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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

Don E. Whinnery v. Bank of Onalaska (In re Taggatz), Adv. No. 88-0082, Case No. 86-00169-7 (09/29/1989) (106 B.R. 983) -- Judge Thomas S. Utschig 09/29/1989

Case Summary:
Trustee's motion for turnover of property of the estate pursuant to 11 U.S.C. § 542(b) against bank which had issued letter of credit in favor of debtor is denied.  Agreement between debtor and bank called for bank to fund the unfunded portion of a promissory note upon fulfillment of certain conditions precedent by the debtor.  Although agreement is found to constitute an executory contract pursuant to 11 U.S.C. § 365, it is not assumable by the trustee due to the exception contained in 11 U.S.C. § 365(c)(2) -- the agreement constitutes "[a] contract to make a loan, or extend other debt financing or financial accommodations, to or for the benefit of the debtor, or to issue a security of the debtor."

Statue/Rule References:
11 U.S.C. § 365 -- Executory Contracts
11 U.S.C. § 542 -- Turnover of Property

Key Terms:
Executory Contracts
Turn Over of Property

In re Spore, Case No. 83-00002-11 (06/30/1989) (105 B.R. 476) -- Judge Thomas S. Utschig 06/30/1989

Case Summary:
Parties sought court determination regarding validity and extent of judgment lien on nonexempt real estate of debtors who had received chapter 7 discharge.  Court holds that bankruptcy court discharge voided judgment against debtors.  Further, state court's subsequent order of satisfaction -- granted pursuant to Wis. Stat. § 806.19(4) providing for satisfaction of judgments upon showing of bankruptcy discharge -- voided judgment lien on nonexempt real estate.  Judgment lien is voided pursuant to Wis. Stat. § 806.21, which provides for voiding of lien upon satisfaction of judgment.

Statue/Rule References:
Wis. Stat. § 806.19(4) -- Satisfaction of Judgment Upon Showing of Discharge
WIs. Stat. § 806.21 -- Voiding of Lien Upon Satisfaction of Judgment

Key Terms:
Judicial Liens
Lien Avoidance
Satisfaction of Judgment

J.C. Penney Company, Inc. v. Paul Leaird, et al. (In re Leaird), Adv. No. 88-0110, Case No. 88-00699-7 (04/07/1989) (106 B.R. 177) -- Judge Thomas S. Utschig 04/07/1989

Case Summary:
Creditor store's adversary proceeding seeking determination that debt from debtor's purchases totaling $1,047.42 is nondischargeable pursuant to 11 U.S.C. § 523 (a)(2)(C) -- the luxury goods exception -- is dismissed.  To establish a presumption of nondischargeability under § 523(a)(2)(C), a plaintiff must show: 1) a consumer debt; 2) owed to a single creditor; 3) aggregating more than $500.00; 4) for luxury goods or services; 5) incurred by an individual debtor; 6) on or within forty days before the order for relief.  Citing In re Blackburn, 68 B.R. 870, 873 (Bankr. N.D. Ind. 1987).  Debtors successfully rebutted the presumption by testifying that the purchases were made impulsively and that bankruptcy was not contemplated until after they received a notice of deficiency from the Veterans Administration.

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

Key Terms:
Luxury Goods

In re Northwest Liquor Industries, Inc., Case No. 76-01422 (09/26/1988) (107 B.R. 616) -- Judge Thomas S. Utschig 09/26/1988

Case Summary:
Trustee's motion for partial summary judgment in action to recover $125,000 setoff by bank against debtor's indebtedness to it is denied.  Bank did not waive its right to setoff by issuing a cashier's check; nor did purchase of a cashier's check create special account so as to destroy mutuality of obligations required for bank to exercise its right of setoff under Bankruptcy Act.  Substantial issues of material fact exist as to whether payee's interest in cashier's check arose before debtor-remitter filed bankruptcy, thus precluding summary judgment.

Statue/Rule References:
11 U.S.C. § 553 -- Setoff

Key Terms:
Setoff
Summary Judgment

In re Klefstad, Case Nos. 85-02429-11, 86-00456-11, 86-00153-11, 86-00154-11 (07/22/1988) (95 B.R. 622) -- Judge Thomas S. Utschig 07/22/1988

Case Summary:
Debtors sought court determination of status of real estate tax penalties in their respective chapter 11 bankruptcy cases.  Generally, penalties are not in harmony with overall philosophy of bankruptcy code -- to effectuate fair and equitable distribution of estate assets to creditors.  Postpetition penalty on debtors' postpetition Wisconsin real estate taxes is allowable as an administrative expense.  Postpetition penalties on debtors' prepetition real estate taxes, which become a lien on real estate under Wisconsin law, are punitive in nature and are thus disallowed.

