Higgins v. Lane - Deed in Lieu of Foreclosure Validity Ruling

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April 24, 2026 Get Citation Alerts Download PDF Add Note

Patrick Higgins and Ryan W. Johnson, Chapter 13 Trustee for the Bankruptcy Estate of Patrick Higgins v. Ronald O. Lane, Mary Robinson, Chance Evans, and Jasper Miller’s, Inc.; Ronald O. Lane v. Mary Robinson

United States Bankruptcy Court, N.D. West Virginia

• Citations: None known
• Docket Number: 1:23-ap-00004

• Precedential Status: Unknown Status

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (31.1K)

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Trial Court Document

No. 1:23-ap-00004 Doc 248 Filed 04/24/26 Entered 04/24/26 15:15:24 Page 1 of
12

‘QS David Bissett = i tsts—‘—sSS
<a” United States Bankruptcy Judge
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
In re: )
)
PATRICK HIGGINS, )
) Case No. 1:22-bk-410
Debtor. ) Chapter 13
)
□□
)
PATRICK HIGGINS and, )
RYAN W. JOHNSON, Chapter 13 )
Trustee for the Bankruptcy Estate )
Of Patrick Higgins, )
)
Higgins, )
)
Vv. ) Adv. Proc. No. 1:23-ap-4
)
RONALD O. LANE, )
MARY ROBINSON, )
CHANC EVANS, and )
JASPER MILLER’s, INC., )
)
Defendants. )
)
and )
)
RONALD O. LANE, )
)
Cross-Claimant, )
)
Vv. )
)
MARY ROBINSON, )
)
Cross Defendant. )
□□

