BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 1 of 30

NOT FOR PUBLICATION 1 UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE TENTH CIRCUIT _________________________________

IN RE MOTIVA PERFORMANCE BAP No. NM-23-003 ENGINEERING, LLC,

Debtor.

___________________________________ Bankr. No. 19-12539 Adv. No. 21-01026 PHILIP MONTOYA, as Chapter 7 Trustee Chapter 7 for Motiva Performance Engineering, LLC,

Plaintiff - Appellee,

DAVID ROCHAU, ARMAGEDDON HIGH PERFORMANCE SOLUTIONS, LLC, and AVATAR RECOVERIES, LLC,

Defendants - Appellees, OPINION v.

WILLIAM S. FERGUSON, DEALERBANK FINANCIAL SERVICES, LTD., and ARMAGEDDON TOOL & DIE, LTD.,

Defendants - Appellants. _________________________________

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

Before ROMERO, Chief Judge, MICHAEL, and PARKER, Bankruptcy Judges.

1 This unpublished opinion may be cited for its persuasive value, but is not precedential, except under the doctrines of law of the case, claim preclusion, and issue preclusion. 10th Cir. BAP L.R. 8026-6. BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 2 of 30

________________________________

PARKER, Bankruptcy Judge.

Principles of equity underlie the entire bankruptcy process. Thus, it comes as no

surprise that a bankruptcy court would invoke such principles in adjudicating a matter

when a pattern of playing fast and loose with the truth manifests. After many years of

gamesmanship to benefit financially, the appellants found themselves facing the

consequences of their choices when a related debtor-entity filed bankruptcy. In an effort

to right the ship, the chapter 7 trustee filed an adversary complaint against the appellants

asserting claims for fraudulent transfer, breach of fiduciary duty, and veil piercing.

Agreeing a free-for-all with the truth could not be sanctioned by the courts, the

Bankruptcy Court invoked equitable principles that ultimately led to finding against the

appellants. Finding no error in the Bankruptcy Court’s decision, we affirm.

I. Background

A. Will Ferguson and His Business Dealings

Debtor Motiva Performance Engineering, LLC (“Motiva”) is a limited liability

company. Appellant William S. Ferguson is the majority owner of Motiva along with

David Rochau and Scott Fox. 2 Mr. Ferguson is also the sole owner of Appellant

Dealerbank Financial Services, Ltd. (“Dealerbank”) and the owner of a controlling

interest in Appellant Armageddon Tool & Die, Ltd. (“Armageddon”), Armageddon High

2 There are no company records supporting this ownership interest.

2 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 3 of 30

Performance Solutions (“Turbo”), and Avatar Recoveries, LLC (“Avatar”). 3 In addition

to his interests in these entities, Mr. Ferguson is an attorney in Albuquerque, New

Mexico, with an affinity for cars.

Mr. Ferguson formed Motiva in 2007 to acquire and operate a “speed shop.”

Motiva provided high-level vehicle performance modifications and owned at least one

car dealer license through which it sold cars on consignment. Mr. Ferguson used

Motiva’s dealer license to purchase the vehicles at issue in this case. Mr. Ferguson claims

he paid for the vehicles personally or purchased them through Armageddon. In either

instance, Mr. Ferguson used Motiva’s dealer’s license to purchase the vehicles, which

eliminated any excise tax liability for Mr. Ferguson. 4 Mr. Ferguson stated in his brief,

“Appellant Armageddon . . . operates as an investment ‘clearinghouse’ or ‘bucket’ for

Mr. Ferguson’s use.” 5 While the record reflects Mr. Ferguson titled the vehicles in

Motiva’s name and listed them as Motiva’s assets on Schedule C of his tax return, it is

not clear from the record exactly who, or what entity, purchased each vehicle.

Who, of Motiva’s three purported members, is the managing member also remains

unclear. The evidence in the record is conflicting. Mr. Rochau asserted he was the

managing member when he signed Motiva’s chapter 11 bankruptcy petition in November

The Court will refer to Armageddon collectively with Mr. Ferguson and 3

Dealerbank as “Appellants.”

The record shows Mr. Ferguson personally bought at least twenty-three cars 4

using Motiva’s dealer license. 5 Appellants’ Opening Br. 3.

3 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 4 of 30

2019, but Mr. Ferguson represented he was the managing member in promissory notes

executed just ten days prior to filing the petition. Despite the conflict, the record shows

Mr. Ferguson represented he was the managing member at times convenient to him.

Mr. Ferguson’s creditor relationship with Motiva is also subject to conflicting

evidence. Motiva’s books reflect Mr. Ferguson’s investments were loans but he testified

his investments were capital contributions. Thus, the record shows Mr. Ferguson also

characterized his financial investments in Motiva in ways convenient to him.

In 2011, Mr. Rochau and Mr. Ferguson began a joint venture project researching

and developing aftermarket turbo kits (“Turbo Kit Project”). According to Mr. Ferguson,

he funded the initial investment for research and development; however, rather than

directly funding the research, the financing flowed through Motiva’s bank account and

Mr. Ferguson claimed these expenses as Motiva expenses for tax purposes. No other

entity had been formed for the project until 2017 when Mr. Ferguson and Mr. Rochau

organized Turbo. 6 Turbo first appears on Schedule C in Mr. Ferguson’s 2020 tax return. 7

Notably, all turbo kits continued to be sold on Motiva’s premises.

B. The Valles Litigation

In 2016, Motiva filed a lawsuit against Andrea Valles for damaging one of the

vehicles at issue—a 2012 Ferrari FF—in a car accident. The Ferrari was titled to Motiva.

6 Turbo’s articles of organization are not in the record, but the Bankruptcy Court noted the New Mexico Secretary of State website showed Mr. Ferguson was the sole manager and member at the time of organization. Opinion at 7, in Appellants’ App. at 515. 7 Opinion at 14, in Appellants’ App. at 522.

