U.S. Bank National Ass'n v. Rios

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
U.S. BANK NATIONAL ASSOCIATION, )
as Trustee for J.P. Morgan Mortgage )
Acquisition Corp. 2005-WMC1, Asset )
Backed Pass-Through Certificates, )
Series 2005-WMC1, )
)
Appellant, )
)
v. ) Case No. 2D14-4898
)
MARIO RIOS; CARMEN RIOS; )
MORTGAGE ELECTRONIC )
REGISTRATION SYSTEMS, INC.; )
COLFIN, AI-FL2, LLC, )
)
Appellees. )
)
Opinion filed June 10, 2015.
Appeal pursuant to Fla. R. App. P.
9.130 from the Circuit Court for Pasco
County; Sherwood S. Coleman, Judge.
Benjamin B. Brown and Christen Spake,
of Quarles & Brady, LLP, Naples, for
Appellant.
David B. Singer and Matt Newton (filed
notice of appearance after briefing) of Singer
& O'Donniley, P.A., Tampa, for Appellee,
Colfin AI-FL2, LLC.
Jeffrey C. Hakanson of McIntyre Thanasides
Bringgold Elliott Grimaldi & Guito P.A., of
Tampa, for Appellees, Mario and Carmen
Rios.
No appearance for Mortgage Electronic
Registration Systems, Inc.
WALLACE, Judge.
U.S. Bank, the mortgagee, appeals a nonfinal order entered after a final
judgment of foreclosure setting aside a foreclosure sale on the motion of a third-party
purchaser, Colfin AI-FL2, LLC (Colfin). Because the trial court's finding that U.S. Bank
had entered into a stipulation not to oppose the granting of Colfin's motion is not
supported by competent, substantial evidence and because Colfin failed to establish
grounds for setting aside the foreclosure sale, we reverse the trial court's order.
I. THE FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On February 7, 2013, U.S. Bank obtained a consent final judgment of
foreclosure in the amount of $396,567.25 against Mario Rios and Carmen Rios
following their default on a note and mortgage held by the bank. The mortgaged
property, which was located in Pasco County, had been the subject of a sinkhole claim
during the pendency of the proceedings. Notably, the final judgment provided that "[t]he
sinkhole insurance claims proceeds associated with the subject property shall remain in
the Court Registry until further order of this Court." (Emphasis added.)
On June 3, 2013, Colfin purchased the property at the foreclosure sale for
$172,500. The clerk of the court retained the proceeds of the sale "for distribution in
accordance with the order or final judgment or law" and issued a certificate of title to
Colfin on June 14, 2013.
On the same day that the clerk conducted the foreclosure sale, a person
or persons unknown recorded an Executive Claim Report for Subsidence Investigations
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in the Public Records of Pasco County. The report was prepared by SDII Global
Corporation. In the report, SDII gave notice of sinkhole activity on the subject property
based upon testing performed between August 4 and August 20, 2010. SDII
recommended that the sinkhole conditions be remediated with "compaction grout
injection to increase the density of the soils and cap the limestone." SDII also advised
that the remediation program should be monitored to verify compliance with the report's
recommendations. SDII estimated the cost of the recommended remediation at
$62,890.
Four months later, on October 3, 2013, Colfin filed a Motion to Set Aside
and Rescind Foreclosure Sale Based upon Fraud, Misrepresentation, Non-Disclosure
and Failure to Timely Comply with Florida Statute § 627.7073. 1 Colfin filed an amended
motion on October 29, 2013. In its amended motion, Colfin alleged that if it had been
aware that the subject property was affected by sinkhole activity it would never have bid
on the property. Colfin pointed out that three years had passed between the time of the
testing in 2010 and the filing of the Executive Claim Report in 2013 and that the reason
for the delay was unknown. Colfin concluded that the failure to disclose the existence of
the sinkhole activity in accordance with section 627.7073 constituted fraud and that as a
result of the fraud and inequity against Colfin, the court should set aside the sale.
U.S. Bank filed a response in opposition to Colfin's motion to set aside the
sale. The bank argued that Colfin had failed to plead valid grounds to set aside the
1The statute is included in the title of the pleading filed by Colfin without
designating the applicable year. Presumably, the correct year of the statute, if it were
applicable, would be 2010 based on the date that SDII performed its testing, which is
the earliest date that the obligation to file the report may have arisen.