MEMORANDUM OPINION
Pending before the Court is a motion for partial summary judgment. Patrick Higgins
(“Higgins”) and Ryan Johnson, Chapter 13 Trustee for the Bankruptcy Estate of Patrick Higgins
(collectively, “Plaintiffs”), seek partial summary judgment against Ronald Lane (“Lane”), Mary
Robinson (“Robinson”), Chanc Evans, and Jasper Miller’s, Inc. (collectively, “Defendants”),
seeking a determination that the deed in lieu of foreclosure executed between Higgins and Lane is
invalid. Robinson’s Response includes a Counter Motion for Partial Summary Judgment seeking
a determination that the Court find the deed in lieu of foreclosure is valid. Specifically, Plaintiffs
assert the deed in lieu of foreclosure is unenforceable because Lane did not provide post-default
consideration to Higgins for the deed in lieu of foreclosure. Defendants contend that the deed in
lieu of foreclosure is valid and enforceable because Higgins received post-default consideration
from Lane, the transaction was absent of undue advantage, and it reflected overall fairness.
For the reasons stated herein, the Court will deny the Plaintiffs’ Motion for Partial
Summary Judgment and grant Robinson’s Counter Motion for Partial Summary Judgment.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure (“Rule”) 56, made applicable to this proceeding by Federal
Rule of Bankruptcy Procedure 7056, provides that summary judgment is only appropriate if the
movant demonstrates “that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party seeking summary judgment
must make a prima facie case by showing: first, the apparent absence of any genuine dispute of
material fact; and second, the movant’s entitlement to judgment as a matter of law on the basis of
undisputed facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears
the burden of proof to establish that there is no genuine dispute of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Demonstrating an absence of any genuine dispute as to any
material fact satisfies this burden. Id. at 323. Material facts are those necessary to establish the
elements of the cause of action. Anderson, 477 U.S. at 248. Thus, the existence of a factual dispute
is material — thereby precluding summary judgment — only if the disputed fact is determinative
of the outcome under applicable law. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). A movant
is entitled to judgment as a matter of law if “the record as a whole could not lead a rational trier of
fact to find for the non-movant.” Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (citation
omitted); see also Anderson, 477 U.S. at 248.
If the moving party shows that there is no genuine dispute of material fact, the nonmoving
party must set forth specific facts that demonstrate the existence of a genuine dispute of fact for
trial. Celotex Corp., 477 U.S. at 322-23. The court is required to view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party. Shaw, 13 F.3d at 798.
However, the court’s role is not “to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for a trial.” Anderson, 477 U.S. at 249. Nor should
the court make credibility determinations. Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986).
If no genuine issue of material fact exists, the court has a duty to prevent claims and defenses not
supported in fact from proceeding to trial. Celotex Corp., 477 U.S. at 317, 323-24.
II. BACKGROUND
In August of 2021, Lane contracted with Kauffman Realty and Auctions of West Virginia
(“Kauffman”) to conduct an auction for the sale of his property located in Arnoldsburg, West
Virginia. On August 17, 2021, Kauffman realtor and auctioneer, Wayne Yoder, conducted an
online auction. Higgins submitted the winning bid of $780,000. Under the auction terms, Higgins
also owed a 10% buyer’s premium of $78,000, bringing the total purchase price to $858,000. On
August 19, 2021, Higgins electronically signed the auction purchase agreement. The auction
purchase agreement required Higgins to deliver a $85,000 nonrefundable deposit within 48 hours,
not contingent upon Higgins obtaining financing. Higgins defaulted by failing to pay the required
deposit within the 48-hour deadline.
On August 26, 2021, after Higgins defaulted, his attorney, Michael Partlan, contacted Yoder
to renegotiate the purchase terms. Higgins proposed a forbearance agreement to prevent Lane
from terminating the transaction and putting the property back up for auction. The terms included
a reduction of the initial deposit to $50,000 due on September 2, 2021, a second nonrefundable
deposit of $175,000 due on September 30, 2021, and a third nonrefundable deposit of $125,000
due at closing. The proposal also required Higgins to exhaust financing options over sixty to ninety
