FILED

U.S. Bankruptcy Appellate Panel

of the Tenth Circuit

August 11, 2015

Blaine F. Bates

Clerk

PUBLISH

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE TENTH CIRCUIT

IN RE HYUNGKEUN SUN, former

member J & J Sun LLC, officer,

director, shareholder Y & K Sun, Inc.,

also known as Harry Hyung K Sun,

doing business as Roll Your Own

Cigarette Store, and YEONAM KIM

SUN, member Tel Cel Mobile LLC,

former member Joy Luck Palace LLC,

former member J & J Sun LLC, officer,

director, shareholder Y & K Sun, Inc.,

also known as Eunice Sun,

Debtors.

BAP No. CO-14-050

WONJOONG KIM and YOONEE KIM,

Plaintiffs – Appellees,

Bankr. No. 12-25005

Adv. No. 12-01660

Chapter 7

v. OPINION

HYUNGKEUN SUN and YEONAM

KIM SUN,

Defendants – Appellants.

Appeal from the United States Bankruptcy Court

for the District of Colorado

Submitted on the briefs:

*

Kevin S. Neiman of Kevin S. Neiman, PC, Denver, Colorado, and J. Gregory

McAuliffe of Darling Milligan Horowitz P.C., Denver, Colorado, for Defendants -

Appellants.

In their statements regarding oral argument, as amended, the parties did not

*

request oral argument, and after examining the briefs and appellate record, the

Court has determined unanimously that oral argument would not materially assist

in the determination of this appeal. See Fed. R. Bankr. P. 8019(b)(3). The case is

therefore ordered submitted without oral argument.

BAP Appeal No. 14-50 Docket No. 79 Filed: 08/11/2015 Page: 1 of 21
Chad S. Caby of Lewis Roca Rothgerber LLP, Denver, Colorado, and James N.

Thomaidis and D. Elizabeth Wills of Gersh & Thomaidis, Denver, Colorado, for

Plaintiffs - Appellees.

Before KARLIN, SOMERS, and HALL, Bankruptcy Judges.

HALL, Bankruptcy Judge.

Hyungkeun and Yeonam-Kim Sun appeal the bankruptcy court’s order that,

inter alia, held: 1) the debt they owed to Wonjoong and Yoonee Kim was a

nondischargeable debt under 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6); 2) the

1

Kims were entitled to benefit-of-the-bargain damages of $1,042,206; and 3) the

Kims were entitled to prejudgment interest of 8% per annum from May 17, 2007

until September 12, 2014. After carefully reviewing the record, we AFFIRM in

part and REVERSE in part. We affirm the court’s nondischargeability findings

because they are not clearly erroneous. We reverse the bankruptcy court’s

benefit-of-the-bargain damages award based on the Kims’ election of rescission

as their remedy, and remand for damages calculation in accordance with this

opinion. We affirm the bankruptcy court’s award of prejudgment interest at the

rate of 8% per annum, compounded annually, because it was not an abuse of

discretion to use the interest rate in the state statute. We, however, reverse the

bankruptcy court’s decision to calculate prejudgment interest on the entire

damage award from May 17, 2007, because it fails to adjust for when payments

were made and the accrual of interest. We remand for recalculation of

prejudgment interest in accordance with this opinion.

I. Factual Background

Mr. Kim is a professor at the University of Seoul, Korea, where he resides

most of the year, visiting his family in the United States two to three times per

All future references to “Code,” “Section,” and “§” are to the Bankruptcy

1

Code, Title 11 of the United States Code, unless otherwise indicated.

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BAP Appeal No. 14-50 Docket No. 79 Filed: 08/11/2015 Page: 2 of 21
year for a month at a time. His wife and their daughters reside in Colorado.

Beginning in approximately 2001, the Kims became friends with the Suns, who

attended their church. By 2006, the Kims and the Suns had become very close, a

relationship both parties described as “like family.”

Mr. Sun had an excellent reputation in the church and in the area’s Korean

community as a successful real estate investor. When Mr. Kim found it difficult

to transfer funds from Korea to fund family expenses, he asked Mr. Sun for

advice in finding a commercial property for purchase which would generate a

monthly income stream. The Kims told Mr. Sun they wished to limit their

investment to $500,000, retaining $400,000 of their approximately $900,000 in

savings to purchase a house in Colorado.

In March 2007, Mr. Sun proposed the Kims purchase an interest in property

located on West Colfax in Denver (the “JCRS Property”) for $900,000. The

JCRS Property was owned by the Suns’ wholly-owned corporation, Y& K Sun,

Inc. (“YKSI”). Mr. Sun convinced the Kims to invest their entire $900,000 by

making the following representations:

* The JCRS Property needed $1 million for renovations and

improvements.

* The JCRS Property was encumbered by a current loan of $3 million.

* Mr. Sun had arranged a refinancing of $4 million for the JCRS

Property, and that such financing was a “done deal.” He showed the

Kims a copy of a mortgage application for the JCRS Property in

support of that assertion.

* The JCRS Property would be worth approximately $6 million when

the renovations were completed and the expected lessees had moved

in.

* After the refinancing paid off the existing $3 million loan, the Suns

and the Kims would split the remaining $1 million in refinancing

proceeds fifty-fifty. This would provide an almost immediate return

of $500,000 of the Kims’ investment to enable them to purchase a

house, while the improved JCRS Property would provide the Kims

$3,000 per month in income beginning three months after the

investment.

