Talisker v. Midtown Acquisitions: Utah Supreme Court Validates Broad Contractual Waivers of Rule 69B Sheriff’s-Sale Protections

Introduction

Talisker Partnership and a constellation of related entities (collectively, “Talisker”) borrowed—and repeatedly refinanced—a $150 million real-estate development loan. The security was a patchwork of valuable parcels in Utah’s Wasatch, Summit, and Salt Lake counties. After Talisker defaulted, the secured parties—Wells Fargo Bank, N.A. and Midtown Acquisitions, L.P. (“Lenders”)—foreclosed. The properties were sold at two sheriff’s auctions, each conducted in bulk and purchased by the Lenders themselves for amounts that left a substantial deficiency.

Years later Talisker discovered internal communications suggesting that (i) the Lenders and the court-appointed receiver had entered a “Common Interest Agreement” to coordinate strategy against Talisker, (ii) they intentionally bundled the parcels despite an appraisal suggesting substantially higher values, and (iii) they chilled third-party bidding. Talisker sought equitable relief under Utah Rule of Civil Procedure 60, contending that the sales violated Rule 69B(d)’s requirement that property “be sold in such parcels as are likely to bring the highest price” (the “highest-price requirement”) and that alleged misconduct constituted fraud on the court.

The district court dismissed the complaint under Rule 12(b)(6), holding that Talisker had contractually waived “any and all rights and defenses” relating to the collateral and, more specifically, had waived the “right to direct the order or method of sale.” On direct appeal, the Utah Supreme Court unanimously affirmed.

Summary of the Judgment

Broad Waiver Enforced. Talisker’s loan documents contained sweeping waivers of “any and all rights and defenses” because the debt was “secured by real property” and specifically relinquished “any right … to direct the order or method of sale.” The Court held that these waivers unambiguously encompassed Rule 69B(d)’s highest-price requirement and any equitable challenge to the foreclosure sales.
No Residual Equitable Relief. Even assuming that the Lenders’ conduct was “unsavory,” Talisker surrendered all statutory and common-law protections except formation defenses (fraud in the inducement, duress, unconscionability), none of which Talisker pleaded.
Dismissal Affirmed. The complaint failed to state a claim: Talisker knowingly bargained away the very rights and remedies it sought to invoke.

Analysis

1. Precedents Cited

Feldman v. Salt Lake City Corp., 2021 UT 4 – Articulates Rule 12(b)(6) standard: accept well-pleaded facts as true.
ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2010 UT 65 – Defines waiver as “intentional relinquishment of a known right.”
Pioneer Builders Co. of Nevada v. KDA Corp., 2018 UT App 206 & Medley v. Medley, 2004 UT App 179 – Appellate standard that statutory rights require “clear and unmistakable” waiver; Supreme Court assumes arguendo but does not formally adopt.
Pyper v. Bond, 2011 UT 45 – Sets equitable standard for vacating sheriff’s sales based on “gross inadequacy of price” plus “irregularity.” Court distinguishes but ultimately bypasses Pyper due to waiver.
Dalton v. Jerico Constr. Co., 642 P.2d 748 (Utah 1982) & Utah Coal & Lumber Restaurant, Inc. v. Outdoor Endeavors Unlimited, 2001 UT 100 – Emphasize courts will not rewrite contracts or grant equitable relief against self-created hardships.

2. Legal Reasoning

The opinion pivots on contract interpretation. The Court parses the waiver language across multiple loan modifications:

General waiver: “any and all rights and defenses … because the debt is secured by real property.”
Specific waiver: Talisker “waive[s] and relinquish[es] … any right … to direct the order or method of sale or liquidation of the Collateral in one or more judicial foreclosure sales.”

Rule 69B(d) lists several sale-procedure safeguards; three are critical:

“Property must be sold in such parcels as are likely to bring the highest price.”
“Severable lots … must be sold separately.”
“The defendant may direct the order in which the property is sold.”

Talisker conceded waiver of (2) and (3) but asserted that (1)—the highest-price requirement—survived. The Court rejected the distinction because:

The highest-price clause itself regulates the method of sale (parcelling/bundling) and is thus squarely within the contractual waiver.
All Rule 69B(d) provisions share the same purpose—maximizing sale price—so isolating one as sacrosanct is artificial.
The waiver expressly extends to rights “based on applicable statutes,” satisfying even the heightened “clear and unmistakable” standard.

Having found a valid waiver, the Court held that equitable doctrines cannot override a freely negotiated contract absent a formation defect. Talisker alleged none. Thus, the complaint, even if factually true, presents no legally cognizable claim.

3. Impact

Contract Drafting. Lenders will undoubtedly replicate and perhaps expand similarly sweeping waivers, confident that Utah courts will enforce them. Borrowers face pressure to negotiate carve-outs or risk losing statutory safeguards.
Rule 69B’s Practical Reach Shrinks. While the procedural rule remains on the books, Talisker signals that its protections are waivable wholesale. Future litigants may see reduced recourse to “highest-price” challenges.
Receiver Conduct. The decision leaves unresolved whether and how a receiver’s collusion with a creditor might give rise to liability. Unless borrowers preserve rights by contract, collateral attacks on receivership conduct may prove futile.
Legislative Response? If policymakers believe certain foreclosure safeguards should be inalienable, statutory amendments declaring them non-waivable will be necessary.
Litigation Strategy. Talisker underscores the importance of pleading formation defenses (fraud in the inducement, unconscionability, duress) when attacking loan documents. Post-foreclosure attacks that focus solely on sale irregularities may be dismissed at the threshold if waivers exist.

Complex Concepts Simplified

Sheriff’s Sale. A public auction conducted by a sheriff (or constable) to satisfy a judgment, often following foreclosure.
Rule 69B(d). Utah procedural rule detailing how personal and real property must be sold at execution sales, including time, location, bundling, and bidding requirements.
Waiver. The intentional, knowing relinquishment of a legal right. Once waived, the right generally cannot be reclaimed.
Equitable Relief Under Rule 60. Rule 60 allows a court to relieve a party from a judgment for reasons such as fraud, mistake, or other extraordinary circumstances.
Fraud on the Court. Severe misconduct that deceives the judicial process itself, justifying vacatur of judgments even years later.
Formation Defenses. Doctrines (fraud in the inducement, duress, unconscionability, mutual mistake) that attack the validity of a contract at the time it was made. They survive even the broadest contractual waivers.

Conclusion

Talisker v. Midtown Acquisitions (2025 UT 27) cements a clear rule: Utah borrowers can contractually surrender statutory foreclosure safeguards—including Rule 69B’s highest-price requirement—and courts will enforce that surrender absent valid formation defenses. The case underscores the autonomy of sophisticated parties in commercial finance and signals a narrow judicial role once expansive waivers are in place. For practitioners, Talisker serves as both a drafting guide and a cautionary tale: contractual language matters, and what is given up at the bargaining table may be gone for good in the courtroom.