UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-1468

WELLS FARGO BANK, Indenture Trustee,

Plaintiff - Appellee,

versus

LEVIN PROFESSIONAL SERVICES, INCORPORATED, t/a

Washington Professional Systems,

Defendant - Appellant,

and

HENNINGER MEDIA SERVICES, INCORPORATED, Lessee

of Lease No. 4023,

Defendant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. James C. Cacheris, Senior

District Judge. (CA-03-427-A)

Argued: May 26, 2006 Decided: July 12, 2006

Before WILKINSON and WILLIAMS, Circuit Judges, and Glen E. CONRAD,

United States District Judge for the Western District of Virginia,

sitting by designation.

Affirmed by unpublished per curiam opinion.
2

ARGUED: John Holt Harman, COGGINS, HARMAN & HEWITT, Silver Spring,

Maryland, for Appellant. Robert A. Jaffe, KUTAK ROCK, L.L.P.,

Washington, D.C., for Appellee. ON BRIEF: Jeffrey S. Jacobovitz,

KUTAK ROCK, L.L.P., Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*Oral argument and consideration of this appeal were postponed

pending the U.S. Supreme Court’s review of Wachovia Bank v.

Schmidt, 388 F.3d 414 (4th Cir. 2004). The Supreme Court held that

a national bank is a citizen of the state in which its main office,

as designated in the articles of association, is located. Wachovia

Bank v. Schmidt, 126 S. Ct. 941, 952 (2006). The jurisdictional

question having been resolved, this case was rescheduled for oral

argument during this term. 

3

PER CURIAM:

Levin Professional Services, Inc. (“Levin”) appeals the ruling

of the district court granting summary judgment for Wells Fargo

Bank (“Wells Fargo”) and denying Levin’s cross motion for summary

judgment.* The action was brought by Wells Fargo, an indenture

trustee, against Levin, an equipment vendor, alleging that Levin

improperly garnished lease payments owed to Wells Fargo. We affirm

the well-considered opinion of the district court.

Factual and Procedural Background

Levin is a Maryland corporation engaged in the sale of

equipment. In the course of its business, Levin sold equipment to

Terminal Marketing Company, Inc. (“Terminal”), which leases

equipment. Terminal then leased the equipment purchased from Levin

to Henninger Media Services, Inc. (“Henninger”) in Lease 4023.

On August 1, 2000, Terminal sold the lease to Terminal Finance

Corporation II (“TFC II”), a special purpose corporation created to

facilitate the sale and assignment of leases. TFC II then sold the

lease to Wells Fargo for cash payments from noteholder

beneficiaries for whom Wells Fargo is trustee. Terminal received
4

payments of $294,098 for the lease, and Wells Fargo took possession

of the lease. 

On March 5, 2001, Levin filed suit in the U.S. District Court

for the District of Maryland against Terminal for failure to pay

invoices, including an invoice for the property delivered to

Henninger. Default judgment was granted on July 17, 2001. Levin

registered the default judgment in the U.S. District Court for the

District of Columbia and that court issued a Writ of Attachment to

Asgard Entertainment Group, Inc. (“Asgard”), another entity that

had leased equipment from Terminal which Terminal had purchased

from Levin. On October 18, 2001, Levin entered its foreign

judgment against Terminal in the U.S. District Court for the

Eastern District of Virginia. Shortly thereafter, Wells Fargo was

advised of the default judgment and garnishment entered against

Asgard. Wells Fargo’s counsel advised Asgard that Wells Fargo had

the right to receive payment on Lease 4056, because of the previous

purchase from Terminal. On December 5, 2001, Levin served a

garnishment summons on Henninger. 

On January 14, 2002, Wells Fargo intervened in the Asgard

garnishment action by filing its opposition to a motion for

condemnation of property. Henninger answered its summons by

stating that it was obligated to pay Terminal under Lease 4023, but

a magistrate judge later ordered Henninger to deliver those

payments to Levin. On July 15, 2002, Henninger filed for Chapter
5

11 bankruptcy. The bankruptcy court eventually granted Wells Fargo

relief from the automatic stay, allowing Wells Fargo to bring suit

to enjoin Henninger from making further payments to Levin. Wells

Fargo brought the instant action on April 7, 2003. 

Discussion

We conduct a de novo review of the district courts’ summary

judgment rulings, viewing the record in the light most favorable to

the nonmoving party. Bryant v. Bell Atlantic Md., Inc., 288 F.3d

124, 132 (4th Cir. 2002). Cross motions for summary judgment are

given the same standard of review and “we consider and rule upon

each party’s motion separately and determine whether summary

judgment is appropriate as to each under the Rule 56 standard.”

Monumental Paving & Excavating, Inc. v. Pa. Mfrs’ Ass’n Ins. Co.,

176 F.3d 794, 797 (4th Cir. 1999). 

Plaintiff’s Motion for Summary Judgment

In the present case, the district judge considered both of the

motions for summary judgment, granted the plaintiff’s motion, and

denied the defendant’s motion. Wells Fargo Bank Minn., N.A. v.

Levin Prof’l Servs., Inc., 348 F. Supp. 2d 638 (E.D. Va. 2004). In

its motion for summary judgment, Wells Fargo asserted that the

defendant could not meet its burden to show a genuine issue as to

any material fact, and that Levin’s garnishment of the payments

under Lease 4023 was improper because Terminal lacked rights to

both the lease and the lease payments at the time of the
6

garnishment. Levin stipulated that the transfer of Lease 4023 to

Wells Fargo occurred prior to any default by Terminal. 

We agree with the district court as to the plaintiff’s motion

for summary judgment. Wells Fargo was a bona fide purchaser for

value who took possession of the lease prior to Levin’s garnishment

action. The assignment of the lease from TFC II to Wells Fargo was

valid under New York law, which was the parties’ choice of law to

govern the assignment, and predated Levin’s garnishment action.

See Leon v. Martinez, 638 N.E.2d 511, 513, 84 N.Y.2d 83, 614

N.Y.S.2d 972 (1994) (noting that New York law does not require any

particular phraseology to effect an assignment, “it is only

required that there be a perfected transaction between the assignor

and assignee, intended by those parties to vest in the assignee a

present right in the things assigned”). No genuine issue of

material fact exists as to the validity of the lease assignment.

In granting the plaintiff’s motion for summary judgment, the

district court correctly applied the well-established tenet of

Virginia law that when the judgment debtor has no interest in the

property held by the garnishee, the writ does not create a valid

lien on that property. See, e.g., Int’l Fidelity Ins. Co. v.

Ashland Lumber Co., Inc., 250 Va. 507, 511, 463 S.E.2d 664 (1995)

(“[W]hen the judgment debtor has no interest in the property held

by the suggested garnishee, the writ does not create a valid lien

on that property, and the suggestion for summons in garnishment
7

must fail.”); Lynch v. Johnson, 196 Va. 516, 84 S.E.2d 419 (1954).

Levin’s garnishment of the Lease 4023 payments was therefore

improper, and summary judgment was appropriately granted to the

plaintiff. 

Defendant’s Motion for Summary Judgment

We also conclude that the district court properly denied

defendant’s motion for summary judgment. We agree that the

defenses asserted by Levin, including laches, res judicata, and

collateral estoppel, are without merit.

Conclusion

A de novo review of the competing motions for summary judgment

here requires the conclusion that the district court properly

granted the plaintiff’s motion for summary judgment and denied the

defendant’s motion. 

The judgment of the district court is hereby 

AFFIRMED.