Schmitz v. BBVA

24CA1392 Schmitz v BBVA 12-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1392
El Paso County District Court No. 21CV31746
Honorable David Prince, Judge

Scott Schmitz, Sandy Schmitz, Louis Taloumis, Lori Taloumis, Brandon Tripp,
Jill Tripp, Michael Zachar, and Kelly Clarkson,

Plaintiffs-Appellants,

v.

BBVA USA Bancshares, Inc., BBVA USA, Ashley Burgan, and Scott Smith,

Defendants-Appellees.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE BROWN
Fox and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 31, 2025

First & Fourteenth PLLC, Edward A. Gleason, Julian R. Ellis, Jr., Colorado
Springs, Colorado; Boyd Powers & Williamson, Derek S. Boyd, Decatur, Texas,
for Plaintiffs-Appellants

Ballard Spahr LLP, Matthew A. Morr, Andrew Valencia, Denver, Colorado, for
Defendants-Appellees BBVA USA Bancshares, Inc. and BBVA USA

Timothy F. Brewer PC, Timothy F. Brewer, Colorado Springs, Colorado, for
Defendants-Appellees Ashley Burgan and Scott Smith
¶1 Plaintiffs, Scott and Sandy Schmitz, Louis and Lori Taloumis,

Brandon and Jill Tripp, and Michael Zachar and Kelly Clarkson

(collectively, borrowers), appeal the district court’s order granting

summary judgment in favor of defendants, BBVA USA Bancshares,

Inc., its subsidiary BBVA USA, and its employees Ashley Burgan

and Scott Smith (collectively, lender).1 We affirm in part and

reverse in part and remand the case for further proceedings.

I. Background

¶2 Between 2018 and 2019, borrowers separately met and

contracted with David Riggle, who owned JP Cooper Construction

(collectively, builder), to construct homes on vacant lots in Colorado

Springs. In 2019, borrowers each signed a loan agreement with

lender to finance construction. In August 2020, Riggle notified

borrowers that he would be filing for personal bankruptcy and that

JP Cooper Construction would not finish construction of their

homes. It was discovered later that Riggle had misappropriated

borrowers’ money to pay off other debt; he pleaded guilty to a

1 The individual defendants, Ashley Burgan and Scott Smith, have

adopted BBVA’s arguments on appeal, so we refer to the defendants
collectively as “lender.”

1
criminal theft charge and was ordered to pay restitution to

borrowers.

¶3 In October 2021, borrowers sued lender, asserting claims for

violation of the Colorado Consumer Protection Act (CCPA), fraud,

fraudulent concealment, negligent misrepresentation, negligence,

unjust enrichment, and civil conspiracy. The theory underlying

borrowers’ claims was that, before borrowers hired builder and

signed loan agreements financing builder’s construction of their

homes, lender made false or misleading representations about

builder and failed to disclose pertinent information about builder

being a financial risk.

¶4 Lender filed a C.R.C.P. 12(b)(5) motion to dismiss borrowers’

claims. Judge David Miller, the district court judge then assigned

to the case, determined that any claims based on lender’s

disbursements of loan proceeds or related to builder’s construction

efforts were barred by the terms of the loan agreement but allowed

the remaining claims to proceed.

¶5 As discussed in detail in Part III.A.2 below, lender later filed a

C.R.C.P. 56 motion for summary judgment. Judge David S. Prince,

the district court judge then assigned to the case, granted the

2
motion and entered summary judgment against borrowers on all

claims. Borrowers appeal that order.

II. Summary Judgment Standard of Review

¶6 We review de novo an order granting summary judgment.

Amos v. Aspen Alps 123, LLC, 2012 CO 46, ¶ 13. “Summary

judgment is only proper when ‘the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as

a matter of law.’” Rocky Mountain Planned Parenthood, Inc. v.

Wagner, 2020 CO 51, ¶ 19 (quoting C.R.C.P. 56(c)). In resolving a

motion for summary judgment, the trial court must grant the

nonmoving party the benefit of all favorable inferences that may

reasonably be drawn from the undisputed facts and must resolve all

doubts against the moving party. Id. at ¶ 20. Summary judgment

is a drastic remedy and should only be granted when the applicable

legal standards have been clearly met. Westin Operator, LLC v.

Groh, 2015 CO 25, ¶¶ 19, 21.

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III. Analysis

¶7 Borrowers contend that the district court erred by

(1) concluding that the loan agreement precludes all their claims;

(2) determining that lender neither owed nor breached a duty to

disclose additional information; (3) resolving disputes of material

fact against them; and (4) concluding that the credit agreement

statute of frauds barred their claims. With one exception, we agree

that summary judgment was inappropriate.

A. Interpretation of the Loan Agreement

¶8 Borrowers contend that the district court erred by concluding

that the loan agreement precludes their claims. We largely agree.

1. Relevant Loan Agreement Provisions

¶9 Each borrower executed a loan agreement with lender

containing the following exculpatory provision (exculpatory

provision):

The Builder is acting as an independent
contractor in the completion of the
improvements to the Property. The Builder
will at all times maintain current General
Liability Insurance and Worker’s
Compensation (if required by state guidelines)
satisfactory to the Lender and provide evidence
thereof. If at any time during the construction
phase of the Loan any of the above listed

4
insurance policies are canceled or revoked, the
Lender, at its sole option, shall have the right
to force place the proper coverage at the
expense of the Borrower and/or Builder. The
Lender assumes the Borrower has performed a
diligent investigation of the Builder and the
results are satisfactory to the Borrower.

The Borrower accepts full responsibility for
the selection of the Builder. Lender
approval of the Builder is for the sole
benefit of the Lender and neither the
Borrower nor the Builder shall be entitled
to claim any loss or damage as the result
of such an approval. The Lender makes no
guarantees or assurances as to the quality
or craftsmanship to be performed by the
Builder. The Borrower hereby agrees to
indemnify and hold harmless the Lender
as a result of the Borrower choosing to
contract with the Builder for the purpose
of constructing improvements on the
Property, including the Borrower’s
authorization to allow funds, as
hereinafter defined, to be disbursed
directly to the Builder.

¶ 10 Each loan agreement also allowed lender to disburse the loan

proceeds directly to builder and included the following

disbursement-related indemnification provision (indemnification

provision):

The Borrower hereby releases and agrees to
save, defend, indemnify and hold harmless the
Lender and its directors, officers, employees,
and agents, from and against any and all loss,

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liability, costs, damages, expenses, claims,
actions, suits and causes of action of any kind
or nature whatsoever (whether or not caused
by or resulting from, in whole or in part by [sic]
the Lender’s own negligence) including without
limitation reasonable attorney’s fees resulting
from, relating to or arising out of the Lender’s
making disbursements of Funds directly to the
Builder rather than directly to the Borrower or
jointly to the Borrower and Builder.

