McDonald v. Little Limestone, Inc. (In re Powers Lake Constr. Co.), 482 B.R. 803(November 2012) -- Judge Kelley
Trustee could recover preferential payment made by Debtor contractor to subcontractor despite Wisconsin Statute creating trust fund in amounts paid by owners to contractors, because between date that Debtor received payment from owner and check to subcontractor cleared Debtor's bank, Debtor's bank account went into a negative balance. Under the "lowest intermediate balance test," this destroyed the trust fund. Subcontractor's giving of a lien release did not satisfy the contemporaneous exchange defense, but whether payment was in ordinary course of business could not be decided on summary judgment, based on the materials submitted.
Gerard v. Gerard (In re Gerard), 482 B.R. 265(November 2012) -- Judge Kelley
State court jury's determination that debtor committed slander of title was given preclusive effect, and judgment debt was nondischargeable as a willful and malicious injury under § 523(a)(6).
In re Thongta, 480 B.R. 317(October 2012) -- Judge Kelley
Chapter 13 Trustee is not required to provide Rule 3002.1 Notice of Final Cure Payment to Creditor that has received relief from stay and withdrawn its claim. If Trustee does provide such a Notice, the Creditor does not lose any rights by failing to respond.
In re Dorff, 480 B.R. 919 (October 2012) -- Judge Kelley
Where debtor's failure to pay the filing fee was not caused by circumstances beyond the debtor's control, Court would not vacate the order of dismissal.
In re Tekavec, 476 B.R. 555(August 2012) -- Judge Kelley
Partially secured short term home equity line of credit could be crammed down under § 1322(c)(2), even though the initial term of the agreement was extendable and renewable at the option of the creditor.
Moss v. Sallie Mae, Inc., 470 B.R. 505(April 2012) -- Judge Kelley
Student loan creditor's policy conditioning debtor's new post-petition student loan on cure of default on pre-petition student loan did not violate automatic stay or anti-discrimination provisions of 11 U.S.C. § 525(c).
In re Archdiocese of Milwaukee, 470 B.R. 495(February 2012) -- Judge Kelley
Negligence claims against the Archdiocese were derivative of the original abuse claims and shared the same statute of limitations; a question of fact for trial remained on when the fraud claims were or should have been discovered.
Claimant who settled and released his claims against the Archdiocese prior to the petition was bound by the release, and failed to prove the required elements for fraudulent inducement into settlement.
In Chapter 13 case, junior lienholder’s secured status is not affected by the senior lienholder’s failure to file a claim within 90 days of the § 341 meeting of creditors.
Building Trades United Pension Trust Fund v. Mueller, 2011 Bankr. LEXIS 2290(June 2011) -- Judge Kelley
Creditor's Motion for Summary Judgment denied where factual issues remained on whether Debtor's violation of theft by contractor statute was more than merely negligent.