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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

In re Shepler, Case No. 86-02661-7 (08/20/1987) (78 B.R. 217) -- Judge Thomas S. Utschig 08/20/1987

Case Summary:
Debtor's motion to avoid the lien of Bank of Holmen on certain office equipment pursuant to 11 U.S.C. § 522(f) is denied.  Bank legally took possession of collateral upon default of debtor prior to bankruptcy filing.  In so doing, bank's security interest became "possessory".  Bank's security interest, therefore, is no longer voidable, due to "nonpossessory, nonpurchase-money security interest" requirement of § 522(f).

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

Key Terms:
Lien Avoidance
Security Interests - Perfection

Susan Hoivik-Olson v. Jeffrey P. Hoivik, et al. (In re Hoivik), Adv. No. 86-0301, Case No. 86-02143-7 (07/01/1987) (79 B.R. 401) -- Judge Thomas S. Utschig 07/01/1987

Case Summary:
Debtor's former wife's claim pursuant to 11 U.S.C. § 523(a)(5) that certain obligations incurred by debtor under the terms of divorce decree are nondischargeable is dismissed.  Debtor's obligation to make two house payments for his former wife is dischargeable as being in the nature of property division.  Additionally, debtor's obligation to hold former wife harmless for various marital obligations is in nature of property division and is therefore dischargeable.

Statue/Rule References:
11 U.S.C. § 523(a)(5) -- Nondischargeability - Divorce Decrees

Key Terms:
Divorce Decrees – Maintenance or Property Division

Richard Kemis v. Wayne C. O’Loughlin and Judith A. O’Loughlin (In re O’Loughlin), Adv. No. 85-0305, Case No. 85-01543-7 (06/29/1987) -- Judge Thomas S. Utschig 06/29/1987

Case Summary:
Plaintiff's complaint seeking to have obligation of debtor to him declared nondischargeable on basis of 11 U.S.C. §§ 523(a)(2)(A), (a)(4) and (a)(6) is dismissed.  Plaintiff was former partner of debtor and creditor of debtor on basis of prepetition dissolution agreement executed October 2, 1984.  Business subsequently failed in June 1985, and substantial liabilities remained.  Plaintiff presented no evidence of fraud by debtor nor any evidence of willful or malicious conduct by debtor.  Term "fiduciary capacity" in § 523(a)(4) is limited to technical or express trusts.  Citing In re Donny, 19 B.R. 354 (Bankr. W.D. Wis. 1982).  No such trust existed here.

Debtor's trial motion to dismiss his wife from proceeding is granted.  Evidence revealed she was not a partner in business enterprise nor was she involved in any fraudulent activity.

Statue/Rule References:
11 U.S.C. § 523(a)(2)(A) -- Nondischargeability - Fraud
11 U.S.C. § 523(a)(4) -- Nondischargeability - Fraud in Fiduciary Capacity
11 U.S.C. § 523(a)(6) -- Nondischargeability - Willful and Malicious Injury

Key Terms:
Dismissal
Willful and Malicious

Emily Garton v. Martin J. Zoglman (In re Zoglman), Adv. No. 86-0144, Case No. 86-00502-7 (06/26/1987) (78 B.R. 213) -- Judge Thomas S. Utschig 06/26/1987

Case Summary:
Obligation to debtor's former wife, stemming from wife's payment of tax assessment for which she and debtor were jointly liable, is excepted from discharge.  Former wife did not act as "volunteer" when she paid tax assessments; wife can therefore invoke equitable doctrine of subrogation to assert nondischargeability claim against debtor's bankruptcy estate.  Persons who have interests of their own to protect are not "volunteers" for subrogation purposes.  Former wife is therefore subrogated to the claim of the IRS.  Since debtor's obligation to IRS would have been excepted from discharge had it not been paid, debt owed to former wife stemming from that obligation is excepted from discharge.

Statue/Rule References:
11 U.S.C. § 509 -- Subrogation

Key Terms:
Subrogation

Fond du Lac Service Motor Company, Inc. v. Malen A. Juzwiak and Juzwiak Implement, Inc. (In re Juzwiak), Adv. No. 86-0265, Case No. 86-01287-7 (06/26/1987) (75 B.R. 215) -- Judge Thomas S. Utschig 06/26/1987

Case Summary:
Debtor's motion to dismiss untimely filed nondischargeability complaint of creditor is granted.  Alleged lack of notice to creditor of deadline for complaints objecting to discharge did not suspend running of time period for filing objections; creditor had notice of bankruptcy more than two weeks prior to deadline for filing complaints.