¶ 11 Each loan agreement contained the following language as part

of an integration clause (integration clause):

This Agreement, together with the other Loan
Documents, embodies the entire agreement
and understanding between the parties,
supersedes all prior agreements and
understandings related to the subject matter
hereof and thereof, and may not be amended
except by written agreement between the
Borrower, Builder and the Lender. No oral
promise, agreement, representation or
statement may be relied upon or have any
effect whatsoever unless reduced to writing
and executed by the party against whom such
statement is to be enforced.

¶ 12 Finally, two of the borrower couples signed a loan disclosure

document that included the following disclaimer (disclosure

disclaimer):

The borrower is solely responsible for
investigating and choosing the builder. Once
you choose your builder, [lender] will review
your builder to determine whether the builder

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meets our requirements. Our satisfactory
review of the builder does not constitute a
recommendation from us or a guarantee of the
quality, integrity and craftsmanship of the
builder. YOU SHOULD NOT RELY ON OUR
SATISFACTORY REVIEW OF THE BUILDER
FOR DETERMINING YOUR CHOICE OF A
BUILDER.

2. District Court Judges’ Competing Interpretations

¶ 13 In March 2022, lender moved to dismiss borrowers’ complaint,

arguing in relevant part that all claims were barred by the

exculpatory provision in the loan agreement because borrowers

expressly agreed to “accept[] full responsibility for the selection of

the Builder.” Lender argued that the combined effect of the

exculpatory provision and the integration clause was to preclude

borrowers from “asserting claims related to alleged statements

recommending [builder] made prior to the Loan Agreements.”

Lender also argued that the indemnification provision barred any

claims related to its disbursement of loan proceeds.

¶ 14 In opposing the motion, borrowers argued that exculpatory

provisions purporting to relieve parties of their own intentional

conduct were unenforceable under Colorado law. And they argued

that the loan agreement provisions that lender cited did not include

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sufficiently clear language to disclaim borrowers’ reliance on

undisclosed material information or to defeat their claims for fraud

and negligent misrepresentation.

¶ 15 The district court, through Judge Miller, granted lender’s

motion in part. First, the court reasoned that the exculpatory

provision “relate[d] to holding [lender] harmless for the selection of

the builder as it relates to the builders’ construction of the property,

quality of craftsmanship, etc., as opposed to [lender’s] own

misrepresentations recommending the builder.” (Emphasis added.)

The court concluded that the loan agreement absolved lender “from

liability based on the actions of the builder during the construction

of the home[,] including payment disbursements made to the

builder,” and dismissed borrowers’ claims “[t]o the extent [they] are

based on post-contract disbursements . . . or actions by the builder

in performing his duties.”

¶ 16 Second, the court reasoned that the loan agreement did “not

specifically release [lender] from liability due to [lender’s] own

negligent misrepresentations regarding the builder’s past conduct

(that [borrowers] could not have known about) prior to [borrowers’]

selection of the builder in order to induce them to select the

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builder.” It also reasoned that the integration clause did “not affect

a waiver of a claim of negligent misrepresentation not specifically

prohibited by the terms of the agreement.” Thus, the court

concluded that the loan agreement did not bar borrowers’

remaining claims related to lender’s alleged misrepresentations and

concealment.

¶ 17 Following the court’s ruling on lender’s motion to dismiss, the

parties litigated the case for more than two years. In May 2024,

lender moved for summary judgment, renewing its argument that

the exculpatory provision precluded all claims because borrowers

agreed to “accept full responsibility for the selection of the Builder.”

This time, lender highlighted the exculpatory provision’s language

providing that “Lender approval of Builder is for the sole benefit of

Lender” and that borrowers were not “entitled to claim any loss or

damage as the result of such an approval.” Lender argued that

borrowers’ misrepresentation and concealment claims related to

lender’s approval of builder such that the claims were barred by the

exculpatory provision. Lender again argued that the integration

clause precluded borrowers from pursuing claims based on any

alleged misrepresentations, even precontractual ones.

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¶ 18 Borrowers opposed summary judgment on many of the same

grounds that they had opposed lender’s motion to dismiss. They

explained that at “the heart of [their] claims are the pre-loan

representations and nondisclosures about [builder], which induced

[borrowers] to hire or maintain [builder] as their builder and enter

into the loan agreements.” They endorsed Judge Miller’s view that

the exculpatory provision only precluded claims relating “to quality

of the builder’s craftsmanship and other post-contract conduct.”

They maintained their argument that Colorado law did not permit

lender to relieve itself of liability for its own intentional conduct.

And they continued to assert that the loan agreement’s provisions

were not specific enough to exculpate lender from its own

precontractual false and misleading representations or to disclaim

borrowers’ reliance on lender’s nondisclosures.

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¶ 19 The district court, through Judge Prince, granted the motion

for summary judgment.2 The court acknowledged that borrowers

sought to hold lender liable “because Lender represented to them

that Builder was an ‘approved’ builder but failed to reveal to them

facts Lender had learned or should have learned in its financial

evaluations of Builder” and made “affirmative misrepresentations of

fact.” (Emphasis added.) But it characterized borrowers’ claims as

“deriv[ing] from their central theory that Lender should be legally

responsible to them for Builder’s misappropriation of funds because

2 Judge Prince declined to adhere to Judge Miller’s prior ruling on

lender’s motion to dismiss as law of the case. See Stockdale v.
Ellsworth, 2017 CO 109, ¶ 37 (“[T]he law of the case doctrine
‘provides that prior relevant rulings made in the same case are to be
followed unless such application would result in error or unless the
ruling is no longer sound due to changed conditions.’” (citation
omitted)). Judge Prince reasoned in part that Judge Miller had
decided the lender’s motion to dismiss under the plausibility
standard for C.R.C.P. 12(b)(5) motions rather than the standard
governing C.R.C.P. 56 motions. See Barnes v. State Farm Mut. Auto.
Ins. Co., 2021 COA 89, ¶ 24 (a C.R.C.P. 12(b)(5) motion asks the
court to determine whether the complaint states a plausible claim
for relief); Rocky Mountain Planned Parenthood, Inc. v. Wagner, 2020
CO 51, ¶ 19 (summary judgment is appropriate when the court
determines that “there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law” (quoting C.R.C.P. 56(c)). But contract interpretation is always
a question of law, see Fed. Deposit Ins. Corp. v. Fisher, 2013 CO 5,
¶ 9, so we fail to see how the type of motion lender filed should have
driven the analysis.

