                                                               FILED
                                                               MAR 30 2016
 1                         NOT FOR PUBLICATION
                                                          SUSAN M. SPRAUL, CLERK
 2                                                            U.S. BKCY. APP. PANEL
                                                              OF THE NINTH CIRCUIT
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )        BAP No. ID-15-1010-JuKiF
                                   )
 6   JAY P. CLARK,                 )        Bk. No. 12-00649-TLM
                                   )
 7                  Debtor.        )        Adv. No. 13-06016-TLM
     ______________________________)
 8                                 )
     CLARK’S CRYSTAL SPRINGS RANCH,)
 9   LLC; CLARK FARMS FAMILY TRUST,)
                                   )
10                  Appellants,    )
                                   )
11   v.                            )        M E M O R A N D U M*
                                   )
12   JEREMY J. GUGINO, Chapter 7   )
     Trustee,                      )
13                                 )
                    Appellee.      )
14   ______________________________)
15                   Argued and Submitted on March 17, 2016
                            at Pasadena, California
16
                             Filed - March 30, 2016
17
               Appeal from the United States Bankruptcy Court
18                        for the District of Idaho
19     Honorable Terry L. Myers, Chief Bankruptcy Judge, Presiding
                        _________________________
20
     Appearances:     Nolan Sorensen of S&P Legal LLC argued for
21                    appellants Clark’s Crystal Springs Ranch, LLC and
                      Clark Farms Family Trust; Matthew Todd
22                    Christensen of Angstman, Johnson & Associates,
                      PLLC argued for appellee Jeremy J. Gugino,
23                    chapter 7 trustee.
                           _________________________
24
     Before:   JURY, KIRSCHER, and FARIS, Bankruptcy Judges.
25
26       *
          This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
   have (see Fed. R. App. P. 32.1), it has no precedential value.
28 See 9th Cir. BAP Rule 8024-1.

                                      -1-
 1            Chapter 71 trustee, Jeremy J. Gugino (Trustee), filed an
 2   adversary complaint against Clark’s Crystal Springs Ranch, LLC
 3   (LLC) and Clark Farms Family Trust (Trust) (collectively,
 4   Defendants) seeking, among other things, a judgment
 5   substantively consolidating the bankruptcy estate of Jay P.
 6   Clark (Debtor) with the LLC and its sole member, the Trust.
 7   After a trial, the bankruptcy court issued a decision finding
 8   that the requirements for substantive consolidation articulated
 9   in Alexander v. Compton (In re Bonham), 229 F.3d 750 (9th Cir.
10   2000), were met and entered judgment substantively consolidating
11   Debtor’s estate with the LLC and the Trust nunc pro tunc.             This
12   appeal followed.        We AFFIRM.
13                                    I.   FACTS
14   A.       The Trust
15            Debtor, at one time a lawyer, formed the Trust in 2008 and
16   was the grantor and sole trustee.           At that time, the trust
17   property was described as $1.00 transferred by the grantor.             The
18   agreement gave the grantor discretion to name the Trust as a
19   beneficiary of life insurance policies, deposit property with
20   the Trust or devise property to the Trust.           In addition, the
21   trust agreement gave Debtor, as grantor, immediate benefits
22   while living:        “the Trustee shall distribute to or for the
23   benefit of the Grantor such sums from income and principal as
24   the Grantor may at any time request.”           The Trust did not provide
25
26        1
          Unless otherwise indicated, all chapter and section
27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
   “Rule” references are to the Federal Rules of Bankruptcy
28 Procedure.

