Court recommended granting summary judgment dismissing adversary proceeding based upon ordinary course of business and new value defenses to the preference action. The Court took into account the seasonal variations in the debtor's business cycle when considering the parties' ordinary course of business.
In re Carl & Dawn Hurley, Case No. 11-23485, All Wheels Financial, Inc. v. Debtors, Adv. No. 12-2205 (August 2012) -- Judge M.D. McGarity
Creditor was denied summary judgment and sec. 523(a)(3)(A) cause of action against chapter 7 debtors was dismissed. Although creditor had not received notice of bankruptcy in time to file a timely proof of claim in asset case, it had knowledge of bankruptcy case in time to file a tardy proof of claim and fully participate in the distribution under sec. 726(a)(2)(C), but chose not to do so.
In re Steven & Jill Enright, Case No. 11-29169, Great Lakes Agri-Services, LLC v. State Bank of Newburg, Adv. No. 11-2868 (July 2012) -- Judge M.D. McGarity
Creditor's motion for summary judgment seeking an order requiring the marshaling of assets, namely by requiring another bank to liquidate the real property mortgaged by non-debtors prior to executing on the real property mortgaged by the chapter 12 debtors, in which creditor also had a secured interest, was denied.
In re Marcelino & Michelle Wittman, Case No. 10-22811 (July 2012) -- Judge M.D. McGarity
Chapter 13 debtors objected to mortgagee's secured claims. Error in description of mortgage caused it to be indexed outside chain of title, resulting in a voidable lien. Reversed: Bank of New York Mellon Trust Co. v. Debtors, Case No. 12-C-846 (E.D. Wis. Jan. 15, 2013) (holding search of tract index is not sufficient for a purchaser to be considered in good faith and without notice)
In re Clark & Sara Meyer, Case No. 11-24099 (March 2012) -- Judge M.D. McGarity
US Trustee moved to dismiss chapter 7 debtors' case pursuant to section 707(b), arguing the debtors' expenses, including tuition for parochial school, were excessive. Debtors countered that section 707(b)(2)(A)(ii)(IV), which limits deductions for education expenses on the means test, was unconstitutional because it suppressed their right to practice religion. The court found section 707(b)(2)(A)(ii)(IV) was not unconstitutional and granted the motion to dismiss.
In re Wolverine Fire Apparatus Co., Case No. 09-32985, Larry Liebzeit, Trustee v. FVTS Acquisition Co., Inc., Adv. No. 11-2080 (January 2012) -- Judge M.D. McGarity
Chapter 7 Trustee was granted summary judgment against seller of truck due to transaction with debtor being construed as a "consignment for security" and subject to avoidance by the trustee.
In re Darrell Edwards, Case No. 11-23195, Debtor v. Deutsche Bank National Trust Co., Adv. No. 11-2505 (December 2011) -- Judge M.D. McGarity
Secured creditor's motion to dismiss complaint for failure to state a claim was granted. Bank had standing to enforce the Note and Mortgage.
In re Michelle Georgi, Case No. 11-21642, Richard Hebel v. Debtor, Adv. No. 11-2375 (November 2011) -- Judge M.D. McGarity
Chapter 7 debtor's motion to dismiss denied. Complaint of debtor's former spouse for finding of nondischargeability under sec. 523(a)(5) and/or 523(a)(15) stated claim upon which relief could be granted, despite lack of "hold harmless" agreement in parties' marital settlement agreement.
In re Richard VanDynHoven, Case No. 10-28421, The Bank of Kaukauna v. Debtor, Adv. No. 10-2474 (November 2011) -- Judge M.D. McGarity
Bank's claim arising for IRS and Dept. of Revenue overdrafts was nondischargeable under sec. 523(a)(14) and (a)(14A) because the overdrafts were debts incurred to satisfy tax obligations that would have been nondischargeable if they had not been honored.
In re Patricia A. McClellan, Case No. 05-44803, William T. Neary, UST v. Debtor, Adv. No. 07-2141 (October 2011) -- Judge M.D. McGarity
United States Trustee's motion pursuant to Fed. R. Civ. P. 60(a) for correction of error in order denying debtor's discharge was granted. The order improperly denying the discharge under sec. 727(a)(8), instead of section 727(a)(2), was a clerical error, not a legal error.