstrate any subjective intent as the debtor was simply attempting to stay in business. The court also found that debtor’s explanation as to the ultimate surrender or repossession of the trailers by the lessor was satisfactory, and that the creditor did not demonstrate any other loss of assets for which the debtor did not have an adequate explanation. The adversary complaint was dismissed.

Statute/Rule References:
11 U.S.C. § 727(a)(2) -- Denial of Discharge - Transfer of Assets
11 U.S.C. § 727(a)(5) -- Denial of Discharge - Loss of Assets

Key Terms:
Discharge (Denial of Discharge)

Peter F. Herrell, Trustee v. Daryl DeCora and Ho-Cak Federal (In re DeCora), Adv. No. 07-111, Case No. 06-11697-7 (3/28/2008) (387 B.R. 230) – Judge Thomas S. Utschig 03/28/2008

Case Summary:
Trustee sought to avoid security interest of bank in a debtor’s per capita interest in tribal gaming revenues. The court concluded that the debtor’s right to the distributions was property of the estate, and the bank failed to properly perfect its security interest when it mailed a copy of the assignment documents to the Ho-Chunk Nation but did not file a financing statement as required by Wisconsin law. Trustee, as hypothetical lien creditor, may avoid security interest for benefit of the estate.

Statute/Rule References:
11 U.S.C. § 541 -- Property of the Estate
11 U.S.C. § 544 -- Trustee as Lien Creditor
Wis. Stat. § 409.310 -- Security Interests - Filing of Financing Statement
Wis. Stat. § 409.317 -- Security Interests - Rights of Lien Creditor

Key Terms:
Perfection of Security Interest
Property of the Estate

Judge Robert D. Martin

Thomas R. Holter v. Claire Ann Resop (In re Holter), Adv No. 08-0168, Case No. 08-12209-7 (01/26/2009) (401 B.R. 372) -- Judge Robert D. Martin 01/26/2009

Case Summary:
The Chapter 7 Debtor was the beneficiary of a P.O.D. account. Between the date of filing and 180 days after filing, the owner of the P.O.D. account died. The Debtor turned over the non-exempt portion of the proceeds from the P.O.D. account over to the Chapter 7 Trustee. Later, the Debtor reconsidered and demanded that the Chapter 7 Trustee return the funds. The Chapter 7 Trustee refused, and the Debtor commenced an adversary proceeding to recover the funds. The Court granted summary judgment in favor of the Debtor, holding that under Wisconsin law, a P.O.D. beneficiary has no interest in a P.O.D. account during the P.O.D. account owner’s lifetime. In addition, under Wisconsin law, the proceeds were not a bequest, inheritance, or devise for purposes of § 541(a)(5)(A). Therefore, the Debtor had no interest in the account at the time of filing that entered the bankruptcy estate.

Statute/Rule References:
11 U.S.C. § 102(3)
11 U.S.C. § 541(a)(1)
11 U.S.C. § 541(a)(5)
Wis. Stat. § 705.01(6)
Wis. Stat. § 705.03(2)
Wis. Stat. § 851.17

Key Terms:
Bequest
Devise
Inheritance
Property of the Estate
P.O.D. Account

In re Roll, Case No. 08-11943-7 and In re Currie, Case No. 08-11944-7 (11/10/2008) (400 B.R. 674) -- Judge Robert D. Martin 11/10/2008

Case Summary:
The Debtors were housemates and filed separate Chapter 7 petitions. Together, their incomes exceeded the median income; separately, their incomes were below the median income. The U.S. Trustee filed a motion to dismiss pursuant to § 707(b)(2) and (3). The Court denied the U.S. Trustee’s motions without prejudice. The Court found that the U.S. Trustee had not carried its burden of demonstrating that some or all of each debtor’s income was used to pay household expenses of the other debtor and should have been included as “income” for purposes of the means test. The Court concluded that ability to pay, standing alone, is not sufficient to serve as the basis of a finding of abuse under the totality of the circumstances inquiry of § 707(b)(3). The Court also found that the U.S. Trustee had not carried its burden to demonstrate that the totality of the circumstances supported a finding of abuse pursuant to § 707(b)(3).

Statute/Rule References:
11 U.S.C. § 101(10)(a)
11 U.S.C. § 101(10)(b)
11 U.S.C. § 101(15)
11 U.S.C. § 707(b)(1)
11 U.S.C. § 707(2)
11 U.S.C. § 707(3)
11 U.S.C. § 707(7)(a)

Key Terms:
Ability to Pay
Abuse
Bad Faith
Income
Means Test
Motion to Dismiss
Substantial Abuse

In re Carter, Case No. 05-14465-13 (11/07/2008) (401 B.R. 369) -- Judge Robert D. Martin 11/07/2008

Case Summary:
The Chapter 13 Debtors’ attorney filed an application for additional fees shortly before the Debtors obtained a discharge. The Debtors objected. The Court concluded that it had “arising under” jurisdiction pursuant to 28 U.S.C. § 1334(a) to consider the attorney’s request as to the estate. The request for compensation was denied because the estate was already closed, and no fees could be awarded from the closed estate. The Court also concluded that the attorney’s post-confirmation fees were not discharged in bankruptcy. The Court expressed no opinion as to whether it had jurisdiction to consider the attorney’s claim against the Debtors personally, or whether it would grant such a request.

