repayments by instalments

[Brainmelt]

Hi Legal Beagles Team

Knowing of this website i have been trying to research for the answer to this unusual query for my niece, but for now come up empty handed.

Has anyone come across this before?

a wrongful credit for a small amount was paid into her account. It has recently come to light that this money was paid into her account in error and she has to pay it back having not noticed and spent it.

The only reason i know about it is because she has approached me for financial help - but i haven't got the money to help her out myself. Apparently it is not being treated as a civil matter but a criminal one as it would cost the person who paid the wrong account more money to take civil action than the 'wrongful credit'

She does not have the money to repay with a lump sum payment, but wants to offer repayment by instalments. Can she do this?

[MIKE770]

Re: repayments by instalments

could be looked at as it would be reasonably assumed she should have been aware a substantial sum in credit which is not in line with her normal credit balance and income, a difficult one?


sure peeps may have come across this situation and will respond?

if it comes to it as you state try an agreement to repay by installments - is it substantial?

[Brainmelt]

Re: repayments by instalments

Hi Mike

It's under £200, and for the other party to take the matter to civil court it would cost more than that apparently?

[MIKE770]

Re: repayments by instalments

then installments seems the best option in this case, make an offer and keep it on file (the offer) , if they were to try and be clever (might) by taking it to court then the offer of installments shows willingness to settle and court action being vindictive and measures to save as to cost and court time being ignored,
[MENTION=1937]nemisis[/MENTION]45 [MENTION=61310]diana[/MENTION]M

[Brainmelt]

Re: repayments by instalments

Hi Mike

Thanks for the advice - i hated having to go back to her completely empty handed, I cannot offer her help financially but can support her in her efforts with the suggestion to repay by instalments and will advise her that this may be her best course of action to tell the police officer acting for the complainant.

Never heard of this type of thing before - but it is a whole new world out there

[MIKE770]

Re: repayments by instalments

an offer made - then see response?

[MIKE770]

Re: repayments by instalments

more info would help as you are now quoting police involvement?

[Brainmelt]

Re: repayments by instalments

Hi again Mike

I did state in post 1 that the matter was not civil but criminal because the complainant does not have the money to take civil action through the court as this action would cost more than the amount being claimed.

the police have been in contact with my niece to raise the complaint with her, - just a chat on the phone actually - not sure how they got her number. They said that she had to pay it back or it would be a wrongful credit for which she could be questioned under caution (or something). she had to check her bank statements, and talk with her own bank, agrees that although similar to what she would have been expecting in her own right, this was an additional amount that turns out not to be for her. she and wants to pay it back but by instalments. She apparently does not personally know who the money has got to be paid back to, and i assume she has to tell the police this is what she wants to do.

I will be phoning her tonight - not sure what else i should be asking her - just sounds to me like she has to pay it back = problem is repayment by lump sum will be difficult. No one in the family has even £100 to help her just now, which is why the suggestion of instalments seems the way to go??

[R0b]

Re: repayments by instalments

Personally, it's a load of crap about this being a criminal matter rather than civil. Have the police actually said to her who the person is? If not I would be questioning who it is.

Secondly this would be a matter of theft, which requires the intention to permanently deprive the person of their money. That is likely to fail the test as if she already had funds in her bank and the amount of 200 is relatively small she could have assumed those were her funds. Honest mistake, and you have the defence of honestly believing the money was hers.

If the police want to interview her under caution I would exercise her right to a lawyer and seek legal assistance.

This is more a civil matter and not a criminal one in my eyes which has a higher threshold than civil courts. Any right minded solicitor would know this is bound to fail if charges were brought.

[nemesis45]

Re: repayments by instalments

Hi again Mike

I did state in post 1 that the matter was not civil but criminal because the complainant does not have the money to take civil action through the court as this action would cost more than the amount being claimed.

the police have been in contact with my niece to raise the complaint with her, - just a chat on the phone actually - not sure how they got her number. They said that she had to pay it back or it would be a wrongful credit for which she could be questioned under caution (or something). she had to check her bank statements, and talk with her own bank, agrees that although similar to what she would have been expecting in her own right, this was an additional amount that turns out not to be for her. she and wants to pay it back but by instalments. She apparently does not personally know who the money has got to be paid back to, and i assume she has to tell the police this is what she wants to do.

I will be phoning her tonight - not sure what else i should be asking her - just sounds to me like she has to pay it back = problem is repayment by lump sum will be difficult. No one in the family has even £100 to help her just now, which is why the suggestion of instalments seems the way to go??

Hello Brainmelt

I don't think there is any criminality here at all.

The person who I presume made the payment either created a credit to an incorrect bank account transposition of digits in an account number and/or an incorrect payee name.

In my opinion the bank processing the " credit" is at fault equally with the person making the payment.
So if your niece would in this case could reasonably assume that the amount in her account is/was correct she in not in anyway responsible it is I think quite generous of her to offer to correct the banks and the person making the payments mistake.

I presume the police are quoting " unjust enrichment " which is nonsense in this case.

