UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

TARA WOODS LIMITED PARTNERSHIP, a Minnesota limited partnership, Plaintiff - Appellant,

v. FANNIE MAE, a federally chartered corporation; EICHLER, FAYNE & ASSOCIATES, a Michigan general partnership, a/k/a EF&A Funding, LLC, d/b/a Alliant Capital, LLC, Defendants - Appellants. No. 12-1187 (D.C. No. 1:09-C V-00832-MSK-MEH) (D. Colo.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Circuit Judge, O'BRIEN , and PHILLIPS, Circuit Judges.
Tara Woods, a Minnesota limited partners hip, executed a ten- year, $19.6 million loan from Eichler, Fayne & A ssociates (EF&A), to refina nce a 53-building apartment

* This order and judgment is an unpublis hed decision, not bind ing precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### May 9, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - complex in Denver, Colorado. EF&A immediately assigned the loan to the Federal National Mortgage Association (FNMA, also known as Fannie Mae), 1 but continued to service it as Fannie Mae’s ag ent. About seven years later, in November 2006, Fannie Mae started a foreclosure action primarily base d on Tara Woods’ failure to repair and maintain the property and to keep it lien-free. The fo reclosure was withdrawn in March 2007 and Tara Woods sold th e property in May 2008 for $2 0 million. Tara Woods filed suit against EF&A and Fannie Mae in 2009. It alleged the foreclosure action was baseless and had stigmatized the property so that Tara Woods received less on the sale than it would have garnered had Fannie Mae not unreasonably interfered. Judgment was entered in favor of Fannie Mae and EF&A. We affirm.

FACTUAL BACKGROUND The apartment complex, St one Creek Village Apartments (Stone Creek), was built around 1973. Originally, it contained 53 two and three-story apartment buildings with 450 apartment units, two swimming pools, a clubhouse and an office. Tara Woods, effectively owned by Andrew Grossman, boug ht Stone Creek in 19 91. In 1999, Tara Woods refinanced Stone Creek with the loan from EF&A. Th e relevant loan documents included (1) a Note (2) a Deed of Trust assi gning rents, granting a lien to EF&A on the property, and requiring, among other things, the preservation of the property’s condition over the life of the loan, and (3) a Repl acement Reserve and Security Agreement

1 The FNMA is referred to in the co mplaint, case captions, briefs and arguments as Fannie Mae. Apparently it does not mind.- 3 - (Replacement Agreement) creating an escrow fund for repairs and replacements, with an attachment identifying $30,400 in repairs to be made in the first year of the loan and a schedule for replacements of equipment over th e life of the loan. The replacements and repair estimates were based on a March 19 99 Physical Needs Assessment (PNA) of the property conducted by a thir d party for EF&A. The Repl acement Agreement further provided: If at any time during the term of the Loan, Lender determines that replacements not listed on Ex hibit A are advisable to keep the Property in good order and repair a nd in good marketable cond ition, or to prevent the deterioration of the Property . . . Lender, may send Borrower written notice of the need for making such Additional Replacements. (Appellant’s App’x Vol. I at 118.) The 1999 report described Stone Creek “t o be in average condition and generally, well maintained.” (Appellant’s App’x Vol. II at 374.) As of March 3, 1999, 90.7% of the units were occupied and 93 .6% of the units were leased. The first written expression of concern re garding the condition of the property came in a letter from EF&A to Tara Woods following the an nual 2004 inspection. The August 19, 2004, letter listed twenty-five maintenance concerns which included, among other things, leaking roofs, damaged sidewalk s, missing stairway handrails, “[n]umerous heating and cooling system issues,” and “[ n]umerous waterline and plumbing issues.” (Appellees’ Supp. App’x Vol. I at 3.) The letter notified Tara Woods the property would be added to EF&A’s “Watch List.” ( Id .) In late 2004, two apartment buildings we re totally destroyed in a fire. In the Spring of 2005, Grossman decided to sell Stone Creek. The property was listed at $37- 4 - million in May 2005. 2 On July 1, a second fire de stroyed another building at Stone Creek. At that point, Tara Woods decided it would raze the two bui ldings destroyed in the first fire, rebuild the apar tments destroyed by the second fire, and reduce the list price to $35.5 million. On July 15, 2005, EF&A conducted anot her property inspection. This inspection led to another PNA, which was conducted on August 15-16, 2005. According to the report, Stone Creek needed “immediate repair[s]” 3 at a cost of $955,165.00. (Appellant’s App’x Vol. II at 426.) Relevant to Ta ra Woods’ claims, the report recommended replacement of the property’s tw enty-five boilers at a total cost of $162,500.00 over five years. The next day, Fannie Mae sent Tara Woods a default notice based on its failure to maintain the condition of the pr operty as required by the Deed of Trust. Tara Woods did not complete the suggested replacements and repairs. In December 2005, Tara Woods and a poten tial buyer signed a contract for sale for a price of $31.3 million, subject to due diligen ce. By early February 2006, based on the poor condition of the property identified in the buyer’s inspection report, the buyer requested a price reduction to $28,550,000 and provided Tara Woods a copy of the report. It stated, “[g]enerally, the [property] was considered to be in poor condition. The

