NOT FOR PUBLICATION UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE TENTH CIRCUIT

_________________________________ In re GEORGE VELASQUEZ,
Debtor.

___________________________________ GEORGE VELASQUEZ, Appellant,

v. YVETTE GONZALES, Chapter 7 Trustee, & LOS ALAMOS NATIONAL BANK, Appellees. BAP No. NM

- 18

- 076

Bankr. No. 12

- 10670 Chapter 7

OPINION *

_________________________________ Appeal from the United States Bankruptcy Court for the District of New Mexico

_________________________________ Submitted on the briefs. **

_________________________________ Before SOMERS , MOSIER , and MARKER , 1 Bankruptcy Judges.

* This unpublished opinion may be cited for its persuasive value, but is not precedential, except under the doctrines of law of the case, claim preclusion, and issue preclusion. 10th Cir. BAP L.R. 8026

- 6.

** After examining the briefs and appellate record, the Court has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. Bankr. P. 8019(b). The case is therefore submitted without oral argument. 1 Joel T. Marker, U.S. Bankruptcy Judge, United State s Bankruptcy Court for the District of Utah, sitting by designation. FILED U.S. Bankruptcy Appellate Panel of the Tenth Circuit June 18, 2019
Blaine F. Bates Clerk2 _________________________________ MOSIER , Bankruptcy Judge. Successfully challenging a trustee’s decision to settle litigation is a difficult task. To do so, the party opposing the settlement must establish that the settlement falls below
the lowest point in the range of reasonableness

. 2 The Appellant did not make that showing, and we therefor e affirm the Bankruptcy Court ’s decision.
I. FACTUAL AND PROCEDURAL HISTORY
A. The Business Loan
Debtor George Velasquez owned and operated a corporation called Professional Business Assistants, Inc. (PBA) , which borrowed $396,000 from L os A lamos N ational
B ank (LANB) in August 2006 (Business Loan). The Business Loan had a thirty

- year term and a variable interest rate. LANB secured the Business Loan with a mortgag e against PBA’s commercial building in Santa Fe, New Mexico. The Debtor also personally guaranteed the Business Loan.
PBA defaulted on the Business Loan but LANB agreed to renew the note, re amortizing princip a l and interest , though re taining the same maturity date

. After PBA
defaulted on th e first renewal , LANB and PBA executed a second renewal note in June 2010, which provided PBA would make one balloon payment of the remaining loan balance on December 1, 2010 (June Renewal). PBA defaulted on the June Renewal’s balloon payment, resulting in a final renewal , which extend ed the maturity date until

2 Rich Dad Operating Co.v. Zubrod (In re Rich Global, LLC) , 652 F. App’x 625, 631 (10th Cir. 2016) (unpublished).3 April 1, 2011 (December Renewal). On March 1, 2011, the Debtor and PBA signed a

one - month promissory note for $13,846.14, due April 1, 2011 (Short Term Lo an).
B. The Personal Loan The Debtor borrowed $273,000 from LANB in March 2007 (Personal Loan). LANB secured the Personal Loan with a mortgage against the Debtor’s residence in Santa Fe, New Mexico. The Debtor defaulted on the Personal Loan in March 2010. Th e Debtor and LANB executed a modification agreement , re - amortiz ing the principal
balance of, and accrued interest o n, the Personal Loan

. C. LANB’s Collection Actions and the Debtor’s Bankruptcy By the spring of 2011, the Debtor and PBA had defaulted on the Bu siness , Personal, and Short Term Loans a n d all subsequent renewals . Accordingly, LANB sent a notice of default in April 2011. The Debtor held six personal bank accounts with LANB , and PBA held two business bank accounts. The deposit account agreements authorized
LANB to freeze and offset account balances against outstanding obligations. In early June 2011, LANB froze the Debtor ’s and PBA’s bank accounts and offset $3,840.62
from th ose bank account balances on account of the o utstanding obligations. 3
LANB filed a state court foreclos ure action against PBA and the Santa Fe commercial property to recover on the Business and Short Term Loans in July 2011. The

3 LANB initially offset $5,570.13, but returned $1,729.51 upon discovering it was drafted from a joint account held by the Debtor and his daughter.4 Debtor and PBA paid off the balance of the Business and Short Term Loan s in November 2011, and LANB dismissed the foreclosure action.
LANB also filed a state court foreclosure action against th e Debtor and his Santa
Fe residenc e to recover on the Personal Loan in August 2011. The Debtor filed his bankruptcy case on February 24, 2012, staying the foreclosure. The Debtor received a discharge on June 6, 2012, and the case closed later that month on June 18. The Debtor reopened the case nine days later on June 27, alleging LANB had violated the automat ic stay. While the case was reopened, t he Debtor amended his schedules to list his interest
in PBA , valu ing it at $1 , and to list a claim against LANB for wrongful foreclosure , also

v aluing it at $1. The state court entered a final foreclosure judgment in August 2016 , and the foreclosure sale of the Debtor’s home occurred in September 2016. LANB filed a proof of claim for approximately $164,259 on account of the deficiency resulting from
that sale. In February 2017, t he Debtor filed a state court lawsuit ag ainst LANB alleging thirteen claims relating to the Business Loan and setoff. T he Debtor alleged that LANB
had breach ed the terms of the Business Loan and renewals 4 and that the offsets from his
bank accounts constituted conversion. In the meantime, the Debtor’s bankruptcy case closed and reopened three times,
the last of which occurred i n March 2017. Yvette Gonzales was appointed as Chapter 7

