United States: Wisconsin Court Of Appeals Enforces Knowledge Requirement For Preference Claims

Last Updated: September 20 2019
Article by Rachel M. Blise

Wisconsin’s Chapter 128 has long been something of a “wild west” of insolvency proceedings. Modeled on the provisions of the federal Bankruptcy Act of 1898, the statute empowers a circuit court to appoint a receiver to administer a debtor’s estate and to issue a protective order enjoining creditors from taking enforcement actions. But it lacks any direction for subjects addressed in detail in the modern Bankruptcy Code, such as the treatment of executory contracts or the operation of a debtor’s business during the pendency of the proceeding.

One area where the Legislature has provided some guidance is preference claims. Section 128.07(2) provides that a receiver can seek to avoid and require return of a payment made by the debtor within 4 months before the assignment is filed if “the recipient has reasonable cause to believe that the enforcement of the judgment or transfer would effect a preference.” The term preference is defined in section 128.07(1) as (1) a transfer of property (2) made by an insolvent debtor (3) the effect of which is to allow the recipient creditor to obtain a greater percentage of his or her debt than other creditors of the same class. The purpose of the statute is to prevent a single creditor or group of creditors from diminishing the debtor’s assets to the detriment of all other creditors.

Whether a particular payment is a preference is generally not in dispute, for it is often easy to determine whether a debtor was insolvent or the creditor received more than he otherwise would. The question is the level of knowledge a creditor must have for the receiver to prove that the creditor had “reason to believe” the payment was a preference. Does the creditor need to know merely that the debtor was insolvent, or must he also know that the payment would allow him to receive more than other creditors? The Wisconsin Court of Appeals weighed in this week with its opinion in Freund v. Nasonville Dairy, Inc., 2018AP1215 (Sept. 10, 2019).

The court swiftly held that the statute means what it says: a creditor receives a preference only if it has knowledge that the payment would effect a preference. To have this knowledge, the creditor must know both (1) that the debtor is insolvent, and (2) that the payment would put him in a preferential position. The court recognized that direct proof of these facts is almost never available, and it adopted a list of factors set forth in Goetz v. Zeif, 181 Wis. 628, 195 N.W. 874 (1923), that includes, among other things, the relation of the parties, the usual or unusual nature of the transfer, and the credibility and forthrightness of the witnesses as to their knowledge.

Most of the court’s opinion is devoted to analyzing the case under those factors. Liberty Milk Marketing Cooperative was a milk contractor that purchased milk from dairy farmers and sold the milk to cheesemakers like Nasonville Dairy. Between 2012 and 2014, Nasonville made many “milk advance” loans to Liberty, with Liberty often owing Nasonville hundreds of thousands of dollars. Beginning in January 2014, Nasonville also started making “check swaps” with Liberty. Each company would write a check to the other, Liberty would cash Nasonville’s check immediately, and Nasonville would hold Liberty’s check until it received word that Liberty had the funds to cover it. The final check swap before Liberty’s demise occurred on November 24, 12014, and Nasonville cashed Liberty’s $290,000 check six days later, on November 30. The next month, Liberty was unable to pay its milk producers and filed an assignment for the benefit of creditors under Chapter 128.

The receiver filed suit seeking to recover the $290,000 payment to Nasonville. The Court of Appeals affirmed the circuit court’s holding that the payment was a preference. Nasonville could easily tell that Liberty was insolvent in light of its ever-increasing need for additional funds. The Court of Appeals also had no trouble concluding that Nasonville knew it received more than other creditors. In fact, the circuit court had found that Nasonville agreed to the check swaps when Liberty had trouble paying the milk advances because the check swaps would better protect Nasonville.

The court’s ruling appears to be a win for creditors and receivers alike. Creditors with little relationship to a debtor will be better able to respond to preference demands because a receiver will have a hard time proving knowledge of a preference unless the creditor had some additional insight that would provide knowledge of preferential treatment. Receivers, on the other hand, are likely to seize on any available facts that might prove a creditor had such insight. The Court of Appeals was clear that the creditor’s knowledge is inherently a question of fact, which almost certainly precludes a quick resolution in litigation. This ruling also further separates Wisconsin state law preference claims from preference claims under the Bankruptcy Code, which has no knowledge requirement for recovery preferential transfers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions