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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 Smithey, Case No. 98-34970-7 (09/07/2000) -- Judge Robert D. Martin 09/07/2000

Case Summary:
Creditor mailed claim prior to claims bar date but it was not received until after the bar date expired. The trustee objected and sought to classify the claim as a "tardily filed claim" under 11 U.S.C. § 726(a)(3). The Court rejected use of the "mailbox rule" and held that there was no issue as to receipt of the claim. Since filing constitutes delivery and receipt by the proper party, the proof of claim was filed after the bar date. The trustee’s objection to the claim was sustained.

Statute/Rule References:
11 U.S.C. § 726(a)(3) -- Late Filed Claims
Fed. R. Bankr. P. 3002(c) -- Time for Filing Proof of Claim

Key Terms:
Claims - Late Filed
Mailbox Rule
Presumption of Receipt

Peter M. Gennrich, Trustee v. Matthew G. Mordhorst (In re Matthew), Adv. No. 99-3121, Case No. 98-34305-7 (05/31/2000) -- Judge Robert D. Martin 05/31/2000

Case Summary:
The trustee brought this adversary proceeding asking the court to find (1) that the debtor's right to recover damages in a wrongful death action were property of the estate under 11 U.S.C. § 541(a); (2) that the debtor is required to turnover the settlement proceeds and the property he purchased with the proceeds under 11 U.S.C. § 542(a); and (3) that the debtor's discharge should be revoked pursuant to 11 U.S.C. § 727(d)(2).  The court (Judge Martin) ruled that under Illinois law, the debtor had an interest in the wrongful death action brought for the death of his mother.  This interest became property of the estate upon the filing of the debtor's bankruptcy.  Because the debtor never scheduled this interest, it remained property of the estate even after the debtor's bankruptcy case was closed.  The court further entered a judgment against the debtor for the amount of the wrongful death proceeds received by the debtor but not turned over to the bankruptcy estate.  Finally, the court revoked the debtor's discharge pursuant to § 727(d)(2) because it was more probable than not that the debtor possessed fraudulent intent while failing to report and deliver the settlement proceeds to the trustee.

Statute/Rule References:
11 U.S.C. § 541 -- Property of the Estate
11 U.S.C. § 542 -- Turnover of Property
11 U.S.C. § 727 -- Discharge

Key Terms:
Discharge
Property of the Estate
Turnover of Property

Michael E. Kepler, Trustee v. The Travelers Indemnity Co. (In re Grignano Co.), Adv. No. 99-3144, Case No. 98-35139-7 (03/21/2000) -- Judge Robert D. Martin 03/21/2000

Case Summary:
Travelers Indemnity Co. and the Debtor entered into a surety agreement and a workout agreement.  The workout agreement provided that the Debtor would sell its real estate and pay the proceeds to Travelers.  Travelers commenced a state court action against the Debtor seeking payment, and the state court allowed the sale of the last real estate asset owned by the Debtor but required the net proceeds from the sale be held in two joint bank accounts in the names of Travelers and the Debtor until further order of the Court.  After the Debtor filed for Chapter 7 bankruptcy relief, the Trustee brought this adversary proceeding to compel turnover of the funds in those accounts.  Travelers filed a Motion for Summary Judgment and the Trustee filed a Cross-Motion for Summary Judgment.  The Court granted Travelers' motion and denied the Trustee's.  The Court found that the state court's injunction order was akin to a pre-judgment attachment. Therefore, under the injunction order, Travelers was placed in the position of a pre-judgment attachment creditor who had levied on and "caught" the proceeds from the sale of the debtor's last real estate asset.  Under Wisconsin law, the attaching creditor is treated as having a lien on the property when the creditor levies upon attachment.  Therefore, Travelers had a lien on the proceeds when they were placed in the accounts.  The Court further ruled that the trustee could not avoid Travelers' interest in the proceeds under 11 U.S.C. § 544(a), because Travelers had a contingent lien under the 1995 injunction order.  However, once Travelers obtained relief from stay and a judgment in state court, Travelers' lien was converted into a judgment lien that related back to 1995, the date of the injunction order.

