Roberts v. Sender

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 31, 2026
• Docket: 25-1103
• Status: Unpublished

Opinion

Appellate Case: 25-1103 Document: 42 Date Filed: 03/31/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 31, 2026 _________________________________ Christopher M. Wolpert Clerk of Court In re: MICHAEL JOSEPH ROBERTS, SR.,

Debtor.

------------------------------

MICHAEL JOSEPH ROBERTS, SR.,

Appellant,

v. No. 25-1103 (BAP No. 24-009-CO) HARVEY SENDER, Chapter 7 Trustee; (Bankruptcy Appellate Panel) PDC, LLC; TIMOTHY FLAHERTY; TIMOTHY KNEEN; RIVERIA COUNTRY CLUB, S. DE R.L. C.V.S.,

Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before EID and MURPHY, Circuit Judges, and TEETER, District Judge. ** _________________________________

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** The Honorable Holly L. Teeter, U.S. District Judge, District of Kansas, sitting by designation. Appellate Case: 25-1103 Document: 42 Date Filed: 03/31/2026 Page: 2

Michael Joseph Roberts, Sr. appeals from a decision of the Bankruptcy

Appellate Panel (BAP) affirming the bankruptcy court’s order approving a settlement

agreement between the trustee and creditors. We exercise jurisdiction under

28 U.S.C. § 158(d)(1) and affirm.

Roberts has been battling his former business partners in court over ownership

and control of real estate in Mexico for close to ten years. They began in Colorado

state court, where Roberts repeatedly faced setbacks and eventually had a $22.8

million award entered against him. He then tried bankruptcy court. Again, Roberts

did not fare well. The bankruptcy court found that Roberts “has engaged in a level of

pre-petition litigation misconduct not previously seen by this Court,” converted

Roberts’s Chapter 11 case to Chapter 7, and appointed a trustee. In re Roberts, 644

B.R. 220, 231 (Bankr. D. Colo. 2022). The trustee successfully crafted a settlement

designed to put an end to the state-court fight and the escalation of interest and legal

fees. The bankruptcy court conducted an evidentiary hearing and approved the

settlement over the objection of Roberts and his counsel. Roberts appealed to the

BAP. The BAP affirmed. Roberts now appeals to this court. We find no abuse of

discretion in the bankruptcy court’s approval of the settlement agreement and affirm.

I. BACKGROUND

Both the bankruptcy court and the BAP detailed the factual background of this

case. See In re Roberts, 667 B.R. 147 (B.A.P. 10th Cir. 2025); In re Roberts, No. 22-

10521-JGR, 2024 WL 1460287 (Bankr. D. Colo. Mar. 28, 2024). This court need not

2 Appellate Case: 25-1103 Document: 42 Date Filed: 03/31/2026 Page: 3

repeat their efforts. We therefore recount only the minimum facts necessary to frame

the underlying dispute and explain why we find no abuse of discretion.

Roberts formed a Colorado limited liability company, PdC, LLC, with

Timothy Flaherty and Timothy Kneen. They wanted to develop beachfront property

in Mexico. But Mexico prohibits foreign companies from owning land on its coast.

PdC thus formed a Mexican entity called Riviera Country Club, S. de R.L. C.V.S.

(“RCC”). Roberts, Flaherty, and Kneen served as RCC’s managers. RCC purchased

several properties in Mexico. Roberts then fraudulently used a power of attorney to

acquire a lien on two of the properties in 2016. He next attempted to foreclose on the

properties for himself at the expense of PdC and RCC. The BAP astutely referred to

Roberts’s efforts as an attempt “to obtain the [two properties] by means of an

economic coup.” In re Roberts, 667 B.R. at 150.

Flaherty, Kneen, PdC, and RCC (eventually forming the “PdC Creditors” in

the bankruptcy action) sued Roberts in Colorado state court. 1 They obtained an

injunction in 2019 to stop Roberts from further misappropriating PdC property in

Mexico. The Colorado state court also held Roberts in contempt, fined him, jailed

him, and found in phase one of a bench trial that he had breached his fiduciary duties

by fraudulently taking PdC property.