4 The Debtor claimed the purpose of the modification was to extend the maturity date and that he did not learn of LANB’s misrepresentations until January 2016. Exhibit D, Affidavit of George Velasquez at 1

- 4, in Appellant’s App. at 163

- 66.5 trustee (Trustee). The Debtor amended his schedules to value his claims agains t LANB at $6,748. He also amended his Schedule C to exempt any recovery on the claims against
LANB. 5 The Trustee investigated the lawsuit against LANB and the parties began settlement negotiations.
D. The Motion to Approve Compromise
The Trustee filed the Mo tion to Approve Compromise of Controversy on December 11, 2017 (Motion to Compromise). 6 The Trustee and LANB proposed to settle
the estate’s claim s against LANB in exchange for payment of $10,000 to the estate and waiver of LANB’s $164,259 proof of claim. The Debtor filed his Objection to Motion to Approve Compromise of Controversy (Objection) on January 2, 2018. 7 At a preliminary hearing on April 9, 2018, the B ankruptcy C ourt set a discovery deadline of June 4, 2018, and scheduled a final hearing on the Mo tion to Compromise for June 20, 2018. LANB and the Debtor agreed to an informal extension of discovery deadlines until June 8, 2018. After receiving LANB’s discovery responses on June 8, the Debtor filed a motion to continue the hearing (Motion to Continu e ), arguing he needed an additional two weeks to review the responses. LANB objected to the Motion to Continue and the
B ankruptcy C ourt held a hearing to address the matter on June 18, 2018. The B ankruptcy

5 The Debtor stipulated to the denial of his claim of exemption of any award for the claims against LANB in September 2017. 6 Appellant’s App. at 135. 7 Ap pellant’s App. at 142.6 C ourt denied the Motion to Continue the same day, requiring the Debtor to tender his witness list by June 18 at 5 :00 pm and his exhibit list by June 19 at 5 :00 pm. The B ankruptcy C ourt proceeded with the hearing on the Motion to Compromise on June 20, as sc heduled. At that hearing the Debtor testified that he was unaware the maturity date of the Business Loan had been reduced by the renewals and he suggested
that LANB had fraudulently foreclosed based on altered notes. He also testified that he
had suffered damages in the form of lost business profits as a result of the account freeze and offset, estimating his damages between $15,000,000 and $30,000,000.
The Trustee testified that , after evaluat ing the Debtor’s claims against LANB , she
believed the likeliho od of success on the claims was “slim to none.” 8 Furthermore, she
did not believe the Debtor’s claim that LANB had misrepresented the maturity date was credible or that his damage claim could be supported. Finally, the Trustee testified that
she believed t he compromise to be in the best interest of creditors because it removed the largest un secured claim from the estate, allowing remaining creditors to receive a
distribution of over fifty percent.
The B ankruptcy C ourt made its findings of fact and conclusions of law on the record at a July 6, 2018 hearing. 9 The B ankruptcy C ourt did not find the Debtor’s testimony credible, observing that because the maturity dates were “not buried in the fine print, but [were] set out very plainly at the top of the note , ” the Debtor, a sophisticated

8 Tr. June 20, 2018 Hearing at 7, in Appellant’s App. at 207. 9 Tr. July 6, 2018 Hearing , in Appellant’s App. at 228.7 businessman, should have had knowledge of them. 10 Furthermore, the B ankruptcy C ourt
took issue with the Debtor’s $6,748 scheduled valuation of his claims against LANB compared to his testimony that he suffered up to $30,00 0,000 in damages.
T he B ankruptcy C ourt applied the four factors from Kopp v. All Am erican Life
Ins urance Co mpany ( In re Kopexa Realty Venture Company ) 11

— which are widely
referred to in this Circuit as the Kopexa factors

— and concluded that (1) the Trustee would be unlikely to prevail on the claims; (2) a resulting judgment might only net $25,000 or so for creditors; (3) litigation would require counsel and expert witnesses, making pursuit of the claims cost

- prohibitive; and (4) creditors had “more to gain with greater certainty through the settlement.” 12 The B ankruptcy C ourt entered the Order Granting Trustee’s Motion to Approve Compromise of Controversy on July 6, 2018 (Order Approving Compromise). 13
II. JURISDICTION AND STANDARD OF REVIEW “With the consent of the parties, this Court has jurisdiction to hear timely