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Lender ‘approved’ Builder.” (Emphasis added.) The court explained

that, by selecting builder, borrowers explicitly contracted to accept

liability and to “bar themselves from bringing claims against Lender

for the ‘approval’ issued by Lender — even agreeing to indemnify

Lender against such claims.”

¶ 20 The court concluded that the exculpatory provision clearly and

unambiguously barred all claims, focusing on the following

language:

• “Lender approval of the Builder is for the sole benefit of the

Lender and neither the Borrower nor the Builder shall be

entitled to claim any loss or damage as the result of such an

approval.”

• “Borrower hereby agrees to indemnify and hold harmless

the Lender as a result of the Borrower choosing to contract

with the Builder . . . .”

The court reasoned that the quoted language, “[t]aken individually

or as a whole, . . . reflects the parties’ intent to assign exclusively to

[borrowers] the risks of loss flowing from the evaluation and

selection of the builder” and precludes borrowers from bringing “a

claim for damages based on the approval of a specific builder by

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Lender.” The court also determined that the disclosure disclaimer

(signed by two of the borrower couples) supported this rationale.

¶ 21 The court was not persuaded by borrowers’ argument (and

Judge Miller’s reasoning) that the exculpatory provision barred only

those claims relating to builder’s construction work. Instead, the

court determined that the exculpatory provision “lists two categories

of claims being barred,” those based on lender’s approval and those

based on builder’s construction. The court was likewise

unpersuaded that the “indemnify and hold harmless” language in

the exculpatory provision was limited to claims based on lender’s

disbursement of loan proceeds, noting that such a claim was merely

an example of the types of claims covered by the provision.

¶ 22 The court entered summary judgment against borrowers on

their claims on the following grounds:

• Fraud and negligent misrepresentation: Any claim based on

lender’s representation that builder was “approved” failed as

a matter of law because the statement was not a

misrepresentation of fact — it was undisputed that lender

in fact “approved” builder for borrowers’ loan agreements.

Any claim based on lender’s representation that builder was

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approved “based on his financials” was (1) not supported by

“a discussion of actual facts that rendered the statement

false” and (2) barred by the exculpatory provision because it

was based on lender’s “approval” of builder.

• Fraudulent concealment: Borrowers’ claim that lender’s

representations about approving builder were “misleading

and not the whole truth” due to its failure to disclose other

information that lender knew involved genuine disputes of

material fact. Nonetheless, any nondisclosure claim failed

because (1) borrowers “contracted away any such claim”

under the exculpatory provision, and (2) the “undisputed

material facts” did not support a duty to disclose or a

breach of that duty.

• CCPA: Borrowers’ “theory of a deceptive trade practice [was]

the allegation of misrepresentation and failure to disclose

regarding the ‘approved’ status of Builder.” The claim failed

because “no allegation of an affirmative misrepresentation

or failure to disclose has been supported.”

• Negligence: Borrowers’ claim that lender was negligent

because it “violat[ed] [its] own internal procedures and

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standards in regards to granting ‘approval’ status to

Builder” was barred by the exculpatory provision.

• Unjust enrichment: Because borrowers’ unjust enrichment

claim was “a separate legal theory based on the allegations

of misrepresentation and nondisclosure,” it failed for lack of

an affirmative misrepresentation or a failure to disclose.

• Civil conspiracy: Because borrowers’ civil conspiracy claim

was “grounded on the Lender’s granting of ‘approved’ status

to Builder,” it was barred by the exculpatory provision.

3. Principles of Contract Interpretation

¶ 23 The interpretation of a loan agreement, like any other contract,

is a question of law that we review de novo. See Fed. Deposit Ins.

Corp. v. Fisher, 2013 CO 5, ¶ 9. When interpreting a contract, we

aim to give effect to the intent of the parties by construing the

contract as a whole and giving effect to all its provisions. E-470

Pub. Highway Auth. v. Jagow, 30 P.3d 798, 801 (Colo. App. 2001),

aff’d, 49 P.3d 1151 (Colo. 2002). In doing so, our “duty is to

interpret and enforce contracts as written between the parties, not

to rewrite or restructure them.” Fox v. I-10, Ltd., 957 P.2d 1018,

1022 (Colo. 1998). Contractual language is “examined and

15
construed in harmony with the plain and generally accepted

meaning of the words employed.” Ad Two, Inc. v. City & County of

Denver, 9 P.3d 373, 376 (Colo. 2000).

4. The District Court Erred by Interpreting the Loan Agreement
to Preclude All Claims

¶ 24 Borrowers contend that the district court erred by interpreting

the loan agreement to bar all claims because the exculpatory

provision (1) cannot shield lender from liability for its own

intentional misconduct and (2) does not clearly and unequivocally

preclude their claims. Except for the negligence claim, we agree.

a. Lender Cannot Shield Itself from Liability for Its Own
Intentional Misconduct

¶ 25 Borrowers contend that the district court erred by interpreting

the loan agreement as allowing lender to shield itself from liability

for its own intentional misconduct. We agree.

¶ 26 An exculpatory provision is not enforceable if it is contrary to

public policy. Core-Mark Midcontinent, Inc. v. Sonitrol Corp., 2012

COA 120, ¶ 13. And the supreme court has clarified that “the

public policy of this state precludes making an agreement to

indemnify an actor for damages resulting from his own ‘intentional

or willful wrongful acts.’” Constable v. Northglenn, LLC, 248 P.3d

16
714, 716 (Colo. 2011) (citation omitted); accord Equitex, Inc. v.

Ungar, 60 P.3d 746, 750 (Colo. App. 2002) (“Public policy prohibits

‘indemnifying a party for damages resulting from intentional or

willful wrongful acts.’” (citation omitted)). As a result, courts in this

state “will not enforce exculpatory and limiting provisions . . . if they

purport to relieve parties from their own . . . intentional conduct.”

Rhino Fund, LLLP v. Hutchins, 215 P.3d 1186, 1191 (Colo. App.