days or Lane to provide owner financing with interest only payments of $4,233.33, to be paid
monthly for 24 months following closing, and the remainder of the purchase price due within 24
months of closing. Lastly, in exchange for Lane providing owner financing, Higgins offered to
execute a deed in lieu of foreclosure at closing to be held in escrow. In the event of Higgins’
default, Lane could record the deed in lieu and regain possession of the property following a seven-
day grace period. Higgins represented that he was familiar with deeds in lieu of foreclosure
because he was involved in real estate transactions utilizing them. Further, Higgins admitted to
having vast experience in commercial and residential real estate transactions as both a real estate
agent and broker, including involvement in property sales, real estate auctions, and owner
financing agreements. Unlike Higgins, Lane did not have legal counsel representing him during
the negotiations regarding the terms of the new purchase agreement.
Lane accepted Higgins’ offer and executed a new real estate purchase agreement reflecting
the proposed terms. Higgins defaulted on this agreement by failing to tender the $50,000 deposit
when due. In response, Lane requested Yoder contact other bidders regarding potential interest in
the property. On September 8, 2021, Higgins sent Kauffman the $50,000 deposit. Lane formally
executed the forbearance agreement on September 29, 2021, and Higgins executed it on September
30, 2021. However, Higgins failed to make the $175,000 nonrefundable deposit due on September
30, 2021.
Lane repeatedly agreed to delay the closing date based on Higgins’ representations that he
would obtain investors, sell other properties, or otherwise secure the funds necessary to complete
the purchase. On November 11, 2021, Higgins, through Partlan, proposed an addendum to the
forbearance agreement to induce Lane to delay closing until November 5, 2021. The addendum
provided that $100,000 of the $150,000 held in escrow would be released to Lane. The parties
executed the addendum on November 5, 2021.
On January 11, 2022, the parties closed and executed a negotiable promissory note, deed
of trust, and deed in lieu of foreclosure. Attorney Robinson prepared these documents and
reviewed the nature and impact of a deed in lieu of foreclosure to both Higgins and Lane. At the
closing, Higgins again represented that he had previously used deeds in lieu of foreclosure and did
not object or voice any concerns about agreeing to execute a deed in lieu of foreclosure in favor of
Lane to be held in escrow as a remedy for Higgins’ default.
Higgins tendered $258,000, which was approximately $100,000 less than what was due at
closing under the forbearance agreement. Higgins acknowledged this default and requested the
parties amend the forbearance agreement to include a late fee of $150 per day and increase the
interest-only monthly payments to $5,066.67 for the period from February 1, 2022 to April 1, 2022.
Higgins represented that he would sell his other properties and use the proceeds to pay the
promissory note in full. The parties dispute whether Higgins defaulted on his monthly payments
and the events following his alleged default.
On September 16, 2022, Higgins filed a Chapter 13 petition. On March 14, 2023, Plaintiffs
initiated this adversary proceeding against Defendants, alleging, in part, the deed in lieu of
foreclosure executed between Higgins and Lane is unenforceable. On October 21, 2024, the
parties filed a Joint Motion to Suspend the Scheduling Order to Decide the Issue of Validity of
Deed in Lieu of Foreclosure (Doc. No. 142), stipulating the following:
Debtor, Patrick Higgins, entered into a transaction with Defendant Ronald Lane for
the purchase of real estate in Calhoun County. The transaction involved owner–
financing with a Promissory Note secured by a Deed of Trust. In addition, at closing
Higgins executed a Deed in Lieu of Foreclosure, with the blanks for the referenced
deed book and page as well as a blank for the amount of the remaining balance, to
be held in trust by the trustee. The Promissory Note and Deed of Trust provided
that the Deed in Lieu could be recorded without conducting foreclosure proceedings
under W.Va. Code §38–1–1 et seq. Lane declared a default under the Promissory
Note and the Deed in Lieu was recorded, and subsequently Lane sold the property
to Defendant Jasper Miller’s Inc. Higgins did not acknowledge to being in default
or consent to the recording of the Deed in Lieu at the time it was recorded.
Defendants maintain Lane did not need such acknowledgement or consent as
neither was required by the Promissory Note and Deed of Trust.

