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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 Robert D. Martin

In re Carr, Case No. 03-10182-13 (11/30/2004) (318 B.R. 517) -- Judge Robert D. Martin 11/30/2004

Case Summary:
Where secured lender, whose rights were modified by the plan in violation of section 1322(b)(2) failed to object to plan confirmation, and the plan was confirmed without objection, moves to vacate the plan as in violation of section 1325(a)(5), the plan must be vacated.  In the 7th Circuit, following Matter of Escobedo, a plan that violates the code is a nullity, and is properly vacated despite the creditor's failure to object, and despite section 1330 apparently allowing vacation of a plan only for fraud.

Statute/Rule References:
11 U.S.C. § 101(51)
11 U.S.C. § 502 -- Allowance of Claims
11 U.S.C. § 1322(a)(2)
11 U.S.C. § 1322(b)(2) -- Modification of Rights of Secured Claimants
11 U.S.C. § 1325 -- Confirmation of Chapter 13 Plan
11 U.S.C. § 1325(a)(5)
11 U.S.C. § 1330
Fed. R. Bankr. P. 3001(f)

Key Terms:
Confirmation - Chapter 13

David and Christina Crawley v. Aurora Loan Services and Fieldstone Mortgage Co. (In re Crawley), Adv. No. 03-0152, Case No. 03-15105-13 (11/24/2004) (318 B.R. 512) -- Judge Robert D. Martin 11/24/2004

Case Summary:
In Chapter 13 case where creditor bank failed to record a mortgage, and trustee did not avoid the mortgage, debtor sought to use trustee's section 544(a)(3) avoiding power.  Held, the Debtor in Chapter 13 may use only the Trustee's powers as enumerated in section 1303.  Because the Trustee's section 544 lien-avoiding power is not one of the enumerated powers available to the Debtor, the Debtor may not avoid a mortgage under section 544.  Further held, equitable subrogation is not a remedy available to a lender who fails to record a mortgage even though the loan was used to consolidate previous mortgage loans.  The mortgage lender gets security in the form of a recordable mortgage, and the Court will not invoke equitable subrogation to cure a lender's negligence.

Statute/Rule References:
11 U.S.C. § 506(c) -- Recovery of Expenses in Disposing or Preserving Property
11 U.S.C. § 544 -- Trustee as Lien Creditor
11 U.S.C. § 545
11 U.S.C. § 548 -- Fraudulent Conveyance
11 U.S.C. § 1303 -- Rights and Powers of Debtor
Wis. Stat. § 706.08(a)
Wis. Stat. § 708.01

Key Terms:
Lien Avoidance
Equitable Subordination
Summary Judgment

McAdams, Inc. et al. v Marie H. Barsamian (In re Barsamian), Adv. Nos. 03-0053, 03-0054, 03-0055, 03-0056, 03-0057 and 03-0058, Case No. 02-18048-7 (11/03/2004) (318 B.R. 508) -- Judge Robert D. Martin 11/03/2004

Case Summary:
Plaintiffs, six businesses, filed complaints alleging nondischargeability of debts under section 523(a)(2)(A) for writing checks that bounced.  Defendants' attorney failed to appear at the hearing, and the matter was dismissed for want of prosecution.  Defendant's attorney moved the Court to reopen the adversary proceeding, and simultaneously moved the Court for a default judgment against the debtor.  The Court granted the motion to reopen under the excusable neglect theory.  Defendants were less fortunate on their default motion.  A check is not a representation, writing a check that bounces is not fraud, and the Court would not default a debtor without proof of specific false representations or fraud.  The Court gave the Defendants 30 days from the date of the decision to request a prove-up hearing.