                                           -2-
 1   for Debtor’s children during his lifetime nor did it
 2   specifically identify them as beneficiaries.   However, upon his
 3   death, the trust agreement provided that the Trust’s property
 4   should be administered and distributed to his “issue” according
 5   to the Trust’s provisions.
 6        Debtor was the initial trustee of the Trust.   Under § 4.04
 7   of the trust agreement, the trustee could resign on 30 days’
 8   notice.   That section further provided:
 9        Upon the death, resignation, or disability of Jay P.
          Clark, then Judith Constance (Clark) Appleby shall
10        serve as Trustee of this Clark Farms Family Trust.
          Upon the resignation of any Trustee, if no successor
11        Trustee is designated, as permitted by this Clark
          Farms Family Trust, a successor shall be appointed by
12        a court having jurisdiction over the trust with
          respect to which such Trustee has resigned.
13
14   As described below, when Debtor resigned as trustee, this
15   provision was ignored.   The trust agreement also contained a
16   spendthrift clause.
17        Finally, while one provision of the Trust stated that it
18   was irrevocable and not subject to amendment, another provision
19   authorized the Debtor, as grantor, to amend the Trust at any
20   time.   Debtor exercised the authority to amend in May 2010.
21   This amendment changed several provisions.   First, the trust
22   property was described as all the assets of the LLC which were
23   primarily farm machinery and vehicles owned by the LLC.   The
24   value of the assets was asserted to be at least $100,000, and
25   Debtor, as trustee, was required to maintain this “minimum
26   value.”   Second, it stated that so long as the Trust earned
27   income through the operation of the LLC, the Trust would pay for
28   certain expenses such as a cell phone, housing, and a vehicle,

                                    -3-
 1   on behalf of Debtor’s children.    Finally, the amendment made the
 2   Trust irrevocable, but its language purporting to do so was
 3   ambiguous at best.
 4   B.   The LLC
 5        Two weeks after the Trust was created, articles of
 6   organization of the LLC were filed with the Idaho Secretary of
 7   State.   Debtor signed the documents, which disclosed him as the
 8   initial registered agent.    The form indicates that the LLC is
 9   “member-managed.”    The LLC’s operating agreement stated that the
10   Trust was the sole member and manager of the LLC.    Thus, Debtor
11   individually was neither a member nor manager of the LLC.
12        The record shows that Debtor exercised total and sole
13   control over the LLC’s operations.    Moreover, despite the fact
14   that he was neither a member nor manager, Debtor often
15   identified himself as one or the other.    Further, although he
16   was not a member, Debtor’s sole compensation for operating the
17   farm came through “draws” from the LLC.    These “draws” were paid
18   directly from the LLC to third parties for Debtor’s personal
19   expenses or those of his children.
20        In addition, one of the assets of the LLC was farm
21   equipment which was “leased” from Debtor’s parents.    The
22   January 14, 2008 lease was executed on the eve of Debtor’s
23   chapter 12 filing in 2012.    However, in response to discovery,
24   Defendants stated the LLC “owns” farm machinery and itemized
25   equipment with an auction value of $364,600.    The LLC’s
26   Quickbooks report summarized “purchased” farming equipment from
27   John Clark valued at $203,192.92 and “other” used equipment
28   valued at $560,928.72.   The record also shows that the LLC

                                     -4-
 1   asserted ownership rights in $354,000 of crop insurance proceeds
 2   and, due to Trustee’s intervention, that check was currently
 3   being held by the insurance company.2     The LLC had liabilities
 4   of $676,796.98 and      Debtor was personally liable for most of
 5   those debts as shown by the proofs of claim filed by creditors
 6   in Debtor’s bankruptcy case.
 7            Finally, the record shows that no tax returns were prepared
 8   for the LLC.      Rather, the income, profit and losses,
 9   depreciation of assets, and other relevant information were on
10   Debtor’s personal tax returns.
11   C.       Bankruptcy Events
12            On March 27, 2012, Debtor filed a voluntary chapter 12
13   petition in his own name dba Crystal Springs Ranch.        At this
14   time, Debtor was the trustee of the Trust and thus manager of
15   the LLC.
16            On May 31, 2013, the bankruptcy court granted a creditor’s
17   motion to convert the case to chapter 7 under § 1208(d) which
18   allows for conversion “upon a showing that the debtor has
19   committed fraud in connection with the case.”      On the same date,
20   Trustee was appointed and Debtor resigned as trustee of the
21   Trust and manager of the LLC.      As described below, Debtor then
22   found a successor trustee and manager for the LLC.
23            On June 7, 2013, Trustee filed an adversary complaint
24   against the LLC and the Trust alleging various claims in an
25
          2
26        On June 10, 2013, the court issued an injunction freezing
   the Trust’s and LLC’s assets. Accordingly, there were
27 essentially no farming “operations” thereafter, even though
   Debtor attempted to procure the crop insurance proceeds for the
28 LLC.