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BAP Appeal No. 14-50 Docket No. 79 Filed: 08/11/2015 Page: 3 of 21
* There were already new leases signed for a clothing store and a

restaurant on the JCRS Property.

* Mr. Sun would guarantee the value of the investment.

None of the above representations were true. Instead of using the investment to

purchase a real estate interest in the JCRS Property as originally proposed, Mr.

Sun documented the $900,000 investment as a purchase of 50% of the shares of

YKSI. This change was based on the advice of Mr. Sun’s counsel, who had

expressed concerns that a sale of a partial interest in the JCRS Property could

trigger the existing mortgage’s due-on-sale clause. As part of this investment

change, a stock purchase agreement was drafted. Mr. Sun represented the value

of the stock was equal to or greater than $900,000. The Kims signed this

agreement on April 17, 2007.

Mr. Kim’s Korean bank, however, refused to release the funds for the

purchase absent evidence of a real property sale and a deed of trust in accordance

with the original proposal. After the bank balked, Mr. Kim told Mr. Sun he was

no longer interested in the deal. But Mr. Sun convinced the Kims to complete the

transaction by supplying a contract for purchase and sale of real property to the

Kims’ bank. Upon receipt of the contract, the bank released the $900,000.

Immediately upon the Kims’ receipt of the $900,000, Mr. Sun again transformed

the deal into a stock purchase transaction. A new stock purchase agreement was

drafted and signed by the wives on May 17, 2007.

At Mrs. Sun’s direction, Mrs. Kim made the $900,000 check payable to “Y

+ K Sun.” Mrs. Kim believed she was giving a check to YKSI for the purchase of

50% of the company. The check, however, was deposited into a new personal

account opened by Mrs. Sun. Mr. Sun admitted only about $57,137 of the

$900,000 investment actually went to the JCRS project.

YKSI’s 2007 and 2009 amended tax returns indicate the Kims contributed

$900,000 to YKSI and reflect the $900,000 investment as a loan to the Suns as

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BAP Appeal No. 14-50 Docket No. 79 Filed: 08/11/2015 Page: 4 of 21
shareholders of YKSI. No such loan was ever authorized by YKSI’s board of

directors.

In April 2008, YKSI sold a commercial property on East Mississippi

Avenue in Aurora, Colorado (the “Mississippi Property”) to an entity known as

S&B Nova, which was controlled by a Mr. and Mrs. Lee. The sale was financed

by Hanmi Bank, which held a first priority lien against the Mississippi Property in

the approximate amount of $1,726,000. YKSI received from S&B Nova a

promissory note (the “Nova Note”), secured by a junior lien, in the approximate

amount of $1,035,000, and $347,000 in cash. The Kims were not informed of the

Mississippi Property sale nor did they receive a distribution from that sale.

Three months later, Mr. Sun told the Kims he was going to put YKSI into

bankruptcy, and the Kims would lose their investment unless they exchanged their

50% interest in YKSI for the Nova Note. Mr. Sun explained the note paid

monthly income of $6,200, of which the Kims would receive half and the Suns

would get the other half because they and YKSI were in financial distress. Mr.

Sun did not inform the Kims that the Nova Note was in a subordinate position to

Hanmi Bank’s note or that it was worth $163,000 less than the face amount of the

note due to payments previously made by S&B Nova.

On July 14, 2008, the Kims surrendered their shares of YKSI and resigned

as directors. YKSI then assigned the Nova Note to the Kims. According to Mr.

Kim, they received approximately $3,100 monthly on the Nova Note.

In January 2009, Mr. Sun told the Kims, if they wished to protect their

investment, they needed to exchange their interest in the Nova Note for shares of

stock in S&B Nova. Mr. Sun indicated the transaction would make Mrs. Kim

(who would hold the shares) a 24% shareholder in S&B Nova. On January 13,

2009, the original Nova Note was canceled, S&B Nova issued two new

promissory notes ($260,000 and $372,000) payable to Mr. Kim, and Mrs. Kim

received 19% of S&B Nova shares. Mr. Sun had convinced the Kims to give 5%

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BAP Appeal No. 14-50 Docket No. 79 Filed: 08/11/2015 Page: 5 of 21
of the S&B Nova stock to Mrs. Sun due to their tax problems.

Over the four-year life of these transactions, the Kims received payments in

the aggregate amount of $109,794. They have received no payments since 2011.

Subsequently, S&B Nova was liquidated, and the Lees filed for bankruptcy

protection.

The Suns filed a Chapter 7 petition on July 18, 2012, and the Kims filed an

adversary complaint on October 15, 2012, seeking a determination that the debt

owed to them is nondischargeable under §§ 523(a)(2)(A), (a)(4), (a)(6), and

(a)(19). At the Kims’ request, the bankruptcy court granted their motion to hold

2

their § 523(a)(19) claim in abeyance pending resolution of the remaining claims.

3

On September 12, 2014, after a five-day trial, the bankruptcy court issued an

order that declared the debt of the Suns to the Kims was nondischargeable under

§§ 523(a)(2)(A), (a)(4), and (a)(6), and awarded judgment in favor of the Kims in

the amount of $1,042,206, plus prejudgment interest from May 17, 2007, through

the date of the final judgment at 8% per annum, compounded annually, plus

postjudgment interest at the rate set forth in 28 U.S.C. § 1961, plus costs (the

“Appealed Order”). This appeal followed.

