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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.

Available Decisions:

  • Chief Judge Catherine J. Furay -- 2013 - present
  • Judge Rachel M. Blise -- 2021 - present
  • Judge William V. Altenberger -- 2016 - present
  • Judge Thomas M. Lynch -- 2018 - present
  • Judge Katherine M. Perhach -- 2020 - present
  • Judge Brett H. Ludwig -- 2017 - 2020
  • Judge Robert D. Martin -- 1990 - 2016
  • Judge Thomas S. Utschig -- 1986 - 2012
  • Judge William H. Frawley -- 1973 - 1986

Chief Judge Catherine J. Furay

Case Summary:
Plaintiff filed a Chapter 7 petition and received a discharge. Plaintiff then filed an adversary seeking to discharge a student loan under 11 U.S.C. § 523(a)(8). Plaintiff denied ever taking out a student loan, but Defendant claimed Plaintiff signed it on behalf of his daughter and that it survived discharge. Neither party produced evidence of loan documents or the existence of a debt in advance of trial, and the opportunity to file evidence expired. Without evidence the loan existed, the Court ordered briefing on the burden of proof for establishing the existence of a student loan under 523(a)(8). Defendant challenged the Court’s jurisdiction. The Court held it had jurisdiction over the adversary because (1) Plaintiff stated a 523(a)(8) claim, (2) the Order of Discharge explicitly did not affect the adversary, and (3) the validity of the signature on the student loan related directly to Plaintiff’s liabilities. While the Debtor bears the burden of proving undue hardship, the creditor bears the initial burden of proving a debt exists and proving the debt is of the type excepted from discharge. Therefore, the Court held Defendant bore the burden of proving a debt exists but failed to produce any evidence to that end. Thus, no presumption of validity for the signature arose under Wisconsin’s negotiable instruments law, Wis. Stat. § 403.308(1). The Court declared the debt—if any—discharged.

Statute/Rule References:
11 U.S.C. § 523(a)(8) -- Nondischargeability - Student Loans
11 U.S.C. § 1322(b)(2) -- Modification of Rights of Secured Claimants
Fed. R. Bankr. P. 3012 -- Valuation
Wis. Stat. § 403.308(1) -- Proof of Signature and Status as Holder in Due Course

Key Terms:
Burden of Proof
Jurisdiction
Nondischargeable Debt
Student Loan


Case Summary:
Creditor Maxwell Foods filed a Motion to Approve Recoupment or to Exercise Right of Setoff in Debtor’s Chapter 11 case. Debtor moved for summary judgment on the motion. Prior to the petition, the parties executed an agreement whereby Debtor shipped seven loads of cranberries to Maxwell and offered Maxwell an exclusive sales arrangement for 2017. Debtor shipped all seven loads, but Maxwell failed to pay for the last three loads. Maxwell instead sought recoupment or setoff, claiming Debtor agreed to sell an additional ten loads, but breached by failing to fulfill the order. Relying on the single integrated transaction test, the Court granted Debtor’s motion for summary judgment. Even if the purchase order for the additional ten loads was binding and enforceable, Maxwell lacked a valid recoupment claim. The original 2017 agreement did not obligate Debtor to purchase anything beyond the agreed-upon seven loads. Thus, the 2017 agreement and the later purchase orders for ten loads were not part of a single integrated transaction and Maxwell’s claim was not eligible for recoupment. Similarly, Maxwell could not set off its claim because the two agreements were stand-alone contracts and occurred on opposite sides of the petition date.

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

Key Terms:
Contract Enforceability
Recoupment
Setoff
Summary Judgment


Case Summary:
Defendant was convicted of second-degree intentional homicide for shooting and killing Plaintiffs’ father. Plaintiffs brought a civil action against Defendant in state court, which the parties settled by a stipulation. Defendant voluntarily signed the stipulation, in which he admitted his actions were intentional, willful, and malicious. Defendant then filed his chapter 7 petition and Plaintiffs brought this adversary for a determination the civil judgment is nondischargeable for Defendant’s willful and malicious conduct. The Court held the stipulation, state court judgment, and criminal conviction were binding under the doctrine of preclusion and therefore ruled in favor of Plaintiffs. Defendant admitted in the stipulation and the state court found his actions were willful and malicious; therefore, there were no remaining issues for this Court to decide.