Exactly how much was the credit and how much more was it than she might have expected to be available in her account?

nem

[Brainmelt]

Re: repayments by instalments

Hi Nem


Apologies i thought i had posted about an hour ago - obviously pressed the wrong button. anyway


Difference is around £28
Police have quoted Wrongful Credit, (theft if not paid back and therefore must be)
If refuse to repay will be questioned under caution (im not entirely sure what this means - is it the same as arrest?)
Niece did have to ask for the supervisor as officer dealing was being aggressive when she refused to admit anything during their telephone conversation (niece originally thought it was some kind of scam and wanted to check her own records and with her bank)
reason they have her telephone number is that she had to report a crime to the police last year (she was the victim)


My view offer to pay by instalment. But i am not sure what her legal position is if this is the only way she can afford to repay it.


Will the police arrest her if she cannot come up with a lump sum?
How and who does she make any instalment payment to? My understanding is that the police are running this right now as my niece has not been given any contact details for the complainant.


Please excuse all the questions

[nemesis45]

Re: repayments by instalments

Hi Nem


Apologies i thought i had posted about an hour ago - obviously pressed the wrong button. anyway


Difference is around £28
Police have quoted Wrongful Credit, (theft if not paid back and therefore must be)
If refuse to repay will be questioned under caution (im not entirely sure what this means - is it the same as arrest?)
Niece did have to ask for the supervisor as officer dealing was being aggressive when she refused to admit anything during their telephone conversation (niece originally thought it was some kind of scam and wanted to check her own records and with her bank)
reason they have her telephone number is that she had to report a crime to the police last year (she was the victim)


My view offer to pay by instalment. But i am not sure what her legal position is if this is the only way she can afford to repay it.


Will the police arrest her if she cannot come up with a lump sum?
How and who does she make any instalment payment to? My understanding is that the police are running this right now as my niece has not been given any contact details for the complainant.


Please excuse all the questions

I have to agree with the others this is a civil matter not criminal and as said if the police want an interview under caution she must insist on having a solicitor present

Under caution means that she would be told that if she withholds any thing that she later relies on in court ( not going there imo) it may harm her defence.

nem

[R0b]

Re: repayments by instalments

Police have quoted Wrongful Credit, (theft if not paid back and therefore must be)

What a crock of .... Wrongful credit falls under the theft anyway but is a separate allegation from theft in general. S.24A of the Theft Act says this about wrongful credit

(1) A person is guilty of an offence if—(a) a wrongful credit has been made to an account kept by him or in respect ofwhich he has any right or interest;(b) he knows or believes that the credit is wrongful; and(c) he dishonestly fails to take such steps as are reasonable in the circumstancesto secure that the credit is cancelled.

(2A) A credit to an account is wrongful to the extent that it derives from—
(a) theft;
(b) blackmail;
(c) fraud (contrary to section 1 of the Fraud Act 2006); or
(d) stolen goods.]

The definition of theft has several parts to it in that at the time the money was sent, you were dishonest in its appropriation and also had the intention to permanently deprive the complainant of it. Normally, when things like this happen it is for a much larger amount (assuming the credit was £28 as you appear to suggest). If your niece is like me, I don't particularly check my bank account on a regular basis to see what monies come in and out unless I'm making a large payment to make sure funds are in there. It is therefore perfectly plausible to say as a defence that the credit was a small and not a seriously large amount she had no reason to query it, it was sent to her mistakenly which she was not aware of at the time and as such she spent the money on the basis that the money in her bank was hers. If she works and the payment was made close to the day where she gets paid by her employer, again another perfectly plausible scenario to think that it was her salary payment.

There was no dishonesty nor was there an intention to deprive them of it at the time, and on that basis I would say the case fails. Very surprised if the CPS move forward with a charge unless your niece admits to everything, hence the need for her to seek legal advice where possible.

If she want's to repay then I would suggest she makes it clear in writing that the repayment is not an admission of guilt because returning the money back to them is not a defence.

[Brainmelt]

Re: repayments by instalments

Hi Rob


Thank you for your participation and response.


The wrongful credit act was quoted to my niece apparently, and followed by the sentence, ' you will be questioned under caution until you pay this sum back!' i have asked her for a copy of the quote (just out of interest), and will add to this thread for future reference.


The amount of 'wrongful credit' was about £200 which is about £28 more than what she would have expected to be paid in - it's no wonder she didn't notice.


My niece has apparently been very careful so far not to admit anything - which i think is the reason behind a particular officer's aggressive attitude in not being able to get a result.


You are right, she doesn't check her bank statements on a regular basis - but then again neither do i.


At the present time my niece has to get back to them with the outcome of her decision on what she is going to do, (admit and pay up or they will come around to her home to question her under caution - literally) which is why there are frantic discussions amongst family members about who can offer what.


I have added my own thoughts to the family discussion and support her desire to offer to repay by instalments - it takes the pressure of the rest of the family.


Rob, would you mind just expanding on your final sentence please.


I will look to draft something for her to send to the police with the offer of repayment - but i need to be clear on paying back ‘not being a defence’

[Brainmelt]

Re: repayments by instalments

Hi

Just wondering if Di, had comment to make regarding a response for the police which i could include in the draft letter i am drawing up for my niece ( who has agreed my contribution of non financial assistance).

How do i go about tagging someone?