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Opinions


    In re Randell, Case No. 21-25175-BEH, and In re Sellers, Case No. 21-25284, 2022 WL 174210 (January 2022) -- Judge B.E. Hanan
    On motions for reconsideration of orders sustaining an objection to confirmation and requiring equal monthly payments to a secured creditor, the court did not accept the debtors’ argument that cure-and-maintain mortgage claims paid “within a reasonable time” in accordance with 11 U.S.C. § 1322(b)(5) were exempt from § 1325(a)(5)(B)(iii)(I)’s mandate that property be distributed “in equal monthly payments,” relying in part on Rake v. Wade, 508 U.S. 464 (1993). The fact that the debtors’ plans proposed to pay only prepetition mortgage arrearages through the plans did not alter the conclusion that the enactment of § 1322(e) (which partially abrogated Rake v. Wade) did not remove cure payments from coverage under § 1325(a)(5). The court also reminded that an order denying plan confirmation is not a final, appealable order subject to reconsideration under Fed. R. Civ. P. 60(b) or 59(e), but instead exercised its discretion to reconsider its interlocutory order.

    In re Urgent Care Physicians, Ltd., Case No. 21-24000-BEH, 2021 WL 6090985 (December 2021) -- Judge B.E. Hanan
    The U.S. Trustee objected to confirmation of a nonconsensual Chapter 11, Subchapter V, plan of reorganization, asserting that the debtor should be required to extend the plan’s three-year term to five years to satisfy the “fair and equitable” test of 11 U.S.C. § 1191(c)(2)). Finding the text of the Code silent as to how bankruptcy courts should “fix” the term of a Subchapter V plan under § 1191(c)(2), the court considered analogous Code provisions applicable to Chapter 12 plans, as well as the legislative history of Subchapter V, to conclude that the debtor’s proposed three-year plan term was fair and equitable in the circumstances, as it properly balanced the risks and rewards for all stakeholders.

    In re Harrington, Case No. 16-25279-BEH, 2021 WL 4465568 (September 2021) -- Judge B.E. Hanan
    “Plan shortening” special provision in Chapter 13 plan providing that plan would end once it reached 36 months and unsecured creditors had received “not less than 1% of their respective total claims” did not conflict with separate plan provision requiring the debtor to turn over to the Chapter 13 trustee half of all net federal and state income tax refunds “received during the term of the plan.” Debtor’s obligation to make monthly plan payments to the trustee was in addition to his obligation to turn over a portion of his tax refunds, and because the debtor received his 2020 tax refunds before unsecured creditors had received at least 1% on their claims—i.e., during the term of the plan—the debtor was required to turn over the full amount to the trustee for payment to unsecured creditors, even if the resulting distribution would be greater than 1%.

    In re Lupton Consulting, LLC, Case No. 20-27482-BEH, 2021 WL 3890593 (August 2021) -- Judge B.E. Hanan
    A secured creditor and the U.S. Trustee objected to confirmation of a Chapter 11 (subchapter V) joint plan of reorganization filed by two fitness clubs, alleging that the plan contained impermissible third-party releases and injunctions. The U.S. Trustee further asserted that the plan could not be confirmed because it was not feasible and was not proposed in good faith. The Court sustained the objections and denied confirmation. The Court concluded that each of the plan’s three separate non-consensual injunctive provisions—providing for (1) the extinguishment of liens on non-estate property as of the confirmation date; (2) a temporary injunction of actions against guarantors during the term of the plan; and (3) a release of guarantors after completion of the plan—was neither narrowly tailored nor essential to the reorganization as a whole, as required under Seventh Circuit precedent. The Court also concluded that the debtors had failed to meet their burden to establish that the plan was feasible because their financial projections were not borne out by the available historical data, and they offered no credible evidence to explain away material discrepancies. Finally, the Court was unable to find that the plan was proposed in good faith, due to a combination of factors: (1) the debtors initially failed to disclose accurately the amount of prepetition insider transfers made to or for the benefit of the debtors’ manager (primarily due to the manager’s poor record-keeping practices and use of personal loans to fund business expenses); (2) the plan did not provide for payments to all creditors and appeared to afford preferential treatment to some general unsecured claims; and (3) the plan provided for the payment of what appeared to be excessive personal expenses of the debtors’ manager and his family, while simultaneously providing fractional distributions to unsecured creditors and proposing to release the debtors’ manager from his guarantees of significant amounts of unsecured debt.

    Reinhart FoodService LLC v. Schlundt (In re Schlundt), Adv. No. 20-02091-beh, Case No. 14-20454-BEH, 2021 WL 3700401 (Bankr. E.D. Wis. Aug. 19, 2021), rev'd and remanded sub nom. Reinhart FoodService LLC v. Schlundt, No. 21-CV-1027-BHL, 2022 WL 15523157 (August 2021) -- Judge B.E. Hanan
    A Chapter 7 debtor received a discharge in a no-asset case in April 2014. Years before filing his petition, he signed a personal guaranty for the debts of his wholly-owned LLC. In 2018, the LLC went out of business, and the creditor to whom the debtor guaranteed the LLC’s debts moved to reopen the case for a determination that the debtor’s liability for the debt incurred by the LLC after April 2014 was not discharged. The Court recognized a split in case law on whether liability created by a guaranty executed prepetition survives a discharge if the relevant charges are incurred post-discharge. Applying the conduct test adopted in the Seventh Circuit and as described in Saint Catherine Hosp. of Ind., LLC v. Ind. Family and Soc. Servs. Admin., 800 F.3d 312 (7th Cir. 2015), the Court concluded that the conduct giving rise to the creditor’s claim against the debtor was the prepetition signing of the personal guaranty, the debt under the personal guaranty was contingent on a future default, and therefore the debt was dischargeable as part of the debtors' 2014 bankruptcy discharge.