2008); accord Equitex, Inc., 60 P.3d at 750 (“A court will not enforce

a contract that violates public policy even if the failure to do so is

‘unfair’ to one of the parties.”); see also Restatement (Second) of

Contracts § 195 (A.L.I. 1981) (“A term exempting a party from tort

liability for harm caused intentionally or recklessly is unenforceable

on grounds of public policy.”).

¶ 27 When it entered summary judgment against borrowers, the

district court did not consider whether the exculpatory provision

violates public policy to the extent that it purports to insulate

lender from liability for its own intentional misconduct. Instead,

the court focused on whether lender’s alleged misconduct involved

the subject matter of the exculpatory provision, which the court

interpreted as precluding any claim related in any way to lender’s

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“approval” of builder. Regardless of whether lender’s allegedly

fraudulent misrepresentations and nondisclosures related to its

“approval” of builder, lender cannot relieve itself of liability for

intentional misconduct through the exculpatory provision. See

Rhino Fund, LLLP, 215 P.3d at 1191. Consequently, the court erred

by concluding that the exculpatory provision precluded borrowers’

intentional tort claims for fraud, fraudulent concealment, and civil

conspiracy.

b. The Loan Agreement Does Not Clearly and Unambiguously
Preclude Borrowers’ Claim for Negligent Misrepresentation

¶ 28 Borrowers contend that the district court erred by concluding

that the exculpatory provision clearly and unambiguously precludes

their negligence-based claims. With respect to the claim for

negligent misrepresentation, we agree. But we affirm the court’s

entry of judgment on the negligence claim.

¶ 29 Exculpatory provisions that attempt to insulate a party from

liability for its own negligence are generally disfavored and must be

closely scrutinized and strictly construed against the party seeking

to limit its liability. Jones v. Dressel, 623 P.2d 370, 376 (Colo.

1981); McShane v. Stirling Ranch Prop. Owners Ass’n, 2017 CO 38,

18
¶ 18. To determine whether an exculpatory provision is valid, we

consider “(1) the existence of a duty to the public; (2) the nature of

the service performed; (3) whether the contract was fairly entered

into; and (4) whether the intention of the parties is expressed in

clear and unambiguous language.” Jones, 623 P.2d at 376. “The

determination of the sufficiency and validity of an exculpatory

agreement is a question of law for the court to determine.” Id.

¶ 30 We conclude that the exculpatory provision does not clearly

and unambiguously preclude borrowers’ claims that lender

negligently misrepresented information about builder before the

loan agreements were executed, so we need not address the first

three Jones factors. See Doe v. Wellbridge Club Mgmt. LLC, 2022

COA 137, ¶ 16.

¶ 31 Two different judges interpreted the exculpatory provision in

two reasonable but contradictory ways. See Ad Two, Inc., 9 P.3d

at 376 (“Terms used in a contract are ambiguous when they are

susceptible to more than one reasonable interpretation.”). Judge

Miller reasoned that the exculpatory provision did not address

lender’s alleged misrepresentations recommending builder despite

builder’s past misconduct. Instead, Judge Miller interpreted the

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provision to preclude claims related to builder’s construction of the

property being funded by the loan agreement. Given the context in

which the exculpatory language is situated, this interpretation is

reasonable.

¶ 32 The sentence, “Lender assumes the Borrower has performed a

diligent investigation of the Builder and the results are satisfactory

to the Borrower,” immediately follows, in the same paragraph, a

discussion of builder’s obligation, as an independent contractor, to

maintain liability and workers’ compensation insurance. This

placement suggests that borrowers’ “diligent investigation” of

builder relates to whether builder has the requisite insurance

coverage if there is a problem with construction or if a worker is

injured. The paragraph does not mention builder’s financial health

or lender’s recommendation or approval of builder.

¶ 33 The next two sentences are: “The Borrower accepts full

responsibility for the selection of the Builder. Lender approval of

the Builder is for the sole benefit of the Lender and neither the

Borrower nor the Builder shall be entitled to claim any loss or

damage as the result of such an approval.” At first blush, this

language appears quite broad. But the next sentence provides

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additional context: “The Lender makes no guarantees or assurances

as to the quality or craftsmanship to be performed by the Builder.”

This language also suggests that lender’s efforts to disclaim liability

for “approv[ing]” builder relate to builder’s construction efforts, not

to lender’s own representations regarding builder’s financial health.

¶ 34 The paragraph continues: “The Borrower hereby agrees to

indemnify and hold harmless the Lender as a result of the Borrower

choosing to contract with the Builder for the purpose of

constructing improvements on the Property, including the

Borrower’s authorization to allow funds, as hereinafter defined, to

be disbursed directly to the Builder.” The first half of this sentence

is consistent with the theme reflected in the rest of the provision —

borrower has no remedy against lender for problems with

construction. The second half of the sentence introduces a

financial concept, seemingly for the first time — borrower has no

remedy against lender for any problem with lender’s disbursement

of funds directly to builder.

¶ 35 Reading the exculpatory provision as a whole, see E-470 Pub.

Highway Auth., 30 P.3d at 801, Judge Miller interpreted it to

preclude borrowers from pursuing claims against lender for “actions

21
by the builder in performing his duties” or “based on post-contract

disbursements.” But he allowed borrowers to pursue their

precontractual misrepresentation and concealment claims because

those claims were not specifically prohibited by the terms of the

loan agreement. See Keller v. A.O. Smith Harvestore Prods., Inc.,

819 P.2d 69, 74 (Colo. 1991) (contract provisions purporting to

prohibit claims of negligent misrepresentation “must be couched in

clear and specific language”); Jones, 623 P.2d at 376 (limitations on

liability must be “expressed in clear and unambiguous language”).

¶ 36 For his part, Judge Prince focused on the sentences

disclaiming lender liability for “approv[ing]” builder or for borrowers’

decision to contract with builder, unmooring that language from the

surrounding context about insurance coverage and construction

but interpreting it alongside the disclosure disclaimer to bar all of

borrowers’ claims.3 See U.S. Fid. & Guar. Co. v. Budget Rent-A-Car

Sys., Inc., 842 P.2d 208, 213 (Colo. 1992) (“The meaning of a

3 Even the disclosure disclaimer seems to reinforce the limited

scope of lender’s disclaimer of liability: “Our satisfactory review of
the builder does not constitute a recommendation from us or a
guarantee of the quality, integrity and craftsmanship of the builder.”
(Emphasis added.)

22
contract is found by examination of the entire instrument and not

by viewing clauses or phrases in isolation.”). This interpretation is

also reasonable, so far as it goes, because the exculpatory provision

prohibits borrowers from claiming “any loss or damage as the result

of” lender’s “approval” of builder. To the extent borrowers’ damages

are “the result of” lender’s “approval” of builder, those claims are

clearly and unambiguously precluded.