4 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 5 of 30

Represented by Mr. Ferguson, Motiva asserted in the complaint: “[a]t all times relevant

to the Complaint, Plaintiff owned and operated a 2012 Ferrari FF vehicle.” 8 Through

discovery, Motiva produced the certificate of title to the Ferrari as evidence of

ownership. 9 Valles and her insurer ultimately settled the claim for $50,000, and the

insurer issued the settlement funds to “Motiva Performance Engineering, LLC and

William Ferguson Attorney.” 10

C. The Butler Litigation and Bankruptcy

In 2014, Creig Butler hired Motiva to upgrade a 2009 Hummer. After several

years and thousands of dollars spent, Butler sued Motiva in state court alleging the

Hummer was unsafe to drive and good only for parts as a result of Motiva’s work. The

case went to trial in October 2018, and the jury returned a verdict against Motiva for

$292,001 plus attorney’s fees, costs, and post-judgment interest, resulting in a total

judgment of $337,317.90. After the verdict, Mr. Ferguson and Mr. Rochau agreed to

cease operating Motiva. Mr. Ferguson began transferring some of the vehicles, including

the Ferrari, from Motiva to Dealerbank. Although purchase agreements exist in the

record, there is no evidence money ever changed hands.

8 Complaint for Money Damages at 1, ¶ 3, in Appellee’s App. at 32. 9 Plaintiff’s Responses to Defendants’ First Set of Requests for Production of Documents and Things at 2, in Appellee’s App. at 35. 10 Court Findings of Fact and Conclusions of Law at 14, in Appellee’s App. at 152.

5 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 6 of 30

The next month, the state court issued a writ of execution directing the county

sheriff to seize Motiva’s assets, including the turbo kits on Motiva’s premises.

Mr. Ferguson interrupted the turbo kit seizure and asserted his company, Avatar, had a

landlord’s lien on the turbo kits. Mr. Butler then filed an application for a preliminary

injunction freezing Motiva’s assets, including the Ferrari and related insurance proceeds

from the Valles settlement. The state court granted the injunction, but before the parties

finalized the injunction terms, Mr. Ferguson caused Dealerbank to pledge the Ferrari as

collateral for a $120,000 loan used to pay down Mr. Ferguson’s personal line of credit.

Because of Mr. Ferguson’s inconsistent treatment and claims about the Ferrari and

turbo kits, Mr. Butler filed a motion in the state court action asking the court to declare

Motiva owned the Ferrari and turbo kits. While the ownership issues were being litigated,

Mr. Ferguson transferred more of the vehicles titled in Motiva’s name to Dealerbank and

other third parties. The state court held a hearing and, on October 28, 2019, entered an

order concluding Motiva owned the Ferrari and the turbo kits.

On November 1, 2019, Motiva filed a petition for chapter 11 relief. Subsequently,

Motiva filed a motion to sell the turbo kits in cooperation with Turbo, and an adversary

proceeding against Appellants seeking turnover of the Ferrari, the remaining settlement

proceeds, the value of the Turbo Kit Project, any remaining turbo kits, and any funds

received from the sale of the turbo kits. Two days before the hearing on the motion to sell

the turbo kits, Motiva agreed to convert the case to chapter 7, and Philip Montoya was

assigned as the chapter 7 Trustee.

6 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 7 of 30

D. The State Courts’ Sanctions

When the state court learned Mr. Ferguson transferred the Ferrari to Dealerbank,

encumbered it after the preliminary injunction hearing, and took inconsistent positions

about the Ferrari and turbo kit ownership, it entered an order of civil contempt against

Mr. Ferguson. Then, on June 10, 2021, the New Mexico Supreme Court censured him,

suspended him from practicing law for ninety days, and required him to take a

professional responsibility exam. The New Mexico Supreme Court’s opinion focused on

Mr. Ferguson’s inconsistent treatment of the Ferrari—observing he used Motiva’s

dealership license to purchase, title, and register the Ferrari to avoid taxes while intending

to use the Ferrari as his personal vehicle. The court determined Mr. Ferguson could not

claim Motiva owned the Ferrari when it benefited him, and then deny ownership when it

would mean a financial loss.

E. The Adversary Proceeding On September 2, 2021, the Trustee filed a complaint against Mr. Ferguson,

Dealerbank, Armageddon, and other related entities alleging eight counts. 11 After a trial,

the Bankruptcy Court entered an opinion (“Opinion”) and judgment in favor of the

11 The Trustee alleged the following: Count I – Turnover; Count II – Voidable transfers under

(a)(1)(A); Count III – Voidable transfers under

(a)(1)(B); Count IV – Voidable transfers under state law and punitive damages (actual fraud); Count V – Voidable Transfers under state law (constructive fraud); Count VI – Breach of fiduciary duties and punitive damages; Count VII – Alter ego / Veil piercing; and Count VIII – Disallowance of claims. See Complaint at 16–27, in Appellants’ App. at 41–52.

7 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 8 of 30

Trustee on seven of the eight counts. 12

The Bankruptcy Court found the evidence at trial showed Motiva never filed a

federal tax return and Mr. Ferguson’s tax returns revealed he treated Motiva as a

“disregarded entity” under New Mexico law. The Bankruptcy Court noted such treatment

implied Mr. Ferguson was the sole owner of Motiva. The Bankruptcy Court concluded

this circumvented proper accounting principles because two other members allegedly

held interests in Motiva.

Additionally, the Bankruptcy Court reviewed Mr. Ferguson’s tax returns from

2016–2019, which do not mention Turbo, but do show expenses for Motiva on

Mr. Ferguson’s Schedule C attached to his 2016 tax return including a $575,082

“research and experimental” expense that appears to be Mr. Ferguson’s investment in the

Turbo Kit Project. The Bankruptcy Court noted the Schedule C in both Mr. Ferguson’s

2017 and 2018 tax returns also appears to include Turbo Kit Project income and related

expenses for Motiva (together with the 2016 tax return the “Tax Forms”). Notably, Turbo

does not appear on Mr. Ferguson’s tax returns until 2020, and there, Mr. Ferguson’s

Schedule C states Turbo is a sole proprietorship. The Bankruptcy Court found this

contradicted Mr. Ferguson and Mr. Rochau’s testimony. 13 The Bankruptcy Court also

found the tax returns established Mr. Ferguson began or acquired Turbo in 2020.

