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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.

Chief Judge Catherine J. Furay

Harold F. Jung v. Internal Revenue Service (In re Jung), Adv. No. 18-0052, Case No. 18-12211-7 (07/02/2019) (604 B.R. 773) -- Judge Catherine J. Furay 07/02/2019

Case Summary:
The Internal Revenue Service ("IRS") asserted Harold Jung (“Debtor”) owed additional taxes and penalties. The Debtor commenced an adversary seeking to determine and discharge his tax liability, if any. The IRS filed a Motion to Dismiss for lack of subject-matter jurisdiction. The Court denied the Motion. The IRS then filed a Motion to Reconsider or, in the alternative, to hold the matter in abeyance pending the resolution of another case awaiting decision from the Seventh Circuit (In re Bush). The Court denied the Motion to Reconsider. There were no material changes in circumstances warranting a revisiting of the prior decision. Dischargeability of the taxes was still at issue. Dischargeability is a core proceeding and fundamental component of title 11. The Court likewise denied holding the matter in abeyance pending the resolution of Bush. Given the factual distinctions between this case and Bush, there was no guarantee the Bush decision would resolve this case. In addition, it is unfair to make the Debtor wait an indefinite amount of time before Bush is decided.

Statute/Rule References:
11 U.S.C. § 505(a) -- Determination of Tax Owed
11 U.S.C. § 523(a)(1) -- Nondischargeability – Taxes
28 U.S.C. § 157(a) -- Jurisdiction
28 U.S.C. § 1334 -- Abstention

Key Terms:
Dischargeability
Jurisdiction
Reconsideration
Tax Liability

In re Kluck, Case No. 18-10019-7 (06/14/2019) (612 B.R. 735) -- Judge Catherine J. Furay 06/14/2019

Case Summary:
Lydell and Margaret Kluck (“Debtors”) sold certain assets in the weeks leading up to their petition and deposited the sale proceeds in an annuity (the “Account”). They claimed as exempt the funds in the Account under the Wisconsin retirement benefits exemption found in Wis. Stat. § 815.18(3)(j). The Trustee objected to the exemption and argued the Account did not satisfy the statutory requirements. The Court overruled the objection and held the Account satisfied the two requirements of section 815.18(3)(j). First, the Account is tax-deferred under section 72 of the Tax Code because the Account provides for certain death benefits. Second, the Account is payable “by reason of” death and age as it provided for benefits payable upon Mr. Kluck’s death or him reaching the age of ninety-five. Generally, courts construe exemptions broadly in favor of debtors, which supports the outcome of this decision.

Statute/Rule References:
11 U.S.C. § 522 -- Exemptions
26 U.S.C. § 72(s) -- Annuities
Wis. Stat. § 815.18 -- Exemptions (Retirement Benefits Exemption)

Key Terms:
Annuity
Exemptions (Retirement Benefits Exemption)
Tax-deferred
Wisconsin Exemptions

In re Schroeder Brothers Farms of Camp Douglas LLP, Case No. 16-13719-11 (05/30/2019) (602 B.R. 695) -- Judge Catherine J. Furay 05/30/2019

Case Summary:
The Court confirmed Schroeder Brothers Farms of Camp Douglas LLP's ("Debtor") Chapter 11 Plan. The Plan provided for appointment of a Liquidating Trustee in the event of the Debtor's failure to cure certain defaults. The Debtor defaulted and failed to cure. The Committee of Unsecured Creditors moved for appointment of a Liquidating Trustee. The Debtor objected and moved to convert to Chapter 12. The Debtor argued that absent conversion, sales of assets would give rise to substantial taxes and render the estate administratively insolvent. In addition, the Debtor stated it could elect to be taxed as a corporation to absolve the partnership of tax liability. The Court denied conversion because the Debtor was ineligible for Chapter 12 on the petition date. Postpetition events do not impact eligibility for Chapter 12. The Court granted the appointment of a Liquidating Trustee because the parties bargained for such rights during the confirmation process. Finally, the Court enjoined the Debtor from changing its tax treatment because doing so would benefit the Debtor's partners at the expense of the Debtor itself in violation of the absolute priority rule.

