Can the bank ‘UNCLEAR’ cleared funds?

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hi Amethyst, glad to see you're still there.

On the issue of delay, I'm not sure why you say 'by everyone's admission there was a delay'. There is no admission (or evidence) from either the bank or me that there was a delay in the cheque getting to the clearing centre. The bank has certainly never said there was a delay (and I have a letter from the post office saying there was no delay on their side). The bank gave various reasons to the FoS how a delay can happen but have never actually claimed it in this case. I don't think there is any reason to think there was a delay.

The IBDE file would provide the independent evidence one way or the other. It doesn't make sense to me that the bank go to the trouble of sending me info that I didn't ask for - and that answer a different question (i.e. when the cheque was processed) - but not the information that I did ask for, i.e. when the cheque was received at the clearing centre. If I'm right, the IBDE file would show that the cheque was received on the 6th of December, it would also then show however, that the bank has, shall we say, been economical with the truth with the FoS? How hard can it be to retrieve a digital file?

I think the other issue, that of loss comes, down to whether the funds were cleared or not, do you agree with that?

Nicki

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Actually the terms say "up to 2 bus days" and elsewhere the bank say "1 day" and at the time the bank insisted the money was certain.
So a depositor could well think the money was certain and ready for withdrawal on Saturday 15/12/2012.

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

By everyone's admission the cheque was delayed getting to the clearing centre, there were a few days on not knowing where it was, which started all the problems as I recall. The dates printed on the cheques at the Clearing centre add up to back that up fine.

However the terms still say 2 bus days from PO to T then 6 to clear which still puts you withdrawing before T+6. And there is still no loss. I'll just pop in and say that periodically lol.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hi,

yes, will do

xx

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I tend to agree.
The fact the Bank "is not easily able ....." is not really IMO a reason for not doing something, but it seems they really don't want to co-operate.
Perhaps just push gently once more but then let it lie, unless you get to court when you ensure the judge knows about the banks lack of co-operation.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hello,

an update, the bank has said


"1. The Bank is not easily able to access a copy of the original IBDE file. However, please find attached:

a. A copy of the credit slip used by you when paying in cheque number xxxx at the Post Office. You will see that the reverse of the credit slip shows that the document was processed at the Cheque Clearing Centre on 13 December 2012; and

b. A copy of cheque no xxxx. Again, the reverse of the cheque shows that it was processed at the Cheque Clearing Centre on 13 December 2012.

2. The Bank does not hold a copy of this call recording. This has been explained to you on a number of occasions.

3. Please find attached a statement for account number 089029 14172490 for the period 1 November 2012 to 31 December 2012"

I think I should write to the bank to say that it is would be unreasonable to withhold the IBDE file. Although the central issue isn't when the cheque was received at the clearing centre, it is about the 6-day issue and the bank taking cleared funds, the fact that the bank is not co-operating with providing the IBDE file, which should show definitively when the clearing centre received the cheque, would not be helpful to the court presumably. What do you think?

Nicki

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello,

thanks for quick (and so early) reply. No the bank doesn't deny it, they fully accept that the call took place. In the context of the mediation it probably isn't too important, but I thought that (if, as I believe, they were playing with words and) stretching the truth with the FoS and the ICO, that that might be one thing but an outright denial to the court would be a different ball game perhaps!

I will ask for both however and see what happens.

I have changed my settings and am now getting notifications again so thanks for that too

NB

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I think (!) a transcript of the tape recording should be made available, but if the Bank say they cannot find it, I doubt much can be done.
They haven't actually denied the call took place (have they?), so your affirmation of its existence and content should hold some force.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Great,

I will look that up and follow that through, thank you.

With regard to the missing tape recording, would that be 'discloseable' too? So far the bank has been able to convince the FoS and the ICO (but not me :tinysmile_twink_t2 that they can't access it, presumably they would be less likely to be able to convince a court that they can't find it in the circumstances?

thanks again xx

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

CPR 31 has much to say about disclosure.
CPR31.6 Standard disclosure – what documents are to be disclosed

31.6 Standard disclosure requires a party to disclose only–
(a) the documents on which he relies; and
(b) the documents which –
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant practice direction.

I would certainly bring this to the notice of the mediator, and even the court if necessary.
If they have their legal dept, or external solicitors working for them they must be aware of 31.6 (b) (i) & (iii)


You can make application through the court for disclosure of documents, but it costs and shouldn't be necessary

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello,

thanks again, hopefully that will work now.

The bank has not mentioned it and if I'm right (and it was received on the 6th Dec as it should have been) it won't be in their interest to disclose it. Would that mean that I can't ask for it?

I asked the Ombudsman to obtain it as he could have done and it would have clarified the issue, he refused as he was allowed to do. He preferred to make an unevidenced guess, oops, of course I mean he preferred to rely on his own excellent judgment, to decide the issue.

NB

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

If the bank have mentioned the file (ie disclosed it) they must produce it.

To switch on notifications I think you go to your Profile.
Click on Settings, then scroll down to General Settings where you tick to receive emails and then set the daily thread subscription mode to what you want from the drop down

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hello Des8,

Yes, you're right, the phone appointment is for one hour and I have to outline the case to the mediator, so need to get my arguments sorted (which I will do following your very helpful suggestions), but you're right I also need to work out my bottom line.

The mediator has asked if there are any documents required before mediation. The bank has so far avoided providing some information, including the IBDE file information (i.e the electronic record of when the cheque actually arrived at the clearing centre. Do you think it would be possible to obtain this through the mediator now? The cheque is not part of my case, but I suspect it could undermine the bank's case. I guess there's no harm in asking......

best wishes,

Nicki

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Yes, you're right, the phone appointment is for one hour and I have to outline the case to the mediator, so need to get my arguments sorted but you're right also need to work out the bottom line.

The mediator has asked if there are any documents required before mediation. The bank has so far avoided providing some information, including the IBDE file information (i.e the electronic record of when the cheque actually arrived at the clearing centre. Do you think it would be possible to obtain this through the mediator? The cheque is not part of my case, but it could undermine the bank's case.

I guess there's no harm in asking......

Also, do you know what I need to do to get the notifications of a post switched back on? I seem to have lost that facility

NB

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

So two weeks in which to work out your bottom line!