The Bankruptcy Court did not find in favor of the Trustee on the Turnover claim 12

— Count I. Opinion at 18, in Appellants’ App. at 526. 13 This is one of many contradictions in Mr. Ferguson’s various representations to the courts and taxing authorities, and in various financial forms. The Bankruptcy Court 8 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 9 of 30

The Bankruptcy Court determined Mr. Ferguson’s tax treatment and inconsistent

representations supported the following conclusions: (i) Appellants were liable under

(a)(1)(A), (a)(1)(B) and

(A)(1), (A)(2) for

fraudulent transfer of the vehicles; (ii) Mr. Ferguson was liable for breaching his

fiduciary duty to Motiva; and (iii) Mr. Ferguson was liable for Motiva’s debts, piercing

the veil between him and Motiva. Additionally, the Bankruptcy Court disallowed

Appellants’ claims until they paid the judgments against them in full. Appellants filed a

motion for reconsideration, which the Bankruptcy Court denied. 14 This appeal

followed. 15

II. Jurisdiction

This Court has jurisdiction to hear timely filed appeals from “final judgments,

orders, and decrees” of bankruptcy courts within the Tenth Circuit, unless a party elects

to have the district court hear the appeal. 16 Appellants timely appealed the judgment and

order denying reconsideration, which are final orders. 17 No party elected to have the

district court hear the appeal. Accordingly, this Court has jurisdiction to hear this appeal.

identified several instances of contradictions and changes in positions. Opinion at 7–8, in Appellants’ App. at 515–16. 14 Order on Motion for Reconsideration, in Appellants’ App. at 594. Appellants do not appear to challenge any findings or conclusions in the Order 15

Denying Reconsideration. 16

(a)(1), (b)(1), and (c)(1); Fed. R. Bankr. P. 8003, 8005. See Adelman v. Fourth Nat’l Bank & Tr. Co. (In re Durability, Inc.),

(10th Cir. 1990) (treating an order adjudicating all claims in an adversary proceeding as a final order); In re Boydstun, No. 19-20,

, at *1 (10th Cir. BAP Jan. 16, 2020) (unpublished) (“An order denying a motion under Rule 59(e) or 9 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 10 of 30

III. Issues on Appeal and Standard of Review

The Court identifies five issues on appeal. 18 First, Appellants challenge the

Bankruptcy Court’s application of quasi estoppel, which we review for abuse of

Rule 60(b) is final for purposes of appellate review if the underlying order from which relief is sought was also final.”) (citing Stubblefield v. Windsor Cap. Grp.,

(10th Cir. 1996)). 18 Appellants list the following as the issues on appeal: (1) Whether the Bankruptcy Court erred in failing to follow Tenth Circuit law governing the duty of consistency? (2) Whether the Bankruptcy Court erred in failing to recognize that the Debtor owned only bare legal title to the vehicles at issue and that consequently the vehicles were never included in the Debtor’s bankruptcy estate as a matter of law? (3) Whether the Bankruptcy Court erred in finding that Mr. Ferguson breached his fiduciary duty to Debtor by transferring an enterprise developing an engine turbocharging system and related assets without adequate compensation when the evidence demonstrated that the Debtor had no ownership interest in the enterprise or related assets? (4) Whether the [ ] Court erred by imposing an irrelevant and unreasonable measure of damages, assuming such a breach occurred? Appellants’ Opening Br. 1. The fifth issue comes before this Court in Appellants’ argument that “[r]ecognition that Debtor owned only naked legal title to the cars necessarily negates the judgment about Appellant Mr. Ferguson on Count VI, for Alter Ego/Veil Piercing liability.” Id. at 27. Appellants did not present this issue as an enumerated issue on appeal. Accordingly, this Court will analyze whether Appellants waived the issue. The Trustee asserts the issues as follows: (1) “At the time the subject vehicles were acquired, was Motiva the owner of the vehicles?”; (2) “[W]hether Mr. Ferguson breached his fiduciary duties”; and (3) “[W]hether the Bankruptcy Court’s award of damages for breach of fiduciary duty was proper[.]” Appellee’s Opening Br. 1–3.

10 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 11 of 30

discretion. 19 Second, Appellants challenge the Bankruptcy Court’s finding that Motiva

owned the vehicles, which we review for clear error. 20 Third, Appellants challenge the

Bankruptcy Court’s factual finding that Motiva owned the Turbo Kit Project, and legal

conclusion that Mr. Ferguson breached his fiduciary duty to Motiva by transferring the

Turbo Kit Project without adequate compensation. We review factual findings for clear

error and legal conclusions de novo. 21 Fourth, Appellants challenge the Bankruptcy

Court’s damages award. We review the methodology to determine damages de novo and

the damages calculation for clear error. 22 Finally, Appellants challenge the Bankruptcy

19 Appellants assert the Bankruptcy Court erred by “failing to follow Tenth Circuit law on the duty of consistency” and by applying quasi estoppel contending a de novo standard of review applies. Appellants’ Opening Br. 1. The Tenth Circuit has not analyzed a standard of review for when a lower court invokes and applies the doctrine of quasi estoppel; however, the Tenth Circuit has held the abuse of discretion standard applies when invoking judicial estoppel. Asarco, LLC v. Noranda Mining, Inc.,

(10th Cir. 2017) (citing Eastman v. Union Pac. R. Co.,

(10th Cir. 2007); In re Riazuddin,

(10th Cir. BAP 2007) (citing cases). Similarly, the Ninth Circuit BAP reviewed a court’s use of quasi-estoppel principles for abuse of discretion. See Wolf v. Jacobson (In re Jacobson), No. ADV. 07-01404-RK,

, at *3 (9th Cir. BAP July 30, 2010) (unpublished), aff’d in part, rev’d in part,

(9th Cir. 2012). 20 Factual findings are reviewed for clear error. Glencove Holdings, LLC v. Bloom (In re Bloom),

, 576 (10th Cir. BAP 2021), aff’d, No. 22-1005,

(10th Cir. July 12, 2022) (unpublished) (quoting In re Kearney,

, 93 (10th Cir. BAP 2021)). 21

Whether Mr. Ferguson breached his fiduciary duty to Motiva is a legal conclusion reviewed de novo. Montoya v. Goldstein (In re Chuza Oil Co.),

, 592 (10th Cir. BAP 2022) (citing Zubrod v. Kelsey (In re Kelsey),

(10th Cir. BAP 2001)), rev’d in part,

(10th Cir. 2023). 22 S. Colo. MRI, Ltd. v. Med-Alliance, Inc.,

, 1100 (10th Cir. 1999).