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

Key Terms:
Claim Preclusion
Issue Preclusion


Case Summary:
Plaintiff filed an adversary against Defendant, a Chapter 7 Debtor, seeking a determination that Defendant’s student loan was nondischargeable under 11 U.S.C. § 523(a)(8). Plaintiff agreed to make loans to Defendant to refinance her two qualified educational loans. The agreement also allowed Plaintiff to declare the entire loan due immediately upon default. The Court found Defendant failed to show an undue hardship under the Brunner test. While Defendant could not maintain a minimal standard of living under the loan’s current repayment plans, Defendant lacked “exceptional circumstances” making it improbable she could ever repay the loan. Specifically, Defendant’s current full-time employment and continued employability weighed against a full discharge. The expense of caring for her adult daughter would decrease if her daughter contributed to household expenses or lived independently. However, the Court granted a partial discharge because under the current loan terms, Defendant could neither pay the balance in full nor afford the monthly payments. Instead, the Court ordered repayment based on the federal loan repayment plans. Defendant’s monthly payment would be recalculated each year based on income, tax status, and family size and any unpaid debt would be discharged after twenty years.

Statute/Rule References:
11 U.S.C. § 523(a)(8) -- Nondischargeability - Student Loans

Key Terms:
Nondischargeable Debt
Partial Discharge
Student Loan
Undue Hardship


Case Summary:
Debtors received a Chapter 7 discharge of their debt, which included money owed to the Wisconsin Department of Children and Families (“DCF”) for overpayment of FoodShare benefits. Debtor Muhammad provided inaccurate information, resulting in DCF overpaying her $5,520.92 in benefits for her and her grandson. DCF intercepted Debtors’ tax return to satisfy part of the overpayment. Debtors moved to hold DCF in contempt and recover the tax intercept. DCF asserted the overpayments were nondischargeable under 11 U.S.C. § 523(a)(5). The Court held the overpayment was dischargeable because the debt was not a domestic support obligation as defined by 11 U.S.C. § 101(14A). The Court applied the Ninth Circuit’s reading of section 101, which requires the debt be tied to a “government’s family support infrastructure” rather than any money from the government. The DCF debt was not a domestic support obligation under section 101 because it was incurred to support her grandchild, not her child. The statute does not include grandchildren and Debtor did not have a legal duty to financially support her grandson. Thus, section 523(a)(5) did not apply and the debt was dischargeable. The Court held the DCF intercept violated the discharge injunction and ordered DCF to immediately release and refund the tax intercept to Debtors. 

Statute/Rule References:
11 U.S.C. § 101(14A) -- Definition of "Domestic Support Obligation"
11 U.S.C. § 106 -- Waiver of Sovereign Immunity
11 U.S.C. § 523(a)(5) -- Nondischargeability - Domestic Support Obligation

Key Terms:
Discharge Injunction
Dischargeability
Domestic Support Obligation


Case Summary:
Debtors Leonard and Jamie Kersten filed a Chapter 7 petition. The majority in dollar amount of their debt arose from Debtors’ embezzlement of funds from a former employer, Kersten Lumber Company (“KLC debt”). The U.S. Trustee moved to dismiss under 11 U.S.C. §§ 707(a) and (b) for failure to file a Form B122A-2, a form which debtors with primarily consumer debt must file. The U.S. Trustee argued Debtors were required to file this form because the KLC debt was consumer in nature. The Court declined to dismiss. First, the U.S. Trustee lacked decisive evidence showing the KLC debt was in fact consumer. While Debtors used some of the funds for household expenses, those funds came from a business, not the extension of credit to a consumer. The Court declined to rule on the nature of the debt because dismissal is discretionary under sec. 707(a). Instead, the Court declined to dismiss under 707(a) because (1) the lack of the Form B122A-2 did not cause any prejudice and (2) Debtors’ counsel made a reasonable judgment about the nature of the debt, given the split in authority on the definition and the lack of probative evidence. The Court also declined to dismiss under sec. 707(b) because of the lack of evidence demonstrating the debt was primarily consumer or the Chapter 7 would be an abuse of the Code.

Statute/Rule References:
11 U.S.C. § 101(8) -- Definition of "Consumer Debt"
11 U.S.C. § 707(a) -- Dismissal - Failure to File Required Documents
11 U.S.C. § 707(b) -- Dismissal - Presumption of Abuse

Key Terms:
Abuse
Consumer Debt


Case Summary:
Defendant Gee was a contractor hired to perform work on a home in Pardeeville. Gee hired Plaintiffs H&M and MDA as subcontractors for all the electrical and plumbing materials and services on the home. The homeowners paid money into an escrow fund, from which Gee made three withdrawals. Gee did not pay Plaintiffs in full and they sued him for theft by contractor, breach of contract, among other allegations. The state court entered default judgment against him for breach of contract but did not make findings as to the other claims. Plaintiffs moved for summary judgment on their 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6) claims. The Court denied summary judgment as to all three claims. While the state court judgment was binding, it did not make any findings as to Gee’s intent. Plaintiffs failed to identify a false representation made with the intent to deceive required under section 523(a)(2)(A). Similarly, while Gee was a fiduciary of a trust, the fact that he failed to pay Plaintiffs the full contract amount did not by itself prove fraud or defalcation under section 523(a)(4). Finally, the state court findings did not show Gee acted with the requisite malice needed to render a debt nondischargeable under section 523(a)(6).