2 Fannie Mae obtained a broker’s opinion of value on the property in June 2005 in the amount of $26 million.

3 “Immediate repair needs” were defined as urgent items that: (1) “[e]ndanger the safety and well-being of reside nts, visitors and passersby,” (2) “[a]dversely affect ingress or egress,” (3) “[a]re material building or fire code violati ons,” or (4) “[e]xhibit deferred maintenance.” (Appellant’s App’x Vol. II at 426.)- 5 - [property] exhibits a number of material phys ical deficiencies as a result of extensive deferred maintenance, inherent defects re lated to construction, and systems and components that have long exceeded their expected useful lives.” 4 (Appellees’ Supp. App’x Vol. I at 126.) Tara W oods rejected the reduced offer. On February 16, 2006, Fannie Mae sent Tara Woods a second notice of default. The letter based the default on deterioration to the property, the failur e to fully remediate the fire damage, and encumbran ces against the property. Th e notice gave specific dates on which the deficiencies must be cured. It stated: “Wh ile Fannie Mae understands that there is, perhaps, a potential sa le of the Mortgaged Property under consideration, in order to fully protect the Mortgage d Property, the borrower must comply with its obligations under the Loan Documents.” ( Id . at 108.) During 2006, Tara Woods continued to receive offers on Stone Creek, but the buyers either lowered their offers or te rminated negotiations after conducting due diligence. No sale was comple ted. At the same time, the reputable property management company, which had managed St one Creek, cancelled its cont ract in March 2006 due to Tara Woods’ failure to provide funds for necessary maintenan ce and repairs. Fannie Mae

4 The report stated immediate repairs of the electrical system were required at a cost of $217,260.00. Immediate action repa irs were described as: “(1) existing or potentially material unsafe conditions; (2) material adverse physical deficiencies jeopardizing existing tenancy; (3) material building code violations; (4) poor or deteriorated condition of a critical element or system; and (5) a condition, that if left ‘as is,’ with an extensive delay in remedying th e same, would result in or contribute to a critical element or system failure within one year or a signifi cant increase in its remedial cost.” (Appellees’ Supp. App’x Vol. I at 161.) In addition, the report identified short term repairs (to be done within one year) that totaled $2,291,820.- 6 - sent additional notices of default on June 26, 2006, and Septembe r 27, 2006, continuing to refer to the deterioration of the property and the existence of liens. The September notice advised Tara Woods that Fannie M ae would be conducti ng yet another PNA. On November 1, 2006, based on Tara Woods’ failure to cure the previously noticed defaults, Fannie Mae declared the entire note due and payable, giving Tara Woods until November 9 to cure. On Nove mber 6, 2006, Grossman met with Frank Yanez, a Fannie Mae supervisor, regarding the st atus of Stone Creek, as well as the status of two other apartment complex loans Grossman had secured from Fannie Mae. 5 According to Grossman , when he told Yanez he planne d to surrender one of his two Oklahoma properties to Fannie Mae, Yanez responded angrily, stating he would not allow Grossman to “hit home runs” by selling the two properties in which Grossman had considerable equity while leaving Fannie M ae with the property w ith the least equity. (Appellant’s App’x Vol. II at 355.) In the meantime, the latest Stone Creek PNA was comple ted in October 2006. It identified costs of $247,570.0 0 in necessary life-safety re pairs and approximately $2.5 million in immediate repa irs and replacements. 6 Part of this assessment included

5 At the time Grossman exec uted the loan for Stone Cr eek, he, through two other entities, executed loans with EF &A (which were assigned to Fannie Mae) for two other apartment complexes located in Oklahoma. These two loans are not directly the subject of Tara Woods’ complaint, but claims Grossman ’s suggestion that he would return one of these properties to Fannie Mae trigge red the Stone Creek foreclosure.

