Francisco Elizarraras v. Bank of El Paso

KRAVITCH, Circuit Judge.

In a jury trial, appellee Elizarraras was awarded damages of $89,800 due to appellant bank’s failure to honor appellee’s check. The bank appeals the denial of its motions for a directed verdict and a new trial. The principal issues raised, inter alia, are whether a bank can have the right of setoff: (1) against a contingent debt, (2) as a subrogee of another’s claim where it has neither paid the party whose rights it claims to be subrogated to nor proved those rights, and (3) without notice where it has previously indicated to the depositor it will not exercise its…