4 5

Complaint to Determine Dischargeability of Debt Under 11 U.S.C. § 523(a)

2

of the Bankruptcy Code (“Complaint”), in Appendix by Appellants (“App.”) at

22-46.

Minutes of Proceeding dated August 6, 2013, in App. at 60.

3

The Suns did not appeal the bankruptcy court’s award for postjudgment

4

interest and costs.

On June 16, 2015, this Court entered an Order to Show Cause Why Appeal

5

Should Not be Dismissed as Interlocutory because the Appealed Order did not

dispose of all of the claims in the adversary proceeding. Specifically, the

Plaintiffs’ claim under § 523(a)(19) remained unresolved. On June 26, 2015, the

Kims responded to the order by filing with the bankruptcy court a joint motion

with the Suns, seeking dismissal of that claim without prejudice and a Rule 54(b)

certification of the Appealed Order. On July 1, 2015, the bankruptcy court

granted the motion. Kim v. Sun (In re Sun), Adv. Proc. No. 12-1660 (Bankr. D.

Colo. July 1, 2015) (Order Granting Joint Motion for (I) Dismissal of Plaintiffs’

(continued...)

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BAP Appeal No. 14-50 Docket No. 79 Filed: 08/11/2015 Page: 6 of 21
II. Appellate Jurisdiction and Standard of Review

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

final collateral orders, and, with leave of court, interlocutory orders of bankruptcy

courts within the Tenth Circuit, unless one of the parties elects to have the district

court hear the appeal. The Kims timely filed a notice of appeal from the

6

Appealed Order, and the parties have consented to this Court’s jurisdiction by not

electing to have this appeal heard by the United States District Court for the

District of Colorado. The bankruptcy court entered a compliant Rule 54(b) order

on July 20, 2015, making the Appealed Order a final order for purposes of

appeal. This Court, therefore, has appellate jurisdiction over this appeal.

7

Because multiple standards of review apply in this case, we will identify

the applicable standard of review for each respective issue below.

III. Analysis

The Suns’ brief identifies fifteen points of error. These points can be

consolidated into three issues: 1) whether the bankruptcy court erred in its

nondischargeability findings; 2) whether the bankruptcy court erred in its

(...continued)

5

11 U.S.C. § 523(a)(19) Claim Without Prejudice; and (II) Rule 54(B)

Certification, ECF No. 140). Recognizing that the July 1, 2015 order did not

contain the requisite Rule 54(b) certification language, the parties filed a joint

motion to amend the order. The bankruptcy court granted the motion on July 20,

2015. Kim v. Sun (In re Sun), Adv. Proc. No. 12-1660 (Bankr. D. Colo. July 20,

2015) (Order Granting Joint Motion to Alter or Amend Order Granting Rule 54(b)

Certification, ECF No. 144). The July 20, 2015 order is compliant with Rule

54(b) and cures the interlocutory issue. See Heimann v. Snead, 133 F.3d 767, 769

(10th Cir. 1998) (“Parties may not confer appellate jurisdiction upon us by

obtaining a voluntary dismissal without prejudice of some claims so that others

may be appealed.”).

28 U.S.C. § 158(a)(1), (b)(1), and (c)(1); Fed. R. Bankr. P. 8001(e) (now

6

at Fed. R. Bankr. P. 8005, effective Dec. 1, 2014); 10th Cir. BAP L.R. 8001–3

(now at 10th Cir. BAP L.R. 8005-1, effective Dec. 1, 2014).

Fed. R. Civ. P. 54(b); Fed. R. Bankr. P. 7054; The Victoria Fry Children’s

7

Trust v. United States (In re Twin Lakes Real Estate, LLC), No. UT-07-055, 2008

WL 1961014, at *1 (10th Cir. BAP May 6, 2008) (a compliant Rule 54(b) order

made order appealed from final for purposes of appeal).

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BAP Appeal No. 14-50 Docket No. 79 Filed: 08/11/2015 Page: 7 of 21
damages calculation by incorrectly valuing the stock shares and including the

monthly income stream as a bargained benefit; and 3) whether the bankruptcy

court erred in awarding prejudgment interest and using the state rate of interest on

federal claims. We address each issue in seriatim.

A. The bankruptcy court’s nondischargeability findings are not clearly

erroneous.

1. The debt is nondischargeable under § 523(a)(2)(A).

Section 523(a)(2)(A) provides that the debtor is not discharged from any

debt for money, property, services, or an extension, renewal, or refinancing of

credit, to the extent obtained by false pretenses, a false representation, or actual

fraud. The bankruptcy court found the Kims had established the requisite

elements for all three types of misconduct. The Suns attack the bankruptcy

8

court’s findings as to justifiable reliance, fraudulent scheme, and intent. We

review these findings for clear error.

9

a. The bankruptcy court’s justifiable reliance finding is not clearly

erroneous.

The Suns argue that the bankruptcy court applied an incorrect standard in

determining the Kims justifiably relied on the Suns’ misrepresentations and

omissions. They claim that justifiable reliance requires the Kims to use their

10

An appellate court reviews a nondischargeability ruling under § 523(a) de

8

novo, but reviews an appellant’s claim that the evidence is insufficient to support

the legal conclusion for clear error. Wagner v. Wagner (In re Wagner), 527 B.R.

