Given the economic uncertainty caused by the current health crisis, many borrowers may be forced to default on loans or lines of credit they have with their banks. It is therefore an important time to understand the legal relationship between a bank and a depositor, and the bank’s right of setoff.
Take a look at the balance in your checking or savings account. How much of that money actually “belongs” to you? You may be surprised to learn that, in New York, the funds in a general bank account do not technically belong to the depositor. At the moment of deposit, the funds become the property of the depository bank.
Thus, as a depositor, you are in essence a creditor of the bank. Once the bank accepts your deposit, it agrees to refund the same amount, or any part thereof, on demand.
As a result of this relationship, New York bankinginstitutions have a long-established common law “right ofsetoff.”Under the right of setoff, where a borrower is indebted to the bank, the bank may deduct funds from the borrower’s savings or checking account to satisfy a matured debt.
For example, imagine that you maintain a checking account and a line of credit with the same bank. If you default under the line of credit, the bank can simply deduct the funds from your checking account – without any advance notice to you – to satisfy the balance due under the line of credit. The bank is only required to provide notice to you on the day the setoff occurs.
This scenario was played out in a seminal case twenty five years ago.* There, a customer took out a $40,000 unsecured line of credit with his bank, which was subsequently converted into a 90-day note. After the customer defaulted, the bank exercised its right of setoff and applied approximately $40,000 of funds in the customer’s account toward the balance due under the note. The customer asserted a claim against the bank, alleging that the bank’s exercise of setoff was unauthorized. The trial court dismissed the claim. Upon appeal, the decision was affirmed, with the court holding that the bank had “an absolute right to setoff,” that was properly exercised by advising the customer of the setoff “on the same day that the setoff occurred.”
*Fenton v. Ives, 222 A.D.2d 776, 634 N.Y.S.2d 833 (3d Dep’t 1995).
FAQs
At the moment of deposit, the funds become the property of the depository bank. Thus, as a depositor, you are in essence a creditor of the bank. Once the bank accepts your deposit, it agrees to refund the same amount, or any part thereof, on demand.
Who owns the money in my bank? ›
“When a depositor makes a deposit, the funds become the property of the bank, and, in exchange, the depositor receives a claim against the bank for the amount of the deposit.”
Do banks actually use your money? ›
Only a small portion of your deposits at a bank are actually held as cash at the bank. The rest of your money (the majority of the bank's assets) is invested by the bank into vehicles such as consumer or business loans, government bonds and credit cards. Borrowers have to pay the bank back with interest.
Is your money actually in the bank? ›
While it enters the bank as one amount, it soon gets broken up. A small amount is set aside as cash reserves, either in the bank's vaults, at other banks or at the Federal Reserve. Banks have historically been required to keep a small stash of cash, typically between 3 and 10 percent of their deposits, on hand.
Can a bank keep your money from you? ›
Yes. Your bank may hold the funds according to its funds availability policy.
Who can access your bank account legally? ›
Only the account holder can authorize transactions to and from that account. For a spouse to access their partner's bank account, there must be a specific and legally recognized reason for doing so, like when they have been granted power of attorney or they are the main beneficiary of that account.
Who controls our money? ›
Just as Congress and the president control fiscal policy, the Federal Reserve System dominates monetary policy, the control of the supply and cost of money.
Who owns a bank account? ›
An individual account is an account owned by only one person. With the account owner dies, the ownership of the funds passes, subject to applicable law, to the account owner's estate. If the account, however, is designated as Payable on Death (POD), the funds will be distributed to the account's beneficiaries.
Where do millionaires keep their money? ›
Cash equivalents are financial instruments that are almost as liquid as cash and are popular investments for millionaires. Examples of cash equivalents are money market mutual funds, certificates of deposit, commercial paper and Treasury bills. Some millionaires keep their cash in Treasury bills.
Can banks seize your money if the economy fails? ›
Banking regulation has changed over the last 100 years to provide more protection to consumers. You can keep money in a bank account during a recession and it will be safe through FDIC and NCUA deposit insurance. Up to $250,000 is secure in individual bank accounts and $500,000 is safe in joint bank accounts.
File banking and credit complaints with the Consumer Financial Protection Bureau. If contacting your bank directly does not help, visit the Consumer Financial Protection Bureau (CFPB) complaint page to: See which specific banking and credit services and products you can complain about through the CFPB.
How protected is your money in the bank? ›
The FDIC provides deposit insurance to protect your money in the event of a bank failure. Your deposits are automatically insured to at least $250,000 at each FDIC-insured bank.
Can the government take money out of your bank account without your permission? ›
So, can the government take money out of your bank account? The answer is yes – sort of. While the government may not be the one directly taking the money out of someone's account, they can permit an employer or financial institution to do so.
Who owns your local bank? ›
Banks are owned by investors who may or may not be depositors. Banks are owned and controlled by stockholders, whose number of votes depend upon number of shares owned.
Can a creditor take all the money in your bank account? ›
If you fail to make payments, creditors will try to recoup the funds you owe them. In some cases, they may take legal action and request a bank levy. This may freeze your bank account and give creditors the right to take the funds directly from it.
Can you trace the owner of a bank account? ›
Answer and Explanation: It is impossible to get personal details from a bank account number and it is also illegal for the bank to disclose its clients' information to outsiders without the knowledge and approval of their clients.