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foreclosure sale. It asserted that Colfin's reliance on section 627.7073 to establish fraud
was misplaced. In addition, U.S. Bank argued that Colfin had purchased the property
"as is" at the foreclosure sale and that the doctrine of caveat emptor applied regarding
issues related to the property itself, such as the sinkhole activity. U.S. Bank also
argued that Colfin had failed to adequately plead fraud. Specifically, Colfin failed to
state who had allegedly committed the fraud or how, and it failed to allege any false
representation. Furthermore, U.S. Bank pointed out that Colfin's motion was untimely.
Finally, the bank asserted that Colfin was on notice of the sinkhole activity because the
records in the underlying action to foreclose the mortgage and in the Official Records of
Pasco County disclosed the existence of the sinkhole. In particular, the final judgment
of foreclosure that established the amount due and authorized the clerk to sell the
property disclosed the existence of sinkhole activity on the property.
In January 2014, the trial court held a hearing on the motion to set aside
the foreclosure sale. At that hearing, Colfin's counsel, Gregory Sanoba, argued the
grounds that Colfin had alleged in its motion to set aside the sale. In addition, Mr.
Sanoba represented that U.S. Bank's co-counsel, Melissa Giasi, first alerted Colfin to
the existence of the sinkhole on the property on September 19, 2013. Through
telephone discussions, e-mails, and texts, Ms. Giasi had proposed that if Colfin would
grant U.S. Bank access to the property, the bank would not object to Colfin's motion to
set aside the foreclosure sale. According to Mr. Sanoba, he and Ms. Giasi reached a
stipulation regarding these particulars. In support of its claims about the alleged
stipulation, Colfin filed the affidavits of Mr. Sanoba and his legal assistant. In summary,
Colfin concluded that it had established grounds to set aside the sale based on the
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asserted fraud, equitable claims, and the alleged stipulation of the parties, including
U.S. Bank's agreement that it would not oppose Colfin's motion.
U.S. Bank disputed that it had ever agreed that it would not oppose the
motion to set aside the sale, noting the absence of a signed agreement. In support of
its position that no agreement had been reached, U.S. Bank filed the affidavit of its co-
counsel, Ms. Giasi. U.S. Bank also opposed the motion for the various reasons argued
in its response.
At the conclusion of the hearing, the trial court announced that it was not
ready to rule on Colfin's various claims because the issue of the alleged agreement had
not been set out in the amended motion and had only been presented through
argument and the various affidavits that had been filed. Accordingly, the trial court
directed the parties to set an additional hearing to present evidence about the existence
of any agreement between the parties and to address the legal issues regarding the
enforcement of any agreement that may have been reached.
Seven months later, in August, the parties presented evidence and
argument concerning the alleged agreement to the trial court. In pertinent part, Mr.
Sanoba testified that Colfin first learned about the sinkhole activity on the subject
property on September 19, 2013, during a telephone call with Ms. Giasi. Although
Colfin had performed a title search before purchasing the property, the claim report had
not been recorded in the public records when Colfin performed its search. Thus Colfin
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did not discover the existence of sinkhole activity on the property before purchasing the
property at the foreclosure sale. 2
After Colfin notified Mr. Sanoba of the situation, he called Ms. Giasi and
told her that Colfin would be seeking to set aside the sale based upon the timing of the
recordation of the report. He stated that over the course of several telephone calls and
e-mails, counsel reached an understanding that Mr. Sanoba would file a motion to set
aside the sale and Ms. Giasi would not raise any objections to the motion. In return,
Colfin would cooperate with Ms. Giasi and grant her and her appraiser access to the
property. Mr. Sanoba would wait to file his motion to set the sale aside until after U.S.
Bank's hearing regarding the recovery of the insurance proceeds from the sinkhole
claim. The only essential term of the agreement to be performed by Colfin was that it
allow access to the property; Mr. Sanoba provided Ms. Giasi with the name and
telephone number of the person who would be able to provide her with access, Mary
Delgado.
Ms. Giasi first proposed the alleged agreement in an e-mail on September
20, 2013, in which she stated:
My suggestion is to let me have access, get the
insurance monies and then I won't oppose your motion to
vacate the certificate of title/foreclosure sale. I think that
would be a good result for all parties. I just don't want to
vacate the [certificate of title] and give rise to any claim by
the Rios[es] to the monies. Let me know your thoughts. I'll
call you a little later.
Sent from my iPhone.
