You are here

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 Robert D. Martin

In re C.Q., LLC, Case No. 03-17171-7 (12/19/2005) (343 B.R. 915) -- Judge Robert D. Martin 12/19/2005

Case Summary:
Chapter 11 debtor converted to Chapter 7. After conversion, the Debtor did not assume or reject its long-term lease with Madison East Shopping Center Partners (MESC), nor were any payments made for the amount due under the lease as required by 11 U.S.C. § 365(d)(3). Sixty days after conversion, the lease automatically terminated pursuant to 11 U.S.C. § 365(d)(4). MESC sought immediate payment of post conversion rent under 11 U.S.C. § 365(d)(3). The Trustee objected to immediate payment, arguing that the disputed amount was entitled only to administrative expense priority because there is no provision in the Bankruptcy Code granting “super-priority” status to claims under Section 365(d)(3). The Trustee also stated that the bankruptcy estate did not have funds sufficient to make the payment. The Court determined that the language in Section 365(d)(3) requiring “timely performance” places payment of rent before the payment of administrative expenses. That is true even where the bankruptcy estate is administratively insolvent. Pre-rejection lease payments are required to be timely made. Where the Trustee does not perform that obligation, he cannot be excused from the consequence of his nonperformance. The claims must be paid when due, or in any event prior to allowed administrative expenses.

Statute/Rule References:
11 U.S.C. § 363(c)(1)
11 U.S.C. § 365(d)
11 U.S.C. § 507
11 U.S.C. § 503(b)(1)

Key Terms:
Claims - Priority

In re Brunner, Case No. 03-16262-13 (12/15/2005) -- Judge Robert D. Martin 12/15/2005

Case Summary:
Four creditors in a Chapter 13 case filed claims secured by the Debtor’s home. A hearing was held to determine the value of the home. After subtracting the first three secured claims from the determined value, there was $4,024.22 in equity remaining. Therefore, the fourth claim (Sherman) was entitled to a secured claim of $4,024.22 and a general unsecured claim for the remainder of its claim. Sherman filed a motion to reconsider based on its assertion that the equitable doctrine of marshaling of assets should be applied. Since a priming creditor’s claim was also secured by the Debtor’s automobile, Sherman argued that the creditor should be required to satisfy its debt to the extent possible through the automobile, so to leave more equity in the home to secure Sherman’s debt. A request for marshaling of assets must be brought as an adversary proceeding pursuant to Bankruptcy Rule 7001. Sherman brought its request for marshaling as a defense to the Debtor’s objection to claim. Sherman’s attempt to argue for marshaling in this manner does not allow a full inquiry into facts relevant to the elements listed above. Nor was the evidence presented at the hearing sufficient to make the necessary findings, if the procedural requirements were ignored.

Key Terms:
Claims
Marshaling

In re Gustin, Case No. 04-12784-7 (12/06/2005) (343 B.R. 909) -- Judge Robert D. Martin 12/06/2005

Case Summary:
Debtor in a Chapter 7 asset case did not name one of her creditors in her bankruptcy schedules until Debtor’s assets were fully administered and the Trustee had filed a final account. As a result of the Debtor’s late inclusion of this creditor, the Creditor was unable to file a proof of claim and share in the distribution of assets. The Creditor was pursuing an action in State court against the Debtor, which was stayed while the bankruptcy was pending. Following the Debtor’s discharge the proceedings in state court continued. The Debtor attempted to use her discharge as a defense in the resumed state court action. The state court decided that pursuant to 11 U.S.C. § 523(a)(3)(A) the debt was not discharged because the creditor was not listed in time to file a proof of claim. The Debtor then filed a motion in this court to re-open her bankruptcy case to seek contempt remedies against the creditor for pursuing the action in state court. The Debtor was essentially asking this court to determine that the debt was discharged. That issue was already decided in state court, and the doctrine of issue preclusion prevents relitigation in Bankruptcy Court. The Debtor’s motion was denied.

Statute/Rule References:
11 U.S.C. § 362 -- Automatic stay
11 U.S.C. § 523(a)(3)
11 U.S.C. § 524(a)

Key Terms:
Claims
Rooker-Feldman

Richard Vosepka v. Garrett Geiger (In re Geiger), Adv. No. 05-0120, Case No. 05-11449-7 (11/09/2005) -- Judge Robert D. Martin 11/09/2005

Case Summary:
This court received a complaint objecting to the dischargeability of a debt on the last day to file such complaints. The filing fee accompanying the Complaint was paid by the Creditor’s personal check. Court staff returned the complaint and filing fee to the creditor under the belief that the fee could not be paid by personal check. However, only personal checks of debtors cannot be accepted. By the time the creditor re-submitted his complaint and filing fee, it was 10 days past the deadline for filing and the Debtor objected to the complaint as untimely. The Court found for the Creditor, holding that there is no authority for disallowing personal checks of non-debtors, therefore, the filing fee and the Complaint should have been accepted by the Court. The Creditor met the requirements for timely filing, and the Complaint was allowed.