1 More precisely, PdC Creditors filed cross-claims and a third-party complaint against Roberts in an existing Denver District Court lawsuit filed by a creditor against PdC Creditors. At the same time, Roberts was pursuing litigation in Mexico to secure his acquisition of the two properties and foreclose them. Neither PdC nor RCC had notice of the hearing in Mexico through which Roberts obtained the lien on the properties. 3 Appellate Case: 25-1103 Document: 42 Date Filed: 03/31/2026 Page: 4

The state court scheduled phase two of the bench trial on damages. Roberts

filed for Chapter 11 bankruptcy while in jail for civil contempt on the eve of the

damages hearing. PdC Creditors obtained relief from the automatic bankruptcy stay.

The state-court judge conducted phase two of the trial on damages and awarded PdC

Creditors $22.8 million in damages and attorney’s fees. The bankruptcy court found

that Roberts filed bankruptcy in bad faith to relitigate the state-court judgment and

converted the Chapter 11 case to a Chapter 7 case.

PdC Creditors and the Chapter 7 trustee, Harvey Sender, entered into a

settlement agreement and moved the bankruptcy court to approve. The agreement

includes these components (among others): (1) PdC Creditors’ claim in a negotiated

amount of $19 million is allowed; (2) all remaining claims by PdC Creditors are

withdrawn; (3) PdC Creditors release any security or lien interest they had in

property of the bankruptcy estate; (4) Sender relinquishes any appeal rights in the

state-court litigation; and (5) judgment be entered in the state-court case in the

amount of PdC Creditors’ allowed claim. Roberts and his attorney Robert Podoll

objected to the motion. No other creditors objected.

The bankruptcy court conducted an evidentiary hearing that spanned two days,

and it held closing argument on a third day. The bankruptcy court heard testimony

from five witnesses; the parties moving to approve the settlement presented three and

the objectors presented two. PdC’s Chief Financial Officer Carl Vertuca, Sender, and

expert Carolyn Fairless testified for the movants. Flaherty and expert Stanley Garnett

testified for the objectors. Roberts did not testify.

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The bankruptcy court found the testimony of Vertuca to be credible,

knowledgeable, and unbiased. It found the testimony of Sender to be credible and

reflecting “a business-like approach to the resolution of this case.” And it found the

testimony of Fairless to be credible, studied, and persuasive. The bankruptcy court

discounted and disregarded the opinion of Garnett and found Flaherty’s testimony

irrelevant. 2 The bankruptcy court ultimately approved the agreement and found that

the compromise was fair, reasonable, and in the best interests of the estate.

II. STANDARD

We review a bankruptcy court’s approval of a settlement agreement for abuse

of discretion. Reiss v. Hagmann, 881 F.2d 890, 891-92 (10th Cir. 1989). This court

will affirm unless the bankruptcy court’s decision achieves an uninformed, unjust

result not based on an “objective evaluation of developed facts.” Id. We review

independently the bankruptcy court’s decision even when the appeal is from the

BAP’s decision. In re Amerson, 839 F.3d 1290, 1298 (10th Cir. 2016). We do not

defer to the BAP opinion. Id. But it may be (and often is) persuasive. Id.

III. ANALYSIS

Roberts asserts six issues. But his six issues are mostly varied ways of trying

to relitigate matters extraneous to this court’s review of the bankruptcy court’s

approval of the settlement agreement. A reviewing court need not track every sub-

Flaherty’s testimony is about nine pages of transcript. Podoll tried to discuss 2

litigation in Mexico with him and represented that his questions to Flaherty were relevant to “the essence of the breach of fiduciary duty claim” and the appellate rights relating to that claim. Appt. App’x 1388. 5 Appellate Case: 25-1103 Document: 42 Date Filed: 03/31/2026 Page: 6

issue that a litigant presents. See In re Armstrong, 99 F. App’x 210, 213, 213 n.1

(10th Cir. May 27, 2004). And here, the central question is singular: whether the

bankruptcy court abused its discretion when it approved the settlement agreement. It

did not. We explain why before briefly noting the other issues Roberts raises.