Statue/Rule References:
11 U.S.C. § 109(f) -- Eligibility for Chapter 12
11 U.S.C. § 1112 -- Conversion
11 U.S.C. § 1129(b)(2)(B) -- Absolute Priority Rule
26 U.S.C. § 701 -- Taxation of Partnership

Key Terms:
Absolute Priority Rule
Appointment of Trustee
Conversion
Partnership Taxation

Harold F. Jung v. Internal Revenue Service (In re Jung), Adv. No. 18-0052, Case No. 18-12211-7 (02/21/2019) (597 B.R. 872) -- Judge Catherine J. Furay 02/21/2019

Case Summary:
The Internal Revenue Service (“IRS”) assessed additional taxes and penalties against Harold Jung (“Debtor”). The Debtor filed an adversary proceeding seeking to determine the amount of additional taxes owed and the dischargeability of additional taxes owed, if any. The IRS moved to dismiss for lack of subject-matter jurisdiction under Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3). The Court held it had subject-matter jurisdiction under 28 U.S.C. § 157. That section allows district courts to refer to bankruptcy courts any or all cases under Title 11 and any or all proceedings arising under, arising in, or related to a case under Title 11. The Court relied on two principal reasons for invoking jurisdiction: (1) section 505(a) of the Code authorizes bankruptcy courts to determine the amount or legality of any tax, and (2) “core proceedings” include “determinations as to the dischargeability of particular debts.” In addition, the Court declined to abstain from exercising jurisdiction under 28 U.S.C. § 1334(c)(1) because it would be inefficient and prejudicial to require the Debtor to litigate in Tax Court and then potentially litigate similar facts a second time in Bankruptcy Court.

Statute/Rule References:
11 U.S.C. § 505(a) -- Determination of Tax Owed
28 U.S.C. § 157(a)
28 U.S.C. § 1334 -- Abstention
Fed. R. Civ. P. 12(b)(1) -- Lack of Subject-Matter Jurisdiction
Fed. R. Civ. P. 12(h)(3) -- Dismiss for Lack of Subject-Matter Jurisdiction

Key Terms:
Abstention
Determination of Tax Owed
Jurisdiction

In re McGough, Case No. 17-13809-13 (10/26/2018) (592 B.R. 846) -- Judge Catherine J. Furay 10/26/2018

Case Summary:
In 2005, Tristan McGough borrowed funds from World Savings Bank, obtained a line of credit (“HELOC”) from Citibank, and gave both lenders mortgages in his home. Both lenders recorded their interests. Debtors later refinanced through First Tennessee, who received two mortgages: one for paying off the World Savings mortgage and a second for paying down the Citibank HELOC. However, the Citibank HELOC remained open. First Tennessee National Bank Association later assigned its first mortgage to U.S. Bank National Association. Three creditors filed claims asserted to be secured by the Debtors’ home. These claims, in order of their date of recording, are: (1) U.S. Bank for $176,516.33, (2) Citibank for $52,968.34, and (3) First Tennessee for $15,666.25. The parties stipulated U.S. Bank held a first priority mortgage. This Court previously ruled the value of the Debtors’ home is $190,000. Debtors objected to Citibank’s claim, stating First Tennessee’s mortgage had second priority and Citibank’s mortgage was defective for failing to notarize Lynnae’s signature. The Court found Citibank had a valid mortgage because notarization is required only for perfection, not attachment. Further, Citibank had a perfected security interest even though it failed to notarize Lynnae’s signature. Under Wisconsin statutes, if the recorder’s office accepts a record for filing, the record is considered properly recorded even if it contains errors. Since the Citibank HELOC was never closed and Citibank recorded its interest before First Tennessee, Citibank’s claim had priority over First Tennessee’s.

