OpinionsIn a nondischargeability action under §523(a)(4), the plaintiff failed to prove the element of defalcation in a fiduciary capacity, because it failed to prove that the defendant's violation of Wisconsin's theft-by-contractor (Wis. Stat. §779.02(5)) law involved more than mere negligence. Starfire v. Dolata, 09-2056 (September 2010) -- Judge P. Pepper The defendant committed theft by contractor when he used trust funds to pay himself and to pay the overhead expenses of his business. Accordingly, his debt to the materials supplier was nondischargeable pursuant to 11 U.S.C. section 523(a)(4). The defendant's attempt to argue that he paid the materials supplier "proportionally" was not successful; the evidence did not demonstrate either that he paid the material supplier proportionally to himself, or that he paid the supplier proportionally to what he received from the project owners. Nor was the fact that he used the funds to pay his overhead, and thus, to enable him to complete the jobs, a defense to the theft-by-contractor claims. The plaintiff, however, did not prove the necessary intent to justify treble damages. In re Thomas William Reimann, Case No. 09-37695 Published: In re Reimann, 436 B.R. 564 (September 2010) -- Judge M.D. McGarity State Department of Corrections did not violate the automatic stay when it deducted funds from chapter 7 debtor's prisoner trust account postpetition and applied them against an obligation to pay for medical services received while he was in prison. The obligation was a nondischargeable penalty, as well. Estate of Sustache v. Mathews, 433 B.R. 732 (August 2010) -- Judge S.V. Kelley Debtor proved his affirmative defense of self-defense to willful and malicious injury claim under Bankruptcy Code § 523(a)(6). In re Dwight & Robecca Glaubitz, Case No. 09-38348 Published: In re Glaubitz, 436 B.R. 99 (August 2010) -- Judge M.D. McGarity Debtors were not eligible for chapter 13 because their unsecured debts exceeded cap set forth in section 109(e). The debtors' liabilities relating to their personal guarantees of corporate debt were not contingent. In re Scott & Annabelle Wettstein, Case No. 09-36498, Tammy Montonati v. Scott Wettstein, Adv. No. 10-2124 (July 2010) -- Judge M.D. McGarity Under doctrine of judicial estoppel, chapter 13 debtor was prohibited from arguing his conduct did not result in a willful and/or malicious injury pursuant to sec. 1328(a)(4), due to his previous state court stipulation that obligation was nondischargeable based on the willful and malicious injury to plaintiff. In re Valley Petroleum, LLC, Case No. 09-28869, Debtor v. Garrow Oil Corp., Adv. No. 09-2328 (July 2010) -- Judge M.D. McGarity Certain electronic fund transfers and credit card receivables received prepetition by the chapter 11 debtor's fuel supplier were avoidable preferences. Because payment terms for new fuel shipments changed from being due 10 days after delivery to cash-in-advance, the additional payments on the balance owed the supplier were neither contemporaneous exchanges for new value nor made in the ordinary course of the parties' business. In re Meyers, 431 B.R. 823 (July 2010) -- Judge S.V. Kelley Debtors who inadvertently omitted tax refund from Schedules could amend Schedules and claim refund as exempt, when Trustee could not prove by clear and convincing evidence that refund was concealed or creditors were prejudiced. In re Arnhoelter, 431 B.R. 453 (July 2010) -- Judge S.V. Kelley Debtor could not claim Wisconsin homestead exemption in property that was owned by Debtor's LLC when judgment was docketed. In re Share Building Products, Inc., Case No. 09-21553 (June 2010) -- Judge M.D. McGarity Court overruled chapter 11 debtor's objections to claims of former employees. Employees were entitled to wages earned but not paid pursuant to doctrine of quantum meruit. |