416, 429 (10th Cir. BAP 2015).

Id. at 433-34 (review a bankruptcy court’s determination of justifiable

9

reliance for clear error); Meyer v. Hobi (In re Hobi), No. WO-11-025, 2011 WL

5869488 (10th Cir. BAP Nov. 23, 2011) (intent to defraud under § 523(a)(2)(A) is

a question of fact, which is reviewed for clear error); Copper v. Lemke (In re

Lemke), 423 B.R. 917, 919 (10th Cir. BAP 2010) (bankruptcy court’s findings

regarding a required element of a § 523(a)(2)(A) claim is a factual determination

reviewed for clear error).

The bankruptcy court correctly noted that the standard in determining

10

whether the creditor’s reliance was justifiable is a subjective one. The Suns argue

the bankruptcy court applied an objective test because it described the standard as

(continued...)

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BAP Appeal No. 14-50 Docket No. 79 Filed: 08/11/2015 Page: 8 of 21
senses, which they failed to do by not asking more questions. They say the

bankruptcy court failed to take this into account. We disagree; the bankruptcy

court did take this into consideration but found the unrebutted testimony

regarding Korean culture supported a finding of justifiable reliance. In Korea,

11

transactions of this type typically have one attorney representing both parties.

And between Korean friends and family, asking questions is a sign of distrust,

and truth is the expectation. Because evidence exists supporting the court’s

finding that the Kims justifiably relied on the Suns’ false representations, that

finding is not clearly erroneous.

12

b. The bankruptcy court’s actual-fraud findings are not clearly

erroneous.

The Suns argue that the bankruptcy court erred in holding that the debt was

nondischargeable under § 523(a)(2)(A) as actual fraud because it did not

expressly hold that there was a “fraudulent scheme” or “fraudulent intent.” We

disagree. The bankruptcy court found a fraudulent scheme when it stated:

The above facts establish the Suns’ ongoing pattern of fraud as part of

a scheme to obtain the $900,000 from the Kims on the pretense of

investing in the JCRS Property, and then use those funds for their own

purposes. After obtaining the initial $900,000 investment, the Suns

continued to mislead the Kims over a period of several years . . . . The

Suns did not intend to proceed with the promised real property

transaction. Rather, they sold stock to the Kims, and later recaptured

(...continued)

10

“whether people with the Kims’ mind set and experience were justified in relying

on the Suns.” Appellants’ Br. at 17. We find this argument nonsensical because

judging reliance based on an individual’s mindset and experience is subjective, as

opposed to judging reliance from an objective reasonable person standpoint.

Appealed Order at 11, in App. at 928, published at Kim v. Sun (In re Sun),

11

515 B.R. 788, 800 (Bankr. D. Colo. 2014). The bankruptcy court also found Mr.

Sun’s reputation in real estate and the parties’ close relationship additional weight

for finding the Kims’ reliance justified. Id.

Under the clearly erroneous standard, findings of facts are clearly

12

erroneous only when the findings are unsupported by the record, or if the

appellate court has a “definite and firm conviction that a mistake has been made.”

Holdeman v. Devine, 572 F.3d 1190, 1192 (10th Cir. 2009) (internal quotation

marks omitted).

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BAP Appeal No. 14-50 Docket No. 79 Filed: 08/11/2015 Page: 9 of 21
the stock by threatening bankruptcy. The Suns then persuaded the Kims

to accept an interest in a promissory note which was subordinate to a

concealed senior lienor. Finally, they convinced [Mrs.] Kim to

participate in S&B Nova’s business . . . and . . . accept[] two smaller

S&B Nova notes. The Suns failed to disclose these notes were subject

to Hanmi Bank’s senior position.

13

The bankruptcy court found “fraudulent intent” based on the following actions by

the Suns: 1) failing to observe corporate formality and treat the Kims as owners

of YKSI; 2) selling the Mississippi Property without informing the Kims or

seeking their approval; 3) depositing the $900,000 into a noncorporate account; 4)

spending that money largely on non-JCRS expenses; 5) recapturing the YKSI

shares by threatening bankruptcy; and 6) persuading the Kims to switch their

investment to a note without telling them it was subordinate to a senior lien.

14

Contrary to the Suns’ claims, the bankruptcy court made all the requisite findings

for actual fraud, and these findings are not clearly erroneous.

2. The debt is nondischargeable under § 523(a)(4).

Section 523(a)(4), in pertinent part, excepts from discharge any debt for

embezzlement or larceny. Embezzlement is “the fraudulent appropriation of

property by a person to whom such property has been entrusted or into whose

hands it has lawfully come.” Larceny is “the fraudulent and wrongful taking

15

and carrying away of the property of another with intent to convert the property to

the taker’s use without the consent of the owner.” The difference between these

16

Sun, 515 B.R. at 802.

13

These findings were made under the false representations’ section of the

14

Appealed Order, which the court specifically incorporated into its actual fraud

analysis when it stated, “The Court finds the evidence as set forth above also

indicates the presence of actual fraud by the Suns.” Sun, 515 B.R. at 798-99, 802.

Klemens v. Wallace (In re Wallace), 840 F.2d 762, 765 (10th Cir. 1988)

15

(internal citations omitted).

Hernandez v. Musgrave (In re Musgrave), BAP No. CO-10-049, 2011 WL

16

312883, at *5 & n.39 (10th Cir. BAP Feb. 2, 2011) (quoting 4 Collier on

(continued...)