¶ 37 Judge Prince rejected borrowers’ argument that lenders’

precontractual conduct fell outside the scope of the exculpatory

provision because the approval process necessarily occurred before

borrowers executed the loan agreements, such that “[a]ny claim

based on the approval process would, necessarily, be based on

pre-loan actions.” Because the provision did not limit its bar on

claims in any way, Judge Prince determined that it did not exclude

claims based on lender’s alleged precontractual misrepresentations

and nondisclosure. Although we agree with Judge Prince that the

exculpatory provision has no temporal limitation, we decline to

adopt his view that the absence of language excluding

precontractual claims means that such claims are precluded. This

reasoning flips the analysis on its head. We do not begin by

23
presuming that all claims are precluded unless excepted; instead,

an exculpatory provision must clearly and unambiguously cover the

claims at issue. See Keller, 819 P.2d at 74.

¶ 38 The fact that two different judges interpreted the exculpatory

provision to reach opposing yet reasonable results is likely enough

for us to conclude that the parties’ intent to preclude borrowers’

negligent misrepresentation claim is not “expressed in clear and

unambiguous language.” Jones, 623 P.2d at 376. Even so, for

three additional reasons we doubt the exculpatory provision’s

clarity. See Fed. Deposit Ins. Corp., ¶ 9 (we review contract

interpretation de novo).

¶ 39 First, the loan agreement does not define “approval,” which

could be interpreted to align with either judge’s interpretation. The

plain and ordinary meaning of the word “approve” is “to have or

express a favorable opinion of,” “to accept as satisfactory,” or “to

give formal or official sanction.” Merriam-Webster Dictionary,

https://perma.cc/XA97-GGPU; see Certain Underwriters at Lloyd’s

London Subscribing to Certificate No. 986557 v. Rychel, 126 P.3d

234, 236 (Colo. App. 2005) (we enforce contracts as written, giving

the words and phrases their plain and ordinary meaning); see also

24
City & County of Denver v. Dennis, 2018 CO 37, ¶ 23 (we may look

to the dictionary for assistance in determining the plain and

ordinary meaning of words).

¶ 40 Approval by lender could mean that lender endorses builder as

one who provides quality construction services. That meaning

would explain why most of the exculpatory provision is focused on

ensuring that builder carries appropriate insurance and disclaiming

lender liability for construction. Approval by lender could also

mean that lender accepts builder as satisfying its requirements,

although whether those requirements relate to the financial health

of builder or to some other metric remains unclear. That meaning,

or something like it, appears to be what Judge Prince adopted.

¶ 41 Second, even assuming the term “approval” includes the latter

definition — that lender finds builder satisfactory under the criteria

it deems relevant — we are not persuaded by Judge Prince’s

characterization of borrowers’ claims as seeking damages that are

“the result of” lender’s “approval” of builder. As we understand it,

borrowers do not allege that lender’s acceptance of builder was a

cause of their losses. Rather, borrowers allege that lender’s own

affirmative precontractual misrepresentations, misleading

25
representations, and concealment of material information related to

its recommendation and approval of builder were causes of their

losses. Characterized this way, the claims do not clearly and

unambiguously fall within the scope of the exculpatory provision.

See Keller, 819 P.2d at 74; Jones, 623 P.2d at 376.

¶ 42 Third, when closely scrutinized and compared to other

provisions of the loan agreement, the exculpatory provision may not

insulate lender from its own negligence. See Jones, 623 P.2d at

376. To be sure, parties need not use the specific term “negligence”

in an exculpatory provision to shield a party from claims based on

negligence. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785

(Colo. 1989). Instead, as discussed, “[t]he inquiry should be

whether the intent of the parties was to extinguish liability and

whether this intent was clearly and unambiguously expressed.” Id.

¶ 43 But another provision of the loan agreement expressly releases

lender from liability for its own negligence. Through the

indemnification provision, borrowers agreed to indemnify and hold

harmless lender from any claims of any kind “whether or not

caused by or resulting from, in whole or in part . . . Lender’s own

negligence” related to lender’s disbursement of funds to builder.

26
(Emphasis added.) The indemnification provision demonstrates

that when the parties intended to preclude claims based on lender’s

negligent conduct, they knew how to express that intent clearly.

Because the exculpatory provision lacks similarly explicit language

absolving lender of liability for its own negligence, we are not

convinced it accomplishes that result.

¶ 44 Because the exculpatory provision does not clearly and

unambiguously preclude borrowers’ claims based on lender’s

precontractual misrepresentations and nondisclosures, we conclude

that the district court erred by entering judgment on this basis on

borrowers’ negligent misrepresentation claim.4 However, the court

concluded that borrowers’ negligence claim was based on an

allegation that lender violated its own internal procedures and

standards when approving builder and that such claim fell within

the scope of the exculpatory provision. In their appellate briefs,

borrowers do not take issue with the court’s characterization of this

4 Even if borrowers’ intentional tort claims were not barred by the

loan agreement as a matter of public policy, see supra Part
III.A.4.a., we would also conclude they are not barred to the extent
they are based on lender’s alleged misrepresentations and
nondisclosures for the reasons set forth in this Part III.A.4.b.

27
claim or otherwise explain how the damages caused by lender’s

negligence are not “the result of” lender’s “approval” of builder. As a

result, we affirm the court’s entry of judgment against borrowers on

their negligence claim.

B. Duty to Disclose and Reasonable Reliance

¶ 45 Borrowers contend that the district court erred by concluding

that lender did not owe or breach a duty to disclose. Although the

court disposed of borrowers’ claim for fraudulent concealment

because “no identifiable duty of disclosure exists nor was such a

duty breached,” we do not see where in its summary judgment

order the court found that no breach occurred.5 Instead, the court

acknowledged that borrowers’ “most potentially viable line of

argument” was that lender’s representations about builder’s

“approval” were “‘misleading and not the whole truth’ due to the

failure to disclose points of information known to the Lender.” And

it aptly noted that “some of these specific facts, and more

importantly their proper interpretation, are in genuine dispute.”

5 Of course, at the summary judgment stage, the district court

should not have made findings of fact; rather, it could rely only on
undisputed facts to dispose of the claim.