Key Terms:
Penalties
Tax -- Penalties

In re Thompson, Case No. 87-01729-7 (02/01/1988) (82 B.R. 985) -- Judge Thomas S. Utschig 02/01/1988

Case Summary:
Debtors' motion to avoid liens pursuant to 11 U.S.C. § 522(f)(2) on various farm tools and implements is granted.  Farm implements of substantial value constitute "tools" or "implements" of debtor-farmer.  Bankruptcy code provision allowing debtors to avoid nonpurchase money liens which impair exemptions does not provide for unconstitutional taking of creditor's property without just compensation; nor does it violate due process clause of Fifth Amendment.

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

Key Terms:
Lien Avoidance

Cosmos Trust v. United States of America and State of Wisconsin, Department of Revenue v. Carlton J. West (In re Cosmos Trust), Adv. No. 86-0237, Case No. 84-00339-11 (12/18/1987) -- Judge Thomas S. Utschig 12/18/1987

Case Summary:
Defendant-debtor's motion for default judgment as to its counterclaim against plaintiff USA-IRS is granted.  Plaintiff failed to timely answer defendant's counterclaim and has not met standard for excusable neglect pursuant to Fed. R. Bankr. P. 9006(b).  Citing Redfield v. Continental Casualty Corp., 818 F.2d 596 (7th Cir. 1987).

Statue/Rule References:
Fed. R. Bankr. P. 9006 -- Time

Key Terms:
Default Judgment

In re Rondeau, Case No. 82-00736-11 (11/04/1987) -- Judge Thomas S. Utschig 11/04/1987

Case Summary:
Creditor's motion to convert case from chapter 11 to chapter 7 for failure to file plan and disclosure statement is denied.  Decision whether to dismiss or convert is within discretion of court.  Continuation of case would not result in any substantial benefit to creditors or to the estate; case will therefore be dismissed.  Moving creditor can pursue its remedies in state court.

Statue/Rule References:
11 U.S.C. § 348 -- Conversion

Key Terms:
Dismissal

In re Duss, Case No. 87-00830-7 (10/30/1987) (79 B.R. 821) -- Judge Thomas S. Utschig 10/30/1987

Case Summary:
Debtors' motion to avoid lien of FmHA pursuant to 11 U.S.C. § 522(f)(2)(A) on 30 acres of hay is denied.  Hay is not consumable and cannot be considered to be held primarily for personal, family or household purposes.

Debtors' motion to avoid lien of FmHA pursuant to 11 U.S.C. § 522(f)(2)(A) on various items of farm equipment claimed as exempt is granted.  Term "tools and implements of trade" in lien avoidance provision is not restricted to small hand tools and modest implements.

Debtor choosing state law exemptions pursuant to 11 U.S.C. § 522(b)(2) is not limited to the value limitations of the federal exemptions contained in 11 U.S.C. § 522(d) when seeking to lien avoid on exempt property pursuant to 11 U.S.C. § 522(f).

Statue/Rule References:
11 U.S.C. § 522(b) -- Exemptions - State Law
11 U.S.C. § 522(f) -- Lien Avoidance

Key Terms:
Exemptions
Lien Avoidance

In re Jarocki, Case No. 87-01740-12 (10/28/1987) -- Judge Thomas S. Utschig 10/28/1987

Case Summary:
Creditor Federal Land Bank's motion for relief from stay is denied.  Creditor's contention that exclusive method of providing adequate protection on mortgaged farmland is to pay secured creditor the reasonable rental value of that land is in error.  11 U.S.C. § 1205 provides four alternative methods for providing adequate protection in chapter 12 cases.  Debtor is complying with § 1205(b)(1) by making monthly cash payments to an escrow account to protect against any decrease in value of property securing creditor's claim.

Statue/Rule References:
11 U.S.C. § 362(d) -- Relief From Stay
11 U.S.C. § 1205(b) -- Adequate Protection

Key Terms:
Adequate Protection
Relief From Stay

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