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Call Now: 904-383-7448Without qualifying any other statutory right to setoff or lien and subject to any contractual provision, if a party to a multiple-party account is indebted to a financial institution, the financial institution has a right to setoff against the account in which the party has or had immediately before his death a present right of withdrawal. The amount of the account subject to setoff is that proportion to which the debtor is or was immediately before his death beneficially entitled and, in the absence of proof of net contributions, an equal share with all parties having present rights of withdrawal.
(Code 1933, § 41A-3812, enacted by Ga. L. 1976, p. 1388, § 8.)
Right to setoff provided in O.C.G.A § 7-1-821 is also subject to any contractual provision. Simpson v. Georgia State Bank, 159 Ga. App. 310, 283 S.E.2d 278 (1981).
- Under Georgia law, a contract allowing a bank a setoff of the bank's indebtedness to depositors against the depositors' indebtedness to the bank was not substantively unconscionable and the language in the agreement regarding arbitration was conspicuous so the provision was not procedurally unconscionable; thus, the arbitration clause was enforceable under the Federal Arbitration Act, 9 U.S.C. § 1. In re Checking Account Overdraft Litig., F.3d (11th Cir. Mar. 1, 2012)(Unpublished).
- Even though the debtor was not beneficially entitled to any of the funds, the financial institution had a right of set off under the contractual provisions. Yates v. Trust Co. Bank, 212 Ga. App. 438, 443 S.E.2d 293 (1994).
- 10 Am. Jur. 2d, Banks and Financial Institutions, §§ 853 et seq., 862 et seq.
- Bank's right to set off unmatured claims as against receiver, assignee for benefit of creditors, or trustee in bankruptcy, of insolvent depositor, 37 A.L.R.2d 850.
Bank's right of setoff, based on debit of one depositor, against funds in account standing in names of debtor and another, 68 A.L.R.3d 192.
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Court: Supreme Court of Georgia | Date Filed: 1997-10-06
Citation: 490 S.E.2d 384, 268 Ga. 444, 97 Fulton County D. Rep. 3696, 1997 Ga. LEXIS 619
Snippet: L.1976, p. 1388, § 8; OCGA §§ 7-1-810 to OCGA 7-1-821; Rehberg, Wills, Trusts, and Administration of