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Court’s decision to pierce the corporate veil, which we review for abuse of discretion. 23

An abuse of discretion occurs when “the [trial] court’s decision is ‘arbitrary,

capricious or whimsical,’ or results in a ‘manifestly unreasonable judgment.’ ” 24 “A clear

example 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.” 25

Clear error occurs when “although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm conviction that a mistake has

been committed.” 26 “Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” 27 Moreover, when

reviewing findings of fact under the clearly-erroneous standard, “the reviewing court

must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” 28

23 The decision to pierce the corporate veil is reviewed for abuse of discretion. Boxer F2, L.P. v. Bronchick,

, 798 (10th Cir. 2018) (unpublished) (citing Clark v. State Farm Mut. Auto. Ins. Co.,

(10th Cir. 2005)). 24 Moothart v. Bell,

, 1504–05 (quoting United States v. Wright,

(10th Cir. 1987)). 25 Jackson v. Los Lunas Cmty. Program,

(10th Cir. 2018) (quoting Ohlander v. Larson,

(10th Cir. 1997)). 26 Bloom, 634 B.R. at 576 (quoting United States v. U.S. Gypsum Co.,

(1948)). 27

28

(quoting Fed. R. Civ. P. 52(a)(6)).

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IV. Analysis

A. The Bankruptcy Court did not abuse its discretion by applying the doctrine of quasi estoppel. Barring Mr. Ferguson from claiming Motiva did not own the vehicles, the

Bankruptcy Court declined to allow a free-for-all with the truth designed to financially

benefit Mr. Ferguson.

i. The Bankruptcy Court applied the quasi-estoppel doctrine.

Appellants contend the Bankruptcy Court failed to follow Tenth Circuit law on the

duty of consistency. Appellants argue the Bankruptcy Court applied the duty of

consistency to reach this decision in error because the Tenth Circuit law concerning the

duty of consistency is reserved for cases involving a federal taxing agency, official, or

taxing authority. Appellants emphasize the Bankruptcy Court’s analysis was “devoid of

citations to Tenth Circuit law” signaling the “questionability of the analysis.” 29

The Trustee contends the Bankruptcy Court did not err because, in determining

Motiva owned the vehicles, the Bankruptcy Court relied on a proper application of the

principles underlying the doctrine of quasi estoppel despite citing cases applying the duty

of consistency. The Trustee argues the duty of consistency is encompassed within the

broader doctrine of quasi estoppel.

We agree with the Trustee. The duty of consistency and quasi estoppel are both

equitable doctrines used to reach the common equitable goal to “estop a party from

accepting benefits of a transaction or statute and then subsequently taking an inconsistent

29 Appellants’ Opening Br. 19.

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position to avoid corresponding obligations or effects.” 30 Several federal courts have

applied the principles of quasi estoppel under the banner of the duty of consistency, often

using the terms interchangeably. 31

An important distinction, however, is the duty of consistency is a more specific

principle in the realm of tax law, ensuring taxpayers are consistent in their treatment of

items on their tax returns and dealings with taxing authorities. 32 Courts generally apply

the duty of consistency where (i) a taxpayer, (ii) makes contradicting representations to,

(iii) a federal taxing authority, (iv) to obtain favorable tax treatment. 33 In contrast, quasi

estoppel is broader in that it applies in various legal contexts to prevent individuals from

taking inconsistent positions when it would be unfair to do so. While they share a

common theme of consistency, the two concepts have different applications and

implications in the legal world.

Courts have applied the doctrine of quasi estoppel when a party presents

inconsistent positions based on the context. 34 Generally, courts apply quasi estoppel when

30 Davidson v. Davidson (In re Davidson),

(5th Cir. 1991). 31 See, e.g., LeFever v. Comm’r,

, 784 n.1 (10th Cir. 1996) (“The doctrine is known either as quasi-estoppel or the duty of consistency. . . . We will refer to it as the duty of consistency.”); Eagan v. United States,

(1st Cir. 1996) (“The duty of consistency is a type of equitable estoppel, also known as ‘quasi- estoppel.’”); In re Baker Hughes, Inc.,

, 1301–02 (Fed. Cir. 2000) (same) (citing Lewis v. Comm’r,

(1st Cir. 1994)). 32 LeFever,

. 33

34 See, e.g., In re Davidson,

(5th Cir. 1991) (applying per se quasi estoppel in support payment nondischargeability action); In re Liao,

, 607– 08 (Bankr. S.D. Tex. 2016) (applying quasi estoppel to prevent a debtor from amending 14 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 15 of 30

“a party (1) with knowledge of the relevant facts (2) takes a position inconsistent with its

former position (3) which is to the disadvantage of another.” 35 Appellants assert when the

duty of consistency is applied to nontaxing authorities, detrimental reliance is required.

However, quasi estoppel typically “does not require misrepresentations, ignorance, or

detrimental reliance,” but does require the estopped party to have gained some benefit

from its earlier position. 36

his schedules to benefit from holding inconsistent positions on his homestead exemption,); In re CPJFK, LLC,

(Bankr. E.D.N.Y 2011) (applying quasi estoppel to preclude a debtor from rejecting a lease for purposes of the trustee’s motion to sell certain property when the plan of reorganization depended on assuming the same lease). See also, e.g., Jamison v. Allen,

, 823–24 (Tex. App. 2012) (concluding homeowners were estopped on basis of quasi estoppel from attacking neighbor’s use of noncompliant material on the exterior of their house when homeowners used the same material); Rockstad v. Erikson,

, 1222–23 (Alaska 2005) (finding under the doctrine of quasi estoppel, the appellant could not sign a deed of trust to secure a loan and later assert the deed of trust was invalid under Alaska law to prevent foreclosure on the secured property); KTVB, Inc. v. Boise City,

(Idaho 1971) (holding appellants were estopped from attacking a bidding and award process to which they previously acquiesced). See also Overview, Bankr. Evid. Manual § 4:1 (2023 ed.) (citing In re Kelley,

(Bankr. E.D. Tenn. 1998)). 35 Overview, Bankr. Evid. Manual § 4:1 (2023 ed.). 36 Id. Appellants also contend when the duty of consistency is applied to nontaxing authorities there is a mutuality requirement as well. The mutuality requirement argument was not raised until Appellants’ Reply Brief rendering the argument waived. Jimenez- Guzman v. Holder,

, 1297 n.1 (10th Cir. 2011) (“[T]he general rule in this circuit is that a party waives issues and arguments raised for the first time in a reply brief.”) (quoting M.D. Mark, Inc. v. Kerr-McGee Corp.,

, 768 n.7 (10th Cir. 2009)).