                                       -5-
 1   effort to recover and bring into the estate the assets of the
 2   LLC consisting of $20,000 in a checking account, a crop
 3   insurance check of $354,000, and farming equipment with an
 4   unknown value.   In the complaint, Trustee sought (1) a
 5   declaration that the LLC and the Trust are invalid entities
 6   created as part of a scheme to hinder, defraud, or delay
 7   Debtor’s creditors (Sham Entities Claim); (2) a finding that the
 8   LLC and the Trust are alter egos of Debtor and a determination
 9   allowing Trustee to disregard the separate corporate existence
10   of those entities and treat the assets of the LLC and the Trust
11   as assets of the bankruptcy estate (Alter Ego Claim); (3) a
12   declaration that the Trust is a revocable trust with Debtor
13   retaining the right to revoke the Trust at any time (Revocable
14   Trust Claim); and (4) a judgment for the substantive
15   consolidation of the assets and liabilities of Debtor, the LLC,
16   and the Trust (Substantive Consolidation Claim).
17        After a two-day trial, the bankruptcy court took the matter
18   under submission.   On December 30, 2014, the bankruptcy court
19   issued its memorandum decision.   The court dismissed Trustee’s
20   Sham Entities Claim after concluding that Trustee failed to
21   present sufficient evidence of Debtor’s financial circumstances,
22   conduct, or creditor activity in 2008 that would shed light on
23   his motives when forming the Trust and the LLC.    With respect to
24   the Alter Ego Claim, the court observed that “veil-piercing, or
25   reverse veil-piercing” is not an independent cause of action,
26   but a remedy and tantamount to a request for substantive
27   consolidation.   Therefore, the bankruptcy court analyzed
28   Trustee’s arguments and facts related to the Alter Ego Claim in

                                    -6-
 1   the context of the Substantive Consolidation Claim.    The court
 2   dismissed the Revocable Trust Claim as moot due to its finding
 3   that substantive consolidation was appropriate.
 4        The bankruptcy court applied the two-part disjunctive test
 5   for substantive consolidation set forth in Bonham:    whether
 6   creditors dealt with the entities as a single economic unit and
 7   did not rely on their separate identity in extending credit or
 8   whether the affairs of the debtor are so entangled that
 9   consolidation will benefit all creditors.    In re Bonham,
10   229 F.3d at 766.    As to the first factor, after noting Debtor’s
11   financial and operational commingling of his personal affairs
12   with the Trust and the LLC, the court found the evidence
13   established that creditors generally dealt with Debtor and the
14   LLC as a single economic unit.
15        The bankruptcy court found the evidence showed there was a
16   unity of interest between Debtor and the LLC and its member
17   Trust and that there was no clear demarcation between Debtor’s
18   affairs and those of the LLC and its member Trust.    Debtor “drew
19   at his unfettered pleasure from the LLC,” and all such
20   distributions were characterized as “Jay’s Income (owner
21   draws).”   However, there was no record keeping or accounting of
22   distributions by Debtor either as trustee of the Trust to
23   himself as grantor/beneficiary or to his children as
24   beneficiaries outside of the LLC’s “owner draws” entries.    As a
25   result, the court found “there was an exploitation of, and a
26   disregard for the economic and legal separateness of, the LLC
27   and the Trust.”    The bankruptcy court did not find Debtor’s
28   testimony regarding the separateness of the LLC and the Trust

                                      -7-
 1   from his own personal affairs credible or trustworthy.
 2        In considering the second factor under Bonham, the court
 3   concluded that the evidence showed the financial affairs of
 4   Debtor, the LLC, and the Trust were so entangled that unraveling
 5   them would require significant time, effort, and expense, and
 6   there was no realistic assurance that the result would be
 7   accurate or without potential injury.   Therefore, the bankruptcy
 8   court concluded that substantive consolidation would benefit
 9   creditors and far outweigh any potential harm.
10        On January 5, 2015, the bankruptcy court entered the
11   judgment substantively consolidating Debtor’s estate with the
12   Trust and the LLC effective nunc pro tunc as of the March 27,
13   2012 filing date.   Under the judgment, Trustee retained all
14   avoidance powers for property that was transferred by the LLC or
15   the Trust after the date of the filing.
16        Defendants filed a timely notice of appeal from the
17   judgment.   They then filed a motion for a stay pending appeal,
18   which the bankruptcy court denied on January 30, 2015.
19        Trustee filed a motion to sell the assets which were
20   divested from Defendants through the substantive consolidation.
21   The bankruptcy court granted this motion on February 5, 2015.
22   Defendants then sought a stay pending appeal from the Panel.    On
23   February 10, 2015, a two-judge Panel denied the motion.    Since
24   then, Trustee sold various farm machinery, equipment, motor
25   vehicles, tools and other personal property and has proceeded to
26   recover various machinery or monies through his avoidance
27   powers.
28

