Can the bank ‘UNCLEAR’ cleared funds?

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hi Des8,

thanks for that.

I agree that it may be prudent to go to mediation but this will turn on a legal point won't it? I may be wrong, I've never been to a mediation but I imagine a mediation would be looking to agree the finances only, not the rights and wrongs? You're right that I can't afford and don't want to be unreasonable but I'm not sure that mediation would be the way to resolve this in the way that I would want, as I say it has never been just about the money - although I probably would have been less interested initially if the cheque had been for £2.50 - on the other hand I don't think the Om would have said £500 was appropriate if the cheque had been £2.50 either.

Nicki

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

To protect yourself you need to be seen to be reasonable, so agree to go to mediation, but fail to agree a compromise
What is said at mediation (which is carried out through a third party, not face to face) remains confidential and is not referred to in court.
If you decline mediation and lose, your declination could (not will) be brought up.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

mmmm, I can't really see how a compromise could be reached in this myself, what do you think it could 'look' like?

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Can't really anticipate, but this is , like it or not, a money claim.
You may wish to view it as a matter of principle, but the court won't.
The mediator will attempt to get both parties agree a compromise over the amount claimed.
Doubtlessly the bank will argue they owe you nothing, but you will stand out for your £9000.
Because the bank are facing costs (either staff if self representing or solicitors) they will probably be happy to offer something for you to discontinue.
If they do it will be for you to argue an increase or decline and continue to court (where nothing is certain)

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

ok thank you, if it went to mediation would I be able to see more/any of their case? Obviously in the reply to the defence I have to give all of my info (and I'm sure like everyone going to small claims think that any sensible judge reading it would be bound to find in my favour as it is such a strong case:tinysmile_hmm_t2 but I think that I still won't have seen the main bit of their case, any legal arguments that I might not be aware of, for example, or would it just be trying to settle the finances?

best wishes,

NB

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

The mediator will only be trying to get an agreement to settle out of court, and it is not an intrusive or heavy handed process.
At mediation you won't see any more of their defence, (nor they of your claim), but in any case you should have seen all of their case.
No party can suddenly introduce new information in an attempt to ambush the other party.

Both of you will have been told to file in court and serve on the other a copy of all documents on which you intend to rely on in court.
Failure to do this could result in the case being adjourned to allow the other side to study it, or could mean the document is excluded from the trial.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

ok thanks. I'll assume that includes legal arguments then. I have received papers from the court including directions questionnaire so need to get on with filling that in as well as following up the detailed references.

I looked up the solicitor dealing with this and it looks like the bank are taking this reasonably seriously, it seems like a big company, 875 staff, 761 solicitors, this particular solicitor is an associate who specialises in commercial litigation. but also mediation of retail banking disputes, I'm sure she won't be too cheap,

NB

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

The bigger the firm the more they charge and so the more expensive for the bank!

Never worry about the solicitor. and don't be overawed.
In court they may talk legalese, but the small claims track was never intended for solicitors and the judge should be sympathetic towards you.
Remember that when lawyers clash in court the success rate is only 50% for them

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Sorry can you clear this bit up for me - did your mother cancel both cheques ? ( from reading back it appears so but just wanted to be certain)


Costs - be VERY careful - even though you are in small claims track the judge does have the ability to award substantial costs if he feels you have acted unreasonably at all.

I would like to see their defence.

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I think someone should look up certainty of fate when it is known the cheque has been cancelled before withdrawal.

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

At the moment IMO the unreasonable behaviour has been on the side of the bank who failed to file a defence in time.
The biggest threat to receiving a costs order on basis unreasonable behaviour will be to reject a "reasonable" offer from the bank to settle. However the rejection alone should not constitute sufficient reason to make such an order (but you never know)

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I think someone should look up certainty of fate when it is known the cheque has been cancelled before withdrawal.

If a cheque has been cleared (and the op was assured by the bank that it had been) the cheque cannot be cancelled.
The bank mistakenly confirmed the cheque had cleared.
The OP had no reason to doubt this , as it was within the time parameters for clearance set by the Coop for deposits via Post Office and certainty of fate rules as incorporated into their terms and conditions.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hello,

thanks for all the posts.

My mum did cancel both cheques. She cancelled the first 9 calendar days after I had deposited it at the post office as it appeared to be lost and my bank would not even check their suspense account let alone look for it properly. She cancelled the second one when I told here that my bank would be presenting both cheques to her bank. As my mum lives with me she had been aware over the week of what had been happening and the fact that my bank was acting very badly. She decided that she would not take the risk of both cheques being presented and the money withdrawn as it would have made her account overdrawn.

I can't find any case law or other guidance on this, maybe because it was only new in 2007 and this is an extraordinary set of circumstances that has led to this. On top of which most people might just accept what the bank told them, I think that the bank has fallen into bad practice because it goes unchallenged (and it is not easy to challenge, it has taken me 2 and a half years to get this far after all). I think the bank routinely disregards the rules and regulations because it normally can. I have tried to get a legal opinion on this but either the experts in banking were all experts for banks and didn't want to compromise those relationships or it is hugely expensive as the case is now so detailed.

I would be happy to make the defence available but obviously not on the public site as it has all names etc on it. I don't know how to attach a file in the members area.

Obviously I maintain that I was not told wrongly that the cheque had cleared but that the first cheque was cleared in the knowledge that it had been cancelled but in the expectation that the second one would clear. The mistake was in the considered decision to clear the first cheque.

The defence was not found to be filed late, it seems it was in on time and that is why the original finding in my favour by default, ,was set-aside,

best wishes,

Nicki

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hello,
.
I would be happy to make the defence available but obviously not on the public site as it has all names etc on it. I don't know how to attach a file in the members area.

Nicki

You could either join the VIP section, which gives a degree of privacy or redact the documents prior to posting.
As I said in my PM you are IMO better advised to post up so you get a cross section of opinion.

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

The bank mistakenly confirmed the cheque had cleared.
The OP had no reason to doubt this

Well she did, she knew her mum had cancelled it.

Apologies Nicola, my view on this still hasn't changed.