- filed appeals from ‘final judgments, orders, and decrees’ of bankruptcy courts within the Tenth
Cir cuit.” 14 An order granting a motion to approve a compromise of claims is final for

10 Tr. July 6, 2018 Hearing at 9

- 10, in Appellant’s App. at 231. 11 213 B.R. 1020 (10th Cir. BAP 1997). 12 Tr. J uly 6, 2018 Hearing at 1 9 , in Appellant’s App. at 233. 13 Appellant’s App. at 199. 14 Straight v. Wyo. Dep’t of Transp. (In re Straight) , 248 B.R. 403, 409 (10th Cir. BAP 2000) (first quoting 28 U.S.C. § 158(a)(1), and then citing 28 U.S.C. § 158(b)(1), (c )(1) and Fed. R. Bankr. P. 8002).8 purposes of 28 U.S.C. § 158(a)(3). 15 None of the part ies in this case elected for th is appeal to be heard by the United States District Court for the District of New Mexico pursuant to 28 U.S.C. § 158(c). Accordingly, this Court has jurisdiction over this appeal.
We review a bankruptcy court’s approval of a settlement agreement brought

p ursuant to Federal Rule of Bankruptcy Procedure Rule 9019 16 for an abuse of
discretion. 17 “Under the abuse of discretion standard [,] a trial court’s decision will not be disturbed unless the appellate court has a definite and firm conviction that the lower c ourt made a clear error of judgment or exceeded the bounds of permissible choice in the
circumstances.” 18 A n a buse of discretion occurs when a trial court “makes an ‘arbitrary, capricious or whimsical,’ or ‘ manifestly unreasonable judgment.’” 19 “A clear exam ple of an abuse of discretion exists where the trial court fails to consider the applicable legal standard or the facts upon which the exercise of its discretionary judgment is based.” 20 We review a bankruptcy court’s findings of fact for clear error . “A factual finding is ‘clearly erroneous’ when ‘it is without factual support in the record, or if the appellate court, after reviewing all the evidence , is left with the definite and firm conviction that a

15 See Korngold v. Loyd (In re S. Med. Arts Cos.) , 343 B.R. 250, 254 (10th Cir. BAP 2006). 16 All references to Rule or Rules are to the Federal Rules of Bankruptcy Procedure unless otherwise indicated. 17 In re S. Med. Arts Cos. , 343 B.R. at 256. 18 Arenas v. U.S. Tr. (In re Arenas) , 535 B.R. 845, 849 (10th Cir. BAP 2015) (quoting Moothart v. Bell , 21 F.3d 1499, 1504 (10th Cir. 1994)). 19 Id. (quoting Moothart , 21 F.3d at 1504

- 05). 20 Jackson v. Los Lunas Cmty. Program , 880 F.3d 1176, 1191 (10th Cir. 2018) (quoting Ohlander v. Larson , 114 F.3d 1531, 1537 (10th Cir. 1997)).9 mistake has been made.’” 21 But if the bankruptcy cour t’s “factual findings are premised on improper legal standards or on proper ones improperly applied, they are not entitled to the protection of the clearly erroneous standard, but are subject to de novo review.” 22 We review questions of law de novo , which “requires an independent determination of the issues, giving no special weight to the bankruptcy court’s
decision.” 23
III. DISCUSSION
A. The Applicable Law
Rule 9019 (a) governs approval of a compromise or settlement. But that rule only provides the procedure used to obtain that approval ; i t does not contain the standard by
which courts evaluate compromises or settlements

. Nor does the Bankruptcy Code offer any statutory guidance on that front. T he development of this area of the law has been left
to the courts.
The Tenth Circuit Court of Appeals has not yet issued a published decision addressing what standard a Rule 9019 s ettlement must achieve before it can be approved

. Even though there is no controlling circuit law on the subject , the Tenth Circuit has stated

21 LTF Real Estate Co. v. Expert S. Tulsa, LLC (In re Expert S. Tulsa, LLC) , 522 B.R. 634, 643 (10th Cir. BAP 2014) (quoting Las Vegas Ice & Cold Storage Co. v. Far W. Bank) , 893 F.2d 1182, 1185 (10th Cir. 1990)). 22 Minerals Techs., Inc. v. Novinda Corp. (In re Novinda Corp.) , 585 B.R. 145, 152 (10th Cir. BAP 2018) (quoti ng Osborn v. Durant Bank & Tr. Co. (In re Osborn) , 24 F.3d 1199, 1203 (10th Cir. 1994), abrogated in part on other grounds by Eastman v. Union Pac. R.R. , 493 F.3d 1151 (10th Cir. 2007)). 23 In re Expert S. Tulsa, LLC , 522 B.R. at 643 (citing Salve Regina Coll. v. Russell) , 499 U.S. 225, 238 (1991)).10 in a handful of unpublished decisions that “[ a ] court’s general charge is to determine
whether the settlement is fair and equitable and in the best interests of the estate.” 24 Put another way, the court should “ review the issues and determine whether the settlement falls below the lowest point in the range of reasonableness.” 25 In reaching this determination, a court need not conduct a mini