On October 25, 2024, this Court entered an Agreed Order granting the parties’ Joint Motion
Suspending the Scheduling Order and Staying Consideration of the Motion to Amend Complaint
(Doc. No. 144) pending resolution of the limited issue of validity of the deed in lieu of foreclosure.
This Court further permitted the parties to file memoranda of law addressing the issue of the
validity of the deed in lieu of foreclosure.
After briefing, on March 20, 2025, this Court entered an Order Vacating the Court’s Order
Granting the Joint Motion (Doc. No. 156). In the Order, this Court found Virginia law instructive
in the absence of clear law in West Virginia regarding the validity of deeds in lieu of foreclosure.
Based on its initial impression of the stipulated facts, this Court noted that it appeared that Lane
“clogged” Higgins’s equity of redemption. However, this Court concluded that its survey of
authority and the limited stipulated facts were insufficient for it to make a final determination of
the validity of the deed in lieu of foreclosure. Accordingly, this Court declined to rule on the
validity of the deed in lieu of foreclosure at that time.
On September 3, 2025, Plaintiffs filed a Motion for Partial Summary Judgment (Doc. No.
199) asking the Court to determine the validity of the deed in lieu of foreclosure. On September
11, 2025, this Court held Plaintiffs’ Motion in Abeyance Pending Further Order (Doc. No. 201).
On January 21, 2026, this Court held a pre-trial hearing in which the trial of this matter was
continued, by the parties’ request to allow proper disclosure and discovery of expert testimony
regarding malpractice claims, to June 16, 17, and 18, 2026, and ordered Defendants to respond to
Plaintiffs’ Motion for Partial Summary Judgment. On February 20, 2026, Lane filed a
Memorandum in Opposition to Plaintiffs’ Motion (Doc. No. 232), Robinson filed a Response to
Plaintiffs’ Motion and Counter Motion for Partial Summary Judgment (Doc. No. 233), and Chanc
Evans and Jasper Miller’s, Inc. filed a Response to Plaintiffs’ Motion (Doc. No. 235). On March
9, 2026, Plaintiffs filed an Omnibus Reply to Defendants’ Responses to Plaintiffs’ Motion for
Partial Summary Judgment (Doc. No. 237).
III. DISCUSSION
Plaintiffs filed the pending Motion for Partial Summary Judgment alleging the deed in lieu
of foreclosure is unenforceable because Lane did not provide Higgins post-default consideration
for the deed in lieu of foreclosure. Defendants oppose Plaintiffs’ Motion for Partial Summary
Judgment, and Robinson seeks Partial Summary Judgment arguing the deed in lieu is enforceable
because Lane provided adequate consideration, the transaction was free of undue advantage, and
fair in all respects.
West Virginia law provides little direct guidance on the validity of deeds in lieu of
foreclosure, and no statute clearly authorizes their use. This Court previously addressed the issue
in In re David, 612 B.R. 349 (Bankr. N.D.W. Va. 2020) but declined to determine the validity of
a deed in lieu because the lender did not record the instrument. Id. at 359. The Court nevertheless
recognized that, under West Virginia common law, a confession of judgment is valid only within
a judicial proceeding involving service of process. Id. at 358–59 (citing A.B. Farquhar Co. v.
Dehaven, 75 S.E. 65, 67–68 (W. Va. 1912)). Although the Court later observed that an advance
deed in lieu may not pose a confession-of-judgment problem in a nonjudicial foreclosure
jurisdiction, it ultimately reserved judgment because it could not determine at summary judgment
whether foreclosure under the deed of trust was the exclusive means of enforcing the lender’s
interest. In re David, 612 B.R. at 368–69, 371.
In the absence of clear West Virginia authority, Virginia law is instructive. Virginia
recognizes that the equity of redemption is an inseparable incident of every mortgage. Snavely v.
Pickle, 70 Va. 27 (1877); Dawson v. Perry, 30 Va. Cir. 372, 373 (May 5, 1993). Courts applying
Virginia law have consistently held that a deed in lieu of foreclosure executed as part of the initial
mortgage transaction, with instructions permitting recordation upon future default, is void and
unenforceable as an impermissible “clog” on the mortgagor’s equity of redemption. Greene v. East
Coast Marketing, Inc. (In re Greene), 2007 WL 1309047, at *5 (Bankr. E.D. Va. May 3, 2007);
see also Dawson, 30 Va. Cir. at 373. The Restatement similarly prohibits advance waivers of the
equity of redemption and recognizes foreclosure as the debtor’s historic right for terminating the
mortgagor’s interest. Greene, 2007 WL 1309047, at *5.
An exception exists where a party conveys away its equity of redemption and the transfer
is supported by adequate consideration, no undue advantage, and overall fairness. Greene, 2007
WL 1309047, at *6 (quoting Snavely). Such transactions are valid only upon “jealous scrutiny”
by a court of equity. Id. Here, there is no genuine dispute of material fact that the deed in lieu of foreclosure is valid
because Lane provided Higgins with adequate consideration, the transaction was absent of undue
advantage, and fair in all respects, and the movant is entitled to summary judgment. First, Lane
provided Higgins with adequate consideration for the deed in lieu of foreclosure because Lane
agreed to forbear from enforcing Higgins’s default under the auction purchase agreement and
provided owner financing. Second, the transaction was absent of undue advantage because
Higgins proposed the deed in lieu of foreclosure, understood the legal consequences of deeds in
lieu of foreclosure, was experienced in real estate transactions, and was represented by counsel.
Third, the transaction was fair in all respects because Higgins knowingly and voluntarily entered
into the agreement, proposed its terms, and received adequate consideration. The Court’s findings
are strictly limited to whether the deed in lieu of foreclosure is valid in its creation. Whether the
deed in lieu of foreclosure was properly recorded or void for another reason is not the inquiry
before this Court on Plaintiffs’ Motion for Partial Summary Judgment or Robinson’s Counter
Motion for Partial Summary Judgment.