                                    -8-
 1                                II.    JURISDICTION
 2        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
 3   §§ 1334 and 157(b)(2)(A).          We have jurisdiction under 28 U.S.C.
 4   § 158.
 5                                   III.    ISSUE
 6        Did the bankruptcy court err by entering a judgment to
 7   substantively consolidate the estate of Debtor with the LLC and
 8   its member Trust?
 9                          IV.    STANDARDS OF REVIEW
10        In this case, the “rule of law” is articulated by the Ninth
11   Circuit’s decision in In re Bonham, 229 F.3d 750.            We therefore
12   must determine whether the facts support substantive
13   consolidation as ordered by the bankruptcy court.            Factual
14   findings are reviewed under the clearly erroneous standard.            A
15   factual finding is clearly erroneous if it is “(1) illogical;
16   (2) implausible; or (3) without support in inferences that may
17   be drawn from the facts in the record.”            United States v.
18   Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).
19        We may affirm the bankruptcy court on any ground supported
20   by the record.   Olsen v. Idaho State Bd. of Med., 363 F.3d 916,
21   922 (9th Cir. 2004).
22                                 V.     DISCUSSION
23   A.   The bankruptcy court has the authority to order substantive
          consolidation of a nondebtor entity with a debtor under
24        In re Bonham.
25        As a threshold issue and raised for the first time on
26   appeal, Defendants contend that the bankruptcy court lacks
27   equitable power to substantively consolidate nondebtor estates
28   with a debtor’s estate under Law v. Siegel, 134 S. Ct. 1188

                                            -9-
 1   (2014).   In general, we do not consider an issue raised for the
 2   first time on appeal, although we have discretion to hear
 3   previously unconsidered claims when the issue presented is
 4   purely one of law and does not depend on the factual record
 5   developed in the bankruptcy court.    Cold Mountain v. Garber,
 6   375 F.3d 884, 891 (9th Cir. 2004).    Because the issue Defendants
 7   raise meets this criteria, we exercise our discretion and
 8   consider it.
 9        We are not persuaded by Defendants’ arguments.    The Supreme
10   Court’s ruling in Siegel is not applicable under these
11   circumstances — the facts are distinguishable,3 and the rule of
12   law that “whatever equitable powers remain in the bankruptcy
13   courts must and can only be exercised within the confines of the
14   Bankruptcy Code” was previously set forth in Norwest Bank
15   Worthington v. Ahlers, 485 U.S. 197, 206 (1988).    The Ninth
16   Circuit’s decision in In re Bonham was rendered after Norwest,
17
        3
          In Siegel, the debtor fabricated a lien against his home
18 in an attempt to keep equity in the home from his creditors and
19 also claimed a $75,000 homestead exemption under California Civil
   Procedure Code section 704.730(a)(1). The chapter 7 trustee
20 successfully challenged the lien and obtained a determination
   from the bankruptcy court that the debtor had perpetrated a
21 fraud. The court ruled that the trustee could surcharge the
   debtor’s homestead exemption to pay the trustee’s attorneys’
22
   fees. The debtor appealed, and this Panel and the Ninth Circuit
23 both affirmed. The Supreme Court reversed, holding that the
   general equitable powers of § 105(a) did not provide authority
24 for judge-made exceptions to explicit mandates of the Bankruptcy
   Code. Because § 522(k) explicitly prohibits the use of exempt
25 property to satisfy administrative expenses such as attorney
26 fees, the bankruptcy court was not authorized to invoke a
   judge-made equitable exception to order otherwise. 134 S. Ct. at
27 1194 (“We have long held that ‘whatever equitable powers remain
   in the bankruptcy courts must and can only be exercised within
28 the confines of’ the Bankruptcy Code.”).