2Presumably, Colfin's title search disclosed the final judgment of
foreclosure. Anyone who actually read the final judgment would know that there was
sinkhole activity on the property.
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Mr. Sanoba sent Ms. Giasi an email on September 21 providing her with the contact
information for Mary Delgado. Mr. Sanoba responded to Ms. Giasi by e-mail on
September 23, stating:
Good Morning—did you and your appraiser get
access to the property?
I am refraining from filing my motion to set aside the
sale until after your hearing.
I do not want my motion to interfere with your hearing.
Once your hearing has been held, I will file my motion to set
aside the sale.
You have agreed not to raise any objection to my
motion to set aside the sale.
Ms. Giasi never notified Mr. Sanoba that the foregoing representation was not an
accurate statement of their discussions, and she never informed him that she had been
unable to obtain access to the property. Mr. Sanoba also offered speculative testimony
about his understanding that when he was dealing with Ms. Giasi he was "dealing
directly with the bank and that the bank had approved this agreement."
Ms. Giasi acknowledged sending the September 20 e-mail, which she
considered to be nothing more than proposed terms for discussion. She stated that
after she sent the e-mail, she had a telephone call with Mr. Sanoba in which they
discussed the proposal. After the call, her understanding was that she would be given
access to the property, get an appraisal, go forward with a deficiency hearing on behalf
of U.S. Bank, and obtain an award of the insurance proceeds for the bank. U.S. Bank
wanted to have its deficiency hearing and to collect the insurance proceeds for the
sinkhole claim before Colfin tried to have the sale set aside. Ms. Giasi stated that the
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bank would need to receive the insurance proceeds before Colfin's amended motion to
set aside the foreclosure sale was heard.
Ms. Giasi stated that she did not consent to vacating the sale; instead, she
consented to not opposing the motion to vacate. But, she claimed, she and Mr. Sanoba
never actually reached an agreement on behalf of their respective clients. Ms. Giasi
also testified that in stating that she would not object to the motion, she assumed that
Colfin would still have to establish legal grounds to vacate the sale. Notably, Ms. Giasi
testified that she never had any communications with any representative of U.S. Bank
about the motion to set aside the foreclosure sale. No one from U.S. Bank ever told her
to raise an objection to the motion.
Following the hearing, the parties submitted memoranda of law in lieu of
closing arguments. The trial court issued an order granting the motion to set aside the
foreclosure sale on September 15, 2014. In its order, the trial court found clear
evidence of a stipulation between Mr. Sanoba and Ms. Giasi barring any objection by
U.S. Bank to setting aside the foreclosure sale. The court concluded that "[t]herefore,
without opposition, the motion seeking to vacate the sale filed by Colfin is due to be
[granted.]" This appeal followed.
II. FRAMING THE ISSUES
To resolve this case, we are called upon to decide two main issues. The
first issue is whether the parties reached an enforceable agreement whereby U.S. Bank
was precluded from opposing Colfin's motion to set aside the foreclosure sale. The
second issue that we must decide is whether Colfin established a factual basis and
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legal grounds that would authorize the trial court to exercise its discretion to set aside
the foreclosure sale.
III. THE STANDARDS OF REVIEW
Our consideration of this case requires us to apply several different
standards of review. Generally speaking, we defer to a trial court's order setting aside a
foreclosure sale and review such a decision for abuse of discretion. Skelton v. Lyons,
157 So. 3d 471, 473 (Fla. 2d DCA 2015). However, the trial court's order in this case is
based—at least in part—on findings of fact and legal conclusions regarding an alleged
agreement between the parties. We defer to the circuit court's findings of fact when
they are based on competent, substantial evidence. State, Fla. Highway Patrol v.
Forfeiture of Twenty Nine Thousand Nine Hundred & Eighty (29,890) in U.S. Currency,
802 So. 2d 1171, 1172 (Fla. 3d DCA 2001). However, we are not required "to disregard
record evidence that disproves the lower court's findings or that reveals its ruling to be
an abuse of discretion." In re Doe, 932 So. 2d 278, 284 (Fla. 2d DCA 2005). "[A]
decision interpreting a contract presents an issue of law that is reviewable by the de
novo standard of review." Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc.,
743 So. 2d 627, 630 (Fla. 1st DCA 1999).
IV. DISCUSSION
A. Procedural Stipulation or Settlement Agreement?
The parties' disagreement about whether they had reached an
enforceable agreement that would preclude U.S. Bank from objecting to the foreclosure
sale presents us with two alternative analytical approaches. U.S. Bank argues that the
existence of the alleged agreement must be considered in the light of the requirements
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for an enforceable settlement agreement. On the other hand, Colfin contends that the
alleged agreement was a procedural stipulation that should be measured against the
requirements of Florida Rule of Judicial Administration 2.505(d) concerning stipulations.