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BAP Appeal No. 14-50 Docket No. 79 Filed: 08/11/2015 Page: 10 of 21
two types of misconduct is that, with embezzlement, the debtor initially acquires

the property lawfully whereas, with larceny, the property is unlawfully obtained.

17

The Suns argue that the bankruptcy court erred in finding that they had

committed larceny because they were entrusted with the money pursuant to the

second stock purchase agreement so there was no unlawful taking. We need not

decide whether the Suns lawfully obtained the money because if it was not

larceny, it was most certainly embezzlement.

18

We also find the Suns’ argument that the bankruptcy court failed to

consider whether they intended to permanently deprive the Kims of their

$900,000 unavailing. They argue that there was no intent to permanently deprive

based on their repeated attempts to substitute adequate replacement property.

Intent is a factual finding reviewed for clear error. The bankruptcy court

19

inferred that the repeated substitution of property was a part of the scheme to

string the Kims along and avoid repayment. Because that inference was within

the bounds of permissible choice, the court’s intent finding is not clearly

erroneous. In sum, whether or not the money was lawfully obtained, the facts

20

(...continued)

16

Bankruptcy ¶ 523.10[2], 523-77 (Alan N. Resnick & Henry J. Sommer eds., 16th

ed. 2009)).

Id. at *5.

17

4 Collier on Bankruptcy ¶ 523.10[2] at 523-77 (“In short, section 523(a)(4)

18

excepts from discharge debts resulting from the fraudulent appropriation of

another’s property, whether the appropriation was unlawful at the outset, and

therefore a larceny, or whether the appropriation took place unlawfully after the

property was entrusted to the debtor’s case, and therefore was an

embezzlement.”).

Holaday v. Seay (In re Seay), 215 B.R. 780, 788 (10th Cir. BAP 1997).

19

The bankruptcy court’s “decision need only be ‘permissible,’ not ‘correct’

20

and, if plausible in light of the record, it is not clearly erroneous even when the

reviewing court would have made a different decision . . . [w]here there are two

permissible views of the evidence, the factfinder’s choice between them cannot be

clearly erroneous.” Wagner, 527 B.R. at 429 (internal quotation marks and

(continued...)

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BAP Appeal No. 14-50 Docket No. 79 Filed: 08/11/2015 Page: 11 of 21
support a conclusion that the debt was nondischargeable under § 523(a)(4).

21

3. The debt is nondischargeable under § 523(a)(6).

The Suns argue the bankruptcy court erred by mixing together the elements

of wilfulness and maliciousness. They claim that the bankruptcy court failed to

find that the Suns knew that their conduct would cause the particularized injury

allegedly suffered by the Kims. We disagree; the bankruptcy court found the

Suns intentionally and deliberately misled the Kims in several transactions over

several years and knew or should have known they would cause significant

damage to the Kims. The Suns argue that the Kims’ losses are from S&B Nova’s

failure to pay on the Nova Notes, which is not something the Suns knew would

happen. The fact that Mr. Sun had previous dealings with S&B Nova and did not

disclose the true nature of the S&B Nova transactions to the Kims supports the

inference that the Suns knew the Kims would not get their investment back from

S&B Nova. In sum, the facts support a conclusion that the debt was

nondischargeable under § 523(a)(6).

B. Damages

22

The bankruptcy court awarded damages of $1,042,206 to the Kims, which

represented the benefits of their bargain with the Suns, less $109,794 for

payments they received on the various Nova notes. The court found that in return

for their investment of $900,000, the Kims bargained to receive $1,152,000 as of

(...continued)

20

citations omitted).

An appellate court is “free to affirm ... on any grounds for which there is a

21

record sufficient to permit conclusions of law, even grounds not relied upon” by

the trial court. Griess v. Colorado, 841 F.2d 1042, 1047 (10th Cir. 1988)

(internal quotation marks omitted). The bankruptcy court did indicate that

embezzlement had been established in footnote 53 of the Appealed Order.

Because the damages under § 523(a)(4) were subsumed by the damages

22

under §§ 523(a)(2) and (a)(6), the Suns’ argument that the § 523(a)(4) damages

should be reduced by $57,137.60 is moot. Hereafter, all references to the damage

award are to the damages under §§ 523(a)(2)(A) and (a)(6).

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BAP Appeal No. 14-50 Docket No. 79 Filed: 08/11/2015 Page: 12 of 21
the date of the Appealed Order as follows: 1) a $500,000 short-term repayment;

2) a $400,000 ownership interest in the JCRS Property or JKSI (which

represented a one-half interest); and 3) a $3,000 per month income stream that

was worth a total of $252,000 based on payments starting six months after the

investment through the month of the Appealed Order. The Suns argue that the

23

damage award was erroneous because 1) it misapplied the benefit-of-the-bargain

rule by ignoring evidence regarding the property’s value at the time of the

investment, and 2) the Kims never specifically requested damages based on the

monthly income stream and it violated the Colorado Statute of Frauds to include

damages for an oral promise that required performance more than one year later.

We agree that the bankruptcy court erred in its damages analysis, but for different

reasons than those advanced by the Suns.

Appellate courts review the amount of damages calculated by the trial court

for clear error. The methodology the trial court used in calculating a damage

24

award, however, is a question of law subject to de novo review.