28
¶ 46 But even crediting borrowers’ interpretation of the evidence,

the court nonetheless concluded that the “undisputed material

facts” did not “support the essential elements of [a duty to disclose

under Restatement (Second) of Torts (A.L.I. 1977)] section 551(2)(a)

and (e).” The court reasoned that borrowers were not entitled to

know facts lender knew about builder, nor could they reasonably

expect lender to disclose those facts, because they “placed in

writing the nature of their relationship regarding investigation,

selection, review, and approval” of builder and allocated full

responsibility for those tasks to borrowers.

¶ 47 From this reasoning, we understand the court to have

determined that (1) lender had no duty to disclose additional

information about builder, and (2) the undisputed fact that

borrowers executed a loan agreement containing the exculpatory

provision and disclosure disclaimer meant they could not establish

the reasonable reliance element of a fraudulent nondisclosure claim

as a matter of law (not that lender did not breach a duty to disclose

as a matter of fact, which clearly remains in dispute). We conclude

that the court erred in both respects.

29
1. The District Court Erred by Concluding that No Duty to
Disclose Existed

¶ 48 “To establish a claim for fraudulent concealment or non-

disclosure, the plaintiff must show that the defendant had a duty to

disclose the information.” Berger v. Sec. Pac. Info. Sys., Inc., 795

P.2d 1380, 1383 (Colo. App. 1990). Whether such a duty exists is a

question of law to be determined by the court. Barnes v. State Farm

Mut. Auto. Ins. Co., 2021 COA 89, ¶ 31. “But the predicate facts

must still have been found by judge and jury.” Colo. Coffee Bean,

LLC v. Peaberry Coffee Inc., 251 P.3d 9, 16 (Colo. App. 2010) (citing

Hesse v. McClintic, 176 P.3d 759, 762 (Colo. 2008)).

¶ 49 “Generally, a person has a duty to disclose to another with

whom he deals facts that in equity or good conscience should be

disclosed.” Burman v. Richmond Homes Ltd., 821 P.2d 913, 918

(Colo. App. 1991). Before a business transaction is consummated,

each party to the transaction has a “duty to exercise reasonable

care to disclose” to the other party

(a) matters known to him that the other is
entitled to know because of a fiduciary or other
similar relation of trust and confidence
between them; and

30
(b) matters known to him that he knows to be
necessary to prevent his partial or ambiguous
statement of the facts from being misleading;
and

(c) subsequently acquired information that he
knows will make untrue or misleading a
previous representation that when made was
true or believed to be so; and

(d) the falsity of a representation not made
with the expectation that it would be acted
upon, if he subsequently learns that the other
is about to act in reliance upon it in a
transaction with him; and

(e) facts basic to the transaction, if he knows
that the other is about to enter into it under a
mistake as to them, and that the other,
because of the relationship between them, the
customs of the trade or other objective
circumstances, would reasonably expect a
disclosure of those facts.

Restatement (Second) of Torts § 551(2); see Bair v. Pub. Serv. Emps.

Credit Union, 709 P.2d 961, 962 (Colo. App. 1985) (adopting the

Restatement).

¶ 50 The duty most clearly implicated by borrowers’ claim is the

duty to disclose information to prevent prior statements from being

misleading. See Restatement (Second) of Torts § 551(2)(b); Berger,

795 P.2d at 1383 (“[A] party has a duty to disclose if he has stated

facts that he knows will create a false impression unless other facts

31
are disclosed.”). The district court did not expressly consider this

duty in its summary judgment order, even though it recognized

borrowers’ argument that lender’s representations about builder’s

approval were “misleading and not the whole truth.”

¶ 51 Even if lender did not initially have a duty to disclose anything

to borrowers about its approval of builder because the parties

agreed that such approval “is for the sole benefit of the Lender,”

once lender made affirmative representations to borrowers about

that approval that were misleading without the disclosure of

additional facts, it assumed a duty of additional disclosure. See

Berger, 795 P.2d at 1383. Borrowers allege that lender represented

that builder had been subjected to an “extensive background check”

and an “elevated financial review” and that he was approved for

more projects than lender typically approves “based on his

financials.” Borrowers also allege that lender had concerns about

builder’s historical and current financial situation and approved

builder despite not receiving satisfactory financial information.

According to borrowers, without disclosure of this information,

lender’s statements created a false impression that builder was

32
financially secure and that his financial status even exceeded

lender’s standards.

¶ 52 Because, at a minimum, lender had a duty to disclose facts to

prevent its representations from being misleading, the district court

erred by concluding that no duty of disclosure exists to support

borrowers’ fraudulent concealment claim. See id. And because

disputes of material fact remain regarding what lender told

borrowers and what it knew (and when) about builder — and thus

whether any representation necessitated the disclosure of

additional information to prevent it from being misleading — the

court erred by entering summary judgment on borrowers’ claims for

fraudulent concealment, violation of the CCPA, and unjust

enrichment based on the absence of a duty to disclose. See Bair,

709 P.2d at 962 (trial court improperly granted summary judgment

where a question of fact remained regarding whether the defendant

breached its duty to disclose); see also Colo. Coffee Bean, LLC, 251

33
P.3d at 16 (a judge or jury must find the predicate facts giving rise

to a duty to disclose under the circumstances).6

2. The District Court Erred by Concluding that Borrowers Could
Not Establish Reasonable Reliance as a Matter of Law

¶ 53 “Fraudulent nondisclosure requires proof of reasonable

reliance on ‘the assumption that the concealed fact does not exist,’

or ‘was different from what it actually was.’” Colo. Coffee Bean, LLC,

251 P.3d at 17 (citations omitted). Whether a person reasonably

relied on a nondisclosure is a question of fact. See id.; CJI-Civ.

19:2 (2025) (the elements of a fraudulent nondisclosure claim

include that the plaintiff acted or decided not to act relying on the

6 In the section of its answer brief arguing that no duty to disclose

exists, lender briefly references the economic loss rule. Although
lender raised the economic loss rule in its motion for summary
judgment, the district court did not enter summary judgment on
that basis. Because lender does not develop an economic loss rule
argument on appeal, we decline to address it, see Sanchez v. Indus.
Claim Appeals Off., 2017 COA 71, ¶ 41, other than to note that
lender’s misrepresentations and nondisclosures were alleged to
have occurred before the loan agreement was executed and are thus
independent from any duty owed under the contract, see Van Rees
v. Unleaded Software, Inc., 2016 CO 51, ¶¶ 3, 13 (“[P]re-contractual
misrepresentations are distinct from the contract itself, and may
form the basis of an independent tort claim,” because “[t]here is an
important distinction between failure to perform the contract itself[]
and promises that induce a party to enter into a contract in the first
place.”).

