UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: HOLMES P. HARDEN, Trustee
in Bankruptcy.

AER-AEROTRON, INCORPORATED,
Debtor-Appellant,
                                                                No. 97-2761
v.

WACHOVIA BANK OF NORTH
CAROLINA, N.A.; TODD ELLIS; EDNA
SCHWABE,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CA-97-733-5-F, BK-93-48-5-ATS, AP-95-142-A)

Submitted: November 17, 1998

Decided: December 17, 1998

Before WILLIAMS and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

James D. McCullough, STUBBS, PAHL & PERDUE, P.A., Raleigh,
North Carolina, for Appellant. Christopher T. Graebe, WOMBLE,
CARLYLE, SANDRIDGE & RICE, P.L.L.C., Raleigh, North Caro-
lina; Gerald A. Jeutter, Jr., KILPATRICK STOCKTON, L.L.P.,
Raleigh, North Carolina; Philip A. Glass, NODELL, GLASS & HAS-
KELL, Raleigh, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Aer-Aerotron, Inc., appeals from the district court's order affirming
the bankruptcy court's orders granting summary judgment in favor of
the Defendants. For the reasons that follow, we affirm.

Aer-Aerotron, a North Carolina corporation, was engaged in the
business of selling computer equipment. In 1992, Aer-Aerotron
agreed to purchase computer equipment for the Angolan government
through Telcam, an Angolan company. In October, the Angolan gov-
ernment wired $717,410 into one of Aer-Aerotron's bank accounts
with Wachovia. After deducting the amounts for the purchased equip-
ment and related freight and other charges--and for Aer-Aerotron's
commission--$332,000 remained in Aer-Aerotron's bank account
from the amount originally wired from Angola. Edna Schwabe, Aer-
Aerotron's general manager and authorized banking agent for Aer-
Aerotron's bank accounts with Wachovia, wrote a check for
$332,000, payable to "Telcam, Post Office Box 2062, Lwana,
Angola." The check was not endorsed but was exchanged the same
day for an official Wachovia check in the same amount, payable to
"TELCAM."

This check was apparently lost and, in November, Schwabe
requested that Wachovia stop payment on the check and issue a
replacement check. Aer-Aerotron did not send the second official
check to Telcam; rather, Aer-Aerotron gave the check directly to Tel-

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cam's agent, Alfredo Mesquita. Mesquita, the owner and operator of
Telcam, took the check to a Wachovia branch. After Schwab person-
ally identified him for bank personnel, Mesquita directed the bank to
wire the funds directly into his personal account in New York.

Aer-Aerotron filed a petition for relief under Chapter 11 of the
Bankruptcy Code in January 1993. In July 1994, the case was con-
verted to a Chapter 7 proceeding. In October 1995, Aer-Aerotron's
trustee filed this action against Wachovia, Schwabe, and Todd Ellis,
a salesman for Aer-Aerotron, alleging that the transfer of funds to
Mesquita constituted a preferential transfer, 11 U.S.C. § 547 (1994),
a fraudulent transfer, 11 U.S.C. § 548 (1994), and negligence/breach
of contract under North Carolina law. The bankruptcy court, in sepa-
rate orders, granted summary judgment to all Defendants. The district
court affirmed and this appeal followed.

We review de novo the bankruptcy court's grant of summary judg-
ment as affirmed on de novo review by the district court. See In re
Ballard, 65 F.3d 367, 370 (4th Cir. 1995).

Aer-Aerotron first asserts that the district court erred in granting
summary judgment to the defendant Wachovia because the wire
transfer of funds to Mesquita was a fraudulent transfer which
occurred because of Wachovia's negligence and breach of contract
with Aer-Aerotron. We disagree.

The bankruptcy court properly determined that Wachovia is not lia-
ble to Aer-Aerotron for avoidable transfers under 11 U.S.C. § 547 or
§ 548 because, under 11 U.S.C. § 550(a) (1994), a trustee may
recover avoidable transfers only from an initial transferee as defined
in the statute. Wachovia is not a transferee because it did not exercise
legal dominion and control over the disputed funds. See Bowers v.
Atlanta Motor Speedway, Inc. (In re Southeast Hotel Properties Ltd.
Partnership), 99 F.3d 151, 156 (4th Cir. 1996) ("[I]n order to consti-
tute the `initial transferee' of property under§ 550(a) of the Bank-
ruptcy Code, a person or entity must have exercised legal dominion
and control over the property"). Wachovia was also entitled to sum-
mary judgment on Aer-Aerotron's claims alleging negligence and
breach of contract as these claims are pre-empted by Federal Reserve
Board Regulation J, 12 C.F.R. § 210.25(b)(2) (1998). See Donmar

                    3
Enters. v. Southern Nat'l Bank of North Carolina, 64 F.3d 944, 950
(4th Cir. 1995) ("[A]ny state causes of action based on negligence or
unlawful payment [with respect to wire transfers governed by Subpart
B] are pre-empted by Regulation J"). Aer-Aerotron did not raise a
claim under Regulation J.

Additionally, Aer-Aerotron implies that the district court's decision
affirming the bankruptcy court's grant of summary judgment in favor
of Ellis and Schwabe was incorrect. Although identified in its "State-
ment of Issues" section of its brief filed in this court, Aer-Aerotron
fails to address these claims other than a conclusory sentence in its
"Summary of Argument." Accordingly, these claims are waived
because Aer-Aerotron did not comply with the requirements of Rule
28(a)(4), Fed. R. App. P., that appellant's brief"shall contain the con-
tentions of the appellant with respect to the issues presented, and the
reasons therefor." See Shopco Distrib. Co. v. Commanding Gen., 885
F.2d 167, 170 n.3 (4th Cir. 1989) (noting that failure to comply with
terms of former version of Fed. R. App. P. 28(a)(5) constitutes waiver
of asserted claims). Thus, this issue is not properly raised and we need
not address it.

Therefore, we affirm the district court's order affirming the bank-
ruptcy court's order granting summary judgment to Wachovia on all
claims.

AFFIRMED

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