6 The 2006 report defined immediate repa ir needs in the same way these needs were identified in 2005. See supra n.3.- 7 - immediate replacement of all boilers, now estim ated to cost over $1 million. Fannie Mae
commenced a foreclosure on No vember 30, 2006, and filed a motion for an order of sale of Stone Creek on December 28, 2006, pursuant to Colo. R. Civ. P. 120 ("Rule 120"). The foreclosure was based principally on defa ults due to the property’s condition and the existence of liens on the property. Tara Woods received a copy of the 2006 PNA on January 5, 2007, and soon thereafter filed it s opposition to the Rule 120 motion, claiming Fannie Mae’s default allegations were baseless. A January 18, 2007, letter from Fannie Mae demanded Tara Woods either make the immediate repairs and replacements iden tified in the 2006 PNA by February 19, 2007, or escrow sufficient funds ($2,643,764) by January 29, 2007, for their completion. Tara Woods did neither. Instead, pending th e completion of the Rule 120 hearing, the parties agreed Fannie Mae would dismiss th e foreclosure proceeding. It did so on March 23, 2007. The dispute did not end there. In Marc h 2007, EF&A, on behalf of Fannie Mae, notified Tara Woods of other defaults on th e loan, including the i ssuance of a notice from the City of Denver concerning asbestos on the property. Tara Woods continued its efforts to sell the property, but according to Tara Woods, it was now in an unfavorable post-foreclosure environment with the additional stigmatization of the plainly-seen asbestos abatement. It again received offe rs either withdrawn or reduced after due diligence. Tara Woods rejected all fina l offers. On August 2007, Tara Woods commissioned a property condition report in preparation for an auction of the property. The report described the site improvements and buildings to be in “poor condition and- 8 - appear to have received below average mainte nance.” (Appellees’ S upp. App’x Vol. I at 35.) It also anticipated “[s]ignifica nt additional replacement due to deferred maintenance.” ( Id .) The report estimated a cost of $1.849 million for the needed immediate repairs. No bids were received at the subsequent auction. Tara Woods eventually sold the property in May 2008 for $20 millio n and paid the loan in full.

PROCEDURAL BACKGROUND Tara Woods filed this lawsuit against EF&A and Fannie Mae in state court on March 11, 2009. It alleged numerous claims. Relevant here, it claimed: (1) tortious interference with prospective business advant age; (2) breach of fiduciary duty; and (3) breach of contract and the imp lied covenant of good faith and fair dealing. After removal to federal district court, Fannie Mae move d for partial judgment on the pleadings under Fed. R. Civ. P. 12(c). Tara Woods then amended its complaint. 7 This was followed by Fannie Mae’s motion to dismiss all clai ms under Fed. R. Civ. P. 12(b)(6). The motions were partially successful. The judge dismissed Tara Woods’ claim for breach of fiduciary duty 8 and most of the tortious interference claim based on the relevant limitations period. What remained of this claim was dism issed on a subsequent

7 Because EF&A acted solely as Fannie Ma e’s agent, for conven ience we refer to the defendants as Fannie Mae unless otherwise noted.

8 Tara Woods also alleged Fannie Mae brea ched its fiduciary du ty in managing the escrow funds. This claim was dismissed based on Colorado’s economic loss rule, which bars a tort claim for injuries resulting from an alleged breach of contract. See Tara Woods Ltd. P’ship v. Fannie Mae , 731 F. Supp. 2d 1103, 1 118 (D. Colo. 2010). Tara Woods does not challenge this ruling.- 9 - motion for partial summary judg ment. A bench trial was held on Tara Woods’ remaining claims for breach of contract and breach of the implied cove nant of good faith and fair dealing. At the close of Tara Woods’ case , the judge considered a motion pursuant to Fed. R. Civ. P. 52(c) and entered judg ment in favor of Fannie Mae and EF&A.