- trial or decide the numerous questions of law and fact, 26 but its decision to approve a settlement “must be an informed one based upon an objective evaluation of developed facts.” 27
To fulfill the duties articulated by the Tenth Circuit , b ankruptcy court s in this Circuit invariably, if not inveterately, review Rule 9019 settlements through the lens of
the Kopexa factors. But there is no binding precedent that requires analys e s of such
settlement s to use those factors . T he Tenth Circuit has n ever endorsed th em in a published decision , likely because parties have not presented the factors’ applicability as

24 Rich Dad Operating Co. v. Zubrod (In re Rich Global, LLC) , 652 F. App’x 625, 631 (10th Cir. 2016) (unpublished) (citing O fficial Comm. of Unsecured Creditors of W. Pac. Airlines, Inc. v. W. Pac. Airl ines, Inc. ( In re W. Pac. Airlines, Inc.) , 219 B.R. 575, 579 (D. Colo. 1998)) . Under the Tenth Circuit Rules , unpublished decisions, such as In re Rich Global, LLC , “are not precedential, but may be cited for their persuasive value.” 10th Cir. R. 32.1(A). 25 In re Rich Global, LLC , 652 F. App’x at 631 (quoting 8 Norton Bankruptcy Law & Practice § 167:2 (3d ed. 2011)). 26 E.g. , In re Brutsche , 500 B.R. 62, 71 (Bankr. D.N.M. 2013). 27 Korngold v. Loyd (In re S. Med. Arts Cos.) , 343 B.R. 250, 256 (10th Cir. BAP 2006) (quoting Reiss v. Hagmann , 881 F.2d 890, 892 (10th Cir. 1989)); see also Armstrong v. Rushton (In re Armstrong) , 285 B.R. 344, 2002 W L 471332, at *2 (10th Cir. BAP Mar. 28 2002) (unpublished) (“There can be no informed and independent judgment as to whether a proposed compromise is fair and equitable until the bankruptcy judge has apprised himself of all facts necessary for an intellige nt and objective opinion of the probabilities of ultimate success should the claim be litigated.” (quoting Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson , 390 U.S. 414, 424 (1968))), aff’d , 99 F. App’x 210 (10th Cir. 2004) (unpublished).11 an issue on appeal

. 28 Even our own prior decisions leave some uncertainty regarding
whether the Kopexa factors constitute an exhaustive list of criteria

. Kopexa itself merely
stated that it is appropriate to consider the four now well

- known factors in evaluating settlements; it did not mandate their application or exclude others

. 29 But i n 2006 this
C ourt issued a decision that characterized Kopexa as having “adopted” the four

- factor test “for evaluating the factual circumstances of a compromise.” 30
We have not revisited the issue in a published decision since that time, but in a
series of unpublished decisions the BAP incrementally advanced towards mandatory application of the Kopexa factors, 31 finally reaching that position in Isho v. Loveridge (In re Isho)

. 32 In that case, we held that bankruptcy courts must consider the Kopexa factors in reviewing proposed settlements , though there was no discussion of whether additional

28 See, e.g. , In re Rich Global, LLC , 652 F. App’x at 631 (“The parties do not argue that the bankruptcy court erred in identifying [the Kopexa factors] as the appropriate factors, and so we assume without deciding that they are.”). In fact, the only published Tenth Circuit opinion to cite Kopexa , Scott v. King (In re Amerson) , 839 F.3d 1290 (10th Cir. 2016), did not have occasion to address whet her the Kopexa factors are the correct standard by which to evaluate Rule 9019 settlements because the appellant did not raise the issue. See In re Amerson , 839 F.3d at 1298. 29 See Kopp v. All American Life Insurance Company ( In re Kopexa Realty V enture Company) , 213 B.R. 1020, 1022 (10th Cir. BAP 1997). 30 In re S. Med. Arts Cos. , 343 B.R. at 25 6

. 31 See Allen v. Loveridge (In re Log Furniture, Inc.) , 356 B.R. 787, 2007 WL 496784, at *3 (10th Cir. BAP Feb. 16, 2007) (unpublished) (s tating that the “[f]actors to consider” in approving a settlement agreement are the Kopexa factors) , aff’d 257 F. App’x 101 (10th Cir. 2007) (unpublished) ; Lewis v. McCallum (In re Lewis) , 378 B.R. 418, 2007 WL 2189343, at * 4 (10th Cir. BAP July 31, 2007) (repeating the “adopted” language of Southern Medical Arts ). 32 498 B.R. 391, 2013 WL 1386208 (10th Cir. BAP Apr. 5, 2013) (unpublished).12 factors could apply

