Feb.9, 2005). We need not reach this argument, however, because Outlook has not raised it and has not put forth any defenses that it would be able to assert but for the clause making the agreement “absolute and unconditional.” Instead, Outlook asserts through the affirmative defense of fraud in the inducement and a counterclaim of fraudulent misrepresentation that fraudulent misrepresentations caused it to enter the agreement. This was the only argument made by Outlook both in resistance to summary judgment before the district court and reasserted on appeal. Because this is a defense to contract formation, it may be raised despite the hell-or-high-water clause or a waiver-of-defenses clause. See Colo. Interstate Corp. v. CIT Group/Equip. Fin., Inc., 993 F.2d 743, 749 (10th Cir.1993) (<HOLDING>); Uniform Commercial Code § 2A-407, cmt. 5
holding state law fraud and deceit claims to be preempted holding hellorhighwater clause enforceable in the absence of fraud or deceit holding that in the context of federal immigration law the amount of loss to the victim of fraud or deceit does not refer to an element of the fraud or deceit but rather refers to the particular circumstances in which an offender committed fraud or deceit holding rla duty of fair representation claim preempts identical state law claims of fraud and deceit holding that promissory estoppel is applicable only in the absence of an enforceable contract