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Here, the Bankruptcy Court held:

[w]hen it comes to the serious business of paying taxes, the law does not permit a taxpayer to say one thing to the taxing authorities and the opposite to someone else. ... Applying this sensible and fair principle, Ferguson is barred from telling this Court that Motiva does not own the [vehicles], because he previously represented to the New Mexico Taxation and Revenue Department that Motiva did own them. Any other rule would result in a free-for-all with the truth, sanctioned by the courts. Ferguson made his bed when he avoided paying excise tax on the [vehicles]. Now he must lie in it. 37

While the Bankruptcy Court never clearly identifies a legal standard and cites to

authority related to the duty of consistency, 38 we conclude the Bankruptcy Court applied

the principles underlying the doctrine of quasi estoppel to reach its conclusion and not the

duty of consistency. The Bankruptcy Court found Mr. Ferguson took positions

inconsistent with former positions to the detriment of others, specifically creditors. The

Bankruptcy Court relied on authority applying equitable principles to prevent a party

from benefitting from inconsistent representations and carefully considered the facts to

reach its decision. Because the choice to apply quasi estoppel was neither arbitrary,

capricious, or whimsical, nor did it result in a manifest injustice, we conclude the

Bankruptcy Court did not abuse its discretion by applying the equitable doctrine to

analyze Mr. Ferguson’s multiple inconsistent representations.

37 Opinion at 20–21, in Appellants’ App. at 528–29. 38 See

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ii. In re Sampson

Appellants also contend the Bankruptcy Court’s conclusion is at odds with the

Tenth Circuit’s rejection of quasi estoppel in In re Sampson; the Trustee asserts

Appellants’ reliance on In re Sampson is misplaced. 39 We agree Appellants misconstrue

Sampson.

In Sampson, the Tenth Circuit analyzed the application of quasi estoppel to a

§ 523(a) nondischargeability claim. 40 There, the debtor sought to discharge a debt owed

to his former wife contending the money owed was intended to be a property

settlement. 41 The debtor explained the divorce settlement agreement only designated the

payments as support payments to allow him to deduct the payments for tax purposes. 42

The bankruptcy court determined the debt was nondischargeable because the settlement

agreement provided the payments to his former spouse were support payments. 43

On appeal, the Tenth Circuit refrained from adopting a per se application of quasi

estoppel to conclude the debt was nondischargeable as support simply because the debtor

claimed the payments as support on his tax returns. 44 Instead, the Tenth Circuit noted the

center of the inquiry was the parties’ intent and substance behind the obligation and

39

(10th Cir. 1993). 40 Id. 41 Id. at 720. 42 Id. 43 Id. 44 Id. at 724 n.6.

17 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 18 of 30

determined the debtor’s tax treatment was probative of the parties’ mutual intent and the

substance of the obligation. 45 Concluding the evidence showed the payments were

intended to be support and were, in substance, support payments, the Tenth Circuit

affirmed the bankruptcy court.

Accordingly, the Tenth Circuit did not outright reject any application of quasi

estoppel. Instead, the Sampson court rejected a per se application of quasi estoppel in

§ 523(a)(5) dischargeability actions in favor of a case-by-case factual inquiry into the

parties’ intent. The Tenth Circuit’s rejection of a per se application of quasi estoppel in

§ 523(a)(5) claims has no bearing on whether a court may apply the principles of quasi

estoppel to address the reality of a party’s inconsistent representations in other

circumstances. Simply put, we join those courts that are reluctant to allow parties to have

their cake and eat it too.

B. The Bankruptcy Court did not clearly err in finding Motiva owned the vehicles to conclude a fraudulent transfer occurred.

To find Motiva owned the vehicles and a fraudulent transfer occurred, the

Bankruptcy Court applied quasi estoppel principles based on Motiva’s tax treatment and

45 Id. at 724–25 (concluding the support payments’ tax treatment strengthens the position that the parties intended the obligation as maintenance) (citing Tilley v. Jessee,

, 1078 n.3 (4th Cir. 1986) (finding debtor’s treatment of obligation as nondeductible expense strengthened debtor's position that obligation was intended as property settlement)).

18 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 19 of 30

inconsistencies presented in other proceedings. 46

Appellants present several arguments to show the Bankruptcy Court erred in

concluding Motiva owned the vehicles—none of which are persuasive. First, Appellants

assert Motiva only held bare legal title to vehicles, and therefore the vehicles were not

property of the estate over which the Bankruptcy Court could exercise jurisdiction. Next,

Appellants challenge the Bankruptcy Court’s reliance on Motiva’s tax treatment of the

vehicles and contend the Bankruptcy Court’s application of quasi estoppel violated the

Tenth Circuit’s directive in Sampson, which requires examining substance over form. 47

Third, Appellants insist the third-party payment for the vehicles sufficiently rebutted any

presumption of ownership based on Motiva holding title to the vehicles. Finally,

Appellants contend the Bankruptcy Court erred by failing to recognize Motiva only ever

held the vehicles in a resulting trust.

The Trustee contends the Bankruptcy Court examined the evidence to determine

the parties intended for Motiva to own the vehicles and applied the principles of quasi

estoppel to properly conclude Motiva owned the vehicles. Additionally, the Trustee

asserts title to a vehicle is prima facie evidence of ownership in New Mexico. Thus, once

prima facie evidence was provided, the burden to rebut the presumption shifted to

Appellants to show Motiva did not have an ownership interest in the vehicles, and

46 Appellants do not dispute a transfer occurred; they only dispute whether Motiva owned the vehicles, making them part of the bankruptcy estate and transfer thereof a fraudulent transfer. 47 See Appellants’ Opening Br. 20–21.