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

Key Terms:
Complaints - Nondischargeability - Late - Filed
Notice - Adequacy/Lack Of

In re Boe, Case No. 86-00337-7 (05/15/1987) -- Judge Thomas S. Utschig 05/15/1987

Case Summary:
Debtor's motion for voluntary dismissal and revocation of discharge pursuant to 11 U.S.C. § 707 is denied.  Section 707 specifies that court may grant such motions "for cause".  The fact that debtor incurred substantial unexpected postpetition medical indebtedness does not constitute "cause" pursuant to § 707.  Debtor voluntarily chose date of filing of petition and should not be allowed to now alter it absent compelling showing of cause.  Citing In re Crenshaw, 65 B.R. 703 (Bankr. D. Me. 1980).

Statute/Rule References:
Fed. R. Bankr. P. § 815.18 -- Exemptions

Key Words:
Exemptions

In re Reese, Case No. 85-01498-7 (05/15/1987) -- Judge Thomas S. Utschig 05/15/1987

Case Summary:
Motion by third party indebted to debtor in this case for rehearing and to vacate court order entered December 31, 1986, is denied.  Court order: 1) denied third party's motion to prohibit trustee from initiating further collection activity on basis of state court judgment against him; and 2) granted trustee's motion for turnover.  Third party had failed to appear at hearing on December 17, 1986, and later failed to timely file memorandum in support of motion for rehearing/reconsideration as ordered by court.

Motion by third party to enjoin trustee from disbursing funds collected from third party is also denied.  Injunctive relief requires filing of adversary proceeding.  Citing Fed. R. Bankr. P. 7001.

Statue/Rule References:
Fed. R. Bankr. P. 7001 -- Adversary Proceedings

Key Terms:
Motion For Rehearing

Albert F. Hrdlicka and Loretta L. Hrdlicka v. Joseph J. Hrdlicka, et al. (In re Hrdlicka), Adv. No. 87-0043, Case No. 86-02754-11 (03/20/1987) -- Judge Thomas S. Utschig 03/20/1987

Case Summary:
Debtor's application to have state court action removed to bankruptcy court pursuant to 28 U.S.C. § 1452(a) and bankruptcy rule 9027(a) is denied.  Action for fraud against corporate debtor is based on state law and, even if action had been properly removed, it is based on state law and policy and equity would demand it be remanded to state court.  In addition, interests of comity and respect for state law would warrant abstention by this court pursuant to 28 U.S.C. § 1334(c)(1).  Citing In re Krupke, 57 B.R. 523 (Bankr. W.D. Wis. 1986).

Statue/Rule References:
28 U.S.C. § 1334 -- Abstention
28 U.S.C. § 1452 -- Removal
Fed. R. Bankr. P. 9027 -- Removal

Key Terms:
Removal

In re Wagner, Case No. 86-01504-7 (02/04/1987) -- Judge Thomas S. Utschig 02/04/1987

Case Summary:
Debtors' motion to avoid lien on automobile, snowmobile and business inventory pursuant to 11 U.S.C. § 522(f) is denied.  General rule in this jurisdiction is that liens on automobiles cannot be avoided.  Citing In re Nowak, 48 B.R. 290 (W.D. Wis. 1984).  Snowmobile does not constitute "tool of trade" for debtors' snowmobile repair business.  Evidence showed snowmobile racing was not bona fide business of debtors.  Citing In re Weinbrenner, 53 B.R. 571 (Bankr. W.D. Wis. 1985).  Business inventory held for sale does not constitute "tool of trade" of debtors.  Such inventory is not "tool" or "implement" within meaning commonly ascribed to those words.  Debtors may avoid liens on actual tools and implements used in their repair business. Debtor's wife is found to be engaged in debtors' business and can therefore exercise lien avoidance pursuant to 11 U.S.C. § 522(f).  Citing In re Flake, 33 B.R. 275 (Bankr. W.D. Wis. 1983)

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

Key Terms:
Lien Avoidance

Joseph A. Putnam v. Stockbridge-Munsee Indian Tribe (In re Putnam), Adv. No. 85-0282, Case No. 82-01311-7 (02/04/1987) -- Judge Thomas S. Utschig 02/04/1987

Case Summary:
Defendant Stockbridge-Munsee Indian Tribe's request for extension of time to appeal judgment entered November 7, 1986, is denied.  Bankruptcy Rule 8002(c) governs extensions of time for appeal.  Defendant filed request for extension within 20 days after deadline for such requests.  Bankruptcy Rule 8002(c) allows for grant of request for extension of time filed within 20 days of deadline upon showing of excusable neglect.  Defendant made no such showing; request is accordingly denied.

Statue/Rule References:
Fed. R. Bankr. P. 8002 -- Time for Filing Notice of Appeal

Key Terms:
Extension of Time

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