                                    -10-
 1   and there is no Ninth Circuit case suggesting that bankruptcy
 2   courts no longer have the authority to order substantive
 3   consolidation.      See Bank of Am., N.A. v. CD-04, Inc.
 4   (In re Owner Mgmt. Serv., LLC Tr. Corps.), 530 B.R. 711 (Bankr.
 5   C.D. Cal. 2015).      There is thus no basis to “read broad new
 6   rules into Supreme Court rulings in order to specifically ignore
 7   Ninth Circuit precedent.”      Id. at 723; see also In re Bonham,
 8   229 F.3d at 763 (noting that the bankruptcy court’s power of
 9   substantive consolidation has been considered part of the
10   bankruptcy court’s general equitable powers since the passage of
11   the Bankruptcy Act of 1898 and that “this equitable power
12   undoubtedly survived enactment of the Bankruptcy Code”).
13   B.       Substantive consolidation is federal bankruptcy law.
14            Next, Defendants argue that the bankruptcy court erred by
15   not considering property rights under Idaho law as directed by
16   Butner v. United States, 440 U.S. 48, 54-56 (1979).        Defendants
17   contend that it is impossible to collapse an Idaho limited
18   liability company into its members because there is no unity of
19   interest.      They further maintain that the Trust was valid under
20   Idaho law and contained a spendthrift provision which prohibits
21   distributions from the Trust to creditors.4
22            Defendants are mistaken about the role of state law in the
23   substantive consolidation analysis.      Substantive consolidation
24   does not exist outside the context of a bankruptcy proceeding.
25   It is available in bankruptcy courts as an alternative to remedy
26
          4
27        The bankruptcy court did not decide that the spendthrift
   clause was valid or invalid. We do not consider this issue for
28 the first time on appeal. Cold Mountain, 375 F.3d at 891.

                                       -11-
 1   the harms caused by debtors and entities they control who
 2   disregard separateness.    In short, the law of substantive
 3   consolidation is federal bankruptcy law and is not dependent
 4   upon state law concepts.    In re Bonham, 226 B.R. 56, 77 (Bankr.
 5   D. Alaska 1998).
 6        To more thoroughly explain this concept, the Bonham
 7   bankruptcy court observed:
 8        The factors evaluated on a motion for substantive
          consolidation appear similar to an analysis of
 9        piercing the corporate veil. Like piercing the
          corporate veil, substantive consolidation ignores
10        artificial structures legally defining the
          consolidated entities. Ultimately, however, such an
11        analogy is misplaced because the corporate law
          doctrine of limited liability is not involved.
12        Rather, substantive consolidation is more like the
          corporate law notion of enterprise liability because
13        substantive consolidation does not seek to hold
          shareholders liable for the acts of their incorporated
14        entity. Substantive consolidation more closely
          resembles the bankruptcy rule of subordination because
15        competition for the consolidated assets is between
          creditors alone. Thus, substantive consolidation
16        ignores artificial legal structures but looks only to
          the combined assets of the consolidated entities for
17        satisfaction of all claims against the collective
          group.
18
          . . . .
19
          Piercing the corporate veil . . . is not a requisite
20        to the utilization of the bankruptcy law remedy of
          substantive consolidation. The bankruptcy remedy of
21        substantive consolidation ensures the equitable
          distribution of property to all creditors, while on
22        the other hand, piercing the corporate veil is a
          limited merger for the benefit of a particular
23        creditor.
24   Id. at 77, 89.   In sum, the bankruptcy court did not err by
25   failing to consider Idaho property rights in its substantive
26   consolidation analysis.
27
28