1. There is no genuine dispute that Lane provided Higgins with adequate
consideration for the deed in lieu of foreclosure.
A debtor’s equity of redemption cannot be extinguished when it is conveyed as part of a
single real estate transaction and the debtor receives no new consideration for forfeiting that equity.
Dawson, 30 Va. Cir. at 375-376. The equitable principle against clogging the right of redemption
does not apply where the right is relinquished by a “subsequent agreement upon further
consideration . . .” Schwartz v. Halwani (In re 274 Atl. Isles, LLC), 651 B.R. 319, 329 (Bankr. S.D.
Fla. 2023) (quoting Ringling Joint Venture II v. Huntington Nat'l Bank, 595 So. 2d 180, 182-183 (Fla. Dist. Ct. App. 1992).
In Dawson v. Perry, the court held a deed in lieu of foreclosure that the parties executed at
the same time as the purchase agreement was invalid and unenforceable. Dawson, 30 Va. Cir. 376.
The debtor and seller of the real property entered into a purchase agreement where the seller would
provide financing, contingent upon the debtor obtaining a deed in lieu of foreclosure executed in
favor of the seller and recorded upon the debtor’s default. Id. at 372. However, the court held the
deed in lieu of foreclosure was not valid because the seller would not have provided financing but
for execution of the deed in lieu of foreclosure in the seller’s favor. Id. at 376. Therefore, the court
held the deed in lieu was “in effect, a provision of the mortgage itself.” Id. In other words, the
seller’s financing was consideration for both the deed of the trust and deed in lieu of foreclosure. Id. at 375. The deed in lieu was unenforceable because it was executed as part of the same
transaction as the mortgage and was not supported by independent consideration. Id. at 376.
By contrast, in Ringling Joint Venture II v. Huntington National Bank, the court upheld a
deed in lieu of foreclosure because it was part of a later agreement supported by new consideration.
Ringling Joint Venture II, 595 So. 2d at 183. In Ringling, the debtor defaulted on its mortgage
obligations and the first of three mortgage holders initiated foreclosure proceedings. Id. at 181. To
resolve the foreclosure, the third mortgagor agreed to provide a new loan to the debtor under
revised documents. Id. The revised documents included a conveyance agreement that provided
for a deed in lieu of foreclosure to be held in escrow to be delivered if the debtor defaulted. Id. The court reasoned:
Technically, Ringling may be correct that the conveyance agreement is not a
"subsequent agreement" because it was created in conjunction with new mortgage
documents. Nevertheless, it is an agreement subsequent to the promissory notes
and mortgages involved in the earlier foreclosure proceeding. It is clear that this
agreement was given to avoid foreclosure and that Ringling received valuable new
consideration to relinquish its right of redemption. Id. The court held that the deed in lieu of foreclosure was valid because the agreement was
negotiated with the intent to resolve an existing foreclosure dispute, and the debtor received new
consideration in exchange for agreeing to the escrow agreement. Id. at 182-183.
Similarly, in Schwartz v. Halwani, the debtor defaulted on a loan secured by real property,
prompting the lender to initiate foreclosure proceedings. Schwartz, 651 B.R. at 325. Rather than
proceed with the foreclosure, the parties entered into a forbearance agreement where the debtor
executed a deed in lieu of foreclosure to be held in escrow. Id. The court found the deed in lieu of
foreclosure was valid because it was supported by adequate consideration because the lender
granted the debtor additional time to cure the default. Id. at 329.
Here, the parties executed the deed in lieu of foreclosure, after Higgins defaulted on the
auction purchase agreement, as part of a subsequent agreement supported by independent
consideration, making this case analogous to Ringling and Schwartz, rather than Dawson. Despite
Plaintiffs’ argument to the contrary, the parties’ initial transaction was the auction purchase
agreement, which required Higgins to pay an $85,000 nonrefundable deposit and tender the
purchase price at closing. However, Higgins breached his obligation to pay the deposit. As a
result, Lane had the right to declare default, terminate the transaction, and re-market the property.
Rather than Lane exercise those rights, Higgins proposed the parties enter a subsequent, post-
default forbearance agreement. Under that agreement, Lane agreed to forbear from declaring a
breach and selling the property to another bidder. Lane further agreed to provide owner financing
so the transaction could proceed, which he was under no obligation to accommodate. In exchange,
Higgins executed a deed in lieu of foreclosure, which he offered, to be recorded in the event of a
future default.
Plaintiffs’ reliance on the merger doctrine is without merit as they disregard the post-default
nature of the forbearance agreement and attempt to characterize the forbearance agreement as “pre-
closing negotiations.” This Court cannot ignore that Higgins proposed the forbearance agreement
in response to his default under the auction purchase agreement. Unlike Dawson, where the deed
in lieu was required at the inception of the transaction as a condition for seller-financing, Higgins
proposed the deed in lieu of foreclosure only after his default under the auction purchase agreement
and after parties entered post-default negotiations. Therefore, this sequence of events is a
subsequent workout agreement recognized in Ringling and Schwartz, not a unitary transaction like
in Dawson. Further, Lane provided new and independent consideration to support the deed in lieu
of foreclosure by agreeing to forbear from enforcing Higgins’s default and provide owner
financing. Because the deed in lieu of foreclosure was executed as part of a subsequent agreement
to the auction purchase agreement and supported by adequate consideration, it does not
impermissibly clog the equity of redemption. Accordingly, there is no genuine dispute that the