34
assumption that the undisclosed fact did not exist or was different

from what it actually was and such reliance was justified).

¶ 54 As we understand it, the district court reasoned that the

undisputed fact that borrowers entered into the loan agreement,

which included the exculpatory provision and disclosure disclaimer,

undermined any claim of reasonable reliance. The court focused on

the following:

• language in the disclosure disclaimer (signed by two

borrower couples) that deemed borrowers “solely

responsible” for “investigating” and “choosing” builder;

• language in the exculpatory provision whereby borrowers

accepted “full responsibility for the selection of the builder”;

• language in the exculpatory provision that “Lender approval

of the Builder is for the sole benefit of the Lender”;

• that “[t]he parties stated no obligation of the Lender to

disclose any results of its evaluation of the builder”; and

• that “[a]ll parties affirmatively barred [borrowers] from

bringing any claim of liability against [lender] for the

approval.”

35
¶ 55 Because the court did not find any facts regarding borrowers’

reliance — nor could it have at the summary judgment stage — but

based its conclusion on documentary evidence alone, its decision is

not entitled to deferential review. See Colo. Coffee Bean, LLC, 251

P.3d at 20. Instead, we may draw our own conclusion from the

documents. Id. And we conclude that the language in the

exculpatory provision and disclosure disclaimer is not sufficiently

specific to preclude borrowers’ reliance on the absence of

undisclosed negative financial information about the builder.

¶ 56 As an initial matter, the language in the disclosure disclaimer

cannot be used to undermine the reasonable reliance of the two

borrower couples that did not sign that document. But we

recognize that the exculpatory provision includes similar language

“assum[ing] the Borrower has performed a diligent investigation of

the Builder,” so we consider the language collectively.

¶ 57 Even so, neither cited provision, nor the integration clause,

expressly disclaims reliance on lender’s failure to disclose material

information. See id. at 21. True, the exculpatory provision provides

that lender’s “approval of the Builder is for [its] sole benefit,” and

the disclosure disclaimer provides that borrowers “should not rely

36
on [lender’s] satisfactory review of the builder.” But under the

circumstances, where lender allegedly made misleading

representations about its investigation and approval of builder, this

contractual language is not specific enough to preclude borrowers

from relying on the assumption that the facts lender allegedly knew

and concealed about builder’s precarious financial position did not

exist or were different from what they actually were. See id. at 17.

¶ 58 The court also noted that one borrower couple asked lender for

the results of its evaluation and the request was refused, “such that

they knew and accepted that information was not being shared with

them.” Even assuming this is an undisputed fact, it does not alter

our analysis. Being told that information will not be provided is not

the same as being discouraged from relying on reasonable

inferences drawn from lender’s representations about builder’s

finances and assuming contrary facts did not exist. See id. at

20-21 (noting that although the trial court found that the plaintiffs

had been told certain information was not being disclosed, it did not

find “that plaintiffs had been discouraged from relying on inferences

concerning [the information]”). Thus, we conclude that the loan

37
agreement does not, as a matter of law, undermine the reasonable

reliance element of borrowers’ fraudulent nondisclosure claim.

C. Disputes of Fact Regarding Lender’s Affirmative
Misrepresentations

¶ 59 Borrowers contend that the district court erred by weighing

disputed facts to find that lender made no affirmative

misrepresentation and by entering summary judgment against

them on that basis. We agree.

¶ 60 The district court reasoned that borrowers’ allegation that

lender “falsely represented to [borrowers] that [builder] was an

‘approved’ builder” was not true. It found that record evidence

demonstrated that builder was, in fact, “approved” by lender for

borrowers’ loans. As a result, the court concluded that any claim

premised on this alleged misrepresentation failed as a matter of law.

¶ 61 But the evidence borrowers submitted in opposing lender’s

motion for summary judgment was not so limited. True, the

evidence showed that lender represented to borrowers that builder

had been “approved.” But, viewed in the light most favorable to

borrowers as the nonmoving party, see Rocky Mountain Planned

Parenthood, Inc., ¶ 20, the evidence also showed that lender made

38
other representations that were at best misleading or at worst false

based on information lender had about builder at the time. See

Rocky Mountain Expl., Inc. v. Davis Graham & Stubbs LLP, 2018 CO

54, ¶ 48 (“A ‘false representation’ is defined as any words or

conduct that creates an untrue or misleading impression of the

actual past or present fact in the mind of another.”).

According to borrowers, lender represented that

• builder had been through an “extensive background check”

or an “elevated financial review”;

• builder was a “preferred” builder in “good standing” with

lender, and selecting him would be viewed by lender as a

positive in its decision to make the loan, would streamline

the application process, and would allow the loan to close

quickly; and

• builder had been approved for five projects at once — more

than the number of projects lender typically approved —

“based on his financials and progress on existing projects.”

And lender made these representations even though

• lender was concerned about builder’s spending habits;

39
• builder had “past issues,” including not paying

subcontractors and getting “hosed” on a recent project, and

lender was giving him “a second chance”;

• builder told lender his “financials [were] terrible”;

• builder’s financials were not sufficient to approve him for

five projects under lender’s internal guidelines, but lender

nevertheless approved him; and

• lender modified builder’s financials in order to approve him.

¶ 62 Notwithstanding this evidence, the district court found that

lender’s representation that builder was approved “based on his

financials” was not fraudulent based on its review of the deposition

testimony of a lender representative. When asked whether the

“based on his financials” part of the statement was true, the

representative answered, “[I]t is not.” The court explained that the

witness “simply agreed with a statement by counsel characterizing

the underlying facts but without stating them” and that the court’s

review of the surrounding testimony “did not reveal a discussion of

actual facts that rendered the statement false.”

¶ 63 But whether the court is persuaded by the evidence is not the

relevant inquiry at the summary judgment stage. See Andersen v.

40
Lindenbaum, 160 P.3d 237, 239-40 (Colo. 2007) (“At the summary

judgment stage, the trial judge’s function is not to weigh the

evidence and decide what occurred,” nor should it “determine which

evidence is the more credible.”). The material facts — what lender

knew and when and what it represented to borrowers — were in

dispute. The court was not permitted to resolve conflicts in the

evidence against borrowers. See id. Consequently, the court erred

by entering summary judgment on this basis on borrowers’ claims

for fraud, negligent misrepresentation, violation of the CCPA, and

unjust enrichment.

