If your bank had a right of set-off prior to the IHFS lien, your bank’s right of set-off would trump the IHFS lien. The Illinois Public Aid Code makes such liens (for past-due child support) subordinate to a bank’s prior rights of set-off: “(h) A lien created under this Section is subordinate to . . . any prior right of set-off that the financial institution may have . . . .” 305 ILCS 5/10-25.5 (emphasis in bold added). In our view, you would have priority in the deposit accounts only if your right of set-off arose prior to your receipt of the Notice of Lien or Levy. As explained below, any right of set-off arises only after the loan has matured.

A bank’s right of set-off, allowing you to apply the customer’s deposits held in your bank to the customer’s debts to the bank, arises when two conditions are met: either (1) either the deposit contract allows for a right of setoff or the deposit accounts are owned by the same party (or parties) that owe the debt, and (2) the debt has matured. Selby v. DuQuoin State Bank, 223 Ill.App.3d 105, 107 (5th Dist. 1991) (the right of setoff allows a bank to “apply its depositor’s account for a debt he owes to the bank”); Fisher v. State Bank of Annawan, 163 Ill.2d 177, 181 (1994). Thus, if the auto loan has not matured, or if the deposit accounts are not owned by the exact same party indebted by the auto loan, it is not likely that your bank has a right of set-off.

Also, we note that the Public Aid Code authorizes you to charge a $50 fee to the deposit account holder. 305 ILCS 5/10-24.40(b).