Statute/Rule References:
11 U.S.C. § 544 -- Trustee as Lien Creditor
11 U.S.C. § 541 -- Property of the Estate
Wis. Stat. § 811.03 -- Basis for Attachment

Key Terms:
Avoidance
Pre-Judgment Attachment
Turnover of Property

In re Craig, as Joint Official Liquidator of the Estate of Alpine Assurance, Ltd., Case No. 99-31664-11 (03/06/2000) -- Judge Robert D. Martin 03/06/2000

Case Summary:
A trial on the Petition of Robert F. Craig, as Joint Official Liquidator of the Estate of Alpine Assurance, Ltd., was held on December 9, 1999.  The court entered its Proposed Findings of Fact and Conclusions of Law on December 29, 1999.  Petitioner moved for a new trial under Bankruptcy Rule 9023, which adopts Federal Rule of Civil Procedure 59, alleging that the court's Proposed Findings of Fact and Conclusions of Law constituted a mistake of fact or a manifest error of law.  The Seventh Circuit has held that for the court to grant a Rule 59 motion, the petition must "clearly establish either a manifest error of law or fact or must present newly discovered evidence."  See LB Credit Corp. Resolution Trust Corp., 49 F.3d 1263 (7th Cir. 1995).  Since the petitioner did not allege that there was any newly discovered evidence, the court determined only whether there had been a mistake of fact or a manifest error of law.  The court determined that it was not a manifest error of law for it to conclude that the officers of HIMI were not personally liable for HIMI's conversion of Alpine funds.  The court refused to extend Capen Wholesale, Inc. v. Probst, 180 Wis. 2d 354 (Wis. Ct. App. 1993) to the insurance context and found instead that Wis. Admin. Code § 42.03(3) governs the personal liability of insurance agents.  Second, the court found that its refusal to pierce the corporate veil was not a manifest error of law.  The evidence that the president of HIMI borrowed $5,000 from the Alpine Policyholders Trust Account, which was separately accounted for by the corporate bookkeeper, was insufficient to show that HIMI had no separate legal existence and was no more than an instrumentality of the president.  Finally, the court found that it was not a manifest error of law to rule that Alpine was not a customer of the Royal Bank of Hillsboro.  Alpine does not meet the Wisconsin Uniform Commercial Code definition of "customer"; therefore, the Bank had no duty to close the Alpine Policyholder Trust Accounts upon instructions from the Joint Official Liquidator.

Statute/Rule References:
Fed. R. Civ. P. 59 -- New Trials

Key Terms:
Motion for New Trial

Naly Phaboriboune, f/k/a Naly Phouthavong v. Samrit Sasopa, f/k/a Samrit Rousch (In re Sasopa), Adv. No. 99-3013, Case No. 98-35054-7 (03/02/2000) -- Judge Robert D. Martin 03/02/2000

Case Summary:
The plaintiff filed a motion for summary judgment claiming that as a matter of law, she is entitled to a judgment finding the debtor's debt to her nondischargeable under 11 U.S.C. § 523(a)(6).  The debtor attacked the plaintiff, bit off the plaintiff's second finger at the joint area and was charged in state court with aggravated battery with intent to cause substantial bodily harm.  The debtor pled guilty to this crime.  The plaintiff argued that because the debtor pled guilty to aggravated assault, she was precluded, under the doctrine of issue preclusion, from re-litigating the issue of whether her actions were willful and malicious for purposes of § 523(a)(6).  The Court denied plaintiff's motion on two grounds: (1) there were issues of material fact regarding the debtor's actions; and (2) this court could not apply the doctrine of issue preclusion because the issue of the debtor's willfulness and maliciousness had not been actually litigated.  The court outlined the requirements for issue preclusion and found that the plaintiff did not meet the fourth requirement -- that "the issues in the prior action . . . must have been actually litigated and necessarily determined."  See In the Matter of Wagner, 79 B.R. 1016 (Bankr. W.D. Wis. 1987).  Looking to Wisconsin law, the court determined that in the absence of a clear statement from the Wisconsin Supreme Court, this court was precluded from finding that a plea of guilty satisfies the requirement that a controversy be "actually litigated" for issue preclusion to apply.