A. Review of Settlement Agreement.

A Chapter 7 trustee may enter compromises or settlements to be approved by

the court. See Fed. R. Bankr. P. 9019. Settlement is favored. Kearney v. Unsecured

Creditors Comm., 987 F.3d 1284, 1295 (10th Cir. 2021). A bankruptcy court

deciding whether to approve a settlement examines whether the settlement is “fair

and equitable and in the best interests of the estate.” In re Rich Glob., LLC, 652 F.

App’x 625, 631 (10th Cir. 2016). At its core, this means the court decides whether

the settlement “falls below the lowest point in the range of reasonableness.” Id.

(citation omitted). Courts use four factors, known as the “Kopexa factors,” to analyze

an agreement: (1) the underlying litigation’s probable success on the merits; (2)

possible judgment-collection difficulties; (3) the litigation’s complexity and expense;

and (4) creditors’ interests. In re Kopexa Realty Venture Co., 213 B.R. 1020, 1022

(10th Cir. BAP 1997). 3

3 The Tenth Circuit has not adopted the Kopexa factors in a published opinion. But at least one unpublished decision has approved of their use as a tool to evaluate approval of settlement agreements. See, e.g., In re Armstrong, 99 F. App’x at 213. And both published and unpublished decisions have observed their use without criticism. See, e.g., Kearney, 987 F.3d at 1289-90, 1294-95; In re Rich Glob., 652 F. App’x at 631. 6 Appellate Case: 25-1103 Document: 42 Date Filed: 03/31/2026 Page: 7

The bankruptcy court conducted a robust evidentiary hearing on the motion to

approve the settlement agreement. It entered a nineteen-page order after hearing

evidence and reviewing the record. The order thoroughly laid out the history of the

relationships and properties and how Roberts fraudulently used a power of attorney

to personally acquire liens on two of the properties and foreclose on them. The

bankruptcy court reviewed the state-court litigation and Roberts’s (bad) behavior in

that litigation. It addressed the bankruptcy litigation and how Roberts’s behavior led

to relief for PdC Creditors from the bankruptcy stay and a conversion to a Chapter 7

case. And the bankruptcy court discussed at length the terms of the settlement

agreement, the testimony presented at the hearing, and the credibility assessments of

the witnesses.

The bankruptcy court correctly set forth the governing law and appropriately

noted that it did not need to “decide the numerous issues of law and fact raised by a

compromise or settlement, but must only canvass the issues and see whether the

settlement falls below the lowest point in the range of reasonableness.” In re Roberts,

2024 WL 1460287, at *13 (citation and internal quotation marks omitted). It applied

the Kopexa factors and concluded the following weighed in favor of approving the

settlement agreement: (1) a state-court appeal’s low probability of success; (2) the

complexity and expense of the state-court case, noting it was Roberts’s conduct that

caused the complexity; (3) Podoll was the only creditor who objected; (4) Roberts

and Podoll desired “to litigate ad infinitum”; and (5) counsel for Roberts was so

“hopelessly conflicted” that the bankruptcy court had “a hard time believing anything

7 Appellate Case: 25-1103 Document: 42 Date Filed: 03/31/2026 Page: 8

they say.” Id. at *17-18. The bankruptcy court specifically determined that the

agreement was fair and equitable and in the best interests of the estate, and it noted:

The end of the state court litigation ends nearly a decade- long litigation, accompanied by an explosion of attorney’s fees by both sides. The judgment is accruing interest at the rate of $1.5 million a year. The Agreement puts an end to both when the Trustee, as owner of the appellate rights, stipulates to the Denver District Court judgment.

