Portage County Bank v. Deist

464 N.W.2d 856, 159 Wis. 2d 793, 1990 Wisc. App. LEXIS 1257
CourtCourt of Appeals of Wisconsin
DecidedDecember 20, 1990
DocketNo. 89-2266
StatusPublished
Cited by3 cases

This text of 464 N.W.2d 856 (Portage County Bank v. Deist) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Portage County Bank v. Deist, 464 N.W.2d 856, 159 Wis. 2d 793, 1990 Wisc. App. LEXIS 1257 (Wis. Ct. App. 1990).

Opinion

GARTZKE, P.J.

James and Jo Ann Deist appeal from a judgment in favor of M&I Bank of Portage County foreclosing their interests in their home. The foreclosure arises out of the Deists' guarantees to the bank on its loans to Deist Forest Products, Inc. After [795]*795Forest Products defaulted on the loans, it sought protection under chapter 11 of the Bankruptcy Code and proposed a reorganization plan.

The dispositive issues are whether: (1) the bank is precluded from asserting a deficiency against the Deists because the bankruptcy court found that the property transferred to the bank under the confirmed plan was the "indubitable equivalent" of its second claim against Forest Products; and (2) the Deists may assert that the bank's sales of the property transferred to it were commercially unreasonable and made with no notice to them. We conclude that the bank is not precluded from asserting a deficiency against the Deists, and the Deists' guarantees of payment are absolute. We therefore affirm the judgment.

The reorganization plan proposed in relevant part: "The debtor shall transfer to the claims [of a class into which the bank's secured claims fall] property of a value equal to the amount of such claims existing on the date of the filing of the petition for relief herein, as allowed by the Court, in full satisfaction of said claims." The bank objected to the reorganization plan but the bankruptcy court "crammed down" the plan under 11 U.S.C. sec. 1129. "Cram down" refers to the power of the bankruptcy court under sec. 1129(b)(1) to approve a reorganization plan at the request of the proponent even if the creditors object. Under a "cram down," the court must affirm the plan if it is "fair and equitable, with respect to each class of claims or interests that is impaired under, and has not accepted, the plan." 11 U.S.C. sec. 1129(b)(1). To be fair and equitable as to the holders of secured claims, such as the bank, the plan must provide "for the realization by such holders of the indubitable [796]*796equivalent of such claims." 11 U.S.C. sec. 1129 (b)(2) (A) (iii).

As part of the cram down proceedings, the bankruptcy court found that when the chapter 11 petition was filed, the bank's claim totaled about $298,351 and that it was entitled to interest on that amount to the time of transfer. The court valued Forest Products' real property at $168,500 and found that the "indubitable" value of its personal property was 66% of its current appraised value. The court approved the plan and ordered that Forest Products transfer to the bank "such items of its personal and real property as, using the valuation set forth above, equals the bank's claim plus the interest charges . . .." The Deists' guarantees are not mentioned in the reorganization plan or the cram down order.

After the bank sold the property transferred to it, Forest Products applied to the bankruptcy court to redetermine its debt to the bank. Observing it was "necessary once and for all to bring the case to a final conclusion," the court redetermined the debt and concluded, on the basis of the valuations in the cram down, that the transfer resulted in an "overpayment" of $8,054 to the bank.1 The bankruptcy court gave Forest Products judgment for that amount against the bank.

The bank then began the foreclosure action against the Deists in state court. Forest Products applied to the bankruptcy court for an injunction to prevent the bank from proceeding with foreclosure. The court denied the request. The court relied on 11 U.S.C. sec. 524(e) which provides: "Except as provided in subsection (a)(3) of this section, discharge of a debt of the debtor does not affect [797]*797the liability of any other entity on, or the property of any other entity for, such debt." The court cited three cases decided before sec. 524(e) was adopted.2

The bankruptcy court held that although it had given Forest Products credit for property transferred to the bank and ordered that the debt be hilly discharged, "[b]oth the Bankruptcy Code and caselaw overwhelmingly support the conclusion that the bankruptcy court did not and cannot relieve the personal guarantors from their liability on their guarantees. Nothing, therefore, precludes [the bank] from pursuing collection of their deficiency against the Deists."

Forest Products unsuccessfully appealed that decision to the United States District Court. The district court held on the basis of sec. 524(e) that the bankruptcy court could not extinguish liability of a guarantor who was not a party to the bankruptcy. The district court then discussed "the more delicate problem" whether a creditor may be estopped from asserting a deficiency claim against a guarantor after the creditor received what had been determined to be the "indubitable equivalent" of its claim against the principal.

[798]*798The district court found no basis for the estoppel. The court held that:

[A]pplying the rationale of sec. 524(e), in the spirit of Newboles, despite the appearance of a complete satisfaction of the debt owed to [the bank] ... by virtue of its receipt of the indubitable equivalent of its claim in property valued by the bankruptcy court, there is no basis for granting the requested injunction barring [the bank's] proceedings against [the Deists]. Estop-pel cannot attach merely because of a suggestive term used in administering federal bankruptcy law.

Still frustrated in its search for an injunction against the bank's foreclosure action, Forest Products appealed to the United States Court of Appeals. That court held that no case or controversy existed between Forest Products and the bank, since Forest Products had been released from liability on its debt to the bank and wanted a decree to benefit only the Deists. In re Deist Forest Products, 850 F.2d 340, (7th Cir. 1988). For that reason, the court of appeals vacated the judgment of the district court.

Upon their return to the circuit court in which the foreclosure was pending, that court rejected the arguments Deists made to the bankruptcy court and the federal district court. It entered a judgment against the Deists for $30,739 principal plus $19,663 interest and $10,892 attorney's fees, costs and disbursements which had accumulated, for a total of $61,295. The amount of the judgment is unchallenged.

In this appeal, Deists continue to assert that the bank is estopped from seeking the deficiency from them. They use the term "estoppel by record," a usage consistent with some older cases such as Kuchenreuther v. Chicago, M., St. P.&P. R.R., 225 Wis. 613, 275 N.W. 457 (1937). We follow the usage in Restatement (Second) of [799]*799Judgments sec. 27 (1980), which states: "When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." This rule, known as "issue preclusion," subsumes the concepts of direct and collateral estoppel, Restatement (Second) of Judgments sec. 27 & comment b, and is included in the concept "res judicata." In re T.M.S., 152 Wis. 2d 345, 350 n.5, 448 N.W.2d 282, 284 (Ct. App. 1989).3

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Bluebook (online)
464 N.W.2d 856, 159 Wis. 2d 793, 1990 Wisc. App. LEXIS 1257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/portage-county-bank-v-deist-wisctapp-1990.