642 F2d 145 Atkinson v. Federal Deposit Insurance Corporation

642 F.2d 145

Gerald W. ATKINSON, Plaintiff,
Susan A. Atkinson, Plaintiff-Appellant,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, etc. et al.,
Defendants-Appellees.

No. 79-1531.

United States Court of Appeals,
Fifth Circuit.

April 9, 1981.

Richard A. Lawrence, Montgomery, Ala., for plaintiff-appellant.

Smith, Bowman, Thagard, Crook & Culpepper, Charles M. Crook, Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

ON PETITION FOR REHEARING

(Opinion Jan. 30, 1981, 5 Cir., 1981, 635 F.2d 508).

Before VANCE, HENDERSON and THOMAS A. CLARK, Circuit Judges.

PER CURIAM:

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1

Plaintiff-appellant, Susan A. Atkinson, on petition for rehearing, urges that we reconsider our remand and that we direct the district court to enter judgment in her behalf. We decline because the district court did not make a clear finding of fact that Susan A. Atkinson was the owner and sole source of the funds represented by the certificate of deposit. It is the duty of the district court to determine whether there is a factual dispute surrounding this issue, and to resolve such issue if there is a dispute.

2

Shortly before our opinion in this case was announced,1 the Fifth Circuit decided a case having related issues, Haynes v. Bank of Wedowee, 634 F.2d 266, 1981. The effect of the opinion in Haynes was to "approve" the bank's setoff of approximately one-half of the joint checking account to be applied against the wife's debt. However, this court's approval of the setoff was dictum. Evidently, the wife did not assert the impropriety of the self-help remedy of setoff. The issue simply was not presented to the panel in that case. This is readily understandable in that in the typical case the claimant to the jointly-owned funds which are seized by a creditor is not the debtor. In Haynes, Mrs. Haynes was the debtor, and she did not raise the issue of ownership of the joint account or the right of the bank to set off an individual's indebtedness against a joint bank deposit. Thus, we see no conflict in the holdings of the two opinions.

3

The Petition for Rehearing is DENIED.

1

635 F.2d 508 (5th Cir. 1981)