. 33 Subsequent decisions have reached the same conclusion. 34 Although the re is no controlling circuit law requiring the application of the Kopexa
factors on the one hand or precluding consideration of supernumerary factors on the
other , we conclude that using the Kopexa factors in evaluating Rule 9019 settlements is
consistent with the standard stated by the Tenth Circuit in Rich Global

. As stated previously, t he Kopexa f actors are: “ [ 1 ] the probable success o f the underlying litigation on the merits , [ 2 ] the possible difficulty in collection of a judgment , [ 3 ] the complexity and expense of the litigation , and [ 4 ] the interest s of creditors in
deference to their reasonable views .” 35 “[T]he court need not resolve all of these issues, but must only identify them ‘so that the reasonableness of the settlement may be
eval uated.’” 36
B. Application of Controlling Law
The B ankruptcy C ourt applied the Kopexa f actors, concluding th at they weighed in favor of approving t he settlement agreement. After r eviewing the Order Approving

33 Id. at *3. In fact, the Isho panel did not have reason to address whether the Kopexa factors had been satisfied; it summarily affirmed the bankruptcy court’s approval of the settlement because the appellant failed to provide an adequate record for review on that issue. Id. at *4. 34 See Amerson v. King (In re Amerson) , No. CO

- 14

- 045, 2015 WL 5 162763, at *7 (10th Cir. BAP Sept. 2, 2015) (unpublished) (“The Tenth Circuit standard for determining whether a settlement in a bankruptcy case should be approved is a four

- part test articulated by this Court in [ Kopexa ].”), aff’d sub nom. Scott v. King ( In re Amerson) , 839 F.3d 1290 (10th Cir. 2016) ; Brumfiel v. Lewis (In re Brumfiel) , No. CO

- 15

- 014, 2015 WL 5895213, at *7 (10th Cir. BAP Oct. 8, 2015) (unpublished) (same). 35 In re Kopexa Realty Venture Co. , 213 B.R. at 1022 (citations omitted). 36 Official Comm. of Unsecured Creditors of W. Pac. Airlines, Inc. v. W. Pac. Airlines, Inc. (In re W. Pac. Airlines, Inc.) , 219 B.R. 575, 579 (D. Colo. 1998) (quoting In re The Hermitage Inn, Inc. , 66 B.R. 71, 72 (B ankr. D. Colo. 1986)).13 Compromise, we are not left with a definite and firm conviction that the B ankruptcy
C ourt made a clear error of judgment or exceeded the bounds of permissible choice under
the circumstances

. However, as the Debtor assigns multiple error s to the B ankruptcy
C ourt’s findings and conclusions, we review each assignment of error in turn , beginning
with the B ankruptcy C ourt’s analysis of the Kopexa f actors

. 1. Factor 1: The Probable Success of the Underlying Litigation The Debtor argues that the B ankruptcy C ourt disproportionately emphasized
circumstances that diminished t he likelihood of success of the litigation . First, the Debtor argues the B ankruptcy C ourt incorrectly applied t he four

- year statute of limitations for
oral contracts instead of th e six

- year statute for written contracts. In particular, he asserts that because the Business Loan and subsequent renewals are ambiguous, evidence of contemporaneous oral agreements would be allowed to interpret the written contract. A nd
since contemporane ous oral agreements of a n a mbiguous contract merge into the written agreement, the Debtor concludes that the six

- year statute of limitations applies. 37 The Debtor argues “there is no question that the contract is ambiguous” because “the contract states plai nly that its purpose is to extend the maturity date of the loan. ” 38 However, the June Renewal of the Business Loan modified the maturity date to December 1, 2010. Therefore, as the June Renewal eliminated the thirty

- year term, the December Renewal

37 Mark V , Inc. v. Mellekas , 845 P.2d 1232, 1235 (N.M. 1993) (“The court may consider collateral evidence of the circumstances surrounding the execution of the agreement in determining whether the language of the agreement is unclear .” (citing C.R. Anthony Co. v. Loretto Mall Partners , 817 P.2d 238, 242

- 43 (N.M. 1991))). 38 Appellant’s Br. 17.14 served to extend the maturity date from December 1, 2010 , to April 1, 2011. Regardless,
the B ankruptcy C ourt correctly identified the statute of limitations defense , at the very
least , as an impediment to the Trustee’s success in the litigation. 39 Next, the Debtor argues that the B ankruptcy C ourt erred in assessing his credibility and finding no evidence of fraud in the acceleration of the maturity date. We
defer to the B ankruptcy C ourt’s judg ment of a witness’ s credibility. 40 In addition to its

asse ss ment of the Debtor’s testimony , the B ankruptcy C ourt based its credibility findings
on the Debtor’s own contradictions, noting that he schedul ed the value of the litigation
claims at $ 6,748 but testified he suffered approximately $30,000,000 in damages