Id. at *14.

The bankruptcy court observed that one primary purpose of the settlement

agreement is to resolve the state-court litigation, which it described as “litigation

where every motion, hearing, or trial has been hotly contested.” Id. at *15. It then

discussed the many reasons why Roberts’s probability of success on state-court

appeal to be negligible. Specifically, Roberts “lost at every step of the way and was

harshly sanctioned.” Id. It noted that Roberts has failed on all nine of his challenges

to the judgment. The bankruptcy court also recounted multiple instances showing

“Roberts’s lack of credibility and flagrant disregard of prior court orders.” Id. The

instances are all supported by the record. And Fairless provided a thorough analysis

with concrete reasoning on why she believed an appeal had a low chance of success.

Garnett, on the other hand, offered only summary conclusions. The bankruptcy court

acted within its discretion when it discounted Garnett’s report and testimony.

The bankruptcy court focused much of its analysis on the probability of

success on appeal but also addressed the other Kopexa factors. It reasoned that the

possibility of difficulty in collecting a judgment was not a relevant factor for this

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case. It noted that the complexity and expense of the litigation weighed in favor of

approving the settlement. In support, it cited the “cross-jurisdictional nature,

continued litigation, unwillingness to settle, ballooning attorney’s fees, and complex

issues.” Id. at *17. And finally, the bankruptcy court observed that the only objecting

creditor is Podoll, which it characterized as “hopelessly conflicted” and hard to

believe. Id. at *18. These observations were within the bankruptcy court’s broad

discretion.

This court does not disturb a bankruptcy court’s approval of a compromise

unless it is uninformed, unjust, and not based on an “objective evaluation of

developed facts.” Reiss, 881 F.2d at 891-92. Here, the compromise approval is

informed, just, and based on a thorough and objective evaluation of developed facts.

Simply put, the bankruptcy court did not abuse its discretion in approving the

agreement. It scrupulously examined the evidence and considered whether the

settlement was fair and equitable and in the best interests of the estate. It considered

the Kopexa factors and found the agreement fair and reasonable. In reviewing the

Kopexa factors, the bankruptcy court’s role was not to act in an appellate capacity

and engage in detailed analysis of each of the potential appellate issues. It was only

tasked with considering Roberts’s probability of success. And its findings are wholly

consistent with our own review of the record. We are confident that the bankruptcy

court closely reviewed the record, weighed the evidence, applied the Kopexa factors,

and reached a conclusion that was well within the bounds of its discretion.

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B. Roberts’s Other Issues Presented.

We could end our opinion here. But to assure Roberts that we have fully and

fairly considered his appeal, and to note one argument in particular that we reject, we

briefly discuss the remaining issues. Specifically, we address (1) whether Sender

could give up state-court appellate rights in the settlement agreement (yes); (2)

whether the bankruptcy court improperly allowed PdC Creditors’ claim because it

was not cognizable, had no provable damages, and was subject to un-litigated

defenses (no); (3) whether the bankruptcy court was required to rule Roberts’s

objections before approving the settlement agreement (no); and (4) whether the

bankruptcy court erred when it concluded that PdC Creditors’ defenses were not

barred by the doctrines of comity and res judicata (no). 4

Ownership of State-Court Appellate Rights. First, Roberts contends that

Sender had no authority to give up his state-court appellate rights in the settlement

agreement. He argues that those rights belong to him and do not belong to the estate.

Roberts’s arguments on this issue are unpersuasive. Both federal and state law are

relevant to this question. A debtor’s interest in property is governed by state law. See

Butner v. United States, 440 U.S. 48, 55 (1979). Whether that property is part of the

bankruptcy estate is governed by federal law. See generally 11 U.S.C. § 541(a)(1)

(defining the debtor’s estate).