We lean to the view that to the extent that the parties were negotiating an
agreement that would preclude U.S. Bank from opposing Colfin's motion to set aside the
foreclosure sale, such an agreement would constitute a settlement of the substantive
rights of the parties. Although there was no litigation pending between U.S. Bank and
Colfin at the time of the alleged agreement, the parties would have anticipated that
Colfin would be seeking to set aside the foreclosure sale on the ground that it was
fraudulent and on equitable grounds, which U.S. Bank would naturally oppose.
Granted, the purported agreement only called for U.S. Bank to not oppose Colfin's
motion, instead of an unequivocal agreement to set aside the sale. Nevertheless, the
likely effect of the alleged agreement would be that the motion would be granted, title to
the property would revest in the borrowers, and Colfin would obtain the return of the
$172,500 that it had paid for the property. 3 Accordingly, the effect of the purported
agreement was to resolve Colfin's right to rescind the sale and to receive the return of
its purchase money.
On the other hand, it is arguable that the alleged agreement addressed
matters that were largely procedural in nature. As noted above, Ms. Giasi understood
that she was agreeing merely to not oppose the motion to set aside the sale and that
Colfin would still be required to establish a factual basis and legal grounds to set aside
3Questions that remained to be resolved included who would bear the cost
of advertising the sale, the clerk's fees, the documentary stamp tax paid on the bid
amount, and similar expenses.
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the sale. Thus, the setting aside of the sale might not be a foregone conclusion under
the alleged agreement and the agreement addressed matters that were more
procedural than they were substantive.
The debate about the nature of the purported agreement raises a close
question, but we resolve it as follows: Whether one looks at the parties' arrangement as
an attempt to settle their substantive rights or as an attempt to reach a binding
stipulation regarding procedural matters, we conclude that the alleged agreement was
not enforceable. In the next two sections of this opinion, we will explain why this is so.
(1) No enforceable settlement agreement. If one takes the view that the
purported agreement involved a settlement of the substantive rights of the parties, then
there was no agreement because Colfin failed to establish that U.S. Bank had
authorized its counsel to enter into the settlement. "A party seeking to enforce a
settlement agreement bears the burden of showing that an attorney for the opposing
party had the clear and unequivocal authority to settle on the client's behalf"; Florida
courts "have been very stringent in what they find to be a 'clear and unequivocal' grant
of authority." Architectural Network, Inc. v. Gulf Bay Land Holdings II, Ltd., 989 So. 2d
662, 663 (Fla. 2d DCA 2008) (citing Architectural Network, Inc. v. Gulf Bay Land
Holdings II, Ltd., 933 So. 3d 732, 733 (Fla. 2d DCA 2006), and Weitzman v. Bergman,
555 So. 2d 448, 449 (Fla. 4th DCA 1990)).
Here, Mr. Sanoba testified to his understanding that when he was dealing
with Ms. Giasi he was "dealing directly with the bank and that the bank had approved
this agreement." However, he did not testify that he had any personal knowledge of that
claim, and Ms. Giasi testified that she never discussed Mr. Sanoba's motion with U.S.
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Bank. Moreover, Colfin did not call any representative of the bank to support its claims.
In our view, this evidence is insufficient to establish that Ms. Giasi had clear and
unequivocal authority to enter into an agreement with Mr. Sanoba that she would not
object to the motion to set aside the sale. In fact, the undisputed evidence supports the
opposite conclusion. There was no competent, substantial evidence before the trial
court to support a finding that the parties reached an enforceable settlement regarding
the disposition of Colfin's motion.
(2) No enforceable stipulation. Alternatively, if one takes the view that the
proposed arrangement was a stipulation governing the procedure to be followed with
regard to the consideration and disposition of the motion to set aside the sale, then
there was no enforceable stipulation either. The e-mails do not establish the parties'
agreement to all of the terms proposed. Ms. Giasi testified that her September 20,
2013, e-mail was merely an invitation to discuss her proposed terms, and Mr. Sanoba's
"response" to that e-mail did not fully set forth the terms as proposed by Ms. Giasi nor
establish her consent to the amended terms in his response. In order to be
enforceable, a stipulation must be clear and unambiguous. See Troup v. Bird, 53 So.