Statute/Rule References:
11 U.S.C. § 330 (a)(4)(A) and (B) -- Compensation of Officers
11 U.S.C. § 503(b)(2)
11 U.S.C. § 507(a)(2)
11 U.S.C. § 1322(a)(2)
11 U.S.C. § 1328(a) -- Discharge
28 U.S.C. § 1334(a)
28 U.S.C. § 1334(b)
28 U.S.C. § 1334(c)(1)
Fed. R. Bankr. P. 2016 (b) -- Disclosure of Compensation Paid or Promised to Attorney for Debtor
Fed. R. Bankr. P. 2017
Fed. R. Bankr. P. 7001 -- Adversary Proceedings

Key Terms:
Attorney Fees - Award in Dischargeability Action
Compensation of Professionals
Discharge 
Dischargeability
Fee Dispute
Jurisdiction

Farmers Implement Store of Mineral Point, Inc., v. Matthew S. Jorenby, et al. (In re Jorenby) Adv. No. 07-0190, Case No. 07-13708-7 (06/09/2008) (393 B.R. 663) -- Judge Robert Martin 06/09/2008

Case Summary:
Complaints on dischargeability. The Debtor sold the Plaintiffs’ collateral without their consent. Plaintiffs separately sought to have debts declared nondischargeable for “willful and malicious injury.” As to Farmers Implement Store, there was no provision barring the sale of its collateral in the security agreement, thus there was no conversion, and its complaint was dismissed. As to Farmers Savings Bank, the Debtor testified that he knew that the sale of the collateral would injure the Bank. A conversion with knowledge that injury would result is “willful and malicious,” so the debt was excepted from discharge § 523(a)(6).

Statute/Rule References:
11 U.S.C. § 523(a)(6) -- Nondischargeability - Willful and Malicious Injury
11 U.S.C. § 1325(a)(3)
11 U.S.C. § 1325(a)(7)

Key Terms:
Willful and Malicious - Defined
Non-Dischargeable Debt

In re Shafer and Webb, Case No. 07-15085-13 (06/09/2008) (393 B.R. 655) -- Judge Robert D. Martin 06/09/2008

Case Summary:
Chapter 13 plan confirmation. The Debtors’ case was dismissed for lack of good faith under the totality-of-the-circumstances test. The Debtors’ income, expenses, assets, occupation, a prior voluntary dismissal and refiling to avoid preference payments, and the likelihood that the Debtors were abusing Chapter 13 to parlay into an early retirement demonstrated an effort not to pay creditors.

Key Terms:
Dismissal

In re Tozer, Case No. 06-12549-13 (06/09/2008) (392 B.R. 758) -- Judge Robert D. Martin 06/09/2008

Case Summary:
Chapter 13 plan modification. The Debtor’s ex-attorney sought to modify the Chapter 13 plan to extend payments and pay attorney’s fees. In the Seventh Circuit, § 1329 imposes no threshold requirement of a change in financial circumstances. The attorney was the “holder of an allowed unsecured claim,” thus he could seek modification to “extend . . . time for such payments.” § 1329(a). Modification of the plan was approved.

Statute/Rule References:
11 U.S.C. § 1329(a) -- Modification of Plan After Confirmation

Key Terms:
Administrative Expenses

In re Straight Arrow Construction Company, Inc., Case No. 04-17056-7 (03/13/2008) (393 B.R. 652) -- Judge Robert D. Martin 03/13/2008

Case Summary:
Trustee’s objection to claims. Debtor is a general contractor. Two subcontractors filed claims “secured” by operation of Wisconsin’s theft by contractor statute. Wis. Stat. § 779.16. Wisconsin Dairies v. Citizens Bank & Trust controlled the outcome. 160 Wis. 2d 758 (Wis. 1991). The claims were secured only to the extent that the funds were traceable to specific construction projects on which the creditors worked, and only to the extent that funds from those projects were in the possession of the Trustee. The remainder of the creditors’ claims were unsecured.

Statute/Rule References:
Wis. Stat. § 779.16

Key Terms:
Claims

In re Airadigm Communications, Inc., Case No. 06-10930-11 (01/18/2008) (393 B.R. 647) -- Judge Robert D. Martin 01/18/2008

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