Utah Supreme Court Confirms Borrowers Can Contractually Waive Rule 69B(d)’s “Highest-Price” Parceling Requirement and Pyper-Based Equitable Relief

Introduction

In Talisker Partnership v. Midtown Acquisitions L.P. and Wells Fargo Bank, N.A., 2025 UT 49, the Utah Supreme Court affirmed dismissal of a borrower’s post-foreclosure challenge where the borrower had executed broad waivers embedded across multiple loan documents. The case lies at the intersection of judicial foreclosure procedure (Utah R. Civ. P. 69B(d)), the common-law standard for setting aside sheriff’s sales (Pyper v. Bond, 2011 UT 45), and contractual waiver doctrine. The Court held that Talisker’s sweeping waivers—of “any and all rights and defenses” arising because the debt was “secured by real property,” and of “any right to direct the order or method of sale”—were enforceable and encompassed:

Rule 69B(d)’s “highest-price” parceling directive (i.e., the requirement that property be sold “in such parcels as are likely to bring the highest price”), and
Equitable and common-law challenges to the sale, including Pyper-type “irregularities” arguments.

The Court emphasized that although Lenders’ alleged conduct (including a common-interest agreement with a court-appointed receiver and alleged bidder chilling) might be “unsavory,” the waivers left Talisker without legal recourse on the theories it pleaded. This amended opinion clarifies that the highest-price language is not a free-floating fairness mandate but a rule of sale method (parceling/bundling) that parties may contractually waive, and that equitable challenges premised on the sale process can likewise be waived unless the borrower attacks the waivers themselves with formation defenses (e.g., fraud in the inducement, duress, unconscionability)—which Talisker did not do.

Summary of the Opinion

Holding: Talisker’s broad contractual waivers extinguished its ability to invoke Rule 69B(d)’s “highest-price” parceling directive and to pursue equitable challenges under Pyper. The district court’s Rule 12(b)(6) dismissal is affirmed.
Key reasoning:
- The waiver of “any and all rights and defenses” arising because the debt is “secured by real property,” plus a specific waiver of “any right…to direct the order or method of sale,” collectively and expressly covered the method-of-sale decisions embedded in Rule 69B(d), including parceling/bundling choices tied to the “highest-price” language.
- The Court assumed, without adopting, the court of appeals’ heightened standard for waiver of statutory rights and held the waivers here would meet that standard because they clearly referenced the concepts at issue.
- Talisker’s equitable and common-law claims (e.g., for “irregularities” under Pyper) were also waived; Talisker did not plead any formation defenses to invalidate the waivers themselves.
Scope: The case does not decide whether, or under what circumstances, a receiver’s actions could be relevant to claims like Talisker’s, nor does it decide whether a sheriff’s sale could be set aside (Talisker conceded it was likely too late to overturn the sales).
Procedural posture: On a motion to dismiss, the Court assumed the complaint’s factual allegations were true but held those allegations did not state a claim because of the waivers.

Factual and Procedural Background

Talisker borrowed $100 million in 2006 (later increased to $150 million), secured by multiple parcels in Wasatch, Summit, and Salt Lake counties. Over time, the lender constellation changed (Bank of Scotland’s interest moved to Goldman Sachs, then to Midtown; Wells Fargo acted as administrative agent).

The loan and modification documents included two pivotal waivers:

A broad waiver of “any and all rights and defenses” the borrower “may have because [its] debt is secured by real property,” expressly “unconditional and irrevocable,” and inclusive of “rights or defenses based on applicable statutes.”
A waiver relinquishing “any right…to direct the order or method of sale or liquidation of the Collateral in one or more judicial foreclosure sales,” and an express grant to lenders of “the right to sell” the collateral “as a whole or in separate parcels, in any order.”

After default, the lenders foreclosed and directed bulk sheriff’s sales in Wasatch and Summit counties at which they were the only bidders; the sales generated a deficiency. Years later, Talisker discovered a Common Interest Agreement between lenders and the court-appointed receiver, a lender-commissioned appraisal allegedly valuing the collateral much higher than the sale price, and communications allegedly aimed at discouraging a potential purchaser from participating until after the sheriff’s sales. Believing it was too late to unwind the sales, Talisker sought Rule 60 equitable relief from the underlying judgments or a crediting of fair value to the deficiency—arguing the sales were tainted by legal violations and “egregious and grossly inequitable” conduct.

The district court dismissed, concluding that the loan documents limited which Rule 69B(d) provisions applied and that the sales complied with the applicable provisions. It also found no “unlawful irregularity.” Talisker appealed.