. The record supports this finding. With respect to t he Debtor ’s fraud claim, he argues t hat t he
B ankruptcy C ourt failed to consider the twenty

- year banking relationship he had with LANB, which he claims lends credibility to his “contention that he was advised by LANB the renewal agreement was

. . . an agreement extending the maturity date.” 41 Although courts may rely on circumstantial evidence to deduce fraudulent intent, 42 the
bankin g relationship is insufficient to support the Debtor’s claim of fraud. The
B ankruptcy C ourt’s decision must “bear a ‘rational relationship to the supportive

39 See In re W. Pac. Airlines, Inc. , 219 B.R. at 579 (explaining the bankruptcy court is not required to resolve issues but only identify and weigh them as factors). 40 See Fed. R. Civ. P. 52(a)(6), made applicable in adversary proceedings by Fed. R. Bankr. P. 7052; Gillman v. Ford (In re Ford) , 492 F.3d 1148, 1157 (10th Cir. 2007) (“When findings are based on determinations regarding the credi bility of witnesses, [Fed. R. Civ. P.] 52(a) demands even greater deference to the trial court’s findings.” (quoting Dalton v. IRS , 77 F.3d 1297, 1302 (10th Cir. 1996))). 41 Appellant’s Br. 19. 42 Job v. Calder (In re Calder) , 907 F.2d 953, 956 (10th Cir. 1990).15 evidentiary data.’” 43 It is clear from the record that LANB worked with the Debtor, providing him tw o extensions on the acceleration of the Business Loan. Furthermore, LANB’s subsequent foreclosure suggests that it intended to collect on the defaulted obligation despite the longstanding relationship. The Debtor also assigns error to the B ankruptcy C ourt’ s conclusion that the claims were likely barred by a preclusion doctrine. The Debtor points out that LANB and the Trustee argued the claims were mandatory counterclaims in the foreclosure of the Personal Loan, not the Business Loan. The B ankruptcy C ourt ad mitted such a defense may not be “bulletproof” because LANB’s initial foreclosure claim subject to mandatory counterclaims was dismissed. Thus, the B ankruptcy C ourt did not place substantial weight on this defense but instead recognized it as an additional nuisance the Trustee would have to overcome to prevail on the estate’s claims. Finally, the Debtor argues the B ankruptcy C ourt erred in (1) determining LANB was entitled to offset; and (2) failing to recognize the account freeze was just as harmful
as the offset. T he record does not support the suggestion the Debtor was not in default. The promissory notes and subsequent renewals evidence the maturity dates on their face and the Debtor’s uncorroborated and incredible testimony does not suggest otherwise. Furthermore, the Debtor admitted to defaulting on the Business, Personal, and Short
Term Loans in an affidavit attached to the Objection

. Accordingly, even if the

43 In re Ford , 492 F.3d at 1157 (quoting Gillman v. Sci. Research Prods . Inc. of Del. (In re Mama D’Angelo , Inc. ) , 55 F.3d 552, 555 (10th Cir. 199 5 )).16 B ankruptcy C ourt failed to consider the impact of the account freeze, nothing in the
records supports finding the freeze was unauthorized. Thus, the Debtor’s argument fails.
2. Factor 2: The Possible Difficulty in Collection of a Judgment
The Debtor asserts the B ankruptcy C ourt did not analyze the difficulty of collecting on a judgment but instead suggested recovery must exceed $400,000 to offer a greater distribution to creditors than under the settlement. While a nalysis of the second factor typically focuses on the defenda nt’s ability to pay, it can also encompass problems
that the B ankruptcy C ourt identified, including costs that would have to be incurred in pursuing the judgment. 44 Those costs undoubtedly make collection more difficult , and we assign no error to the B ankru ptcy C ourt’s consideration of those costs

. But e ven if the
second Kopexa factor refers exclusively to the defendant’s ability to pay, “the court need not resolve all of [the factors] but must only identify them ‘so that the reasonableness of

44 Analysis of the second factor in this case acutely brings to the forefront the question of whether the Kopexa factors are exhaustive . As a contrast to Kopexa , the court In re Remsen Partners, Ltd. , 294 B.R. 557 (Bankr. S.D.N.Y. 2003), for example , phrased the second factor as “the difficulties, if any, to be encountered in the matter of collection.” Id. at 565. The use of the plural broadens the categories of problems parties and bankruptcy courts may consider in evaluating the second factor. As t he B ankruptcy C ourt’s analysis in this case demonstrates, problems other than the defendant’s ability to pay can be relevant to the Rule 9019 inquiry. Reading Kopexa

— with its singular “difficulty”