Statute/Rule References:
11 U.S.C. § 506(a) -- Determination of Secured Status
Wis. Stat. § 706.02 -- Requirements for a Valid Mortgage
Wis. Stat. § 706.05 -- Perfecting a Security Interest

Key Terms:
Priority
Recoding Statutes
Security Interest

In re Cranberry Growers Cooperative, Case No. 17-13318-11 (10/24/2018) -- Judge Catherine J. Furay 10/24/2018

Case Summary:
The United States Trustee (“UST”) appealed this Court's decision disallowing the administrative claim of the UST in regard to certain payments made by the Debtor, Cranberry Growers Cooperative, on a direct revolver loan. In that decision, the Court found certain payments were not “disbursements” subject to the UST quarterly fee under 28 U.S.C. § 1930(a)(6). Appeals of bankruptcy court final orders are heard by the District Court, unless the bankruptcy court certifies the order for direct review to the Seventh Circuit under 28 U.S.C. § 158(d)(2). To certify a final order for direct review, the bankruptcy court must certify that the order meets at least one of the following criteria: (1) the order involves a question of law as to which there is no controlling precedent in the Court of Appeals or Supreme Court; (2) the order involves a matter of public importance; (3) the order requires resolution of conflicting decisions; or (4) an immediate appeal to the Court of Appeals may materially advance the case. Here, the Court found all four to be present. UST quarterly fees impact Chapter 11 cases across the country. In addition, there is no precedent in the Seventh Circuit or Supreme Court on how to interpret the term “disbursement” while calculating UST fees, and courts within the Seventh Circuit have ruled inconsistently on what constitutes a “disbursement.” Finally, the Court found an immediate appeal to the Seventh Circuit would materially advance the progress of the case, as any decision by the District Court would likely have been appealed.

Statute/Rule References:
28 U.S.C. § 158(d)(2) -- Appeals
28 U.S.C. § 1930(a)(6) -- Bankruptcy Fees
Fed. R. Bankr. P. 8006(e)(1) -- Certification on the Court’s Own Motion

Key Terms:
Appeals
Direct Review
Disbursement
UST Quarterly Fee

In re Cranberry Growers Cooperative, Case No. 17-13318-11 (09/21/2018) (592 B.R. 325) -- Judge Catherine J. Furay 09/21/2018

Case Summary:
The U.S. Trustee (“UST”) filed a motion to include certain payments as “disbursements” subject to UST quarterly fees under 28 U.S.C. § 1930(a)(6). This case involved a unique set of facts. Debtor Cranberry Grower’s Association (“CranGrow”) had the same prepetition and postpetition lender, CoBank. CoBank offered a postpetition revolving line of credit that also “rolled-up” CranGrow’s prepetition debt into postpetition debt through diverting CranGrow’s accounts receivables. The prepetition debt was rolled-up into postpetition debt to the extent of each account receivable diverted through CoBank. Upon receiving an account receivable, CoBank collected interest and fees and immediately returned the remaining funds to CranGrow so CranGrow could pay operating expenses. Unlike other cases finding similar payments to be “disbursements,” the Court found the payments were not disbursements in this case because the payments at issue did not actually settle or repay any of the debt. In addition, there were concerns over the UST imposing a double fee as a result of CranGrow having to draw on its revolver in part to pay UST fees in the first place, since CranGrow often operated at a loss given the seasonal nature of the farming business.

Statute/Rule References:
28 U.S.C. § 1930(a)(6) -- Bankruptcy Fees

Key Terms:
Disbursement
UST Quarterly Fee

Donna B. Ray v. Educational Credit Management Corporation, et al. (In re Ray), Adv. No. 17-0102, Case No. 17-12521-13 (09/20/2018) (591 B.R. 834) -- Judge Catherine J. Furay 09/20/2018

Case Summary:
Plaintiff Donna Ray filed this adversary proceeding seeking to discharge her student loans under 11 U.S.C. §§ 727(a) and (b) and 523(a)(8). In 2004, Plaintiff signed a Federal Consolidation Loan Application and Promissory Note (“Note”). After a series of assignments and transfers, Defendant Educational Credit Management Corporation (“ECMC”) held the Note. In a previous bankruptcy case, Plaintiff objected to ECMC’s student loan claim. Because ECMC did not respond to the objection, its claim was denied. However, the Court held that denial of ECMC’s claim in the previous case was not equivalent to a discharge, as a discharge determination requires an adversary. As a result, the Court denied Plaintiff’s motion under section 727. In addition, Plaintiff objected to ECMC’s claim under section 523(a)(8), asserting ECMC failed to satisfy its initial burden establishing the presence of a student loan. Despite ECMC’s failure to present the original loan document, ECMC met its burden by producing a reliable copy of the Note containing Plaintiff’s signature in which Plaintiff certified she incurred the original loans to support payments for her education. Although ECMC produced only the first five pages of the nine-page loan document, the final four pages contained standard form language and the first five pages contained the material provisions and Plaintiff’s signature.