2d 717, 721 (Fla. 1951); Dean v. Dean, 592 So. 2d 781, 782 n.1 (Fla. 4th DCA 1992).
Furthermore, Ms. Giasi never responded to indicate her acceptance or agreement to the
terms outlined in Mr. Sanoba's e-mail of September 23, 2013. A stipulation cannot be
effected by silence or acquiescence. Walter E. Heller & Co., Se. v. Pointe Sanibel Dev.
Corp., 392 So. 2d 306, 308 (Fla. 3d DCA 1980).
Based on the foregoing analysis, we conclude that U.S. Bank was not
precluded from opposing Colfin's motion to set aside the foreclosure sale. We now turn
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to the question of whether Colfin established any valid grounds that would authorize the
trial court to exercise its discretion to set aside the foreclosure sale.
B. Failure to Establish Valid Grounds to Set Aside Sale
Colfin alleged in its motion to set aside the foreclosure sale that a fraud
was committed against it because the Executive Claim Report for Subsidence
Investigations, which provided notice of sinkhole activity on the subject property based
upon testing performed between August 4, and August 20, 2010, was not recorded in
the public records until the day of the foreclosure sale. And, according to Mr. Sanoba's
testimony, Colfin had performed a title search on the property before the sale which did
not reveal the existence of the sinkhole because the report had not been recorded.
Colfin alleged that it was unknown why there was a three-year delay in recording the
report as required by section 627.7073(2)(a), or who was responsible for the failure to
timely record the report. In any event, Colfin concluded that the failure to record the
report and the resulting lack of notice to it constituted fraud. Colfin argued that the
motion to set aside the sale should be granted as a result of the fraud and on equitable
grounds. We disagree.
"A purchaser of property at a judicial sale is generally subject to the rule of
caveat emptor." CCC Props., Inc. v. Kane, 582 So. 2d 159, 161 (Fla. 4th DCA 1991).
"[A] purchaser takes title subject to defects, liens, incumbrances, and all matters of
which he has notice, or of which he could obtain knowledge in the exercise of ordinary
prudence and caution." Cape Sable Corp. v. McClurg, 74 So. 2d 883, 885 (Fla. 1954)
(emphasis added). Further, although section 45.031(5), Florida Statutes (2013),
provides for the filing of objections to a judicial sale within ten days, "the substance of
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an objection to a foreclosure sale under section 45.031(5) must be directed toward
conduct that occurred at, or which related to, the foreclosure sale itself." Skelton, 157
So. 3d at 473 (emphasis added) (quoting Indymac Fed. Bank FSB v. Hagan, 104 So. 3d
1232, 1236 (Fla. 3d DCA 2012)); see also In re Catalano, 510 B.R. 654, 659 (Bankr.
M.D. Fla. 2014) (applying Florida law). "The purpose of allowing an objection to a
foreclosure sale 'is to afford a mechanism to assure all parties and bidders to the sale
that there is no irregularity at the auction or any collusive bidding, etc.' " Catalano, 510
B.R. at 659 (quoting Emanuel v. Bankers Trust Co., N.A., 655 So. 2d 247, 250 (Fla. 3d
DCA 1995)).
Here, as argued by U.S. Bank, Colfin had notice of the sinkhole activity on
the property from the final judgment of foreclosure, which expressly noted the existence
of the sinkhole on the property. Colfin must have obtained or had access to a copy of
the final judgment of foreclosure before it decided to bid a very substantial amount of
money on the property at the foreclosure sale. Colfin could easily and should have
discovered the existence of the sinkhole in the exercise of ordinary prudence and
caution by merely reading the final judgment of foreclosure before purchasing the
property. 4
Moreover, in our view Colfin has failed to plead or establish a basis to set
aside the sale for fraud.
4It is worth noting that Colfin was not a novice in the purchase of real
estate at foreclosure sales. On the contrary, evidence presented at the hearing
established that Colfin is a member of a family of investment companies that purchase
residential real estate throughout the United States. Colfin is in the business of buying
residential real estate, rehabilitating it, and renting the property to tenants. Colfin is
active in bidding at foreclosure sales as a third-party bidder.