Statute/Rule References:
11 U.S.C. § 523(a)(2)(A) -- Nondischargeability - Fraud
Fed. R. Bankr. P. 9024
Fed. R. Civ. P. 60(b) -- Relief from a Judgment Order
Wis. Stat. § 943.21
Wis. Stat. § 943.24

Key Terms:
Excusable Neglect
Fraud
Non-Dischargeable Debt

Pirates Hyjacked Robbed and Stole Everything, Inc. v. State Fair Exposition Center, Inc. (In re Pirates Hyjacked Robbed and Stole Everything, Inc.), Adv. No. 04-0117, Case No. 04-12017-11 (10/27/2004) (318 B.R. 502) -- Judge Robert D. Martin 10/27/2004

Case Summary:
On Defendant's motion for summary judgment following denial of its motion to dismiss, the Court held that there was no contract between the parties. It was incontrovertible that Plaintiff had not paid consideration to defendant for the years 2003 to 2006. Therefore, there was no part performance by Plaintiff to create a contract. Defendant's motion for summary judgment is granted.

Statute/Rule References:
Wis. Stat. § 241.02(1)(a)

Key Terms:
Summary Judgment
Contract

Mark D. Wedeward, Plaintiff v. Christine Ellen Weaver (In re Weaver), Adv. No. 04-0097, Case No. 04-10807-7 (09/29/2004) (316 B.R. 705) -- Judge Robert D. Martin 09/29/2004

Case Summary:
Ex-husband brought adversary proceeding to establish nondischargeability of marital debts pursuant to section 523(a)(5). The Court, Judge Robert Martin, held that Matter of Woods, 561 F.2d 27, 29 (7th Cir. 1977) established that, while the nature of the obligation is ultimately a bankruptcy court issue, if the intentions of the parties and the divorce court are clear, there is no need to consult state law to determine whether an obligation is in the nature of maintenance, alimony, or support or part of a property settlement. Nichols v. Nichols, 469 N.W. 2d 619, 625 (Wis. 1991) provides that there is nothing to prevent divorcing parties from specifically waiving maintenance and making up disparities in financial positions by assigning and assuming responsibility for marital debts, thereby keeping as part of support what otherwise might be characterized as a property settlement.

Statute/Rule References:
11 U.S.C. § 523(a)(5) -- Nondischargeability - Divorce Decrees
11 U.S.C. § 523(a)(15) -- Nondischargeability - Marital Obligations

Key Terms:
Divorce Decrees - Maintenance or Property Division
Non-Dischargeable Debt

Pirates Hyjacked Robbed and Stole Everything, Inc. v. State Fair Exposition Center, Inc. (In re Pirates Hyjacked Robbed and Stole Everything, Inc.), Adv. No. 04-117, Case No. 04-12017-11 (08/19/2004) -- Judge Robert D. Martin 08/19/2004

Case Summary:
The Defendant answered and separately moved to dismiss the adversary proceeding to enforce a contract because Plaintiff failed to allege a writing which satisfied the statute of frauds. Plaintiff contracted with the Defendant to promote and hold trade shows. Plaintiff's complaint alleges that it entered into a licensing agreement with Defendant for use of the venue for the years 2003 to 2012 and Defendant refused to honor the contract. Plaintiff alleges that it paid consideration to defendant for the years 2003 to 2006. Plaintiff requests that Defendant be enjoined from honoring any other leases it may have made and honor Plaintiff's alleged contract. It was determined that Plaintiff can prove sufficient facts to support claims that they are entitled to relief. Defendant's motion to dismiss is denied.

Statute/Rule References:
Fed. R. Civ. P. 56(c)
Wis. Stat. § 241.02(1)(a)

Key Terms:
Summary Judgment
Contract

William J. Rameker, Trustee v. Farmers State Bank (In re Lynch), Adv. No. 03-0227, Case No. 03-16698-7 (07/27/2004) (313 B.R. 798) -- Judge Robert D. Martin 07/27/2004

Case Summary:
Trustee filed complaint against Defendant alleging that its financing statement was defective in that it didn't describe the collateral sufficiently. The General Business Security Agreement used to secure the business note contained a description of the collateral, but when the Defendant sought to perfect its security interest in the personal property by filing a UCC-1 financing statement, the collateral was described as the collateral covered as "general business security agreement now owned or hereinafter acquired." No documents were attached to the financing statement. Under Wisconsin law the description of personal property is sufficient if it reasonably identifies what is described. What is reasonable is putting third parties on inquiry notice to allow them to identify what property has a lien against it. It was determined that the description in this case failed to put third parties on notice as to which property of the Debtor was subject to the Defendant's security interest and that judgment may be ordered for the Trustee.