25

In this case, the bankruptcy court used the benefit-of-the-bargain rule to

calculate damages. The court concluded that the proper measure of fraud

damages under § 523 in this case was Colorado’s benefit-of-the-bargain rule,

which entitles a plaintiff to receive “the difference between the actual value of the

Sun, 515 B.R. at 806-07. We note that there are some math errors with the

23

court’s computation as to the monthly income stream (78 times $3,000 is not

$252,000, it is $234,000; and there are 82 months between November 2007 and

September 2014, not 78 months). These math errors, however, are harmless given

our decision that the benefit-of-the-bargain rule is not applicable.

S. Colo. MRI, Ltd. v. Med–Alliance, Inc., 166 F.3d 1094, 1100 (10th Cir.

24

1999); Central States Mech., Inc. v. Agra Indus., Inc. (In re Central States Mech.,

Inc.), 556 F. App’x 762, 774 (10th Cir. 2014).

S. Colo. MRI, Ltd., 166 F.3d at 1100.

25

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BAP Appeal No. 14-50 Docket No. 79 Filed: 08/11/2015 Page: 13 of 21
property and what its value would have been had the representation been true.”

26

Under Colorado law, however, a plaintiff who has been fraudulently induced to

enter a contract “must elect either to rescind the entire contract to restore the

conditions existing before the agreement was made, or to affirm the entire

contract and recover the difference between the actual value of the benefits

received and the value of those benefits if they had been as represented.”

27

Election is necessary whenever the theories of recovery are inconsistent as is the

case here. The choice of remedies belongs to the one defrauded.

28 29

In the Joint Pretrial Statement, the Kims listed the itemization of their

damages as “$900,000, together with interest thereon at the rate of 8% per

annum.” In their reply to the Suns’ written closing arguments, the Kims stated

30

that:

[They were] not suing the Suns for specific performance in the

underlying Douglas County case or in this Adversary Proceeding. . . .

the Kims have no interest in being in the same corporation as the Suns,

or in being partners in business with the Suns in any context, at any

time. After having been defrauded by the Suns, and following four

years of litigation, the Kims simply seek to obtain their $900,000, with

pre-judgment and post-judgment interest, attorneys’ fees and costs, and

such other relief as the Court deems just and equitable under the

Sun, 515 B.R. at 805 n.61 (citing Mascio v. Gronewoller (In re Mascio),

26

454 B.R. 146 (D. Colo. 2011)).

Trimble v. City and Cty. of Denver, 697 P.2d 716, 723 (Colo. 1985) (one

27

seeking to remedy fraudulent inducement of a contract must elect either to rescind

or affirm the contract) (superseded by statute on other grounds).

Holscher v. Ferry, 280 P.2d 655, 657 (Colo. 1955) (a remedy based on the

28

theory of affirmance of contract is inconsistent with remedy arising out of the

same facts based on theory of disaffirmance or rescission). See also Altergott v.

Yeager, 543 P.2d 1293, 1297 (Colo. App. 1975) (action to affirm contract and sue

for damages is an action in tort, while action to rescind the contract and sue for

return of money paid is an action on contract); Oilman Int’l, FZCO v. Neer, Civil

Action No. 10-cv-2810-PAB-BNB, 2012 WL1059987, at *1-2 (D. Colo. Mar. 29,

2012) (election of remedies doctrine implicated where tort and contract claims

raised by plaintiff under same set of facts).

Altergott, 543 P.2d at 1297.

29

Joint Pretrial Statement at 9, in App. at 70.

30

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circumstances.

31

It is clear from the record that the Kims elected rescission of the contract. Under

these circumstances, the proper measure of damages is what is required to restore

the parties to their precontract position. Thus, the bankruptcy court erred when

32

it applied the benefit-of-the-bargain rule. The Kims are entitled to the return of

33

the money they paid ($900,000) plus interest, less payments they received on the

34

various Nova notes, which should be credited first to interest and then to

principal. Because the dates of payments are not in the record, remand is

necessary to calculate the Kims’ damages.

C. Prejudgment Interest

1. Relevant considerations for prejudgment interest award

Under federal law, “prejudgment interest may generally be awarded if (1)

the award of prejudgment interest would serve to compensate the injured party,

and (2) the award of prejudgment interest is otherwise equitable.” An award of

35

prejudgment interest is a matter within the trial court’s discretion and is reviewed

Plaintiffs’ Reply to Defendant’s Amended Closing Argument at 9, in App.

31

at 916.

Telex Corp. v. AiResearch Aviation Co., 460 F.2d 215, 218 (10th Cir. 1972)

32

(noting Oklahoma Supreme Court’s position that “rescission requires restoration

of status quo and means to restore the parties to their former position”) (internal

quotes and citation omitted); Black v. First Fed. Sav. & Loan Ass’n, 830 P.2d

1103, 1114 (Colo. App. 1992) (in cases of fraudulent inducement in procuring a

loan, the proper measure of damages is the total amount of money loaned, plus

interest and less rental received).

Rice v. Hilty, 559 P.2d 725, 727 (Colo. App. 1976) (if the plaintiff elects

33

rescission, rather than ratification, benefit-of-the-bargain damages are not

available); Elliott v. Aspen Brokers, Ltd., 811 F. Supp. 586, 591 (D. Colo. 1993)

(same). This conclusion renders the Suns’ arguments regarding the Property’s

value and whether it was appropriate to include the monthly income stream as a

bargained benefit moot.