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In order to allege a viable cause of action for
fraudulent inducement a plaintiff must allege that: (1) the
defendant made a false statement regarding a material fact;
(2) the defendant knew that the statement was false when
he made it or made the statement knowing he was without
knowledge of its truth or falsity; (3) the defendant intended
that the plaintiff rely and act on the false statement; and (4)
the plaintiff justifiably relied on the false statement to his
detriment.
Simon v. Celebration Co., 883 So. 2d 826, 832 (Fla. 5th DCA 2004). As noted above,
Colfin essentially acknowledged that the perpetrator of the alleged fraud was unknown
and failed to allege that someone made a false statement to Colfin regarding a material
fact, which was known to be false when it was made, with the intention that Colfin rely
on that false statement, and that Colfin did so rely.
Further, as argued by U.S. Bank, Colfin's reliance on section 627.7073 to
establish any sort of fraud or impropriety is misplaced. Section 627.7073(2)(a) provides
in pertinent part that:
Any insurer that has paid a claim for a sinkhole loss
shall file a copy of the report and certification, prepared [by a
professional engineer or geologist upon the completion of
testing for a sinkhole loss], including the legal description of
the real property and the name of the property owner, with
the county clerk of court, who shall record the report and
certification.
(Emphasis added.) Here, the record reflects that the insurance proceeds for the
sinkhole claim had not yet been paid, and thus the insurer's obligation to file the report
and certification had not yet arisen at the time of the foreclosure sale. Moreover, Colfin
does not allege that it was defrauded in its purchase of the subject property by the
insurance company insuring the property. Section 627.7073(2) further provides that
(a) . . . The recording of the report and certification
does not
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....
2. Create any cause of action or liability against any
grantor of the real property for breach of any warranty of
good title or warranty against encumbrances . . . .
....
(b) The seller of real property upon which a sinkhole
claim has been made by the seller and paid by the insurer
shall disclose to the buyer of such property that a claim has
been paid and whether or not the full amount of the
proceeds were used to repair the sinkhole damage.
(Emphasis added.) Colfin has not established that the foregoing provisions apply in the
context of the underlying foreclosure sale in which the "seller" is not the person who
made a sinkhole claim and has been paid by the insurer.
Moreover, the result for which Colfin contends would render almost any
foreclosure sale subject to being set aside if the physical condition of the property
purchased did not meet the successful bidder's expectations. We decline to approve
such a result. Like other judicial sales, the sale of the property conducted by the clerk
of the circuit court at the trial court's direction was subject to the rule of caveat emptor.
At the foreclosure sale, Colfin purchased the property "as is." It cannot seek to set
aside the result of the foreclosure sale after the fact based upon complaints about the
physical condition of the property. See Archer v. Levy, 543 So. 2d 863 (Fla. 3d DCA
1989) (reversing a final judgment requiring a property owner to deed a six-foot strip of
land to the owner of adjacent land purchased at a public auction, noting that a
purchaser at a public sale has a duty to determine the physical extent of the property
offered for sale); Wilcox v. Willard Shopping Ctr. Assocs., 579 A.2d 130, 134 (Conn. Ct.
App. 1990) (affirming the trial court's order approving the forfeiture of $100,000 deposit
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made by the successful bidders at a partition sale in spite of the bidders' claims of
defects in the condition of the property which were unknown to them when they
submitted their bid); Janower v. F.M. Sibley Lumber Co., 222 N.W. 736, 736-37 (Mich.
1929) (rejecting claims for relief made by purchaser at foreclosure sale based in part
upon allegations "that the premises were not clean and out of repair").
V. CONCLUSION
Based upon the foregoing discussion, we conclude that any arrangement
between the parties constituted an attempt at a settlement of the parties' substantive
rights as opposed to a mere procedural stipulation. However, whether the parties were
moving toward a settlement or a procedural stipulation, we conclude that the parties'
discussions did not end in an enforceable agreement. Thus U.S. Bank was not
precluded from objecting to Colfin's motion to set aside the foreclosure sale. We also
conclude that Colfin failed to establish any grounds for setting aside the foreclosure
sale. It follows that the trial court abused its discretion in setting aside the foreclosure
sale based upon its finding that U.S. Bank had agreed not to oppose setting aside the
sale.
Accordingly, we reverse the trial court's order setting aside the foreclosure
sale. On remand, the trial court shall take such action as may be necessary, if any is
required, to undo the results of its order.
Reversed and remanded.
KELLY and BLACK, JJ., Concur.
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