Statute/Rule References:
Fed. R. Bankr. P. 4007(c) -- Time for Filing Nondischargeability Complaint
Fed. R. Civ. P. 5 -- Serving and Filing Pleadings and Other Papers

Key Terms:
Filing Fee

In re Howard, Case No. 05-16463-13 (10/31/2005) (333 B.R. 826) -- Judge Robert D. Martin 10/31/2005

Case Summary:
The Debtor appeared before the Court pursuant to an order to show cause as to why her current bankruptcy case should not be dismissed for failure to pay the filing fee in each of two previous bankruptcy cases she had commenced, one in 1995, and one in 1996. The Court took the matter under advisement to determine whether her debt to the court warranted dismissal of the present case, and if not, how unpaid filing fees from previous bankruptcies should be treated in the pending bankruptcy. The Court determined that debts for unpaid filing fees are general unsecured debts, and failure to pay the fees is not grounds for dismissal of the Debtor’s current bankruptcy case.

Statute/Rule References:
11 U.S.C. § 109(g)(1) -- Who May be a Debtor
11 U.S.C. § 1307 -- Conversion or Dismissal
28 U.S.C. § 1930 -- U.S. Trustee Fees

Key Terms:
Order to Show Cause - Unpaid Fees

In re Delafuente, Case No. 05-13151-13 (10/17/2005) -- Judge Robert D. Martin 10/17/2005

Case Summary:
Janesville Water & Wastewater, a creditor in the Debtors’ Chapter 13 case, sought priority status for its claim for unpaid utilities under 11 U.S.C. 507(a)(8). The debt was incurred up to April 22, 2005, and was not yet assessed as a tax. The Court determined that Janesville Water & Wastewater was not entitled to priority status because the claim had yet to be assessed as a tax, therefore there is no basis to claim a priority. Taxes for the unpaid utilities would not be assessed until November 16 of the year for which payment is owing, in this case November 16, 2005. 11 U.S.C. 507(a)(8)(B) grants priority to property taxes assessed before the commencement of the case, it does not grant priority to utility bills. Therefore, the claim of Janesville Water & Wastewater was not entitled to priority status.

Statute/Rule References:
11 U.S.C. 507(b) -- Priorities
Wis. Stat. § 66.0609 -- Financial Procedure; Alternative System of Approving Claims
Wis. Stat. § 66.0809 -- Municipal Public Utility Charges

Key Terms:
Priority

Judge Thomas S. Utschig

In re Vangen, Case No. 05-13793-7 (11/23/2005) (334 B.R. 241) -- Judge Thomas S. Utschig 11/23/2005

Case Summary:
The debtor placed some $136,000.00 into retirement-related annuities immediately prior to her bankruptcy. The debtor’s former husband and the bankruptcy trustee both objected to her exemption claims. They contended that her bankruptcy planning justified denial of her exemption under Wis. Stat. § 815.18(10), which provides that an exemption may be denied if the asset was procured, concealed, or transferred with the intention of defrauding creditors. The court overruled the objections, finding that the debtor’s conduct was permissible.

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

In re E.S. Professional Services, Inc., Case No. 05-23206-7 (10/20/2005) (335 B.R. 221) -- Judge Thomas S. Utschig 10/20/2005

Case Summary:
Alleged debtor sought dismissal of involuntary bankruptcy petition on grounds that it had more than 12 creditors. The petitioning creditor contended that the debtor did not have more than 12 creditors. The court found that an involuntary bankruptcy petition was an extreme remedy with serious consequences for a debtor. Here, the debtor sought to handle its affairs outside the bankruptcy forum and the case appeared to be little more than an extension of an ongoing two-party dispute pending elsewhere. There was unlikely to be a meaningful payout to chapter 7 creditors. The involuntary petition was dismissed.

Statute/Rule References:
Fed. R. Bankr. P. 103 -- Involuntary Petition
11 U.S.C. § 303 -- Involuntary Cases

Mark J. Wittman, Trustee v. Ameriquest Mortgage Company (In re Crossen) Adv. No. 04-0238, Case No. 04-14234-7 (05/11/2005) (325 BR 787) -- Judge Thomas S. Utschig 05/11/2005

Case Summary:
Chapter 7 trustee sought to avoid a mortgage as a preferential transfer. The debtor had refinanced his home and executed a promissory note for $187,000 on March 1, 2004. The defendant did not fund the loan until March 19, and did not record the mortgage until March 26. The trustee contended that this delay took the mortgage outside the safe harbor provision of 547(e)(2). The court found that the transaction qualified for the safe harbor provision, and that even if it did not, the delay did not preclude the transaction from being considered as a contemporaneous exchange for new value under 547(c)(1). Under the facts of the case, the Court found the transaction to be such a contemporaneous exchange. Judgment was entered in favor of the defendant.

Statute/Rule References:
11 U.S.C. § 547 -- Preferences

Xiong Vang v. UW Stout Student Business Services and Educational Credit Management Corporation (In re Vang), Adv. No. 04-0094, Case No. 04-11165-7 (324 B.R. 76) -- Judge Thomas S. Utschig 04/15/2005

Case Summary:
Debtor sought discharge of student loans. According to testimony at trial, the debtor was mildly mentally retarded and had difficulty speaking, reading, and writing the English language. In addition, he lived at or about the poverty level and cared for two preschool age sons, both of whom suffered from developmental delays. Accordingly, the Court discharged the debt as an "undue hardship."

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

Pages