4 Roberts identified six issues for appeal. We already have addressed his contention that the bankruptcy court abused its discretion in finding Roberts had a negligible chance of prevailing on appeal. It falls within our analysis why the settlement approval was not an abuse of discretion. 10 Appellate Case: 25-1103 Document: 42 Date Filed: 03/31/2026 Page: 11

The Colorado Court of Appeals has held that a debtor’s appeal rights become

the property of the bankruptcy estate once a debtor files for bankruptcy. See In re

Marriage of Yates, 148 P.3d 304, 314 (Colo. App. 2006) (holding that husband

lacked standing to challenge division of marital property when he filed bankruptcy

petition after appeal because the appellate rights became the property of the trustee).

Roberts claims this issue is different because defensive appellate rights are not the

same. He contends Yates is distinguishable because the marital-property division was

an affirmative claim by the husband-debtor. Roberts asserts that defensive appellate

rights, in contrast, are not a “chose in action” under Colorado law because they do

not constitute the “right to receive or recover a debt, or money, or damages for

breach of contract, or for a tort connected to a contract, but which cannot be enforced

without action.” AA Wholesale Storage, LLC v. Swinyard, 488 P.3d 1213, 1216

(Colo. App. 2021). Roberts reasons that a chose in action is property in Colorado

while defensive appellate rights are not property.

We disagree that the Colorado Supreme Court would so find. Colorado courts

define property broadly. “Property” in Colorado includes “everything that has an

exchangeable value or which goes to make up wealth or estate.” In re Marriage of

Graham, 574 P.2d 75, 77 (Colo. 1978) (quoting Black’s Law Dictionary 1382 (rev.

4th ed. 1968)). The definition does not mention or limit itself to a chose in action.

Texas law uses a similarly broad definition. See In re Croft, 737 F.3d 372, 375 (5th

Cir. 2013) (noting that Texas law defines property to include “every species of

valuable right and interest”). The Fifth Circuit applied Texas’s definition to find that

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defensive appellate rights were the property of the estate. Id. at 375-78. And the

Central District of California reached the same conclusion when considering

California law. In re Mozer, 302 B.R. 892, 896 (C.D. Cal. 2003) (“The right to appeal

is valuable in nature and is the property of the bankruptcy estate under California’s

broad concept of property rights.”); see also In re Bouzaglou, No. 2:14-AP-01645-

DS, 2018 WL 4062299, at *7 (B.A.P. 9th Cir. Aug. 13, 2018), aff’d, 803 F. App’x

147, 148 (9th Cir. 2020) (determining that defendant-debtor against whom a state-

court judgment had been entered relinquished his appellate rights by filing a Chapter

7 bankruptcy case). But see In re Morales, 403 B.R. 629, 632-33 (Bankr. N.D. Iowa

2009) (finding defensive appellate rights not assets of the bankruptcy estate). 5

We agree with the reasoning of In re Croft and In re Mozer that defensive

appellate rights constitute both a right and an interest with exchangeable value,

rendering them property under Colorado law. They constitute a right because they

give a party the unilateral ability to invoke the court system. And they constitute a

valuable interest, as Roberts cannot contest; they represent a quantifiable value to

him as is evidenced by his actions in this case. Roberts may not have a legal interest

in the claims against him for fraud and breach of fiduciary duty. But it cannot be

5 Roberts urges this court to adopt the reasoning of In re Morales. We decline to do so. The In re Morales court held that the nature of an appellate right depends on the nature of the underlying judgment. 403 B.R. at 633. In re Morales also expressed concern that allowing transfer of defensive appellate rights to the estate would “effectively destroy” the debtor’s right to object to a creditor’s claim. Id. at 633-34. This concern is not present here; Roberts has been afforded more than ample opportunity to object to PdC Creditors’ claims. 12 Appellate Case: 25-1103 Document: 42 Date Filed: 03/31/2026 Page: 13

questioned that he has a legal interest in any assets ultimately used for judgment-

satisfaction. He also has a legal interest in minimizing the damage to this interest. We

determine that Colorado would recognize defensive appellate rights as property. And,

therefore, under federal bankruptcy law, they were properly included as part of the

estate that the trustee could agree to dismiss as part of the settlement. Roberts’s

argument to the contrary is unpersuasive.

