The opinion of the court was delivered by: PARKER
(Denying Motion for Relief From Judgment)
Barrington D. Parker, United States District Judge
Riggs National Bank of Washington, D.C. ("Riggs"), a garnishee in this action, seeks relief from a judgment entered against it on July 17, 1984 in favor of the plaintiff Melvin M. Feldman. Riggs claims that the judgment was based on the mistaken premise that it held assets belonging to the defendant Municipal Escrow and Title Co. ("METCO") that could be garnished by the plaintiff. As explained below, the Court determines that the requested relief cannot be granted and the judgment must be enforced.
On July 10, 1984, the plaintiff filed a motion for a judgment of recovery against credits in the possession of the bank. According to a certified mail receipt, Riggs received this motion on July 9, 1984, but did not respond to or contest it in any way. On July 17, 1984, Judge Aubrey Robinson, Jr. entered an order granting judgment of recovery of $3,384.85 in favor of the plaintiff, the amount Riggs previously certified on June 29, 1984.
On September 7, 1984, Riggs filed a motion for relief from Judge Robinson's order together with supplemental interrogatory answers, indicating that since May 24, 1984, METCO's account with Riggs had been overdrawn in the amount of $344,073.43. An affidavit by David Lesser, Vice-President and Associate General Counsel of Riggs ("Lesser affidavit"), submitted to the Court on December 5, 1984, provides some clarification. METCO had two accounts with Riggs numbered 07-235-128 ("128 Account") and 07-235-136 ("136 Account"). As of May 24, 1984, the 128 Account was overdrawn by $344,037.43. The interrogatory answer filed on June 29, 1984, however, referred to the 136 Account. According to Riggs, it was thus not indebted to METCO at the time that its original interrogatory answers were prepared and submitted. Riggs argues that the July 17 order was based on erroneous facts which it supplied and therefore should be vacated.
It is well established that a bank generally has the right to set off its debts to a customer, such as account balances, against debts owed to it by that customer because of other transactions. 5A Mitchie on Banks and Banking ch., 9, § 114 (1983). Moreover, this right does not have to be exercised before a writ of attachment is served by another creditor. The bank may exercise its right of setoff once a depositor's account is threatened by attachment. General Electric Credit Corp. v. Tarr, 457 F. Supp. 935, 937 (W.D. Pa. 1978).
Nevertheless, in most jurisdictions, setoff does not occur automatically when depositors become indebted to their banks. See 5A Mitchie on Banks and Banking, ch. 9, § 123 ("Ordinarily it is optional with a bank whether it will avail itself of the right to apply a deposit to the payment of the indebtedness of the depositor."). In Baker v. National City Bank of Cleveland, 511 F.2d 1016 (6th Cir. 1975), the trustees of a railroad undergoing reorganization sought to recover a portion of the railroad's checking account that had been setoff by the defendant bank against outstanding loan indebtedness. The bank claimed that the setoff had been exercised the day before a federal district court entered an order in the bankruptcy proceeding enjoining all creditors holding any deposit balances or credits of the railroad from offsetting those credits against the railroad's obligations. The court held that under Ohio law a setoff is accomplished only after three steps have been taken: "1) the decision to exercise the right, 2) some action which accomplishes the setoff and 3) some record which evidences that the right of setoff has been exercised." Id. at 1018. It then determined that a mere telephone call between two officers of the bank was not a sufficient affirmative act to exercise the right to setoff and therefore disallowed the bank's action.
Baker involved a right to setoff which was asserted subsequent to a court order specifically prohibiting such action. A similar result has been reached in cases where the Internal Revenue Service has levied upon a depositor's bank account to collect delinquent taxes. Unless the bank has already exercised its right of setoff, the tax levy extinguishes that right. See United States v. Citizens and Southern National Bank, 538 F.2d 1101 (5th Cir. 1976), cert. denied, 430 U.S. 945, 51 L. Ed. 2d 792, 97 S. Ct. 1579 (1977); United States v. Sterling National Bank & Trust Co. of New York, 494 F.2d 919 (2d Cir. 1974).
Riggs argues that it still had the right to exercise a setoff against the funds in METCO's account after the writ of attachment was served on June 20, 1984. This is undoubtedly true. See Tarr, 457 F. Supp. at 957. The crucial date here, however, is not June 20, but rather July 17, 1984, ...