Evans v. ESN Insurance Services Network Inc.

127 F. App'x 952

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 11, 2005
• Docket: No. 03-56600; D.C. No. CV-01-00707-DOC
• Status: Published

Opinion

MEMORANDUM

**

Robert M. Clark appeals pro se the district court’s August 18, 2003 order assigning 100% of Clark’s commissions from certain insurance companies to judgment creditor Robb Evans, as Receiver for TLC Investments and Trade Co. and various affiliates (the “Receiver”), until the October 17, 2002 judgment, in the amount of $272,092.00, is satisfied (the “Assignment Order”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s legal conclusions de novo and its factual findings for clear error. Stevedoring Serv. of Am. v. Ancora Transp., N.V., 59 F.3d 879, 883 (9th Cir.1995). We vacate and remand.

15 U.S.C. § 1673(a)(1) provides that creditors may only garnish up to 25% of an individual’s weekly disposable earnings. See In the Matter of Brissette, 561 F.2d 779, 784 & n. 6 (9th Cir.1977). Section 1673(c) states that “[n]o court ... may make, execute, or enforce any order ... in violation” of this provision. It appears that Clark’s commissions constitute his sole source of income. Accordingly, the district court erred by assigning 100% of Clark’s commissions in the Assignment Order. The district court recognized this error in its subsequent order modifying the Assignment Order pending appeal, but believed it did not have jurisdiction to alter the Assignment Order permanently because Clark had already filed a notice of appeal.

We vacate the district court’s Assignment Order, and we remand for entry of an order assigning 25% of Clark’s weekly disposable earnings to the Receiver until the October 17, 2002 judgment is satisfied.

Clark’s contentions regarding California Code of Civil Procedure § 708.510(c)(1) lack merit.

The parties shall bear their own costs on appeal.

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.