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Copyright (c) 2014 Vinyson.com — All rights reserved — PCVue — OnLine WiFi Laptop Support. 705 P.2d 910 (1985) FEDERAL SAVINGS & LOAN INSURANCE CORPORATION, Plaintiff-Appellee, v. CALIFORNIA PACKING COMPANY, a California corporation, Defendant-Appellant. No. 84CA0317. Colorado Court of Appeals, Div. III. February 14, 1985. *911 Hockensmith & Hockensmith, Ronald W. Hockensmith, Grand Junction, for plaintiff-appellee. Nolan, Murdock & Powers, P.C., Robert H. Murdock, Grand Junction, for defendant-appellant. TURSI, Judge. Defendant, California Packing Company, appeals from a summary judgment declaring that the mortgagor, Fidelity Union Trust Company, was entitled to a set off of the damages paid to the trustee for breach of a trust mortgage against the proceeds of a foreclosure sale of the mortgaged property. We affirm. Fidelity was the title holder of a parcel of property in Mesa County, Colorado, which was subject to a trust mortgage, duly recorded. That mortgage was entered into with appellant, California Packing Company (CPC), who was already in possession of the property. The record title of the property was conveyed to CPC and its predecessor in title in November, 1965. Upon assumption of the mortgage, Fidelity was to receive rents from the property and apply those rents to payments on the mortgage. In January, 1975, Fidelity was adjudged a bankrupt. During that proceeding, CPC obtained judicial approval of a request for relief from the stay, thereby permitting it to enforce its lien on the property. In June, 1980, Fidelity’s rights in the property were extinguished when it failed to pay the real estate taxes for the 1976 tax year. CPC filed for foreclosure on the property in November, 1980, shortly after the termination of the stay. It was CPC’s position that it was entitled to the rents previously applied to the mortgage, and to a set off of the sheriff’s sale proceeds. Fidelity argued that its damages from CPC’s unlawful actions were offset by the proceeds of the sale. The trial court granted summary judgment in favor of Fidelity, holding that the set off was unavailable because it was not specified in the mortgage. CPC argues 50b96ab0b6
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