                                     -12-
 1   C.   The bankruptcy court did not err when it granted the
          substantive consolidation motion nunc pro tunc.
 2
 3        Substantive consolidation is an uncodified, equitable
 4   doctrine allowing the bankruptcy court, for purposes of the
 5   bankruptcy, to “combine the assets and liabilities of separate
 6   and distinct—but related—legal entities into a single pool and
 7   treat them as though they belong to a single entity.”
 8   In re Bonham, 229 F.3d at 764.    The doctrine “enables a
 9   bankruptcy court to disregard separate corporate entities, to
10   pierce their corporate veils in the usual metaphor, in order to
11   reach assets for the satisfaction of debts of a related
12   corporation.”   Id.   The essential purpose behind the doctrine is
13   one of fairness to all creditors, but it is a doctrine to be
14   used sparingly.   Id. at 764, 768.
15        In Bonham, the Ninth Circuit adopted the analysis and
16   standards for substantive consolidation articulated by the
17   Second Circuit in Union Savings Bank v. Augie/Restivo Baking
18   Co., Ltd. (In re Augie/Restivo Baking Co., Ltd.), 860 F.2d 515
19   (2d Cir. 1988).   In re Bonham, 229 F.3d at 766.   The Bonham
20   court summarized those standards in a two-part disjunctive test
21   which requires bankruptcy courts to consider whether creditors
22   dealt with the entities as a single economic unit and did not
23   rely on their separate identity in extending credit or whether
24   the affairs of the debtor are so entangled that consolidation
25   will benefit all creditors.   Id. at 766.   “The presence of
26   either factor is a sufficient basis to order substantive
27   consolidation.”   Id.   “In either case, the bankruptcy court must
28   in essence determine that the assets of all of the consolidated

                                      -13-
 1   parties are substantially the same.”   Id. at 771.   Ultimately,
 2   the decision to apply the substantive consolidation doctrine
 3   stems from a weighing of the equities and must be tailored to
 4   meet the needs of each particular case.   Id. at 771.
 5        Trustee, as the moving party, has the initial burden of
 6   showing either one of the Bonham factors are met.    Luxury
 7   Jewels, LLC v. Akers (In re Aroonsakool), 2014 WL 1273696, at *8
 8   (9th Cir. BAP Mar. 28, 2014) (citing Reider v. Fed. Deposit Ins.
 9   Corp. (In re Reider ), 31 F.3d 1102, 1107 (11th Cir. 1994)).
10   Once the trustee establishes a close interrelationship between
11   the debtor and the non-debtor entities, there is a presumption
12   that creditors did not rely on their separate credit.    The
13   burden of proof then shifts to the parties opposing substantive
14   consolidation to show otherwise.   In re Bonham, 229 F.3d at 767.
15         In applying Augie/Restivo’s approach, the Bonham court
16   concluded that substantive consolidation was appropriate where:
17   (1) the target entities were “but instrumentalities of the
18   bankrupt with no separate existence of their own;” (2) there
19   “existed a unity of interest and ownership common to all
20   corporations” such that there was commingling of assets;
21   (3) there was “no clear demarcation” between the affairs of the
22   debtor and the target entities; and (4) adhering to the separate
23   corporate entities theory would result in an injustice to the
24   bankrupt’s creditors.   In re Bonham, 229 F.3d at 767.   Here,
25   these factors are demonstrated in the record by Debtor’s
26   financial and operational commingling of his personal affairs
27   with the Trust and the LLC.
28        As to the Trust, except for the written trust agreement and

                                    -14-
 1   amendment,5 there is nothing in the record which shows a
 2   distinction between the Trust and Debtor’s personal affairs.     At
 3   all times, until May 31, 2013, the record shows that Debtor had
 4   the exclusive and complete dominion and control over all aspects
 5   of the Trust.     Under the trust agreement, Debtor had unfettered
 6   authority as trustee to make distributions to himself.     Acting
 7   pursuant to this authority, he made distributions to himself for
 8   his personal benefit and made lesser distributions to his
 9   children.     The record shows that all distributions came directly
10   from the LLC’s funds.
11           As noted by the bankruptcy court, there was no record
12   keeping or accounting to establish any distributions to the
13   “member” of the LLC, i.e., the Trust - nor was there any
14   accounting of distributions by Debtor (as trustee of that Trust)
15   to himself (as grantor/beneficiary) or to his children as
16   beneficiaries outside of the LLC’s Quickbook “owner draws”
17   entries.     In short, no monies from the LLC were ever deposited
18   into a Trust bank account - there wasn’t one - and there were no
19   records of activities concerning the Trust from 2008 to 2012.
20           Debtor’s disregard of Trust provisions is also demonstrated
21   by his selection of a successor trustee after he resigned as
22   trustee.     As noted above, § 4.04 of the trust agreement provided
23   that Judith Appleby (Debtor’s sister) would be the successor
24
         5
          As pointed out by the bankruptcy court, the trust
25 agreement was ambiguous and inconsistent. One provision stated
26 that it was irrevocable and not subject to amendment, while
   another provision gave Debtor as grantor the authority to amend
27 any of the provisions in the Trust. Furthermore, when Debtor
   attempted to amend the trust agreement to make it irrevocable the
28 relevant provisions were once again inconsistent.

