Can the bank ‘UNCLEAR’ cleared funds?

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hi,

I've got a date for the mediation phone call, it will be on the 15th July, that was pretty quick!

NB

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

oh no, I spent ages redacting that, maybe it was too big? never mind,

thanks for letting me know

NB

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

No sign of the reply here

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hi,

did my reply to defence get posted yesterday? I posted it about midday but can't see it, was it maybe too big or was there a problem with it??

best wishes,

Nicola

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hi,

sorry Des8, realised I'd overlooked your last question,

no it wasn't a proper application it was in the original defence on the basis of lack of particularity, once I gave the 'further particulars' they haven't mentioned it. sorry, trying to do too many things

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I believe the timescale is this

T = Day of Deposit at the Post office i.e. 5/12/12.
T+1 6/12/12
T+2 7/12/12
T+3 10/12/12
T+4 11/12/12
T+5 12/12/12
T+6 13/12/12

Therefore, as you say you have to wait 6 working days so the funds were available for withdrawal on 14/12/12. They were removed on the 15th or 17th (depending on how you assess it).

Is Mr Cox one of your contributors or is that a quote from elsewhere that has been pasted in?

Ho hum, I need to get back to the reply but thank you both so much

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Can I ask why you think the cheque was not cleared? It seems to me the evidence is that it did.

It seems that if you think the cheque was not cleared, how do you think the funds were released on day T+1,2 or even 3? I just can't see it myself.

The issue is that the funds were cleared and the bank had no authority to take them. We asked for them to be put back whilst it was sorted out and they refused.

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I'm glad that you agree that the bank should not have just taken it though,

I don't as I don't believe it was after T+6 - but if it were, they shouldn't have just taken it.

TERMS for REF - red underliney bits important.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

2.1 says one extra day's delay but 2.2 says a total of 6 days, so another conflict, aren't they meant to find in my favour where there is ambiguity?

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hi,

I agree that the money may not be mine and that the bank could argue that, but it has not done that. I'm glad that you agree that the bank should not have just taken it though,

NB

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Protected from LOSS. There was no loss. Nicola had not taken the cheque in payment for something which she had sent out on reliance of the certainty of fate, eg. a car.

The cheque was from Nicola's mother, she was fully aware it was cancelled and hadn't been taken from her Mother's account. Her Mother suffered no loss. Nicola suffered no loss.

Otherwise people could be paying cheques into accounts and cancelling them by day three/four and hoping it doesn't happen in time, withdrawing the money on day T+6, and the bank losing the money. Its a system meant to protect people.

FOS case (as there is no case law on this issue.. yet)

3/2
bank confirms to customer that cheque has cleared – whether it should then have debited customer’s account when cheque was returned unpaid

Mr E advertised a motorcycle for sale at £3,000. An overseas "buyer" responded and sent Mr E a cheque for £6,000, asking him to pass on the extra £3,000 to a third party. The "buyer" said the extra money "represented shipping costs".

Mr E paid the cheque into his bank. But before drawing out and dispatching the "shipping costs", he made two separate enquiries about whether the cheque had cleared. Reassured by the firm’s response to his second enquiry, Mr E sent the money.

Not long afterwards, the cheque was returned unpaid and Mr E realised he had been duped. He complained to the firm, saying it should not have debited his account by the amount of the returned cheque. However, the firm refused to uphold his complaint, so he came to us.

complaint upheld
We examined transcripts of the telephone conversations Mr E had with his bank before he drew on the cheque. The first conversation – held not long after the cheque had been paid in – was general in nature and gave no specific information about the cheque in question.

But the second conversation was different. We felt the bank had failed to pick up on clear signs that Mr E was not just asking if he could draw on the cheque. He was really asking if there was any danger of the cheque being returned unpaid. In the context of what Mr E was asking, we felt it reasonable for him to have construed the bank’s assurances that the cheque had cleared as meaning it was safe for him to draw on the cheque and send off the shipping costs.

Mr E could see, with the benefit of hindsight, that there were some unusual aspects to this transaction. But we did not consider that his dealings with the "buyer" were such that he should have been aware he was dealing with a fraudster. We upheld his complaint and said the bank should cover the £3,000 loss.

Same situation OTHER than the rather important fact that Nicola KNEW the cheque had been cancelled and she had not lost anything. She had not been the victim of fraud. She relied on the banks misrepresentation that the cheque was cleared when it wasn't, and had it been past T+6 the bank should not have removed the funds from the account, and that caused loss due to charges/interest - which was refunded.

But yes, leave it to the lawyers, I have made my concerns known.

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Coop T&Cs 2.2
" You can assume that at the end of six Business Days, the cheque is cleared.After this time you are protected from any loss if the cheque is subsequently returned unpaid, unless it is found to be fraudulent or you are a knowing party to fraud. "

T&Cs are part of the contract and not quite the same wording as quoted.

Time for the lawyers to argue?

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I think you have fallen into the trap of reading what you want to read. There is nothing to say the money is yours, forever, to keep - but the 2-4-6 means that the bank cannot just remove it from your account after T+6 without your consent. That doesn't mean it is not owed to the bank - just that they cannot help themselves to it.

(j) Certainty of fate: end of T6
After the end of T + 6 the paying bank will no longer be permitted to recover the amount of a paid cheque from the payee through the clearing system without the express permission of the beneficiary of the cheque, or in cases where the beneficiary is a knowing party to a fraud in relation to the transactions (which is not to say that it cannot be recovered on the other grounds; see para.3-148).

[I]149 Rules for the Automated Debit Clearing, Unpaids 7[/]

Any way, best of luck with everything xxx

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hello Des8,

that is very helpful. The bank did initially ask for the case to be struck out but it does not seem to have followed this up. Do you have a reference for this, in case I should need it?

It is not clear to me whether the Defendant did delay over filing/serving Defence papers or what happened there, they certainly didn’t serve an acknowledgment of service to me on time, that’s all I can really say. I think the defence was in on time.

best wishes,

NB

Sorry, but there is nothing which would be of use in court regarding unreasonable behaviour.
As this only applies in the small claims track there is very little case law on what is unreasonable.

You said elsewhere that the defendant had requested strike out. Was this a proper application (via a completed N244 form and payment of a fee) and what grounds did they put forward?


I still believe this matter is being over complicated, and you need to keep your reply to defence simple.
Later (only in an attempt to help the court understand the points in dispute :tinysmile_twink_t2: )it might be worth considering submitting a skeleton argument . This would be a brief statement of the essential points and could help keep the process focused.

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

''Cheques deposited after 4:30 or via the Post Office will be subject to one day's delay.'' = Co-Op

''Post offices
If you pay a cheque at a post office to your Barclays account, it’ll take 2 working days longer to process them.'' = Barclays


Have you got your terms and conditions of your current account ? - you need to quote the exact term from there.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hi,

2-4-6 should mean the funds are mine Raymond Cox says this too, but the main issue is that once the funds are cleared, they become mine, these funds were cleared and therefore, oddly, became mine, that is the loss.

I understand what I need to do and will do that, still struggling with this redacting grrrrrr

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it has to make a 'reasonable' decision taking into account the law, but they didn't even want to gather the essential evidence that they had the right to require, so it didn't seem too even-handed or fair to me, still that is water under the bridge

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yes, T is day of deposit