STANDARD OF REVIEW Tara Woods challenges the dismissal of its breach of fiduciary duty claim, the application of the statute of limitations to dismiss the major ity of its interference claim, and the adverse judgment on its breach of cont ract and associated implied covenant of good faith claim. We review de novo the dismissal of Tara Woods’ breach of fiduciary duty and interference claims under Fed. R. Ci v. P. 12(b)(6), accepting as true the complaint’s well-pleaded factual allegations a nd viewing them in the light most favorable to the plaintiff. Schrock v. Wyeth Inc. , 727 F.3d 1273, 1280 (10th Cir. 2013). “To survive a motion to dismiss under Rule 12(b )(6), a complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.’” Id . (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). Because Tara Woods’ appeal concerning its contract claims is from a judgment in a bench trial pursuant to Fed. R. Civ. P. 52(c ), we review findings of fact for clear error and legal conclusions de novo. See Chavez v. City of Albuquerque , 630 F.3d 1300, 1306 (10th Cir. 2011). “If the district court’s accoun t of the evidence is plausible in light of the record viewed in its entirety, the court of appeal s may not reverse it even though convinced that had it been sitting as the trie r of fact, it would have weighed the evidence- 10 - differently.” Anderson v. City of Bessemer City, N.C. , 470 U.S. 564, 573–74 (1985). “The trial court’s findings of fact will be upheld unless, after review, the appellate court is firmly convinced a mistake has been made.” Litwin v. United States , 983 F.2d 997, 999 (10th Cir.1993). The parties agree Colo rado law applies to Tara Woods’ claims.

A. Breach of Fiduciary Duty Arisin g from a Confidential Relationship Tara Woods alleged Fannie Mae breach ed its fiduciary duty by demanding confidential information regard ing the identity of Stone Cree k’s potential buyers and the progress of the sales negotiations, which it then used to communicate with one or more of these buyers regarding the need for repairs a nd Fannie Mae’s intent to initiate foreclosure proceedings. 9 Tara Woods further alleged Fann ie Mae misrepresented it would be cooperative during Tara Woods ’ attempts to complete th e sale, but then used the confidential information to communicate w ith potential buyers to discourage Stone Creek’s sale.

9 Although Tara Woods alleges the info rmation Fannie Mae demanded was not required by the contract, the Deed of Trust re quires: “If an Event of Default has occurred and is continuing, Bo rrower shall deliver to Lender upon written demand all books and records relating to the Mortgaged Property or its operation.” (Appellant’s App’x Vol. I at 87, Section 14(e).) In turn, the definition of “Mortgaged Property” includes “all of Borrower’s present and future right, title and in terest in . . . all contracts, options and other agreements for the sale of the Land, the Improvements, the Fixtures . . . or any other part of the Mortgaged Property entered into by Borrower now or in the future, including cash or securities deposited to secure perform ance by parties of their obligations.” ( Id . at 76, Section 1(s)(8).) From these provisions, it appears Tara Woods was required, at least, to provide information regarding potential purchasers who made offers on the property.- 11 - The district judge concl uded the amended complaint fa iled to allege sufficient facts to establish a fiduciary relationship. She reasoned the “bare assertion” of Fannie Mae’s demand for information concerning the sale, “does not permit the Court to infer . . . [Fannie Mae] somehow manifest ed a willingness to thereafter act in [ Tara Woods’ ] interests in discussing the pot ential sale of Stone Creek.” Tara Woods Ltd. P’ship v. Fannie Mae , 731 F. Supp. 2d 1103, 1119 (D. Colo. 2010). And “the mere fact that [Fannie Mae] gave advice to [Tara Wood s] or discussed strategies in how to best market and sell Stone Creek does not give rise to an inference that [Fannie Mae] intended to assume a fiduciary duty to act for [Tara Woods] in aiding in the sale of the property.” Id . Because the amended complaint did “not plead facts from which [Fannie Mae’s] intent to assume a fiduciary duty to [Tar a Woods] concerning attempts to sell Stone Creek can be plausibly inferred, ” the claim was dismissed. Id