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

Key Terms:
Collateral Estoppel
Willful and Malicious - Defined

In re Galeles, Case No. 99-34061-7 (02/18/2000) -- Judge Robert D. Martin 02/18/2000

Statute/Rule References:
11 U.S.C. § 522(d)(10)(E) -- Exemptions - Federal - Stock Bonus, Pension, Profit-sharing, Annuity
Fed. R. Bankr. P. 4003(c) -- Exemptions - Burden of Proof

Key Terms:
Exemptions - Annuity

Judge Thomas S. Utschig

In re Calaway, Case No. 99-54197-7 (06/30/2000) -- Judge Thomas S. Utschig 06/30/2000

Case Summary:
Trustee moved for turnover of debtor’s interest in a trust.  The debtor argued that the trust was a “spendthrift trust” that was excluded from the bankruptcy estate by virtue of 11 U.S.C. § 541(c)(2).  The court, however, agreed with the trustee that since creditors could reach the trust res, it was not a true spendthrift trust.  The motion for turnover was granted.           

Statute/Rule References:
11 U.S.C. § 541 -- Property of the Estate
Wis. Stat. § 701.06 -- Spendthrift Provisions and Rights of Creditors of Beneficiaries

Key Words:
Trusts - Generally
Turnover of Property

In re Lawrence, Case No. 97-14687 (06/02/2000) -- Judge Thomas S. Utschig 06/02/2000

Case Summary:
Trustee brought sanctions motion against former counsel for bankruptcy debtor.  The debtor’s discharge had been denied for his conduct during the discovery process.  The trustee sought sanctions against various attorneys for their participation in “scorched earth” litigation.  These attorneys filed motions to dismiss and/or strike the sanctions request.  The court concluded that bankruptcy courts are “courts of the United States” for purposes of 28 U.S.C. § 1927 and can award sanctions pursuant to that statute.  Further, similar power exists under 11 U.S.C. § 105(a).  The motions to strike were denied, and the matter set for an evidentiary hearing.

Statue/Rule References:
11 U.S.C. § 105 -- Power of Court
28 U.S.C. § 1927 -- Counsel’s Liability for Excessive Costs
Fed. R. Bankr. P. 9011 -- Sanctions

Key Terms:
Sanctions

Cummins Great Lakes, Inc. v. CAM Construction Co., Inc (In re CAM Construction Co., Inc), Adv. No. 99-5145, Case No. 98-56035-11 (02/15/2000) (248 B.R. 134) -- Judge Thomas S. Utschig 02/15/2000

Case Summary:
The debtor’s plan treated the creditor as unsecured.  The creditor contended that it had a mechanic’s lien associated with certain repair services performed on the debtor’s equipment.  The court interpreted Wis. Stat. § 779.41(1) to require that the mechanic retain “actual physical possession” of the property in order to maintain a mechanic’s lien claim.  As the services here were performed on the debtor’s premises, the creditor never had possession of the property and therefore had no lien.  The creditor’s claim was unsecured.

Statute/Rule References:
Wis. Stat. § 779.41 -- Mechanic’s Liens

Key Words:
Mechanic’s Liens
Security Interests -- Creation

Schubbe Resch Chiropractic & Physical Therapy Centers and Schubbe Family Chiropractic v. Christine M. Norton (In re Norton), Adv. No. 99-5131, Case No. 99-51961-7 (02/15/2000) (248 B.R. 131) -- Judge Thomas S. Utschig 02/15/2000

Case Summary:
Creditors filed adversary proceeding under 11 U.S.C. § 523(a)(2)(A).  The debtor had been treated by the creditors for injuries she had suffered.  The debtor executed a “Financial Responsibility Form” under which she agreed to repay the creditors from any personal injury settlement she received.  Although she did ultimately receive a settlement, she did not pay the creditors.  The creditors contended that her actions constituted fraud under § 523(a)(2)(A).  They also asserted a hospital lien.  The court found that the documents in question did not rise to a lien, equitable or otherwise.  Further, there was no evidence that the debtor executed the Financial Responsibility Form with an intent to deceive.  Adversary proceeding dismissed.

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

Key Terms:
Fraud
Security Interests - Creation

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