                                      -15-
 1   trustee once Debtor resigned.     If she did not serve, the trust
 2   agreement provided that the court would appoint a trustee.
 3   Notwithstanding these provisions, once Debtor resigned as
 4   trustee he contacted Robert Jones6 who agreed to be the
 5   successor trustee.     After Trustee and other creditors pointed
 6   out to the LLC and the Trust that Mr. Jones was not a proper
 7   trustee pursuant to § 4.04 of the trust agreement, Ms. Appleby
 8   was named as trustee.     There is no resignation letter from
 9   Mr. Jones in the record.     He testified that at some point he was
10   removed as trustee but he could not recall when that was.       He
11   also testified that even after he was appointed, it was his
12   impression that Debtor was the trustee of the Trust and manager
13   of the LLC stating:     “I had no functionality.”
14           Ms. Appleby testified that, when Debtor realized the trust
15   agreement specifically identified her as the successor trustee
16   if Debtor were to resign, it made sense for her to serve rather
17   than Mr. Jones, who lived outside the region.       She did not sign
18   any documents to effect this change, but testified that she
19   became the trustee of the Trust and the “manager” of the LLC by
20   September 2013.     The bankruptcy court observed that because
21   Ms. Appleby assumed her duties in the fall of 2013, she provided
22   little testimony as to financial transactions of the LLC or
23   Trust, all of which preceded her involvement as trustee.
24           The record also shows that from the LLC’s inception in
25   February 2008 through May 31, 2013, Debtor exercised total and
26
         6
27        Robert Jones was involved in a relationship with Debtor’s
   ex-wife Stacy Thomas and was like a “step father” to Debtor’s
28 children.

                                      -16-
 1   sole control over the LLC’s operations.     Again, the lack of
 2   separateness between the LLC and Debtor’s personal affairs is
 3   demonstrated in the record.    Payments reflected as “Jay’s Income
 4   owner draws” were used to pay for Debtor’s personal expenses.
 5   For example, the LLC paid Debtor’s student loan payments, credit
 6   card bills, child support payments, house payments for his
 7   children, mortgage payments for rental property owned by Debtor,
 8   and personal expenses for Debtor’s then-girlfriend.     From 2008
 9   to May 2013, the LLC paid approximately $6,500 on a monthly
10   basis for Debtor’s personal expenses, and the vast majority of
11   these payments were made directly to other parties on his behalf
12   - not to Debtor himself.
13        With few exceptions, Debtor was also personally liable for
14   the LLC’s liabilities.   Therefore, many of the LLC’s creditors
15   were also creditors in Debtor’s bankruptcy case.     One of the
16   creditors testified that he had no good understanding of the
17   difference between the LLC and Debtor.     Other creditors did not
18   draw distinctions, as shown by various checks made out to
19   “Crystal Springs Ranch,” “Jay Clark,” “Clark’s Crystal Springs,”
20   and “Clark’s Crystal Springs Ranch.”
21         Debtor also did not separate himself from the LLC.
22   According to the record, during the 2012 farm season, Debtor,
23   not the LLC, contracted with DeVries Family Farm and Van Boven
24   Calf Ranch to sell them hay.   Further, no tax returns were filed
25   for the LLC, but instead the operations of the LLC merely passed
26   through to Debtor and were reported on his personal tax returns.
27        Debtor failed to draw distinctions between himself and the
28   LLC even in his bankruptcy filing.     He filed his chapter 12