Unlitigated Defenses. Second, Roberts suggests that he has not had a full

opportunity to litigate his defenses to PdC Creditors’ claims. Roberts is incorrect. He

has, in fact, had multiple opportunities to litigate his defenses. The bankruptcy court

went to great lengths to review the history of the litigation and his defenses. And it

also reviewed Fairless’s report, where she detailed the various defenses Roberts has

raised over the course of the litigation, as well as their outcome and chances of

success on appeal. It is beyond the scope of review for the bankruptcy court or this

court to essentially conduct another trial on Roberts’s defenses. See In re Rich Glob.,

652 F. App’x at 631. The bankruptcy court was required to “review the issues and

determine whether the settlement falls below the lowest point in the range of

reasonableness.” Id. (quoting 8 NORTON BANKRUPTCY LAW & PRACTICE § 167.2).

That is what it did.

Resolution of Objections. Third, Roberts asserts the bankruptcy court failed

to resolve his objections to PdC Creditors’ claims and therefore was without

authority to approve the settlement agreement. This argument is both disingenuous

and incorrect. Roberts made the same objections to PdC Creditor’s claim as he did to

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the settlement agreement. As the bankruptcy court found, the claims objections

“contain[] identical arguments to the arguments this Court heard during the hearing

on the motion to approve the settlement agreement.” Appt. App’x 1608. The BAP

aptly noted that the claims “objections filed by Roberts and Podoll reveal them to be

little or nothing more than a rehash of every reason why they could prevail on appeal

in the State Court Litigation and thereby eviscerate the claims of the PdC Creditors.”

In re Roberts, 667 B.R. at 152.

We also agree with the BAP, who cited In re DVR, LLC, 606 B.R. 80 (D. Colo.

2019), for the proposition that a bankruptcy court need not always resolve a claim

objection before it approves a settlement agreement. A bankruptcy court may be

required to resolve a claim objection that involves an individual right of the objecting

creditor (i.e., a dispute over competing lien rights). See In re DVR, 606 B.R. at 84-87.

But this is different from an objection that disputes a creditor’s entitlement to

distribution, which is the nature of Roberts’s objections here. Our court has also

recognized in an unpublished opinion the distinction made in In re DVR about the

types of objections that must be resolved. In re Fog Cap. Retail Invs. LLC, No. 22-

1297, 2024 WL 659559, at *6 (10th Cir. Feb. 16, 2024). In that case, we held that a

bankruptcy court did not need to resolve objections before approving a settlement

where no individual property rights such as lien rights were at issue. Id. The

objections at issue here likewise do not involve the individual rights of Roberts or

Podoll. They are nothing more than a rehashing of Roberts’s arguments why he

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would prevail on appeal. These rights now belong to Sender. Roberts’s argument to

the contrary does not hold water.

Comity and Res Judicata. Finally, Roberts wants this court to again consider

his defenses of comity and res judicata. He is not entitled to another bite at the apple.

The bankruptcy court addressed these arguments after Fairless discussed them in her

report and during the hearing. Both of these arguments rise or fall on Roberts’s

contention that the foreclosure-like suit he brought in Mexico precluded the Colorado

state court from hearing PdC Creditors’ claims for breach of fiduciary duty and fraud

and precluded the $22.8 million damages award against Roberts. Fairless explained

why she concluded neither of Roberts’s arguments was likely to win an appeal. And

the bankruptcy court evaluated Fairless’s testimony and found it well-reasoned and

credible. This argument, like Roberts’s others, does not change the outcome of this

case.

IV. CONCLUSION

The bankruptcy court did not abuse its discretion in approving the settlement

agreement. We AFFIRM the decision of the bankruptcy court.

Entered for the Court

Holly L. Teeter U.S. District Judge