— to refer only to the defendant’s ability to pay could ignor e other collectability issues that may bear on the reasonableness of settlement and therefore circumscribe a judge’s purview. We do not read “difficulty” so narrowly and, indeed, have on occasion used the plural form in prior decisions. See Lewis v. McCall um ( In re Lewis ) , 378 B.R. 418, 2007 WL 2189343, at *4 (10th Cir. BAP July 31, 2007 ) (unpublished) (rendering the second Kopexa factor as the “possible problems in collecting the judgment ” ). B ut these interpretative problems highlight the need to answer th e question whether Kopexa ’s standard must be followed to the letter, or whether its factors can be modified or even added to

.17 the settlement may be evaluated.’” 45 Failure to consider the defendant’s ability to pay, by itself, is not grounds for reversal.
More over, the B ankruptcy C ourt’s discussion of the second factor goes to the heart of the Rule 9019 inquiry: a cost

- benefit analysis

. 46 The B ankruptcy C ourt’s review
of the cost

- benefit analysis contributed to its decision to approve the settlement, and we find no error with that analysis.
3. Factor 3: T he C omplexity and E xpense of the L itigation The Debtor assigns error to the B ankrupt cy C ourt’s conclusion that hiring expert
witnesses and counsel would be cost

- prohibitive. The Debtor argues his experience as a “sophisticated businessman” qualified him to serve as an expert on damages. 47 Again, we
defer to the B ankruptcy C ourt’s findings as to the Debtor’s credibility , and the record does not persuade us to believe the Debtor’s unsupported testimony regarding potential damages

. The Debtor also suggests the Trustee could prosecute the claims herself instead of hiring counsel

. This argument also asks the Court to substitute its judgment for the judgment of the B ankruptcy C ourt, which we determine made an informed decision based on an objective analysis of the facts. No matter which counsel pursued the claims against LANB, it w ould not be done without compensation. The Trustee considered

45 In re W. Pac. Airlines, Inc. , 219 B.R. at 579 (quoting In re The Hermitage Inn, Inc. , 66 B.R. at 72 ). 46 See Suter v. Goedert , 396 B.R. 535, 547

- 48 (D. Nev. 2008)

. 47 Appellant’s Br. 26.18 prosecution of the claims cost

- prohibitive based on the likelihood of success on the
merits and the B ankruptcy C ourt agreed. We see no reason to overturn this finding. 48
4. Factor 4: The I nterest of C reditors The Debtor argues the B ankruptcy C ourt erred in concluding that a settlement for $10,000 was in the creditors’ best interest when potential damages exceeded total claims

. The Debtor’s arguments highlight the conflict between his personal interests and the Trustee’s duty to maximize the estate. 49 The only evidence to support the Debtor’s valuation of the claims is his uncorroborated testimony that damages were between $15,00 0,000 and $30,000,000. However, the B ankruptcy C ourt found the Debtor’s
scheduled valuation of the claims

— $ 6,748

— contradicted his later testimony. Furthermore, the Debtor testified he was not willing to purchase the claims from the bankruptcy estate despit e their purported value, casting doubt on his valuation. These findings are not clearly erroneous. The Debtor’s argument also discounts the withdrawal of LANB’s $ 164,259 claim in addition to payment of $10,000. The Trustee testified that the only remainin g claims were for credit card debt totaling approximately $7,300 , and none of the holders of th ose

48 See , e.g. , Kowal v. Malkemus (In re Thompson) , 965 F.2d 1136, 1146 (1st Cir. 1992) (“[I]t is not surprising that appellants are attracted by the glitter of further litigation financed at the expense of the chapter 7 estate . . . . [I] t is apparent that appellants’ intuitive confidence in their own ab ility to outguess the chapter 7 trustee’s settlement decision . . . has more . . . to do with the insignificance of their stake in the settlement.”). 49 Id. (“[The debtors’] purpose is inapposite to the duty imposed on a chapter 7 trustee under the [Bankr uptcy] Code, since it is not so much the interests of the chapter 7 estate, as it is their self

- interest , which [they] would have the chapter 7 trustee champion by refusing to settle the . . . litigation. ”).19 claims o bjected to the settlement. Since the withdrawal of LANB’s claim substantially increased the distribution to the remaining creditors, approval of the settlement was in the
best interest of the estate and the B ankruptcy C ourt did not abuse its discretion in concluding that creditors “ stand more to gain with greater certainty through the
settlement.” 50
5. Remaining F indings and C onclusions The Debtor also argues the B ankruptcy C ourt erred in finding the Debtor had knowledge of the modified maturity dates and concluding the Debtor was liable for
PBA’s debts. The Debtor mischaracterizes the B ankruptcy C ourt’s findings : instead of finding the D ebtor knew of the modified maturity dates, the B ankruptcy C ourt found the
Debtor “should have known” of the dates as his signature was on th e documents he signed and LANB instituted foreclosure proceedings. 51 The Debtor argues LANB did not authenticate any of the promissory notes or renewals. However, the Debtor did not object