Analysis

Precedents and Authorities Cited

ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2010 UT 65, ¶ 26, 245 P.3d 184: Defines waiver as the intentional relinquishment of a known right, requiring knowledge and intent. The Court uses this baseline waiver doctrine to evaluate Talisker’s contractual waivers.
Pioneer Builders Co. of Nev. v. K D A Corp., 2018 UT App 206, ¶ 12, 437 P.3d 539; Medley v. Medley, 2004 UT App 179, ¶ 10, 93 P.3d 847: Court of appeals’ articulation that statutory-right waivers must be explicit, either by citing the statute or clearly referencing the concept. The Supreme Court assumes this standard applies arguendo and finds the waivers sufficient even under it.
Pyper v. Bond, 2011 UT 45, 258 P.3d 575: A sheriff’s sale may be set aside for “gross inadequacy of price” plus an “irregularity” or “unfairness caused by the party benefitted by the sale.” Talisker relied on Pyper to obtain relief from judgments; the Court holds the waivers bar reliance on Pyper’s equitable path on these facts.
Utah R. Civ. P. 69B(d): The “Conduct of sale” rule, including the “highest-price” parceling requirement, sequencing, and bundling directives. Central to determining what protections were waived.
Feldman v. Salt Lake City Corp., 2021 UT 4: Standard of review on 12(b)(6) motions—facts assumed true for purposes of dismissal.
Amundsen v. Univ. of Utah, 2019 UT 49: No deference to district court on motion to dismiss rulings.
Commercial Real Estate Inv., L.C. v. Comcast of Utah II, Inc., 2012 UT 49; Bekins Bar V Ranch v. Huth, 664 P.2d 455 (Utah 1983): Courts may relieve parties from “flagrantly unjust agreements” under formation defenses such as mistake, fraud, duress, unconscionability. The Court notes Talisker did not plead such formation defenses against the waivers themselves.
State v. Goins, 2017 UT 61, ¶ 54: Appellate courts do not consider issues raised for the first time in petitions for rehearing. The amended opinion reinforces issue-preservation discipline.
National Oil & Gas, Inc. v. Gingrich, 716 N.E.2d 491 (Ind. Ct. App. 1999); Cocks v. Izard, 74 U.S. (7 Wall.) 559 (1868): Authorities noting the purpose of a sheriff’s sale is to obtain fair value through competition and fairness. The Court uses these to show that multiple Rule 69B(d) components share a price-maximization purpose, not just the “highest-price” clause.

Legal Reasoning

The Court organizes its analysis around two questions: (1) whether Talisker waived Rule 69B(d)’s “highest-price” parceling protection; and (2) whether Talisker retained any equitable path to relief despite those waivers.

1) The waivers encompass Rule 69B(d)’s “highest-price” parceling requirement

Textual anchoring in the loan documents: The documents repeatedly state a broad waiver of “any and all rights and defenses” arising because the debt is “secured by real property,” including “rights or defenses based on applicable statutes,” and a specific waiver of “any right…to direct the order or method of sale or liquidation” in judicial foreclosure. The Court reads these clauses together and in context.
Rule 69B(d) is about “order or method of sale”: The Court rejects Talisker’s attempt to cabin the waivers to merely “sequence” and “severability” (anti-bundling) provisions. The “highest-price” sentence is not a free-floating command that every aspect of the sale must maximize price; rather, it is a directive about how property should be parceled/bundled. That puts it squarely within “the order or method of sale.”
Shared price-maximization purpose does not immunize the “highest-price” clause from waiver: Sequencing and anti-bundling rules share the same goal of achieving the highest price. Because Talisker conceded those could be waived, it cannot isolate “highest-price” parceling as categorically non-waivable based on purpose alone.
Heightened waiver standard assumed arguendo: Even if Utah requires “explicit” waiver of statutory rights, the Court finds the waivers sufficiently explicit by clear reference to the concepts embodied in Rule 69B(d) (foreclosure sale method and parceling decisions). The Court does not adopt the heightened standard as Utah law generally; it merely assumes it for purposes of this case.
Record and briefing limits: The Court notes Talisker could not identify any other loan-document language that narrowed these waivers (and arguments first raised on rehearing were not considered).

2) Waivers also extinguish equitable and common-law challenges (Pyper and bid-chilling theories)

Talisker’s theory: Even if the lenders’ conduct was “permitted by law” under the waived Rule 69B(d) provisions, the sale still featured “irregularities” or “unfairness” under Pyper because of alleged bid-chilling and coordination with the receiver; therefore equitable relief from the judgments or fair-value credit should be available.
The Court’s answer: The broad waivers covered “all” defenses, including those grounded in equity or common law. Without pleading a formation defense to invalidate the waivers themselves (e.g., that the waivers were procured by fraud or are unconscionable), Talisker cannot use equitable doctrines to circumvent what it contractually relinquished.
No need to decide open questions:
- Whether a receiver’s acts could be attributed to, or be relevant against, lenders in a suit like this remains open; the Court expressly does not decide that question.
- Whether “lawful irregularities” could ever qualify under Pyper is also not decided; the waivers resolve this case without reaching that inquiry.
- The Court does not opine on whether, had Talisker moved to set aside the sales timely, a different remedy might have been available.

