Himes v. Sovran Bank, N.A. (In re Himes)

53 B.R. 948, 1985 Bankr. LEXIS 5096
CourtDistrict Court, E.D. Virginia
DecidedOctober 23, 1985
DocketBankruptcy No. 84-00202-A; Adv. No. 84-0256-A
StatusPublished
Cited by1 cases

This text of 53 B.R. 948 (Himes v. Sovran Bank, N.A. (In re Himes)) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Himes v. Sovran Bank, N.A. (In re Himes), 53 B.R. 948, 1985 Bankr. LEXIS 5096 (E.D. Va. 1985).

Opinion

[949]*949MEMORANDUM OPINION

MARTIN V.B. BOSTETTER, Jr., Bankruptcy Judge.

The issue presented here is whether an attorney-at-law has the authority to revoke an assignment made by his client. Jimmie D. Himes (“Himes”), debtor herein, filed a petition under Chapter 7 of the Bankruptcy Reform Act of 1978, 11 U.S.C. § 101, et seq., on March 1, 1984. On June 1, 1984, debtor filed a complaint for the return of money received by a creditor allegedly in violation of the automatic stay. A trial was held on debtor’s complaint at which time the Court took the matter under advisement and instructed counsel to submit briefs on the above limited issue.

Himes and Jerome J. Cantrell (“Cantrell”) were partners in an auto parts company known as Saratoga Auto Parts, Inc. Both Himes and Cantrell were guarantors of a promissory note dated July 14, 1979 in the amount of $45,000.00 payable to Northern Virginia Bank, whose successor was Virginia National Bank. Virginia National Bank’s successor-in-interest is Sovran Bank, N.A. (“Sovran”), defendant herein.

On October 27, 1983, Sovran filed a prejudgment petition for attachment against Himes in the Circuit Court of Fairfax, Virginia when the promissory note went into default with a balance due of $24,102.23. At the time of the filing, David Schell, Esquire (“Schell”) was holding in an attorney’s escrow account the sum of $8,000.00, which represented Himes’ portion of personal injury proceeds.

During the hearing on debtor’s complaint, Cantrell testified that he had discussed the default with Himes. According to Cantrell, Himes agreed to assign the $8,000.00 in the escrow account to Sovran. Subsequently, a handwritten notarized letter was given to Cantrell by Himes’ son. In turn, Cantrell delivered the letter to Schell. The letter stated in its entirety:

To David Shell [sic]
date
Nov. 14, 1983
Dear Mr. Schel [sic]
This will direct you and authorize and assign you to release and pay to Va. National Bank the sum of 8000.00 [sic] of my money which you are holding. I want the money to be paid to Va. National Bank immediately. After that you are released of any obligation on the amount of 8,000.00 [sic].

The debtor testified that he did not recall writing the above letter nor did the debtor recognize the signature on the letter as being his. The escrow agent did not release the money upon receipt of the letter. The money was turned over to Sovran after the state court entered a judgment order in favor of the bank on March 5, 1984. The bank argues that this order relates back to the prior petition for attachment filed more than ninety days before the bankruptcy petition was filed.

On January 3, 1984, prior to the state court judgment, John Thyden, Esquire (“Thyden”), attorney for the debtor, sent a letter to Schell advising him of the revocation of the previous assignment in favór of the bank. Furthermore, debtor’s Homestead Deed filed on February 2, 1984 lists $4,800.00 in cash as being exempt.

Sovran argues that a valid' assignment for consideration is irrevocable. The bank maintains that a pre-existing debt is, of itself, valuable consideration. Furthermore, Sovran contends that an attorney-at-law has no power to release security for a debt. Finally, Sovran argues that there is no evidence that Thyden had any authority as an attorney in fact to revoke the assignment as compared to’ his function as an attorney-at-law.1

The debtor argues in his memorandum that there never was an effective assignment. Initially, debtor maintains that Himes never relinquished his control over [950]*950the money. Furthermore, debtor contends that Schell never accepted the assignment but, in fact, paid the $8,000.00 to Sovran because of the state court order, not because of the letter of instruction which, at most, evidenced only a future intent of Himes. Moreover, Himes did not recognize the letter, did not adopt the signature as being his own and did not recall telling Cantrell that he had instructed Schell to pay the bank.

Prior to determining whether an attorney-at-law has the authority to revoke an assignment made by his client, the Court must decide whether there was a valid assignment. Three elements of an assignment which one authority indicates as being prerequisites for validity are: release of the assignor of his power of control over the chose in action, delivery by the assign- or of evidence of the assignment and acceptance of the assignment by the assign-ee. 2A M.J., Assignments, § 18, 211, 213 (Repl. vol. 1980); see Nusbaum and Co. v. Atlantic Realty, 206 Va. 673, 681, 146 S.E.2d 205 (1966); Coffman v. Ligett, 107 Va. 418, 423, 59 S.E. 392 (1907). Courts have determined, however, that valid assignments may be created even in the absence of one or more of these elements if the Court can determine that the assignor intended to create an assignment.

In a discussion of Virginia law, the Fourth Circuit Court of Appeals stated that:

No particular phraseology is required to effect an assignment, and it may be either in oral or written form; but the intent to vest in the assignee a present right in the thing assigned must be manifested by some oral or written word or by some conduct signifying a relinquishment of control by the assignor and an appropriation to the assignee.

Lone Star Cement Corp. v. Swartwout, 93 F.2d 767, 769-70 (4th Cir.1938); see Tatum v. Ballard, 94 Va. 370, 375-76, 26 S.E. 871 (1897). An assignment supported by consideration is irrevocable. Rinehart & Dennis Co. v. McArthur, 123 Va. 556, 572, 96 S.E. 829 (1918). Moreover, an antecedent debt is considered to be valuable consideration. Neff v. Edwards, 148 Va. 616, 623, 139 S.E. 291 (1927).

In Rinehart & Dennis Co. v. McArthur, 123 Va. 556, 96 S.E. 829 (1918), the Supreme Court of Virginia held that an assignment for consideration was irrevocable under circumstances similar to the case at bar. 123 Va. at 572, 96 S.E. 829. In Rine-hart, one M.T. McArthur deposited $1,200.00 with a state court through his attorney in lieu of a bond. On October 15, 1915, McArthur wrote a letter instructing his attorney, Rouse, to pay the $1,200.00 to Rinehart & Dennis Co. when its deposit with the court was no longer required. Id. at 568, 96 S.E. 829. At the time McArthur ordered the payment, he was indebted to Rinehart & Dennis Co. in the amount of $2,500.00. On August 31, 1917, McArthur sent a second letter to Rouse rescinding the order of payment. Id. at 569, 96 S.E. 829.

The Rinehart court held that the order for payment was given as security for an existing debt and was, therefore, supported by consideration. Id. at 569, 96 S.E. 829. Furthermore, the court held that even though the order of payment was directed to Rouse rather than the clerk of court who had custody of the money, the order constituted an equitable assignment supported by consideration which was, thereby, irrevocable. Id. at 572, 96 S.E. 829.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Heckler & Koch, Inc. v. German Sport Guns GmbH
71 F. Supp. 3d 866 (S.D. Indiana, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
53 B.R. 948, 1985 Bankr. LEXIS 5096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/himes-v-sovran-bank-na-in-re-himes-vaed-1985.