Statute/Rule References:
11 U.S.C. § 523(a)(2)(A) -- Nondischargeability – False Pretenses, False Representation or Fraud
11 U.S.C. § 523(a)(4) -- Nondischargeability – Fraud or Defalcation in Fiduciary Capacity
11 U.S.C. § 523(a)(6) -- Nondischargeability – Willful and Malicious Injury
Wis. Stat. § 779.02(5) -- Theft by Contractor

Key Terms:
Actual Fraud
Defalcation while Acting as a Fiduciary
False Representation
Theft by Contractor
Willful and Malicious - Defined


Case Summary:
This matter came before the Court on the Trustee’s motion to dismiss Debtor’s Chapter 13 petition. The Department of Education filed an unsecured claim for a student loan that exceeded the statutory limit on unsecured debt in 11 U.S.C. §109(e). The Court addressed the questions (1) whether the cap on unsecured debt in section 109(e) is jurisdictional and (2) whether to convert the case to a Chapter 7.  The Court found section 109 is not jurisdictional. It further found the interests of creditors were best served by permitting Debtor’s Chapter 13 to proceed, even though her unsecured debt load exceeded the statutory cap. This Debtor was a true consumer debtor. It was undisputed that Debtor could make the proposed plan payments and the only real roadblock to confirmation was the alleged amount of the student loans, which in any case, were nondischargeable in bankruptcy. Literal interpretation of the section 109(e) would lead to an absurd result because it would lead Debtor to file either a Chapter 11—which she could not afford—or a Chapter 7—in which she would face the presumption of abuse. The Trustee’s motion was denied and the Court permitted Debtor’s Chapter 13 to proceed.

Statute/Rule References:
11 U.S.C. § 109(e) -- Who May be a Debtor Under Chapter 13
11 U.S.C. § 1307-- Conversion or Dismissal

Key Terms:
Conversion
Ineligible
Jurisdiction


Case Summary:
Plaintiffs filed an adversary against a Chapter 7 debtor seeking a determination of nondischargeability under sections 523(a)(2)(A), (a)(4), (a)(6), and a denial of discharge under section 727. Defendant filed a motion to dismiss on all counts and Plaintiff requested leave to amend the Complaint. The Court granted Defendant’s motion on sections 523(a)(4) and 727, but denied the balance of the motion and Plaintiff’s request for leave to amend. In reaching its conclusion, the Court found Plaintiffs’ Complaint failed to allege a fiduciary relationship existed between themselves and Defendants under section 523(a)(4). The Court further found the Plaintiffs failed to articulate a claim under 727 because they did not identify the specific subsection of their 727 claim and they did not plead the 727 claim with specificity. The Court denied Plaintiffs’ motion for leave to amend and noted Plaintiffs had many opportunities to amend their Complaint and their lack of specificity in their Complaint was unjustified. Still, the Complaint had sufficiently pled the bare outlines for claims under section 523(a)(2)(A) and (a)(6).

Statute/Rule References:
11 U.S.C. § 523(a)(2)(A) -- Nondischargeability - False Pretenses, False Representation or Fraud
11 U.S.C. § 523(a)(4) -- Nondischargeability – Fraud or Defalcation in Fiduciary Capacity
11 U.S.C. § 523(a)(6) -- Nondischargeability – Willful and Malicious Injury
11 U.S.C. § 727 -- Discharge
Fed. R. Civ. P. 12(c) -- Motion for Judgment on the Pleadings
Fed. R. Civ. P. 15(a)(2) -- Leave to Amend

Key Terms:
Leave to Amend


Case Summary:
Chapter 7 Trustee filed this adversary proceeding seeking a declaratory judgment that a mortgage was void on its face because it lacked a legal description of the property. The mortgage at issue contained only a street address, but did not include a legal description. It was also recorded in the grantor/grantee index. Trustee argued the mortgage could be avoided under 11 U.S.C. §544(a)(3) because it did not give adequate notice of the mortgage and it violated the Wisconsin statute of frauds. Defendant Wells Fargo argued the mortgage described the property with reasonable certainty. The Court ruled the Trustee had sufficient notice of the mortgage because it was recorded in the grantor/grantee index. The Court also found the mortgage satisfied the statute of frauds because under the facts of this case the address described the land with reasonable certainty.

Statute/Rule References:
11 U.S.C. § 544(a)(3)
Wis. Stat. § 706 -- Conveyances of Real Property, Recording, Titles

Key Terms:
Grantor/Grantee Index
Land Description
Statute of Frauds


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