    Grose v. City of Milwaukee (In re Grose), Case No. 20-25361, Adv. No. 20-02110, 2021 WL 2955041 (July 2021) -- Judge B.E. Hanan
    The debtor filed a complaint, seeking a declaration that the defendant, the City of Milwaukee, engaged in a transaction that is voidable under 11 U.S.C. § 548(a)(1)(B) when it foreclosed real property to satisfy outstanding property tax obligations, and to set aside that transfer pursuant to § 522(h). The City of Milwaukee filed a motion to dismiss, which was converted to a motion for summary judgment, arguing that the debtor lacked standing to bring the complaint. The City asserted that once the owner of record failed to redeem the property, she was divested of her ownership interest and was unable to transfer the property to the debtor via quitclaim deed. The debtor argued that it is the foreclosure judgment date, and not the redemption deadline, that transfers ownership interest. The Court found that the original owner retained an interest sufficient to transfer her interest to the debtor. Alternatively, even if the redemption deadline served to divest the original owner of her interest, the City’s subsequent communications were sufficient to extend the redemption deadline.

    In re Ryan 1000, LLC, Case No. 21-21326-beh, and In re Ryan 8641, LLC, Case No. 21-21327-beh, 2021 WL 2787603 (July 2021) -- Judge B.E. Hanan
    Chapter 11 debtors-in-possession sought to employ bankruptcy counsel more than two months after the petition date. The U.S. Trustee objected to the debtors’ applications to employ and simultaneously moved to dismiss the cases under 11 U.S.C. section 1112(b)(4)(D), based on the debtors’ unauthorized use of cash collateral that, according to the U.S. Trustee, was substantially harmful to one or more creditors. The Court denied the debtors’ applications to employ and the U.S. Trustee’s motions to dismiss. In declining to approve the employment of counsel for the debtors, the Court found that (1) counsel’s representation of the debtors, while simultaneously representing their individual owners and codebtors in a pending Chapter 13 bankruptcy case, posed a conflict of interest; and (2) in light of counsel’s lack of Chapter 11 experience or demonstrated ability in the cases, counsel had not established that appointment was in the best interest of the debtors’ estates. The Court denied the U.S. Trustee’s motions to dismiss because, although the debtors had used a secured creditor’s cash collateral without consent from the creditor or authorization from the Court, the U.S. Trustee failed to prove that such use was substantially harmful to the secured creditor or any other creditors. The debtors used the cash to pay for repairs, insurance, and other regular expenses necessary for continued operations, a substantial equity cushion existed to protect the secured creditor’s interest in the debtors’ collateral, and the debtors’ most recent operating reports reflected positive net income.

    In re Chapman, Case Nos. 18-30442, 19-22820, 19-26731, 2021 WL 1346046 (March 2021) -- Judge B.E. Hanan
    After the debtor’s daughter filed three bankruptcy cases in her representative capacity under a durable power of attorney, the debtor sought to expunge or seal the records. The Court determined that it did not have authority to equitably expunge the bankruptcy cases. Because the debtor executed a durable power of attorney which authorized her attorney-in-fact to institute bankruptcy proceedings, and because she never formally revoked that authority, the Court found that the filings were authorized, which foreclosed any basis for sealing or annotation of the record. The Court noted, however, that cases initiated by an attorney-in-fact should take extra precautions to make clear the signer’s representative capacity.

    Branko Prpa, LLC v. Ryan et al. (In re Ryan), 629 B.R. 616, aff’d sub nom. Ryan v. Branko Prpa MD LLC, No. 21-CV-0449-BHL, 2022 WL 613313 (E.D. Wis. Mar. 2, 2022) (on appeal) (March 2021) -- Judge B.E. Hanan
    Prior to filing for bankruptcy, the debtor entered into a compromise agreement concerning a workers’ compensation claim, which an administrative law judge approved in an order directing that part of the total compromise amount be paid to the debtor, part be paid to the debtor’s workers’ compensation counsel, and the remainder be paid to the debtor’s counsel’s law firm’s trust account “for disbursement to medical providers and lienholders.” The debtor tried to exempt the entire amount of the compromise, and one of the medical-provider creditors objected, asserting that the amount ordered to be set aside for the medical providers and lienholders was not the property of the debtor and therefore could not be exempted. The creditor also requested that the Court declare an express trust or impose a constructive trust on those set-aside funds. The Court granted summary judgment in favor of the creditor, concluding that, under Wisconsin law, the state court administrative order created an express trust, or, in the alternative, imposition of constructive trust was appropriate, meaning the funds ordered to be set aside for disbursement to third parties were not the property of the debtor and could not be exempted.

    Verde Technologies v. C2R Global Manufacturing, Inc. (In re C2R), Case No. 18-30182-beh, Adv. No. 20-2028-beh, 2020 WL 7265867 (December 2020) -- Judge B.E. Hanan
    Both parties submitted various motions to seal, supplying some evidence to support the motions, namely, declarations of officers within the companies explaining why the information to be protected falls within the scope of 11 U.S.C. § 107(b). The Court reviewed the categories of documents to determine whether they constituted trade secrets or confidential research, development, or commercial information as contemplated under the Code. In instances where the Court determined the information to be subject to public disclosure, the parties were granted 21-days’ leave to supplement the record in favor of protection.