Can the bank ‘UNCLEAR’ cleared funds?

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Good morning,

As advised by my hero Des8, I rang the MCOL on Friday and told them the date that I received the letter from the bank. MCOL said they would put a note on the file but suggested that I confirmed it in writing as a judge would not necessarily look at the notes but would probably read any documents, so I did that.

I also did some detailed 'particulars' over the weekend and sent a copy of that to the court and to the bank by email. I rang the court this morning. With regard to the acknowledgment of service, it seems the court told the bank that the bank would need to send in proof that they had sent the acknowledgment of service in time but it seems the bank has not done this. There seems to be no time limit for the bank to send this in.

The court said the bank had notified them that they would apply for judgment to be struck out but they apparently have not yet done this. However, on the 15th I received a copy of the bank's 'defence' which included the request for it to be struck out.
Sooooo, then I thought that perhaps the bank's defence is not on the system yet. However, the court told me that they file responses from defendants by the next working day, so it should have been done by now.

The court said the judgment stands and I could go for enforcement but I think I need to allow the bank and the court a bit of time to sort things out.

I'm not exactly sure where I stand with this but at least I have got more 'particulars' to the court and the bank so I don't think I can do anymore at the moment but would welcome any thoughts on this.

best wishes,

Nicola

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

yes, luckily I have nothing better to do

I will notify the court, thank you. I did ring the court yesterday but they said that I couldn't make any representations at this stage. I didn't tell them specifically when I received the bank's letter though so I will do that.

I wonder if they're reading this???

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Good to have something to do:tinysmile_cry_t:

I'm not surprised at the bank's belated response.
Funny that the court didn't receive their defence, nor did you although you should have been served with a copy at the same time.
Why not let the court know in an effort to make the bank file for set aside, and start to undermine their credibilty.
Every little helps!

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

ha ha, maybe Des*, however, in another twist, the bank has now told the court that it DID file an acknowledgment of service! So the court is now looking into that. If the court has made a mistake the judgement will be overturned automatically, if not the bank will have to apply for that.

The bank has also sent me a letter with a copy of the defence. They have firstly asked for the case to be struck out as there is not enough detail. I did lodge the permitted maximum of characters though. Also, they then give the dates of the various transactions of deposits, bounces etc but the main case is that they say the sum in dispute is £9026 not £9052, so I need to look at the papers again and prepare my case in more detail. That's the weekend taken care of again!

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

So judgement for £9000 and they haven't paid?
Enforcement next step....... will we be seeing them on "the sheriffs are coming"?

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello again,

well, it is now past the deadline for their payment and the bank has done nothing! No defence entered, no communication, nada in fact! Not exactly co-operative (or ethical) behaviour I think, but this is what has happened throughout.

regards,

Chris

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

yes, I'm sure that's true, I assumed they have their own solicitor,

anyway at last someone at the bank having to think about it. It will be interesting to see what happens,

thanks for responses Des8

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

" The acknowledgement has been signed by a solicitor."
They'll sign anything for a fee, even when they know their client doesn't have a case.

Judgement entered on 8th, posted on 9th, delivered on 10th. Questions now being asked in house!

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

thanks for responses, much appreciated, and don't worry I didn't go on a spree last time even when the money WAS in the bank (or was it........ ha ha)

and..... ah, I suspected that might be the case. I was very disappointed when I found out about checking the box accidentally and then very surprised when the court said I could still request judgement be entered because that seemed to be my error and my logic would say that it is only right that they should have a reasonable time to respond. However, not much that has happened makes that much sense to me, my logic is entirely out of sync with the rules I think.

It did occur to me though that if the bank didn't want to make it look as if they accepted my case but didn't want the issue raised publicly either (in case they lost the principle), this could perhaps be a way to do it? The acknowledgement has been signed by a solicitor.

Do you know how long it would take for the court to update the on-line entry? Entering the judgement was done surprisingly quickly on line. So far, the bank has not asked for the judgement to be set aside either.

Would the bank definitely know that judgement had been entered? I only know because I looked it up, I haven't heard from the court by post or anything.

best wishes,

Nicola

[basa48]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Well the Bank can apply to have the judgement set aside, and the case reheard.
If the bank had sent the acknowledgement of service or put in a defence within the time limit, the court must set the judgement aside.
If the time limits were not complied with it is up to the court to decide.