50 Tr. July 6, 2018 Hearing at 19, in Appellan t’s App. at 233. See Slovak Republic v. Loveridge (In re EuroGas, Inc.) , 755 F. App’x 825 , 833 (10th Cir. 2019) (unpublished) (affirming approval of settlement that eliminated $113,000,000 in burdensome claims and providing payment of $250,000); Korngold v

. Loyd (In re S. Med. Arts Cos.) , 343 B.R. 250, 257

- 58 (10th Cir. BAP 2006) (finding no abuse of discretion where settlement provided 60% distribution to creditors that otherwise would have receive d nothing); Geltzer v. Original Soupman Inc. (In re Soup Ki tchen Int’l Inc.) , 506 B.R. 29, 4 3 (Bankr. E.D.N.Y. 2014) (approving settlement that allowed unsecured creditors to receive a 43% distribution on their claims). 51 Tr. July 6, 2018 Hearing at 15, in Appellant’s App. at 232.20 to the admission of the promissory notes or renewals and such documents are self

authenticating pursuant to Federal Rule of Evidence 90 2(9). 52 The Debtor also argues that N.M. Stat. Ann 1978 § 53

- 11

- 4.1 shielded him from liability for PBA’s debts. However, the Debtor’s personal guaranty of PBA’s debts is in
the record and included “any extensions, renewals, modifications and substitutions” of the original debt. 53 The Debtor did not object to the B ankruptcy C ourt’s review of th e personal guaranty . Therefore, the B ankruptcy C ourt’s finding that the Debtor guaranteed PBA’s obligations is not clear error , and the Debtor’s argument fails.
6. Deni al of Motion to Continue Hearing Finally, the Debtor argues the B ankruptcy C ourt erred in denying his Motion to
Continue . Denial of a motion to continue is reviewed for an abuse of discretion , and reversal is not appropriate unless “the denial was arbitrary or unreasonable and materially prejudiced the appellant

. ” 54 The Tenth Circuit provides several factors to consider in determining whether denial of a continuance constitutes an abuse of disc retion

. Those
factors include: the diligence of the party requesting the continuance; the likelihood that the continuance, if granted, would accomplish the purpose underlying the party’s expressed need for the continuance; the inconvenience to the opposing party, its witnesses, and the court resulting from the continuance; [and] the need

52 Niederquell v. Bank of Am

. N.A. , 696 F. App’x 321, 324 (10th Cir. 2017) (citing 31 Charles Alan Wright & Arthur R. Miller, Fed. Practice and Pro. § 7143 (1st ed. 2017)). 53 Exhibit I to Amended Complaint for Foreclosure of Mortgages and For Debt and Money Due, Guara nty at 1, in Appellant’s App. at 64. 54 Rogers v. Andrus Transp. Servs. , 502 F.3d 1147, 1151 (10th Cir. 2007) ( quoting United States v. West , 828 F.2d 1468, 1469 (10th Cir. 1987)).21 asserted for the continuance and the harm that appellant might suffer as a result of the [bankruptcy] court’s denial of the continuance

. 55
The Debtor argues he did not have sufficient time to review the renewal notes prior to the hearing based on LANB’s delays in turning them over. Yet these documents were not new to the Debtor as they bear his signature and served as the basis of LANB’s July 2011 foreclosure action. Furthermore, the Debtor failed to provide a transcript of the hearing on the M otion to C ontinue in the record, thus we summarily affirm the denial of
the M otion to C ontinue

. 56
IV. CONCLUSION
The B ankruptcy C ourt developed facts and made an objective ev aluation of those facts, as required by Tenth Circuit law, in reviewing the proposed settlement. Its conclusion that the settlement fell well within the range of reasonableness was informed by an analysis of the Kopexa factors. We assign no error to the us e of those factors, the
B ankruptcy C ourt’s application of them to the facts of th is case, or the B ankruptcy
C ourt’s ultimate decision to grant the Motion to Compromise and approve the underlying
settlement . Because we do not have a definite and firm conviction that the B ankruptcy

55 Id. (quoting West , 828 F.2d at 1470). 56 Tollefsen v. US Bank N at’l A ss’n (In re Tollefsen) , No. NO

- 07

- 057, 2008 WL 762487, at * 1 (10th Cir. BAP Mar. 11, 2008) (unpublished) (“[T]he failure to provide a trial transcript on appeal warrants affirming the trial court when the issue on appeal requires the appellate court to review the record in the trial court.” (citing McGinnis v. Gustafson , 978 F.2d 1199, 1201 (10th Cir. 1992))); OU Fed. Credit Union v. I nkster (In re Inkster) , Nos. WO

- 00

- 063, 00

- 12923 , 2001 WL 169758, at *2 (10th Cir. BAP Feb. 21, 20 0 1) (unpub lished) (“Without a transcript, we have an inadequate record, giving us grounds to summarily affirm the bankruptcy court.”)

.22 C ourt ma de a clear error of judgment or exceed ed the bounds of permissible choice in the
circumstances , t he Order Approving Settlement is AFFIRMED.