D. Credit Agreement Statute of Frauds

¶ 64 In addition to resolving borrowers’ claims on the bases already

discussed, the district court also “approve[d] and adopte[d]” lender’s

argument that the credit agreement statute of frauds (CASF),

§ 38-10-124, C.R.S. 2025, barred all of borrowers’ claims.

Borrowers contend that the court erred by granting summary

judgment on this alternative basis. We agree.

1. Standard of Review and Generally Applicable Law

¶ 65 We interpret the CASF de novo, giving effect to the legislature’s

intent as reflected in the statutory language itself and interpreting

41
words and phrases according to their commonly accepted meaning.

Schoen v. Morris, 15 P.3d 1094, 1096-97 (Colo. 2000).

¶ 66 Under the CASF, “no debtor or creditor may file or maintain an

action or a claim relating to a credit agreement involving a principal

amount in excess of twenty-five thousand dollars unless the credit

agreement is in writing and is signed by the party against whom

enforcement is sought.” § 38-10-124(2). A “credit agreement” is

(I) A contract, promise, undertaking, offer, or
commitment to lend, borrow, repay, or forbear
repayment of money, to otherwise extend or
receive credit, or to make any other financial
accommodation;

(II) Any amendment of, cancellation of, waiver
of, or substitution for any or all of the terms or
provisions of any . . . credit agreements . . . ;
and

(III) Any representations and warranties made
or omissions in connection with the
negotiation, execution, administration, or
performance of, or collection of sums due
under, any . . . credit agreements . . . .

§ 38-10-124(1)(a).

¶ 67 The legislature enacted the CASF “in an effort to discourage

lender liability litigation and to promote certainty [in] credit

agreements.” Norwest Bank Lakewood, Nat’l Ass’n v. GCC P’ship,

42
886 P.2d 299, 301 (Colo. App. 1994); see Schoen, 15 P.3d at 1098

(the CASF was enacted “to curtail suits against lenders based on

oral representations made by members of the credit industry”). The

statute applies broadly to any type of claim, including tort claims

for fraudulent or negligent misrepresentation, relating “to a

purported agreement, negotiation, representation, or promise that

assertedly amends, cancels, or waives any terms or provisions of a

previous credit agreement.” Norwest Bank Lakewood, 886 P.2d at

302; see Schoen, 15 P.3d at 1099 (“[T]he statute bars not only

contractual claims, but also claims in tort arising from an oral

credit agreement.”).

2. The District Court Erred by Concluding that the CASF Barred
Borrowers’ Claims

¶ 68 To be sure, borrowers’ action relates to a credit agreement

involving a principal amount that exceeds twenty-five thousand

dollars. See § 38-10-124(2). But it is undisputed that the loan

agreements are in writing and signed by the parties. As a result, by

its plain language, the CASF’s prohibition against the filing of a

claim relating to such a credit agreement does not apply. Id.

43
¶ 69 Nevertheless, in its motion to dismiss and its motion for

summary judgment, lender argued that borrowers’ claims sought to

rewrite the exculpatory provision to provide that lender’s approval of

builder was for borrowers’ benefit rather than solely for its own

benefit. Lender also argued that the CASF barred borrowers’ claims

because lender’s allegedly false or misleading representations and

nondisclosures regarding builder were made during negotiation of

the loan agreements. The district court adopted these arguments

as an alternative basis on which to enter summary judgment. In so

doing, the court erred.

¶ 70 We reject lender’s argument that borrowers’ claims seek to

rewrite the loan agreement to alter the language of the exculpatory

provision providing that lender’s approval of builder is for its sole

benefit. That argument is premised on a characterization of

borrowers’ claims that we have rejected.

¶ 71 Although the CASF applies to “oral promises or

representations made during negotiations to modify or vary the

terms of” a credit agreement, Norwest Bank Lakewood, 886 P.2d at

302, borrowers do not seek to enforce any oral promises or to

modify the terms of the loan agreement based on lender’s

44
representations. Nor are borrowers seeking recission of or to avoid

their obligations under the loan agreement based on lender’s

representations and nondisclosures. Cf. Premier Farm Credit, PCA

v. W-Cattle, LLC, 155 P.3d 504, 515-16 (Colo. App. 2006) (a claim

does not have to seek affirmative relief to be barred by the CASF; a

fraudulent inducement claim seeking to avoid foreclosure of

security based on a promise to forbear from declaring a loan in

default falls within the statute’s scope).

¶ 72 Indeed, the representations lender is alleged to have made —

essentially, that builder was approved for extra projects based on

his financials after an extensive background check — are

representations of fact. They are not promises, undertakings,

offers, or commitments that can be enforced, and they are not

representations about the credit agreement itself. See

§ 38-10-124(1)(a), (2); cf. Ivar v. Elk River Partners, LLC, 705 F.

Supp. 2d 1220, 1228 (D. Colo 2010) (claims based on bank’s

promise to offer financing based on inflated property value were

covered by CASF); Schoen, 15 P.3d at 1097 (bank’s assurances it

would approve and fund a loan so that debtor could pay off other

loans constituted a credit agreement); Univex Int’l, Inc. v. Orix Credit

45
All., Inc., 914 P.2d 1355, 1356 (Colo. 1996) (proposed terms for

financing the purchase of machinery securing a loan constituted a

credit agreement); Pima Fin. Serv. Corp. v. Selby, 820 P.2d 1124,

1127 (Colo. App. 1991) (credit agreement definition includes

settlement agreement that would have canceled or waived an

original credit agreement).

¶ 73 Although the CASF has been interpreted broadly to preclude

all types of claims, we are unaware of any authority holding that it

reaches so far as to preclude claims based on precontractual

misrepresentations of fact that, although made by a creditor to a

debtor, do not implicate the terms or enforcement of a credit

agreement. And we decline to extend the CASF that far today.

Accordingly, we conclude that the district court erred by granting

summary judgment on this alternative basis. See Westin Operator,

¶¶ 19, 21 (summary judgment is only appropriate when applicable

legal standards are clearly satisfied).

IV. Disposition

¶ 74 We affirm the district court’s entry of summary judgment on

borrowers’ negligence claim but reverse the entry of summary

judgment on borrowers’ claims for violation of the CCPA, fraud,

46
fraudulent concealment, negligent misrepresentation, unjust

enrichment, and civil conspiracy. We remand the case to the

district court for further proceedings consistent with this opinion.

JUDGE FOX and JUDGE MEIRINK concur.

47