. Tara Woods complains of an “overly stri ct interpretation of the law of fiduciary duty” when the judge dismissed this claim on th e pleadings. (Appellant Br. at 21.) It acknowledges that, “in the abse nce of special circumstances, the relationship between a lending institution and its customer is merely one of cr editor and debtor,” to which no fiduciary duty applies. Premier Farm Credit, PCA v. W-Cattle, LLC , 155 P.3d 504, 523 (Colo. App. 2006). It nevertheless assert s Fannie Mae’s intent to assume a fiduciary relationship is unnecessary when the relations hip itself defines a fiduciary duty, i.e., a “confidential relationship which . . . induces one party to relax the care and vigilance it- 12 - would ordinarily have exercised in dealing with a stranger.” Dolton v. Capitol Fed. Sav.
& Loan Ass’n , 642 P.2d 21, 23 (Colo. App. 1981) (quotation marks omitted). Because a fiduciary duty may occur wher e a special advisor/advisee re lationship develops between the lender and borrower, Wells Fargo Realty Advisors Fu nding Inc. v. Uioli, Inc. , 872 P.2d 1359,1365 (Colo. App. 1994), Fannie Ma e’s acceptance of confidential information that could affect the value of the collateral created in Tara Woods’ view, a “fiduciary duty not to use or disclose the confidential information c oncerning Tara Woods’ sales efforts and prospective buyers in a manner de trimental to Tara Woods.” (Appellant’s Br. at 24.) A breach of a fiduciary duty arising fro m a confidential relationship requires the plaintiff to show: (1) the “tru st and confidence [placed] in the other party was justified, or the party in whom such confidence was repos ed either invited, ostensibly accepted, or acquiesced in such trust; (2) the alleged trus tee assumed a primary duty to represent the other party’s interest in the subject of the tr ansaction; (3) the nature and scope of the duty . . . extended to the subject matter of the su it; and (4) that duty was violated, resulting in damage to the party reposing such confidence.” Jarnagin v. Busby, Inc. , 867 P.2d 63, 67 (Colo. App. 1993). Tara Woods relies on th e Colorado Court of Appeals decision in Rubenstein v. South Denver Nat’l Bank , 762 P.2d 755 (Colo. A pp. 1988) where the court held there was a confidential relationship betw een the Bank’s loan customers/depositors. The duty was breached when the Bank told one of the plain tiffs’ employees that the- 13 - plaintiffs’ line of credit woul d be cancelled and told one of the plaintiffs’ customers that plaintiffs were in financial difficulty. Id . at 756. The court held: “In light of the considerable authority for the ge neral rule that a bank is unde r a duty not to disclose the financial condition of its custom ers and depositors, we conclude that the trial court erred in entering summary judgment dismissing plain tiffs’ claim for unauthorized disclosure of confidential information.” Id . at 757. Tara Woods contends the situation here is similar. We do not agree. First, every conceivable banking loan i nvolves the transmissi on of some sort of confidential information. A lender’s dut y to protect such information cannot automatically create a fiduciary relationship as Tara Woods suggests; “there is no per se fiduciary duty between a borrower and a lender.” Wells Fargo Realty Advisors Funding,
Inc. , 872 P.2d at 1365. Moreover, Rubenstein can be easily distinguished. Unlike the situation here, where the confid ential information is the identity of potential purchasers of the loan’s security, Rubenstein addressed the unauthorized disclosure of financial information to a third party . And even if Rubenstein extended to the disclosure of information other than the borrower’s financial information, “the lender’s duty to refrain from involvement in transactions antagonistic to the borrower arises [only] if a fiduciary relationship exists.” Id. Thus, Tara Woods must allege facts pre-dating the allegedly detrimental use of confidentia l information in order to ef fectively plead a fiduciary- 14 - relationship due to the conf idence placed in another. 10 It did not do so. 11 The breach of fiduciary duty claim was properly dismissed. 12

B. Statute of Limitation/ Interference with Prospective Business Advantage Tara Woods’ amended complaint alleged three instances of interference with prospective business advantage; (1) filing a baseless foreclosure action; (2) secretly

10 We do not say the disclosure of co nfidential information may not breach a contractual duty of good faith and fair dealing. Our discu ssion is limited to the creation of a fiduciary relationship.

11 Tara Woods alleged below that it was in a fiduciary relationship because Fannie Mae gave it advice on the management and sale of Stone Creek. However, Tara Woods did not allege it took Fannie Mae’s advice and the record indicates any such advice was ignored.