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 1   petition as “Jay P. Clark, DBA Crystal Springs Ranch.”   He
 2   conflated the LLC’s assets and his own in his bankruptcy
 3   schedules.   For example, he listed as “personal property of the
 4   debtor” several LLC checking accounts.   He also listed crops
 5   consisting of 1,124 acres of wheat (worth $451,848) and 1,150
 6   acres of hay ($832,140).   He did not, however, indicate any
 7   ownership of real property on which such crops could be grown.
 8   His disclosure of leased ground was unclear as to which was the
 9   LLC’s and which was his.   His statement of financial affairs
10   indicated Debtor had gross income from the operation of “his”
11   business of $2.4 million in 2011 and almost $1.3 million in
12   2010.   These figures were not shown to be distributions from the
13   LLC, distributions from the Trust, or income from the crops he
14   allegedly personally grew, as distinguished from the gross
15   income of the LLC.
16        Besides the confusion caused by Debtor’s schedules, the
17   record shows that the LLC’s assets consisted mainly of farm
18   equipment which was leased from Debtor’s parents.   But the
19   “leased” equipment was depreciated on Debtor’s tax returns and
20   not shown as an expense.   In responding to discovery, Debtor
21   provided a list of farm machinery “owned” by the LLC.    That list
22   shows an auction value of $364,600.    Ms. Appleby testified that
23   the LLC’s assets consisted of farm equipment that she had not
24   inventoried.   In the end, it was unclear what assets were the
25   LLC’s as opposed to Debtor’s.
26        In sum, the commingling of assets and the operation of the
27   Trust and the LLC without any formality demonstrates a close
28   interrelationship between Debtor and the Trust and the LLC.

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 1   Once Trustee established a close interrelationship between
 2   Debtor and the LLC and its member Trust, there is a presumption
 3   that creditors did not rely on their separate credit.    The
 4   burden of proof then shifts to the parties opposing substantive
 5   consolidation to show otherwise.    In re Bonham, 229 F.3d at 767.
 6          Here, rather than pointing to any evidence in the record to
 7   rebut this presumption, Defendants complain that Trustee’s
 8   evidence does not show that the creditors dealt with Debtor and
 9   Defendants as a single economic unit and, therefore, he did not
10   meet his burden of proof.    Defendants suggest, without citation
11   to any authority, that the Bonham test for substantive
12   consolidation requires Trustee to prove what the creditors
13   thought and actually did.    Defendants are mistaken.
14          Defendants, as the parties opposing substantive
15   consolidation, had the burden to overcome the presumption that
16   creditors did not rely on the separate credit of the LLC.      While
17   Defendants attempted to show the separateness of the LLC and its
18   member Trust, the bankruptcy court found Defendants’ evidence
19   “conflicting and inconclusive” and Debtor’s testimony not
20   credible or trustworthy.    In essence, the bankruptcy court
21   concluded that Defendants did not meet their burden to overcome
22   the presumption once the burden shifted.    Therefore, it
23   concluded that the first prong for substantive consolidation was
24   met.
25          Upon careful review of the record, we are satisfied that
26   the bankruptcy court considered all opposing evidence before
27   rejecting one view in favor of the other.    The bankruptcy
28   court’s account of the evidence is plausible in light of the

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 1   record cited above and when viewed in its entirety.     We may not
 2   reverse merely because we may have decided the issue
 3   differently.   Anderson v. City of Bessemer City, N.C., 470 U.S.
 4   564, 573–74 (1985) (“Where there are two permissible views of
 5   the evidence, the factfinder’s choice between them cannot be
 6   clearly erroneous.”).   Further, as the trier of fact, the
 7   bankruptcy court is entitled to evaluate a witness’s credibility
 8   and to determine whether to believe the testimony or not.
 9   Beauchamp v. Hoose (In re Beauchamp), 236 B.R. 727, 731 (9th
10   Cir. BAP 1999), aff’d mem. 5 F. App’x 743 (9th Cir. 2001).
11   “When the testimony of a witness is not believed, the trier of
12   fact may simply disregard it.”    Bose Corp. v. Consumers Union of
13   U.S., Inc., 466 U.S. 485, 512 (1984).     The bankruptcy court’s
14   determinations regarding credibility are given due regard on
15   appeal.   Anderson, 470 U.S. at 573–74.
16        In the end, we conclude that the record supports the
17   bankruptcy court’s conclusion that the first test in Bonham was
18   met and, therefore, consolidation was appropriate.     Because we
19   affirm on this basis, it is unnecessary for us to consider
20   whether consolidation was appropriate under the second factor.
21                            VI.   CONCLUSION
22        For the reasons stated, we AFFIRM.
23
24
25
26
27
28

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