19 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 20 of 30

Mr. Ferguson failed to present rebuttal evidence sufficient to overcome the presumption.

i. Jurisdiction

Here, the Bankruptcy Court properly exercised jurisdiction over the vehicles. We

reject Appellants’ argument that a bankruptcy court’s jurisdiction over a single asset can

be broken down and determined by the asset’s legal and equitable interest. 48 Determining

whether property is estate property is a core proceeding and bankruptcy courts have

jurisdiction over core proceedings. 49 Courts have routinely determined that bankruptcy

courts have jurisdiction to determine the scope of a debtor’s interest in property. 50 More

specifically, a bankruptcy court has subject matter jurisdiction under

(b)(2)(H) to decide a fraudulent transfer claim. Thus, contrary to Appellants’

48 § 541(a)(1); see also In re Brown,

(Bankr. S.D. Tex. 2014), adopted, CIV. A. No. H-14-2967,

(S.D. Tex. Dec. 23, 2014) (unpublished), aff’d in part, appeal dismissed in part,

(5th Cir. 2015) (“In rem jurisdiction is a court’s jurisdiction to determine rights in property in the court’s possession, known as the res. In rem bankruptcy jurisdiction is premised on the bankruptcy court’s possession of the bankruptcy estate, which initially includes all legal or equitable interests of the debtor in property. . . .”) (internal quotations and citations omitted). 49 In re Hafen,

, 578 (10th Cir. BAP 2020) (“The jurisdiction to determine what is property of the bankruptcy estate lies exclusively with the bankruptcy court.”); In re Gardner,

(10th Cir. 1990) (“Bankruptcy courts have jurisdiction over core proceedings.”). 50 See, e.g., Hafen, 616 at 578; Churchill Tech., Inc. v. Cribari (In re Churchill Tech. Inc.),

(Bankr. W.D.N.Y. 1999) (“Litigation to determine the scope of that [debtor’s] interest is a proceeding that relates to a case under title 11 of the United States Code, and is, therefore, within the scope of the court’s jurisdiction[.]”); In re DiBerto,

(Bankr. D.N.H. 1994) (“[W]hen the equitable interest is subject to unresolved conflicting claims of ownership, the Court clearly has jurisdiction to determine what is and what is not property of the estate.”).

20 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 21 of 30

contentions, the Bankruptcy Court did not create jurisdiction by applying quasi

estoppel. 51

ii. In re Sampson

We also disagree with Appellants’ argument that the Bankruptcy Court’s

determination was at odds with Tenth Circuit law. While the Sampson court rejected a

per se application of quasi estoppel in § 523(a)(5) dischargeability actions, it did not

reject the application of quasi estoppel in other circumstances. Thus, Sampson provides

no directive here.

iii. Rebutting the Presumption of Ownership

We are also unpersuaded by Appellants’ argument the Bankruptcy Court erred in

finding Motiva owned the vehicles because they sufficiently rebutted the presumption of

ownership by showing a third-party purchased the vehicles—the same argument

51 Appellants argue no fraudulent transfer occurred because the vehicles were never estate property and the Bankruptcy Court’s use of quasi estoppel to conclude the vehicles belonged to the bankruptcy estate manufactured subject matter jurisdiction. Relying on Fed. R. Bankr. P. 8014(f), Appellants submitted a letter to this Court providing “supplemental authority” to support its newly raised argument that a court cannot manufacture subject matter jurisdiction using quasi estoppel. Although we agree with the general proposition cited in those cases, they are not applicable here. Rule 8014(f) concerns submission of “pertinent and significant authorities” that come to a party’s attention after the party’s brief has been filed—or after oral argument but before a decision. The supplemental authority Appellants provided is neither pertinent nor significant. And we note obvious dangers in sending the Court a letter citing authorities that were in existence, but that counsel failed to include in briefing, suggesting tardy research is responsible for these late citations. Additionally, the proper purpose of such a letter is to advise the court of “new authorities” a party has learned of after oral argument, not to interject an available but previously unmentioned issue for decision. Niemi v. Lasshofer,

(10th Cir. 2013) (analyzing Fed. R. App. P. 28(j), which is nearly identical to Rule 8014(f)).

21 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 22 of 30

presented to the Bankruptcy Court and rejected as insufficient, and the same argument

presented and rejected by the New Mexico State Court.

In New Mexico, a vehicle’s title serves as prima facie evidence allowing for a

presumption of ownership. 52 The presumption of ownership, however, is rebuttable. 53

As explained, “a finding is not clearly erroneous unless it is without factual

support in the record or if, after reviewing all of the evidence, we are left with the definite

and firm conviction that a mistake has been made.” 54 Here, the Bankruptcy Court

considered the evidence to determine Motiva owned the vehicles relying heavily on

Mr. Ferguson’s use of Motiva’s dealer’s license to benefit himself financially by avoiding

excise taxes. 55 It also relied on the purchase forms used to purchase the vehicles,

Motiva’s representations of ownership on its tax forms, and the various inconsistencies

related to the vehicles’ ownership presented by Mr. Ferguson in the state court litigation

to conclude Motiva owned the vehicles. In light of this evidence, we are not left with a

52

. 53 See Fernandez v. Ford Motor Co.,

(N.M. Ct. App. 1994). In re Mosher,

, 203 (10th Cir. 2020) (unpublished) (quoting 54

Gillman v. Ford (In re Ford),

(10th Cir. 2007)). 55 New Mexico currently imposes a 4% excise tax on the sale of motor vehicles in the state.

to -4. But a New Mexico car dealer may avoid this tax if the car is registered with a “dealer plate.”

(A). Alternatively, a dealer may register and title a vehicle included in a dealer’s inventory in the name of the dealer upon payment of the registration fee applicable to that vehicle, but without payment of the motor vehicle excise tax, provided the vehicle is subsequently sold or leased in the ordinary course of business in a transaction subject to the motor vehicle excise tax or the leased vehicle gross receipts tax.