See Discussion C.3 below regarding interest.

34

Turner v. Davis, Gillenwater & Lynch (In re Inv. Bankers, Inc.), 4 F.3d

35

1556, 1566 (10th Cir. 1993).

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for abuse of that discretion. An abuse of discretion occurs when the bankruptcy

36

court’s decision is arbitrary, capricious or whimsical, or results in a manifestly

unreasonable judgment.

37

The Suns claim the bankruptcy court erred in awarding prejudgment

interest because it did not analyze the requisite elements for prejudgment interest

nor explain why prejudgment interest was appropriate in this instance. We

38

disagree. The bankruptcy court set forth the applicable standard to award

prejudgment interest and then concluded that “the circumstances of this case

warrant an award of prejudgment interest . . .” Although the court may not have

39

stated its rationale under the prejudgment interest section of the Appealed Order,

that conclusion, along with the numerous findings regarding the Suns’ dishonesty

and fraudulent conduct throughout the order, sufficiently explain why the court

thought prejudgment interest was appropriate. We conclude that the bankruptcy

40

court did not abuse its discretion in granting prejudgment interest.

2. Prejudgment interest at the rate of 8% per annum, compounded

annually

The bankruptcy court awarded prejudgment interest “as requested in the

Kims’ Complaint, at the rate of 8% per annum, compounded annually, pursuant to

Id.; U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1255 n.43 (10th

36

Cir. 1988), implied overruling on other grounds recognized by Anixter v.

Home–Stake Prod. Co., 77 F.3d 1215 (10th Cir. 1996).

Lang v. Lang (In re Lang), 414 F.3d 1191, 1199 (10th Cir. 2005).

37

Appellants’ Br. at 35.

38

Sun, 515 B.R. at 810. The bankruptcy court implicitly concluded that a

39

prejudgment interest award would serve to compensate the Kims and such an

award was equitable when it recited the requisite elements for prejudgment

interest and concluded it was warranted in this case.

U.S. Industries, 854 F.2d at 1257 (noting that an award of prejudgment

40

interest is particularly appropriate in cases of investment fraud and that the

equities favor an award of prejudgment interest where a defendant’s behavior

involves dishonest or fraudulent conduct).

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Colo. Rev. Stat. § 5-12-102.” That statute states:

41

(1) Except as provided in section 13-21-101, C.R.S., when there is no

agreement as to the rate thereof, creditors shall receive interest as

follows:

(a) When money or property has been wrongfully withheld, interest

shall be an amount which fully recognizes the gain or benefit realized

by the person withholding such money or property from the date of

wrongful withholding to the date of payment or to the date judgment is

entered, whichever first occurs; or, at the election of the claimant,

(b) Interest shall be at the rate of eight percent per annum compounded

annually for all moneys or the value of all property after they are

wrongfully withheld or after they become due to the date of payment or

to the date judgment is entered, whichever first occurs.

42

The Suns argue that the bankruptcy court erred by awarding Colorado’s interest

rate to federal claims, citing Guides Ltd. v. Yarmouth Grp. Prop. Mgmt., Inc., 295

F.3d 1065, 1077 (10th Cir. 2002). The Suns’ reliance upon Guides is misplaced

43

because it is factually distinguishable.

In Guides, Africa House, a retail mall tenant, and Tseghe Foote, Africa

House’s sole shareholder, alleged that the landlord and mall management

company discriminated against them, thus unlawfully interfering with their right

to make and enforce a contract and to lease real property under 42 U.S.C. §§ 1981

and 1982. A jury found in favor of and awarded damages to both Ms. Foote and

44

Africa House. After trial, the district court set aside the verdict and damages in

Ms. Foote’s favor based on her lack of standing. It then granted Africa House’s

Sun, 515 B.R. at 810. The Complaint neither mentioned Colo. Rev. Stat. §

41

5-12-102 nor requested a specified percentage for interest. Complaint, in App. at

22-33. In the Joint Pretrial Statement, under Itemization of Damages, the Kims

asked for “$900,000, together with interest thereon at the rate of 8% per annum”

without referencing a specific statute. Joint Pretrial Statement at 9, in App. at 70.

The Kims first referenced Colo. Rev. Stat. § 5-12-102 in their written closing

arguments. Plaintiffs’ Written Closing Argument at 23, in App. at 884.

Colo. Rev. Stat. § 5-12-102.

42

Appellants’ Br. at 34.

43

Guides, 295 F.3d at 1071.

44

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motion for prejudgment interest, applying a 9% interest rate to be calculated from

the date the action accrued pursuant to Colo. Rev. Stat. § 13-21-101. The Tenth

Circuit reversed the district court’s order granting prejudgment interest at the

state rate from the date the claim accrued, and remanded for a determination of

the rate of prejudgment interest and for a determination of the date or dates of

accrual because “a federal rate of interest rather than the state rate applies where

jurisdiction is based on a federal question . . . .”

45

Here, like in most bankruptcy adversary proceedings, both federal and state

law were implicated. The Kims sought a nondischargeability determination,

which is an issue governed by federal law through the Bankruptcy Code. They

46

also sought a determination as to the existence and the amount of the underlying

debt, which is an issue governed by state law. Section 523 contains no standard

47

or applicable interest rate for the allowance of prejudgment interest.

