                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            DEC 19 2002
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    VANDERBILT MORTGAGE AND
    FINANCE, INC.,

                Plaintiff-Appellant,
                                                           No. 02-7021
    v.                                               (D.C. No. 00-CV-535-P)
                                                           (E.D. Okla.)
    EVERETT IMOTICHEY,

                Defendant-Appellee.


                             ORDER AND JUDGMENT           *




Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.
.


         After examining the appellant’s brief and the appellate record, this panel

has determined unanimously to grant the appellant’s request for a decision on its

brief without oral argument. 1 See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
         The appellee has not filed a brief.
       Plaintiff Vanderbilt Mortgage and Finance, Inc. (VMF) seeks review of an

order of the magistrate judge    2
                                     sua sponte vacating a default judgment for breach

of contract that VMF had obtained against defendant Everett Imotichey, and of

the magistrate judge’s subsequent denial of VMF’s motion for reconsideration or

new trial.   3
                 As discussed below, this appeal turns on a question of law, regarding

the legal effect of an anti-assignment clause. Consequently, our review is de

novo. See EEOC v. Ackerman, Hood & McQueen, Inc.             , 956 F.2d 944, 946 (10 th

Cir. 1992) (“[W]e review all legal issues de novo.”);      Skaggs v. Otis Elevator Co.    ,

164 F.3d 511, 514 (10 th Cir. 1998) (while denial of new trial is generally

reviewed under abuse of discretion standard, “[w]hen the district court’s decision

2
      The magistrate judge proceeded on written consent of the parties under the
authority of 28 U.S.C. § 636(c).
3
       Ordinarily, an order vacating a default judgment is not final and, hence, not
appealable, as it “leaves the case pending for further determination . . . akin to an
order granting a new trial.”    Ballard v. Baldridge , 209 F.3d 1160, 1161 (9 th Cir.
2000) (quotation omitted); see Joseph v. Office of Consulate Gen. of Nigeria        , 830
F.2d 1018, 1028 (9 th Cir. 1987) (rejecting appeal of order setting aside default
judgment “where the setting-aside paves the way for a trial on the merits”);
Dimmet & Owens Fin., Inc. v. United States        , 787 F.2d 1186, 1192 (7 th Cir. 1986)
(“usually [such an] order is not a final order but merely a preliminary to a trial of
the case, and hence it is not reviewable till the trial is concluded”). However, as
explained in our merits analysis, the magistrate judge’s rationale for vacating the
default judgment here was that it was       void because VMF had no enforceable
contract right against Imotichey. Rather than paving the way for trial, that
decision effectively “end[ed] the litigation on the merits,”      Desktop Direct, Inc. v.
Digital Equip. Corp. , 993 F.2d 755, 757 (10 th Cir. 1993) (quotation omitted), and
put VMF “effectively out of court,”       First Union Mortgage Corp. v. Smith , 229
F.3d 992, 994 (10 th Cir. 2000) (quotation omitted). It is, therefore, a final
decision reviewable pursuant to 28 U.S.C. § 1291.

                                              -2-
turns on an issue of law . . . its determination on that question is reviewed   de

novo ”). We reverse and remand for reinstatement of the default judgment.

       Imotichey receives monthly payments under a tort settlement agreement

structured to take advantage of tax benefits allowed under 26 U.S.C. § 130(c). In

particular, the agreement expressly precludes any acceleration or assignment of

Imotichey’s rights. The monthly payments he receives, commencing in 1992 and

guaranteed through July of 2012, are funded by an annuity purchased by Liberty

Life Assurance Company.

       Despite the prohibition on assignment, Imotichey contracted to sell his

benefits under the settlement/annuity to VMF’s predecessor in interest in

exchange for a lump sum payment. Thereafter, however, he evidently continued

to receive the annuity payments and keep them for his own use. VMF brought

this action to enforce the contract and ultimately obtained a default judgment

against Imotichey for $121,908 in damages.

       VMF then sought to garnish the LLA annuity. On cross-motions for

summary judgment, the magistrate judge ruled in favor of LLA, holding that the

anti-assignment provision in the settlement agreement precluded VMF from

reaching the annuity as Imotichey’s assignee and that VMF could not otherwise

attach the annuity. VMF did not appeal–and does not now challenge–that

decision.


                                             -3-
       With satisfaction not forthcoming from Imotichey himself, VMF filed an

application seeking an order directing Imotichey to turn over the monthly annuity

payments as he receives them. In a minute order, the magistrate judge not only

denied this application but sua sponte vacated the default judgment against

Imotichey as “void” based on the intervening decision in the garnishment dispute

“wherein [he] specifically found [Imotichey] did not have the power to assign his

right to payments.” Aplt. App. Vol. 1, at 147. VMF moved for reconsideration of

the vacatur order, citing controlling Oklahoma law that “an assignor of a contract

containing a valid anti-assignment provision may not invoke the clause as against

its assignee.”   In re Kaufman , 37 P.3d 845, 855 (Okla. 2001) (affirming principle

“well settled in Oklahoma jurisprudence as early as 1939,” and noting “a more

perfect illustration of the necessity for the doctrine of estoppel could hardly be

stated,” quoting Harris v. Tipton , 90 P.2d 932, 935 (Okla. 1939));   see also State

Farm Fire & Cas. Ins. Co. v. Farmers Ins. Exch.    , 489 P.2d 480, 482 (Okla. 1971).

The magistrate judge denied this motion in a minute order without addressing

Kaufman or the estoppel principle it reaffirmed.   See Aplt. App. Vol. 1 at 179.

VMF now appeals, relying on     Kaufman and also noting that Imotichey had agreed

both to assign his rights under the settlement/annuity and to remit any payments

he might personally receive contrary to that purported assignment.




                                           -4-
       Kaufman involved an assignment of rights under a structured settlement

very similar to Imotichey’s and specifically held that, while the assignment was

prohibited by a provision in the settlement agreement and thus not enforceable

generally, the assignor himself could not rely on the provision to avoid his own

contractual obligation to an assignee. See Kaufman , 37 P.3d at 849-55. We agree

with VMF that Kaufman controls here and vitiates the magistrate judge’s sole

rationale for vacating the default judgment against Imotichey. Accordingly, we

reverse and remand for reinstatement of the judgment. We express no opinion on

the appropriateness of any particular means by which VMF may seek to satisfy its

judgment; that is a matter left in the first instance to the sound discretion of the

trial court. See generally Dias v. Bank of Hawaii   , 732 F.2d 1401, 1402 (9 th Cir.

1984) (discussing Fed. R. Civ. P. 69(a));    Burke v. Guiney , 700 F.2d 767, 773 (1 st

Cir. 1983) (same); Gates v. Collier , 616 F.2d 1268, 1271 (5 th Cir. 1980) (same),

reh’g granted on other grounds    , 636 F.2d 942 (5 th Cir. 1981).

       The decision of the magistrate judge is REVERSED, and the cause is

REMANDED for further proceedings consistent herewith.



                                                      Entered for the Court


                                                      Stephanie K. Seymour
                                                      Circuit Judge


                                            -5-