12 Tara Woods faces a second difficulty with its claim. As argued by Fannie Mae on appeal, even if we allowed Tara Woods to proceed, its br each of fiduciary duty claim would undoubtedly fail if subjected to a moti on for summary judgment. In its amended complaint, Tara Woods failed to mention no le ss than three notices of default Fannie Mae had sent before the alleged br each of fiduciary duty. A fi duciary relationship does not arise when the parties are in an adverse position. See Wells Fargo Realty Advisors Funding, Inc. , 872 P.2d at 1365 (“No fiduciary du ty arises between a bank and its borrower where the bank did not offer financial advice, its advice was not always heeded, or where the borrower was advised by others, such as legal counsel.”). Tara Woods tells us the parties were not in an adversarial posture until the foreclosure proceeding in November 2006 beca use, until then, “the parties maintained a cooperative relationship: Fannie Mae a nd EF&A agreed to forbear from pursuing foreclosure in favor of working with Tara Woods to sell the property.” (Appellant’s Reply Br. at 6.) However, the February 16 , 2006, (second) notice of default explicitly stated: “While Fannie Mae understands that there is, perhaps, a po tential sale of the Mortgaged Property . . . the borrower must co mply with its obliga tions under the Loan Documents.” (Appellees’ App’x Vol. I at 108.) Tara Woods has offered no evidence showing Fannie Mae’s requirement of continue d compliance with the loan obligations to have been rescinded. An agreement to co operate by parties represented by counsel does not make the relationship any less advers e for purposes of determining whether a fiduciary duty exists.- 15 - communicating with prospective purchasers to discourage the sale; and (3) sending notice of additional defaults after abandoning the foreclosure acti on. Fannie Mae moved to dismiss the claims based on Colorado’ s two-year statute of limitations. See Colo. Rev. Stat. § 13-80-102(1)(a). In response, Tara Woods claimed it could not have known it was damaged until it sold the propert y for a reduced amount and th erefore, its cause of action did not accrue until the sale in May 2008. 13 The district judge rejected this argument. Calculating two years back from the date Tara Woods filed its complaint in state court (March 11, 2009), it dismissed the interference claim based on conduct occurring before March 11, 2007. The interfere nce claim based on actions taken after the withdrawal of the foreclosure action was later dismissed on summary judgment and is not challenged here. On appeal, Tara Woods takes a different approach. It now contends its cause of action could not have accrued until the date Fannie Mae withdrew the foreclosure, arguing: At the time the foreclosure action wa s commenced, Tara Woods could not have known whether its opposition to the foreclos ure action would succeed, nor could Tara Woods have predicted that the foreclosure action would be unilaterally withdrawn. If Fannie Mae had succeeded in foreclosing on the property, Tara Woods could not have su ffered injury as a result of tortious

13 According to Tara Woods, because th e amended complaint does not state the date when it first knew or shou ld have known of the injury and its cause, the limitations bar did not appear on the face of the complaint and the questi on is normally one of fact. See Sterenbuch v. Gross , 266 P.3d 428, 432 (Colo. App. 2011). The facts alleged in the complaint, however, were sufficiently detaile d to determine Tara Woods knew of its injury by November 2006 at the latest.- 16 - interference with a future sale of St one Creek for the simple reason that Tara Woods would have ha d no property to sell. (Appellant’s Br. at 16.) “It is generally held that questions raised for the first time on appeal are not to be considered by an appellate court.” Stahmann Farms, Inc. v. United States , 624 F.2d 958, 961 (10th Cir. 1980). Nonethele ss, Tara Woods asks that we relax this rule because “the question is one of law and fa ilure to hear it re sults in miscarriage of justice.” Id . We decline this invitation as there is no miscarriage of justice here. A claim accrues when “both the injury and its cause are known or should have been known by the exercise of reasonable diligence.” Colo . Rev. Stat. § 13-80-108(1). “[O]nce some injury has occurred, the statute begins to run, notwithstanding that further injury continues to occur.” Duell v. United Bank of Pueblo, N.A. , 892 P.2d 336, 340 (Colo. App. 1994). Where the fa ct of injury is known, uncer tainty as to the extent of damages does not prevent the statut e of limitations from running. Dove v. Delgado , 808 P.2d 1270, 1274 (Colo. 1991). Here, Tara Woods alleged interference due to Fannie Mae’s communicated intent to foreclose on the property, and the initiation of a baseless foreclosure caused Tara Woods damage. Thus , as these injuries occurred prior to the time Fannie Mae withdrew the foreclosure ac tion, “they did not remain uncertain or speculative pending the resolution of the [foreclosure] action.” Sterenbuch v. Gross , 266 P.3d 428, 435 (Colo. App. 2011). The distri ct court properly dismissed the interference claim as time-barred.- 17 - C. Breach of Implied Covenant of Good Faith and Fair Dealing Tara Woods argues Fannie Mae’s demand for an additional $2.7 million in January 2007, based on the 20 06 PNA, violated Fannie Ma e’s obligation to reasonably use its discretion in determini ng additional costs to keep the property in good order and to prevent deterioration of the property. 14 Grossman testified to his expectations that he need only repair and maintain the property so that it remained in the same condition as it was in 1999. The judge de termined neither Grossman, nor Tara Woods’ property manager from 2006 through 20 08 had sufficient experience to testify as to the commercial reasonableness of Fannie Mae’s de mands. She then comp ared the property condition reports from 2004 through the date of the sale of the property, and noted the reports consistently stated the property was not well-maintained and would need repair in amounts ranging “between $1 and $2.7 million. ” (Appellant’s App’x Vol. I at 267.) Based on this evidence, she concluded Tara Woods failed to establish Fannie Mae’s demand was commercially unreasonable. Basica lly, Tara Woods argues this conclusion is clearly erroneous when the costs of repa irs and replacements required in the 1999 and 2005 PNAs are compared to those required in the 2006 PNA (esp ecially the cost for replacement of the boilers). “Good faith performance of a contract emphasizes faithfulness to an agreed common purpose and consistency with the jus tified expectations of the other party.”

