Can the bank ‘UNCLEAR’ cleared funds?

[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.

[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.

[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

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I'm still here just keeping shtum a bit as I've already said I disagree with the claim and there's not really much more I can say.

The reason the first cheque was cancelled was because it couldn't be found. I think that means there was a delay, and that you paid it in to the post office on the 5th and it didn't get stamped at the clearing centre until the 13th further demonstrates a delay.

However the main point is that paying a cheque in to the post office on the 5th would, under their terms, be cleared on the 17th, as I stated back in December http://www.legalbeagles.info/forums/...602#post502602 - I'm afraid nothing has changed my position on that.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello Des,

yes, the bank has several separate arguments about timescales under the Certainty of fate,, but can't it also actually clear the funds whenever it wants to? If it takes a decision to clear the funds then the funds are simply cleared, aren't they?

On another note, I think it unlikely that my bank will have made those funds available t me without contacting my mother's bank. Can I ask my bank to provide information about whether my bank contacted my mother's bank?

regards,

Nicki

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hi again, still there good (and up quite early!)

the reason the cheque was cancelled was because the bank refused to look for it but they also told me it wasn't at the bank. Again they have never said that 'it couldn't be found'.

Also, surely the funds must have been cleared or I would not have been able to withdraw them on what the bank claims now as T+2?

xx

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Well you know I'm the loner on this issue.
IMO the cheque COULD have been cleared under the certainty rules, and they confirmed the funds were cleared, ergo..........
Whether they said this because of the 2 4 6 rule, or because they took a commercial decision to declare cleared funds were available from the cheques which they were still process, we cannot know.
This has nothing to do with profiting from an error, but to do with T&Cs of a contract and a bank's commercial decision.

However I still feel your best shot will be at Mediation, as the bank may wish to reduce their solicitors costs which would not be recoverable if the case is allocated to the small claims track.
Due to its complexity however it may not go to small claims, in which case I would advise discontinuance as costs could be substantial.

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Even IF the cheque had cleared under T+6 there was no loss to claim. Really there just was no loss. After T+6 the money is NOT yours regardless, just the bank can't take it back without consent ( unless you can show me legally otherwise)

If it hadn't been Nicola's mum and had Nicola not been fully aware both cheques were cancelled and no money had left her mum's account then my opinion would likely be different, as per some FOS adjudications, but it isn't, so there is no claim.

Thanks for the PM Nicola, I'll bear it in mind.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Thanks Des, I hear what you say. I am however, an all or nothing sort of person, (hell to put up with as you can imagine!), so whatever happens is not your fault and I certainly wouldn't do anything outside of the small claims procedure without a professional legal opinion.

Amethyst, I have 2 questions, firstly, have I convinced you that the funds were actually cleared? If not, why do you think that they weren't cleared?

Secondly, do you think that it is relevant whether the funds were cleared? It is one issue that I cannot see that you have addressed clearly, you have said that the bank cannot take the funds without consent and obviously I have not given my consent. I agree with you that the bank may think they have a legal claim to the funds, but so do I (and obviously I think that my claim is stronger) but do we agree that they cannot just take them without my consent or due process or fraud?

Nicki

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Nope. lol. Because they weren't cleared, you knew they were not cleared ( because you knew you had cancelled the cheque ) regardless of what the bank said.

If it was past T+6 ( which it wasn't ) then no they couldn't just take the funds back from your account without consent ( unless for Fraud - and I think you're on the borderline for that anyway due to you being 100% fully aware your mum had cancelled both cheques )

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hi,

thanks for reply,

sooooo, is your thinking that if a cheque subsequently bounces then it cannot clear? Don't forget the bank was as aware as me that the cheque would bounce?

[MissFM]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Don't forget the bank was as aware as me that the cheque would bounce?

The first cheque, maybe, but not the second one.

It could be argued that, due to your long and unblemished relationship with the bank, and based on trust and goodwill, they released the funds to you despite the delay on the first cheque because of your assurances re the probity of the replacement cheque. It could be argued that they bent the rules because they trusted you.

However, the second cheque was immediately cancelled upon their release of the funds; you also proceeded to remove the money to accounts elsewhere. I'm astonished that you can't see how this might appear to others.

Also, even if the timing did mean that you were entitled to this apparent windfall why wouldn't they then chase your mother to make good her cheque?

You did say that you would welcome hearing arguments that could be used against your contention. :evil:

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

After T+6 the money is NOT yours regardless, just the bank can't take it back without consent ( unless you can show me legally otherwise)
.

This is how Co-op interpret the OFT Customer promise of Dec 2007:
" It is unlikely that the OFT customer promise will have any direct impact on the way you operate your account but we would like to specifically draw your attention to the following points:

• From ‘certainty of fate’ you are assured that the value of a cheque deposited on your account is yours."

IF Bank cannot remove it without account holders consent, it must follow that if account holder withholds consent the bank cannot recover those funds.
I suspect Banks ignore that caveat (without consent) because they don't expect account holders to fight back

[Amethyst]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Raymond Cox

(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 can't get the referenced document ''Rules for the Automated Debit Clearing, (C&CCCL, July 2009, version 1.0)''

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello and thanks Miss FM,

Yes, I genuinely do welcome your input.

The thing is that I am only talking about the first cheque, this issue is about the first cheque only.

I don't doubt that it could be argued that the bank released the funds to me because of my long and unblemished relationship (although they did not mention it at the time). However, I didn't make any assurances of the probity of the replacement cheque because it just was not an issue. The second cheque was as good as the first and nothing would have happened to it if the bank had not suddenly 'found' the first cheque and placed them both onto the account at the same time. It was the knowledge that the bank had been so incompetent during the previous 10 days that led to the worry of her account going overdrawn that made my mum cancel the second cheque.

I did not initially believe that the funds could be cleared, the recording the bank has not provided is (probably rather embarrassingly) full of me saying that it can't possibly be true, but my concern at that time was only about the misleading statements I had been given about the whereabouts of the first cheque. I did not ask once about the cheque being cleared to my recollection. It was only afterwards that I thought it could be true and started looking it up.

I'm not sure what you mean of how it will appear to others, I can see that the bank has made a costly error, that could be a windfall for me that is all.

That's interesting about my mum making good her cheque? mmm, surely she cancelled it on time?

Is the thinking that banks should be able to apparently misinform, hide, disguise, delay and/or mislead customers with impunity and that there should be no consequences for them - look where that go us lol - or should it be that this could be a sufficiently expensive wake-up call to get them to get their act together to ensure that this doesn't happen again?

best wishes,

Nicola