(D).

22 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 23 of 30

definite and firm conviction the Bankruptcy Court made a mistake and it was not clear

error for the Bankruptcy Court to find Motiva owned the vehicles.

iv. Resulting Trust

Finally, we reject Appellants’ contention Motiva held the vehicles in a resulting

trust for the benefit of the third-party that paid for them. Mr. Ferguson’s argument

presumes, without authority, a party’s payment for property automatically vests equitable

ownership in that party and/or sufficiently rebuts the presumption regarding ownership.

New Mexico resulting-trust law does not support such a conclusion. 56

In New Mexico, a resulting trust may arise when a third-party payor purchasing

property “directs that the vendor convey the property to another person.” 57 These

circumstances “raise [a rebuttable] inference that such person does not intend that the

party taking or holding the property should also have the beneficial interest therein. . . .” 58

To successfully establish a resulting trust arose requires a party to show “the absence of

any intention to give the beneficial interest to the transferee.” 59

The Bankruptcy Court rejected the argument the third-party payment was

dispositive to legal ownership, and instead applied quasi-estoppel principles to determine

56 See Butner v. United States,

(1979) (“Property interests are created and defined by state law.”) (superseded by statute on other grounds). 57 Aragon v. Rio Costilla Co-op. Livestock Ass’n,

(N.M. 1991); Bassett v. Bassett,

(N.M. 1990) (concluding a resulting trust may occur when property is purchased and paid for by a party that then directs the seller to convey the property to another party). 58 Aragon,

. 59

23 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 24 of 30

Appellant was equitably estopped from claiming he owned the vehicles based on his

inconsistent representations. 60 Moreover, these inconsistent representations do not reflect

an absence of Mr. Ferguson’s intent to give the beneficial interest to Motiva to establish a

resulting trust under New Mexico law. Thus, because we are not left with a definite and

firm conviction the Bankruptcy Court made a mistake, we cannot conclude the

Bankruptcy Court clearly erred in finding Motiva owned the vehicles.

C. The Bankruptcy Court did not err in concluding Mr. Ferguson breached his fiduciary duty to Motiva. The Bankruptcy Court concluded the Turbo Kit Project belonged to Motiva and

Mr. Ferguson breached his fiduciary duties when he transferred the Turbo Kit Project to

Turbo without reasonable compensation.

i. The Bankruptcy Court did not clearly err in finding Motiva owned the Turbo Kit Project. Appellants argue the Bankruptcy Court clearly erred by relying only on the Tax

Forms to conclude Motiva owned the Turbo Kit Project. Appellants contend the asset

development for the Turbo Kit Project under Motiva was paid for by third parties, and

thus a resulting trust arose regarding the assets. 61

60 Appellants argue no New Mexico authority adopts quasi estoppel to determine property ownership, but acknowledged no authority exists rejecting it either. 61 The record does not reveal Appellants argued a resulting or constructive trust formed related to the Turbo Kit Project below. Because the argument was raised for the first time on appeal with respect to this claim, we conclude Appellants waived the argument. Schrock v. Wyeth, Inc.,

(10th Cir. 2013) (quoting Quigley v. Rosenthal,

(10th Cir. 2003)).

24 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 25 of 30

The Trustee asserts the Bankruptcy Court relied on more than just the Turbo Kit

Project tax treatment to conclude the Turbo Kit Project was a Motiva asset. Specifically,

the Trustee contends he produced substantial evidence of Motiva’s ownership including

Motiva’s promotion of the Turbo Kit Project. The Trustee also submitted evidence the

Turbo Kit Project used Motiva’s name implying it was a division of Motiva. And finally,

Turbo’s nonexistence prior to 2017 further supports that the Turbo Kit Project was a

Motiva asset.

The Tax Forms showed expenses for Motiva included “research and experimental”

expenses and other expenses and income related to the Turbo Kit Project. The

Bankruptcy Court reasoned Mr. Ferguson’s tax treatment of the Turbo Kit Project

expenses as Motiva expenses on the Tax Forms persuaded it to conclude Motiva owned

the Turbo Kit Project. However, the Trustee is correct—this was not the sole basis for the

Court’s conclusion. The Bankruptcy Court noted several inconsistent facts as well as the

Turbo Kit Project’s use of Motiva’s property, name, storage, purchasing power, and

address to support its determination that the Turbo Kit Project was part of Motiva. The

Bankruptcy Court also noted Mr. Ferguson and others relied heavily on Motiva for the

Turbo Kit Project’s development and the asserted owner, Turbo, did not exist until

2020—long after the Turbo Kit Project’s inception. 62

62 The Trustee also cites to promotional videos presented at the trial supporting Motiva was at some point associated with the Turbo Kit Project. See Appellee’s Opening Br. 25.

25 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 26 of 30

We see no error in the Bankruptcy Court finding Motiva owned the Turbo Kit

Project at the time Mr. Ferguson transferred it to Turbo.

ii. The Bankruptcy Court did not err in concluding Mr. Ferguson breached his fiduciary duty to Motiva.

Appellants do not dispute Mr. Ferguson owed a fiduciary duty to Motiva, nor do

they dispute there was no reasonable compensation for the transfer. Instead, Appellants

contend there was no breach of fiduciary duty because the Turbo Kit Project did not

belong to Motiva. Accordingly, if Motiva did not own the Turbo Kit Project, then Mr.

Ferguson could not have breached his fiduciary duty by transferring the assets to another

entity.

Because we determined the Bankruptcy Court did not err by finding the Turbo Kit

Project belonged to Motiva at the time Mr. Ferguson transferred it to Turbo without

reasonable compensation, we also conclude the Bankruptcy Court did not err in deciding

Mr. Ferguson breached his fiduciary duty.

D. The Bankruptcy Court did not err by imposing damages.

The Bankruptcy Court determined Mr. Ferguson breached his fiduciary duty by

transferring an asset away from Motiva for no compensation. The Court based the

damages award on the cost to develop the Turbo Kit Project as evidenced by the

“research and experimentation” expense (“R&D Costs”) on Mr. Ferguson’s 2016 tax

return.