deed in lieu of foreclosure was supported by adequate consideration.
2. There is no genuine dispute that the transaction was absent of undue advantage.
When determining whether a deed in lieu of foreclosure is valid, courts scrutinize the
circumstances of the transaction for indicia of undue advantage. For instance,
"Courts are more inclined to uphold deeds in lieu of foreclosure in the context of a
workout. This is especially true in cases where a sophisticated commercial
borrower is involved, where there is no disparity in bargaining power and
negotiating strength, where the borrower is represented by knowledgeable counsel,
where there is an acknowledged loan default, where there is little or no equity in
the mortgaged property, and where there is actual and meaningful consideration for
the deed in lieu of foreclosure such as a forbearance agreement or a release of
personal liability."
Greene, 2007 WL 1309047, at *19-20. Accordingly, a creditor may not exploit their position as a
mortgagee to oppress the debtor or force an unconscionable agreement. Shaw v. Walbridge, 33
Ohio St. 1, 6 (1877).
Here, the deed in lieu of foreclosure transaction is absent of undue advantage. Higgins is
a sophisticated borrower because, by his own admission, he has vast experience in commercial
and residential real estate transactions having worked as a real estate agent, broker, and having
owned, purchased, and sold numerous properties. Importantly, Higgins represented that he was
familiar with deeds in lieu because he had previously utilized them in other real estate transactions
and understood that it would allow Lane to reclaim title without formal foreclosure. He further
represented to Lane and Yoder that the deed would permit Lane to treat him as a renter subject to
eviction in the event of Higgins’s default. Moreover, Lane did not exploit his position to force an
unconscionable agreement because Higgins voluntarily proposed the deed in lieu of foreclosure
after acknowledging his breach of the auction purchase agreement. Also, there was no disparity of
bargaining power in favor of Lane because legal counsel represented Higgins throughout the
forbearance agreement negotiations.
Plaintiffs’ reliance on Robinson’s alleged malpractice does not create a genuine dispute
that the transaction was absent of undue advantage. Any alleged professional misconduct by
Robinson does not outweigh the undisputed fact that Higgins proposed the deed in lieu of
foreclosure and was represented by independent counsel during forbearance agreement
negotiations. Further, even assuming Robinson committed the alleged malpractice, such conduct
would not create undue advantage in favor of Lane. Any deficiency in Robinson’s dual
representation would have equally harmed both parties, rather than enabling Lane to exploit
Higgins or secure an undue advantage. Because Higgins was experienced, represented by counsel,
and fully aware of the consequences of the deed in lieu of foreclosure, there is no genuine dispute
that this transaction was free from undue advantage.
3. There is no genuine dispute that the transaction was in all respects fair.
The requirement of overall fairness is closely related to absence of undue advantage. A
court of equity must hold an otherwise valid conveyance to “jealous scrutiny” and “determine that
the transaction was ‘in all respects fair.’” Dawson, 30 Va. Cir. at 372 (quoting Snavely, 70 Va. 35);
see also Ringling Joint Venture II, 595 So. 2d at 183 (holding an agreement “intended to assist
Ringling in a prior foreclosure was not an unfair scheme to take Ringling’s equity in the property
or its right of redemption”). For instance, the court in Dawson held that the transaction was not
‘in all respects fair’ because the debtor was an elderly, unsophisticated person whose home was
foreclosed upon. Dawson, 30 Va. Cir. at 376. The debtor used the money she received from the
foreclosure as a downpayment to re-purchase her home. Id. The debtor and seller entered into a
purchase agreement in which the seller provided financing, and at settlement, the debtor signed a
deed conveying the property back to the seller to be recorded in the event of default. Id. In
executing the deed, the debtor relied on the seller and “did not know what a deed of trust was and
believed that upon default there would be a foreclosure, and she could receive a return of equity
after a foreclosure sale.” Id. Here, the transaction between Higgins and Lane reflects overall fairness. As previously
stated, Higgins was not only experienced in real estate transactions, but he also proposed the deed
in lieu himself and understood its legal consequences. Because Higgins proposed the terms of the
forbearance agreement, including the deed in lieu of foreclosure, there is no evidence Lane
intended the agreement to be an unfair scheme to take Higgins’s equity in the property. Unlike the
debtor in Dawson, Higgins did not rely on Lane for explanation or guidance regarding the deed in
lieu of foreclosure and was fully aware that it would transfer title to Lane without Higgins having
the equity of redemption. Further, Robinson’s alleged professional misconduct does not render
this otherwise fair and voluntary transaction unfair or void. Again, Higgins’ sophistication,
voluntary proposal of the deed in lieu, and representation by independent counsel during
forbearance agreement negotiations support the overall fairness of the transaction. Accordingly,
there is no genuine dispute that the deed in lieu of foreclosure reflects overall fairness.
There is no genuine dispute of material fact that the deed in lieu of foreclosure does not
impermissibly clog the equity of redemption and is valid and enforceable because Lane provided
adequate consideration, the transaction was absent of undue advantage, and it was fair in all
respects. Therefore, the movant is entitled to judgment as a matter of law.
IV. CONCLUSION
For the foregoing reasons, the Court finds it appropriate to deny Plaintiffs’ Motion for
Partial Summary Judgment, and grant Robinson’s Motion for Partial Summary Judgment.
Consistent with Fed. R. Civ. P. 58, made applicable by Fed. R. Bankr. P. 7058, the Court will enter
an order stating as much.