14 Tara Woods does not appeal from the j udgment on the remainder of its contract claims.- 18 - Wells Fargo Realty Advisors, Inc. , 872 P.2d at 1363. “The du ty of good faith and fair dealing applies when one party has discretiona ry authority to determine certain terms of the contract, such as quantity, price, or time.” Amoco Oil Co. v. Ervin , 908 P.2d 493, 498 (Colo. 1995). “When one party uses disc retion conferred by the contract to act dishonestly or to act outside of accepted co mmercial practices to deprive the other party of the benefit of the contract, the contract is breached.” Wells Fargo Realty Advisors Funding, Inc. , 872 P.2d at 1363. However, “good faith and fair dealing” does not impose an obligation contrary to terms or cond itions for which a party has bargained. Id. The parties agree Fannie Mae had the disc retion to require additional payments if needed “to keep the Prope rty in good order and repair . . . or to prevent the deterioration of the Property.” (Appellant’s App’x Vol. I at 118.) According to Tara Woods, the judge erroneously relied on Grossman’s expecta tions and did not consider commercial reasonableness under an objective standard. The argument mischaracterizes the record. The judge did not rely sole ly on Grossman’s stated belie f that he would only need to complete repairs according to the 1999 PN A. Indeed, she concluded Grossman and Tara Woods’ property manager co uld not testify as to what was commercially reasonable due to their lack of experience in owning or managing large rental properties. Instead, she looked to other availabl e evidence—not only the PNAs, but to other reports of inspections by third parties, such as t hose given to the potential buyers during due diligence and the report commissi oned by Tara Woods prior to auction. As the judge noted, “[i]n 1999, the conditio n of Stone Creek was desc ribed as average and wellmaintained” with an occupancy rate of 90 to 93 %. (Appellant’s App’x Vol. I at 266.) By- 19 - late 2006, the occupancy rate had dropped to the 40% range. The prior property management company left due to Tara Woods ’ failure to pay for standard maintenance costs. All of the property evaluations from 2004 through 2007 stated the property required significant repairs due to poor maintenance. In every instance during 2005 and 2007, if a potential purchaser did not withdraw its offer completely, the due diligence resulted in a purc hase price re duction of $2.75 million to $4.5 million. While the increase in the cost of boiler replacements between the 2005 PNA ($162,500.00) and the 2006 PNA ( over $1 million) is surprising, we cannot say this difference leaves us with a definite and firm conviction that a mistake has been committed. See Anderson , 470 U.S. at 574 (“Where ther e are two permissible views of the evidence, the factfinder’s ch oice between them cannot be clearly erroneous.”). Under the terms of the agreement, the parties expected Tara W oods to keep the property maintained and gave Fannie Mae the discre tion to determine the necessary costs of maintenance over the term of the loan. Ta ra Woods presented no evidence that Fannie Mae was commercially unreasonable in its demands.
AFFIRMED. Entered by the Court: Terrence L. O’Brien United States Circuit Judge