48

In U.S. ex rel. C.J.C., Inc. v. W. States Mech. Contractors, Inc., the Tenth

49

Circuit reversed the denial of prejudgment interest on a Miller Act breach of

contract action and awarded prejudgment interest using the interest rate stated in

the state statute governing prejudgment interest at the time of the decision, rather

than the applicable statutory rate at the time the debt was incurred. The Tenth

Id. at 1077.

45

Grogan v. Garner, 498 U.S. 279, 284 (1991) (nondischargeability

46

determination governed by federal law).

Travelers Casualty & Surety Co. v. Pacific Gas & Elec. Co., 549 U.S. 443,

47

450–51 (2007) (recognizing rule that state law governs the substance of claims in

bankruptcy proceedings).

The only federal statutory provision on the recoverability of interest in

48

general is 28 U.S.C. § 1961. That statute, however, “relates only to interest

recoverable on a judgment itself [and] has nothing to do with the question of

whether prejudgment interest shall be allowed as part of the compensation

awarded to make the injured party whole.” Wilson v. Burlington N. R.R. Co., 803

F.2d 563, 564 (10th Cir. 1986) (internal quotations omitted).

834 F.2d 1533 (10th Cir. 1987).

49

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Circuit adopted the Fifth Circuit’s reasoning that when there was no applicable

federal law regarding prejudgment interest, it was appropriate to look to state law

“‘as a matter of convenience and practicality.’” The Tenth Circuit concluded

50

that it was “free to choose any interest rate which will fairly compensate the

plaintiff for the delay in the receipt of payment.” Under this standard, the

51

bankruptcy court did not err in looking to Colo. Rev. Stat. § 5-12-102 and

choosing 8% for the rate of prejudgment interest. The record also contains

evidence supporting the application of an 8% rate of interest – the Nova Notes

contained an 8% interest rate and Mr. Kim testified to the same. For the

52

foregoing reasons, we conclude that the bankruptcy court did not abuse its

discretion in awarding prejudgment interest at the rate of 8% per annum,

compounded annually.

53

3. Adjustments for payments and accrued interest during the

prejudgment interest period

The bankruptcy court awarded prejudgment interest on the entire damage

award starting from the date of the parties’ bargain (May 17, 2007) through the

date of the judgment (September 12, 2014). The Kims, however, did not actually

suffer the entire damage award at the beginning of the prejudgment interest

period. Instead, their monetary injury was $900,000 from the date of the bargain

until they received a payment from the Nova Notes. Thereafter, their monetary

Id. at 1541 (citing United States ex rel Georgia Elec. Supply Co., v. U.S.

50

Fidelity and Guar. Co., 656 F.2d 993, 997 (5th Cir. Unit B 1981) (quoting in part,

Louisiana & Arkansas Ry. Co. v. Export Drum Co., 359 F.2d 311, 317 (5th Cir.

1966)).

Id. at 1545 (internal quotations omitted).

51

Day 1 Trial Tr. at 101, in App. at 173; Promissory Notes, in App. at 1003-

52

06.

The Kims’ argument that prejudgment interest on the monthly income

53

stream should be calculated periodically upon each payment’s due date is moot

given our decision to reverse the bankruptcy court’s benefit-of-the-bargain

damages award.

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injury decreased with each payment. Conversely, their monetary injury increased

annually due to compound interest. Thus, prejudgment interest should be

calculated on the $900,000 until the first payment was received by the Kims, and

thereafter on the appropriate debt balance adjusted for each successive payment

received by them, subject to annual compounding of interest.

Although we generally afford the trial court great discretion in calculating

prejudgment interest, we conclude the bankruptcy court applied an erroneous

legal standard in its decision to calculate prejudgment interest on the Kims’ entire

damage award as of the date of the bargain. And because the prejudgment

54

interest calculation cannot be done without the dates of payments, which are not

in the record, remand is necessary. We, therefore, remand for recalculation of

prejudgment interest in accordance with this opinion.

IV. Conclusion

After carefully reviewing the record, we AFFIRM in part and REVERSE in

part. Because the bankruptcy court’s nondischargeability findings are not clearly

erroneous, we affirm the court’s determination that the Suns’ debt to the Kims is

nondischargeable under §§ 523(a)(2)(A), (a)(4) and (a)(6). Because the Kims

elected rescission as their remedy, the proper measure of damages is restoration to

the status quo by returning the money the Kims gave to the Suns plus interest,

less any payments they received as a result of the parties’ transactions. Thus, we

reverse the bankruptcy court’s benefit-of-the-bargain damages award and remand

for calculation in accordance with this opinion. Because it was not an abuse of

discretion to use the interest rate in the Colorado statute, we affirm the

bankruptcy court’s award of prejudgment interest at the rate of 8% per annum,

Reed v. Mineta, 438 F.3d 1063, 1067 (10th Cir. 2006) (reversing trial

54

court’s decision to calculate prejudgment interest on entire back pay award as of

the date of termination and remanding with instructions to calculate interest in

accordance with when plaintiff’s monetary injuries were actually incurred, i.e.,

incrementally as his wages would presumably have been earned but not paid).

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compounded annually. We, however, reverse the bankruptcy court’s decision to

calculate prejudgment interest on the Kims’ entire damage award from May 17,

2007, and remand for recalculation of prejudgment interest in accordance with

this opinion. The award for postjudgment interest at the rate set forth in 28

U.S.C. § 1961 and costs was not challenged on appeal and remains undisturbed.

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