Statute/Rule References:
11 U.S.C. § 523(a)(8) -- Nondischargeability – Student Loan
11 U.S.C. § 727(a) -- Nondischargeability – Global Exception to Discharge
11 U.S.C. § 727(b) -- Nondischargeability – Previous Discharge

Key Terms:
Nondischargeable Debt
Student Loan

Summit Credit Union v. Todd G. Goldbeck (In re Goldbeck), Adv. No. 17-0103, Case No. 17-13077-7 (09/07/2018) (590 B.R. 881) -- Judge Catherine J. Furay 09/07/2018

Case Summary:
Creditor Summit Credit Union filed a motion for summary judgment seeking to declare a $2.5 million loan to be nondischargeable under 11 U.S.C. §§ 523(a)(2)(A), 523(a)(2)(B), and 523(a)(6). Debtor Goldbeck sought a loan to finance construction of a physical therapy center. Goldbeck knew the actual cost of the center totaled around $5 million, yet presented multiple documents to Summit showing the cost to be approximately $2.5 million. To close the loan, Summit requested a signed lease from a future tenant. Goldbeck submitted an allegedly signed lease that the evidence indicated was likely forged. The Court found Goldbeck intentionally deceived Summit without any justification or excuse. The Court denied summary judgment under section 523(a)(2)(B), holding that the use of financial projections did not constitute Debtor’s “financial statement.” However, the Court did grant summary judgment under sections 523(a)(2)(A) and (a)(6), finding that Goldbeck misrepresented the cost of the budget and “willfully and maliciously” injured Summit by leaving it with a half completed building incapable of generating any return on its $2.5 million investment.

Statute/Rule References:
11 U.S.C. § 523(a)(2)(A) -- Nondischargeability – False Pretenses, False Representation or Fraud
11 U.S.C. § 523(a)(2)(B) -- Nondischargeability – Use of a Statement in Writing
11 U.S.C. § 523(a)(6) -- Nondischargeability – Willful and Malicious Injury

Key Terms:
Nondischargeable Debt
Summary Judgment
Willful and Malicious - Defined

Judge Thomas M. Lynch

In re Gialamas, Case No. 18-13341-11 (06/27/2019) -- Judge Thomas M. Lynch 06/27/2019

Case Summary:
Upon the court’s grant of the Debtor’s motion to convert this involuntary chapter 7 case to chapter 11, the Debtor in Possession (“DIP”) moved to enlarge the exclusivity period. One of the original petitioning creditors, a defendant in a preference action brought by the DIP, opposed the Motion. The adversary proceeding arises from the creditor’s proof of claim for a state court judgment lien purportedly secured by, among other things, the DIP’s interest in a limited partnership. The creditor objected to the requested extension, arguing that the DIP was engaging in dilatory conduct or otherwise trying to coerce an advantageous settlement of the preference action which his involuntary chapter 7 petition sought to preserve. Emphasizing that not all litigation must be resolved before a debtor can propose a plan, the court found that the adversary proceeding may have a drastic impact on assets available to fund reorganization and the allocation of payments to creditors. The court concluded that the DIP met its burden to show sufficient cause for the requested extensions, finding the creditor’s concerns to be “vague.” The court further noted the clear possibility that the adversary may be resolved in a short time and that the action to avoid the allegedly preferential security interest stood to directly benefit the entire pool of general unsecured creditors rather than only the DIP, in allowing the requested three-month extension.

Statute/Rule References:
11 U.S.C. § 547 -- Preferences
11 U.S.C. § 1107(a) -- Powers of a Debtor in Possession
11 U.S.C. § 1121(b) -- Exclusivity Period
11 U.S.C. § 1121(c) -- Party in Interest’s Right to File a Plan
11 U.S.C. § 1121(d) -- Extensions of the Exclusivity or Acceptance Periods

Key Terms:
Debtor in Possession
Exclusivity Period
Individual Chapter 11
Involuntary Petition
Judgment Lien
Limited Partnership
Plan of Reorganization
Proof of Claim

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