Appellants argue the damages award does not have any basis in the record and

should be reversed. Appellants assert the Bankruptcy Court sua sponte settled on the

26 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 27 of 30

damages award relying solely on the R&D Costs in the 2016 tax return and rejected the

commonly used business or asset valuation methods—specifically the cost approach. 63

Appellants also contend the Bankruptcy Court erred by using the R&D Costs because it

did not rely on any authority to support the methodology and no connection existed

between the R&D Costs and the loss Motiva experienced. The Trustee contends the

Bankruptcy Court appropriately assessed damages based on the evidence before it—the

net investment calculated from the 2016 tax return.

In New Mexico, the injured party in a breach of fiduciary duty claim may be

entitled to compensatory damages to put the injured party in the same place had the harm

not occurred. 64 Once a court has determined damages are due, New Mexico courts

generally accept the amount so long as the award is (i) supported by substantial evidence,

and (ii) determined by a reasonable method. 65 It does not appear New Mexico requires a

particular calculation method to determine the amount of compensatory damages: “As

long as there is a reasonable method used to achieve an amount of damages, we will

accept that amount.” 66

See Appellants’ Opening Br. 33. Appellants cited the following as the “common 63

methods” to obtain a business or asset valuation: market approach, net asset or cost approach, and income approach. 64 Moody v. Stribling,

(N.M. Ct. App. 1999) (quoting Cent. Sec. & Alarm Co. v. Mehler,

(N.M. Ct. App. 1996)). 65

66 Id. at 1220; see also Jackson v. Goad,

, 281–82 (N.M. 1963) (concluding when damages are certain, mathematical certainty as to the amount is not required for recovery).

27 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 28 of 30

The Trustee admitted he had not obtained a business valuation to calculate the

damages but asserts the Bankruptcy Court employed the cost approach. The purpose of a

cost approach is to determine the “cost of constructing a substitute property that provides

the same utility as the subject property at its highest and best use.” 67 The cost approach

“measures damages based on the cost to obtain another asset of equal utility.” 68

Here, the Bankruptcy Court reasonably relied on the cost associated with the

Turbo Kit Project and turned to substantial evidence—the “only verifiable number about

the value of the [Turbo Kit Project] when Motiva claimed to own it” 69—to calculate the

damages. Given the calculation of damages for breach of fiduciary duty claims in New

Mexico requires only substantial evidence and a reasonable method, and both are present

here, we conclude the Bankruptcy Court did not err by awarding the damages based on

the R&D Costs.

E. The Bankruptcy Court did not abuse its discretion by piercing the corporate veil.

The Bankruptcy Court determined Motiva and Mr. Ferguson were alter egos and

pierced the corporate veil to find Mr. Ferguson liable for Motiva’s debts. The Trustee

argues Appellants did not adequately brief their challenge to the veil-piercing issue, and

thus waived the issue. In reply, Appellants contend they adequately challenged the veil-

67 Hewlett-Packard Co. v. Benton Cnty. Assessor,

(Or. 2015). 68 Better Holdco, Inc. v. Beeline Loans, Inc., No. 20CIV8686JPCSN,

, at *7 (S.D.N.Y. Mar. 30, 2023) (unpublished). See, e.g., Cement-Lock v. Gas Tech. Inst.,

(N.D. Ill. 2009). 69 Opinion at 25, in Appellants’ App. at 533.

28 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 29 of 30

piercing through their quasi-estoppel argument and point to the sections in the opening

brief where they discuss the issue. 70

As a preliminary matter, this Court must determine whether this issue has been

properly raised on appeal. In the Tenth Circuit, “[a]n issue not included in either the

docketing statement or the statement of issues in the party’s initial brief is waived on

appeal.” 71 Similarly, failure to properly raise an issue or argument in an opening brief

constitutes waiver of that issue. 72

Appellants did not challenge the veil-piercing determination as an issue on appeal

or in their statement of issues in the opening brief. 73 Nor did Appellants adequately brief

the issue in their opening brief. Instead, Appellants slip in a veil-piercing argument

related to the discussion of the Bankruptcy Court’s application of quasi estoppel and

contend the Bankruptcy Court’s error on that issue negated the veil-piercing judgment

against Mr. Ferguson. 74 Accordingly, we conclude Appellants waived this argument.

Even assuming Appellants had properly raised and argued this issue, the

Bankruptcy Court did not abuse its discretion by piercing the corporate veil. In New

70 Appellants’ Reply Br. 22–23. Anderson v. U.S. Dep’t of Labor,

(10th Cir. 2005) (quoting 71

Adams-Arapahoe Joint Sch. Dist. No.28-J v. Cont’l Ins. Co.,

(10th Cir. 1989)). 72

Appellants’ Statement of Issues on Appeal, Bankr. ECF No. 154; Appellants’ 73

Opening Br. 1. 74 See Appellants’ Opening Br. 27.

29 BAP Appeal No. 23-3 Docket No. 51 Filed: 01/23/2024 Page: 30 of 30

Mexico, to pierce the corporate veil, a court must find instrumentality or domination,

improper purpose, and proximate causation. 75

To the extent Appellants challenge the veil piercing, they only argue Motiva did

not own the vehicles or Turbo Kit Project. For the sake of argument, even if the

Bankruptcy Court was incorrect in these conclusions, which it was not, other facts

supported the veil piercing. For example, Motiva still had other assets to pay creditors—

the Ferrari, settlement funds from the Valles Litigation, and the turbo kit inventory—that

Mr. Ferguson stripped from Motiva. Contrary to Appellants’ assertions, the Bankruptcy

Court identified multiple factors, including but not limited to, Mr. Ferguson’s control

over Motiva and its finances, the lack of corporate formalities, Mr. Ferguson’s tax

treatment, chronic insolvency, and harm to creditors. 76

Accordingly, we conclude, even if Appellants had sufficiently briefed this issue,

the Bankruptcy Court did not abuse its discretion in piercing the corporate veil.

V. Conclusion

For the foregoing reasons, we AFFIRM the Bankruptcy Court.

75 Harlow v. Fibron Corp.,

(N.M. Ct. App. 1983). 76 Opinion at 14–17, in Appellants’ App. at 522–25.

30