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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

Steven J. Derrick and Margaret M. Derrick v. Richard L. Grafe Commodities, Inc (In re Derrick), Adv. No. 93-1028, Case No. 93-10404-12 (10/13/1995) -- Judge Thomas S. Utschig 10/13/1995

Case Summary:
Upon dismissal of debtor’s chapter 12 case, creditor sought to reinstate judicial lien which had been avoided as a preferential transfer during the pendency of the case.  The debtor objected, contending that the lien could not be reinstated.  The court held that under 11 U.S.C. § 349, the general idea is that upon dismissal the parties are returned to the position they were in when the petition was filed.  Under the statute, preferential transfers are reinstated unless the court, “for cause,” orders otherwise.

“Cause” simply means an acceptable reason, and in determining whether there is such a reason the court should focus upon the interests of creditors or other third parties who may suffer injury, rather than the debtor.  There must have been some right gained in the course of the bankruptcy which is threatened by reinstatement.  Here, the debtor could offer no such acceptable reason.  The burden was upon the debtor to justify a deviation from the natural operation of § 349, and the debtor could not do so.

Statue/Rule References:
11 U.S.C. § 349 -- Dismissal

Key Terms:
Dismissal
Judicial Liens
Satisfaction of Judgment

In re Zersen, Case No. 95-50786-13 (09/29/1995) (189 B.R. 732) -- Judge Thomas S. Utschig 09/29/1995

Case Summary:
Bank objected to confirmation of chapter 13 plan where the debtors proposed to pay the bank only what was owed on a mortgage loan on their home.  The bank contended that the home constituted collateral for a business note as well, and that the home loan was secured by the guaranty of certain third parties.  The court found that the effect of the co-debtor stay of 11 U.S.C. § 1301 permitted the debtors to pay obligations guaranteed by third parties under a chapter 13 plan; it was only if the plan did not provide for full payment of the guaranteed obligation that the creditor would be permitted to pursue the guarantor.

Furthermore, given the bank’s lack of documentation, the only secured obligation was the home loan.  The business debt was not secured by the home, as the documents were ambiguous and those ambiguities would be construed against the bank as the drafter of the documents.  Accordingly, the bank’s objections to confirmation were overruled, and the plan was confirmed.

Statue/Rule References:
11 U.S.C. § 1301 -- Co-Debtor Stay

Key Terms:
Non-Debtors

Hartje Lumber, Inc., v. Fred J. Brach, d/b/a B & B Carpentry and Sonya M. Brach (In re Brach), Adv. No. 95-2043. Case No. 94-22669-7 (08/03/1995) (195 B.R. 897) -- Judge Thomas S. Utschig 08/03/1995

Case Summary:
Creditor filed adversary proceeding objecting to debtor’s discharge after the time specified in bankruptcy rule 4007.  Debtor filed motion to dismiss.  The court concluded that the fact that the court issued an erroneous notice which did not specify a last date to object to discharge and which incorrectly characterized the debtor as a “partnership” necessitated allowance of the complaint.  While a court may not extend the time to object to discharge if the creditor fails to file a motion for extension of time as required by the rule, the court can accept an untimely complaint if it is justified under the circumstances. The only justification is if the court issues an erroneous notice, which happened in this case.

Statue/Rule References:
Fed. R. Bankr. P. 4007(c) -- Time for Filing Nondischargeability Complaint

Key Terms:
Complaints – Nondischargeability – Late - Filed

Judge Robert D. Martin

In re Parrish, Case No. 95-30789-7 (08/29/1995) (186 B.R. 246) -- Judge Robert D. Martin 08/29/1995

Statute/Rule References:
11 U.S.C. § 522(f) -- Lien Avoidance

Key Terms:
Lien Avoidance

Janice M. Zdimal v. Dennis E. Lundquist (In re Lundquist), Adv. No. 95-3059, Case No. 95-30238 (08/29/1995) -- Judge Robert D. Martin 08/29/1995

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

Freedom Communications, Inc. v. Tak Communications, Inc. (In re Tak Communications, Inc.), Adv. No. 95-3027, Case No. 91-00031-11 (08/14/1995) -- Judge Robert D. Martin 08/14/1995
Michael E. Kepler v. Security Pacific Housing Services (In re McLaughlin) Adv. No. 94-3155, Case No. 94-31936-7 (05/23/1995) (183 B.R. 171) -- Judge Robert D. Martin 05/23/1995

Statute/Rule References:
11 U.S.C. § 547 -- Preferences
Wis. Stat. § 409.203 -- Security Interests - Attachment and Enforceability

Key Terms:
Preferences
Security Interests - Attachment

In re Parker, Case No. 91-34084-12 (05/12/1995) -- Judge Robert D. Martin 05/12/1995

Statute/Rule References:
11 U.S.C. § 1229 -- Modification of plan

Key Terms:
Modification of Chapter 12 Plan

In re Zeien Farms, In re Zeien, Case Nos. 94-33454-12 and 94-3345512 (02/27/1995) -- Judge Robert D. Martin 02/27/1995

Statute/Rule References:
11 U.S.C. § 363 -- Sale of Property

Key Terms:
Sale of Property Outside Ordinary Course

Alta J. Marshall v. Government Employees Financial Corporation and Subsidiaries (In re Marshall), Adv. No. 94-3147, Case No. 94-32402-7 (02/24/1995) -- Judge Robert D. Martin 02/24/1995

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

Key Terms:
Preferences

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