Statute/Rule References:
11 U.S.C. § 544 -- Trustee as Lien Creditor
Wis. Stat. § 409.102(cs) -- Definitions
Wis. Stat. § 409.108(1) -- Sufficiency of Description
Wis. Stat. § 409.310 -- When Filing Required to Perfect Security Interest
Wis. Stat. § 409.502 (1)(c) -- Sufficiency of Financing Statement
Wis. Stat. § 409.504 -- Indication of Collateral
Wis. Stat. § 409.506 -- Effect of Errors or Omissions

Key Terms:
Financing Statements - Perfection
Security Interests - Perfection

In re Strong, Case No. 04-10356-13 (07/19/2004) -- Judge Robert D. Martin 07/19/2004

Statute/Rule References:
11 U.S.C. § 1322(b)(2) -- Modification of Rights of Secured Claimants
11 U.S.C. § 1322(c)(1)
17 U.S.C. § 362 -- Automatic Stay
Wis. Stat. § 846.10
Wis. Stat. § 846.101
Wis. Stat. § 846.102
Wis. Stat. § 846.103
Wis. Stat. § 846.13
Wis. Stat. § 846.17

Key Terms:
De-acceleration of Mortgage
Foreclosure Sale
Redemption

Wells Fargo Foothill, Inc. v. Michael E. Kepler, Trustee, et al. (In Re Media Properties, Inc., Puri Family Limited Partnership and Puri, LLC), Adv. No. 03-0128, Case No. 01-34476-7 (05/25/2004) -- Judge Robert D. Martin 05/25/2004

Case Summary:
After the prerogatives exclusive to the FCC were carved out, there remained an interest in the proceeds generated from the sale of the FCC license in which Foothill held a perfected security interest. When the license was sold, the existing security was liquidated and proceeds were generated. It was ordered that the proceeds from the sale of the license be distributed to Foothill.

Statute/Rule References:
13 U.S.C. § 552 -- Postpetition Effect of Security Interest
47 U.S.C. § 301 -- Telegraphs, Telephones, and Radiotelegraphs - License for Radio Communications or Transmission of Energy
47 U.S.C. § 304 -- Telegraphs, Telephones, and Radiotelegraphs - Waiver by License of Claims to Particular Frequency of Electromagnetic Spectrum
47 U.S.C. § 310(d) -- Telegraphs, Telephones, and Radiotelegraphs - License Ownership Restrictions - Assignment and Transfer of Construction Permit or Station License
UCC 9-102(42) -- Definitions and Index of Definitions - "General Intangible"
UCC 9-203(g) -- Attachment and Enforceability of Security Interest - Proceeds - Supporting Obligations - Formal Requisite - Lien Securing Right to Payment

Key Terms:
After-Acquired Property
Broadcasting Licenses
Federal Communications Commission (FCC)
General Intangibles
Intangible Property
License
Proceeds
Property Right
Security Interests - "Giving Value"
Security Interests - Attachment
Security Interests - Proceeds

In re Hanson, Case No. 03-12010-13 (04/21/2004) -- Judge Robert D. Martin 04/21/2004

Case Summary:
The Debtors filed a Chapter 13 plan which provided for the Debtors to make direct monthly payments to the Department of Education on their student loans. The Department of Education consented to a reduced payment on the student loans “to enhance the feasibility of the plan.” The Trustee objected to the plan on the grounds that the plan unfairly discriminated against a class of unsecured creditors and that the plan proposed direct payments to the Department of Education in an amount less than that called for by the pre-bankruptcy contract.

The Debtors’ Chapter 13 plan was not confirmed. It was determined that the Debtors’ plan failed to comply with 11 U.S.C. §1322(b)(5) and failed to demonstrate that its treatment of the Department of Education claim was not unfair discrimination between classed of unsecured claims. Furthermore, it was determined that the direct payment to the Department of Education was impermissible.

Statute/Rule References:
11 U.S.C. § 1322(b)(1)
11 U.S.C. § 1322(b)(5)

Key Terms:
Claims - Classes
Direct Payments
Discharge 
Long-Term Debt
Maintenance of Payments
Specificity of Statute
Student Loans

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