I shouldn't go on a spending spree yet, but I bet someone in the bank is in the dog house for missing the deadlines.

I concur.

I was involved with a creditor who persistently missed deadlines for submitting documents and even missing hearings. Each and every time the judge adjourned and allowed the case to proceed !! :tinysmile_cry_t:

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Well the Bank can apply to have the judgement set aside, and the case reheard.
If the bank had sent the acknowledgement of service or put in a defence within the time limit, the court must set the judgement aside.
If the time limits were not complied with it is up to the court to decide.

I shouldn't go on a spending spree yet, but I bet someone in the bank is in the dog house for missing the deadlines.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello,

An update on events. The bank had not replied to the court by the required time so on Tuesday 7th April I asked for judgement to be entered.

This was unfortunately complicated by the fact that I had accidentally checked the box that said I would 'serve particulars separately'. I rang the court on the 7th to explain this error and they told me that if I sent a letter to the bank, with proof of posting, saying that I did not intend to send 'extra particulars' this would be ok. they also said that after I had sent the letter that I could immediately request judgement as the court had not received any papers from the bank by that time. The court said that my error would not affect the timescale as the bank had not written to the court saying that they had not received any particulars. Apparently the bank should have done that before the 7th if they were waiting for 'particulars'.

I sent the required letter to the bank by overnight delivery. I requested judgement from the court on Tuesday 7th and this was given on Wednesday 8th.

However, yesterday (Thursday 9th - i.e. the day after judgement was entered and the day after they would have received my letter about the particulars), I received a letter from the bank which they have dated the 7th April. This letter enclosed a copy of an acknowledgement of service form, which they have dated 23rd of March in which the bank said that it would defend the entire sum. However, to date the details on my small claim record on the moneyclaimonline site does not show that the bank has entered either an acknowledgement of service or a defence, so I still have no idea what their defence might be. I also don't know how the court would deal with this - given that the bank did not respond in time - now that judgement has been entered.

When I requested judgement I asked for the sum to be paid in full in 7 days, which would be the 15th presumably?

it's all very interesting to me anyway but I would welcome any comments you might have,

best regards,

Nicola

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Succinctly put methinks

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hi,

thanks for the responses.

I accept Des that the court may well not find in my favour, I doubt if I would get a specialist in banking law and this is a bit complicated for a judge simply waiting patiently to quietly retire in a year or two.

I don't think anyone is now suggesting that the cheque had not cleared. In any event I can see no legal argument to say that the cheque was not cleared. I do understand the moral issue here stevemls but you seem to have strayed from the essence of the thread, so I cannot engage with you either as you do not actually put forward any arguments for debate that I can see.

The ombudsman is there to do what seems 'reasonable in all the circumstances' to him personaly and subjectively and that is what he did. However, we have a banking system that clearly does not take either a moral or a legal view if it does not suit them - even the ethical bank - they are always unchallenged and it is no surprising as the banks control everything. I have learnt that the payments council is composed only of the big banks, the cheque and clearing company is composed only of the big banks, all of the historic organisations that have been found wanting and replaced by other organisation such as these are always replaced by different organsiations but who are always still under the control of the big banks. Even Ben Bernanke (apols for spelling if wrong and paraphrasing) said that he did not appreciate that executives of big businesses were prepared to let their companies sink if it was to their own personal benefit. This is the law of no consequences and look where that got us.

I do not claim to be any better or different from the bankers but I cannot see a moral difference here, so the test must be the legal one surely.

I have read Peter Birk's book on unjust enrichment and as I understand it, unjust enrichment is the 'mistaken payment of a debt not owed'. Where there is a contract with conditions that governs the situation, there can be no unjust enrichment. In fact it could be argued that is me who has unjustly enriched the bank.

I will let you know what happens but I think that this may have reached an end for the time being, thanks for your thoughts for now

[stevemLS]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Exactly Des, there is always the principle of unjust enrichment.

I engaged fully with the previous thread, but am not going to waste my time and effort to do so with this one.