Impact and Significance

A. Contracting and foreclosure practice

Enforceability of global waivers: Lenders in Utah can rely on broadly worded waivers in loan documents to control method-of-sale decisions at sheriff’s sales, including parceling and bundling, even where those decisions reduce the sale price, so long as the waivers clearly cover “order or method of sale” rights.
Highest-price clause is waivable: The decision clarifies that Rule 69B(d)’s “highest-price” sentence is a method-of-sale directive—not a generalized fairness guarantee—and is thus subject to waiver.
Equitable workarounds curtailed: Borrowers cannot plead around such waivers by repackaging sale-process complaints as equitable or common-law “irregularity” claims (Pyper) unless they challenge the waivers’ validity via formation defenses.
Drafting pointers:
- For lenders: Include express waivers of “order or method of sale” rights and of “any and all rights and defenses” arising because the debt is secured by real property, together with an acknowledgment that such waivers encompass rights “based on applicable statutes [and rules].” Consider expressly citing Rule 69B(d) concepts to avoid doubt.
- For borrowers: Negotiate carve-outs preserving key procedural protections (e.g., the “highest-price” parceling rule) or require court pre-approval for bulk sales. Preserve the right to seek fair-value credit or to invoke Pyper-type remedies. If a dispute arises, evaluate promptly whether formation defenses apply to the waiver provisions.
Receiverships: The opinion does not bless lender–receiver coordination; it simply holds the borrower’s chosen theories are barred by waiver. Receivers and lenders should still take care with common-interest arrangements and bidder communications, as separate remedies or sanctions might be available in other procedural postures or to other parties.

B. Litigation strategy and appellate practice

Early dismissal risk: Where comprehensive waivers exist, courts may dispose of sale-process claims at the pleading stage notwithstanding serious allegations, if the theories fall within the waiver’s scope.
Preservation matters: Arguments not raised in briefing will not be entertained on rehearing; parties must identify any limiting loan-document provisions or public-policy arguments in their opening presentations.
Formation defenses are key: If equitable relief is sought to overcome a waiver, litigants must plead and prove a formation defense aimed at the waiver itself, not only misconduct in the downstream foreclosure process.

C. Open questions and boundaries

Non-waivable core safeguards? The Court did not delineate which, if any, Rule 69B(d) provisions might be categorically non-waivable on public-policy grounds (e.g., prohibitions on the officer purchasing the property). This remains an area for future development.
Standard for “statutory” or “rule-based” right waivers: The Supreme Court did not adopt the court of appeals’ heightened standard; it remains open whether Utah generally requires “clear and unmistakable” waivers for statutory or rule-based rights. Practitioners should assume that, at a minimum, clear conceptual references are necessary.
Receiver conduct: The decision expressly leaves open when and how a receiver’s actions might affect lender liability or sale validity, and through what procedural vehicle such claims might be pursued.

Complex Concepts Simplified

Sheriff’s sale: A public auction by a sheriff (or constable) to sell property after a court judgment to satisfy a debt. In Utah, Rule 69B(d) prescribes the conduct of such sales.
Rule 69B(d) “highest-price” parceling: The rule states property “must be sold in such parcels as are likely to bring the highest price.” This directs how to divide or bundle property for sale. The Court held this is a method-of-sale rule that can be waived.
Bundling vs. severable lots: Selling property in a single bulk lot (bundling) versus selling individual severable parcels separately. Rule 69B(d) ordinarily encourages sales in parcel configurations likely to maximize price; here, the borrower waived the right to enforce that preference.
Waiver: An intentional relinquishment of a known right. A broad waiver clause can cover statutory or rule-based rights if it clearly references the concept being waived.
Formation defenses: Legal doctrines (fraud in the inducement, duress, unconscionability, mistake) that can invalidate contract terms, including waivers. These must target the formation of the waiver itself. Talisker did not assert such defenses here.
Pyper “irregularity” doctrine: A sheriff’s sale may be set aside if the price is grossly inadequate and there is an irregularity or unfairness caused by the party benefitting from the sale. This is an equitable safety valve—but it can be contractually waived as to the complaining party, unless the waiver is itself invalid.
Common Interest Agreement with a receiver: An agreement to coordinate legal strategy and share privileged information. Even if ethically sensitive in a receivership context, the borrower’s ability to challenge downstream effects may be constrained by waivers unless different legal theories or parties are involved.
Deficiency judgment: The amount remaining after collateral sale proceeds are applied to the debt. Borrowers sometimes seek to reduce deficiencies by attacking the sale process or obtaining a fair-market-value credit; waivers may restrict those avenues.

Conclusion

Talisker v. Midtown Acquisitions establishes a clear and consequential rule in Utah secured-lending law: when a borrower executes broad waivers of rights tied to a debt secured by real property—including an express waiver of the right to control the “order or method of sale”—those waivers encompass Rule 69B(d)’s “highest-price” parceling requirement and bar equitable sale-process challenges under Pyper, absent a successful formation defense directed at the waivers themselves.

The Court’s analysis recharacterizes the “highest-price” clause as a waivable method-of-sale rule rather than a general fairness standard, and it underscores that sweeping waivers can foreclose not only statutory or rule-based claims but also common-law and equitable remedies. Although the Court neither condones the alleged conduct nor resolves open questions about receivership accountability or non-waivable core safeguards, it sends a strong message: clear contractual language will be enforced. For lenders, this offers drafting certainty; for borrowers, it is a pointed reminder to negotiate or expressly preserve key protections—or, if necessary, to challenge the waivers’ formation. The decision will shape foreclosure drafting and litigation strategy in Utah for years to come.