Can the bank ‘UNCLEAR’ cleared funds?

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I think you have a case, but I'm not the one you have to convince.
The small claims track is a bit of a lottery. No matter how strong a case you can never be sure of the outcome.
You must have noticed that even on this forum (which tends to be biased towards the poster) some members did not appreciate your position.
When it comes to court the judge may well concentrate on the generality that one should not make a profit from another's mistake. and unjust enrichment.
Your points about T&Cs could be swept aside
I hope I'm wrong.

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello,

thanks for posts.

Des, I'm pleased that you might agree with me but why do you then think that I would not win? Once the cheque is cleared, the bank cannot simply take it back, can they?

So, does it hang on how a court would decide if the cheque was cleared? A look at the evidence of this would surely say that
I would simply not have been able to take the money out of the account on day 1 of the clearing cycle if the cheque was not cleared. It was also not just me who reached the view that the cheque had cleared, remember the call centre adviser, his manager, the cheque clearing team and the money management team etc all confirmed that the funds were cleared. They did not just say this without reflection, they checked and came back to confirm it. If that is not 'cleared', then what is? The bank has also, in my view, refused to supply the most important and telling tape recording.

I think everyone agrees with the certainty of fate rule but it just seems that no-one applies it when it works against the bank. However, in this scanario, the issue is not the certainty of fate but whether the bank can take back funds once cleared.

As an aside, the bank didn't actually credit me with £500, that was the Ombudsman and neither the bank nor I agreed with that so it was never taken.

On the issue of collusion, I don't know how to persuade you leclerc that there was no collusion, Apart from the fact that I (and my 85 year-old mother) just would not do that, the situation arose completely out of our control. I simply would not have been able to engineer all that happened. I spent a week trying to get the bank to find the cheque and remember the bank refused to make even the most basic search for it. Also, I assume that anyone deliberately colluding to arrange these events would presumably have removed the funds and closed the account immediately they were cleared rather than checking the internet and writing to the bank and following up with the Ombudsman etc.

I do agree with you leclerc though that it will be interesting to see what the bank will do in defence. To date they have not given an explanation. The bank has never said what happened to it, they have never said when they received it, they refuse to tell me when it arrived at the clearing centre etc. Why would they do that unless the cheque was never actually 'lost'? Obfuscation seems to be the main tactic. The claim was issued on the 16th March and their deadline is the 4th April I think.

Thanks again

[leclerc]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I think on the original thread I explained the 2-4-6 process and that it was my understanding that the bank could only debit the account post that process on the assumption that the OP had colluded with the person writing the cheque to defraud the bank. However, this is slightly unusual in that the cheque was lost then found but because the cheque was from the OP's mother then the idea of collusion is still on the table. Had it been from a complete stranger then I would have a slightly different viewpoint.
Without knowing the bank's defence to your attempt to sue them then I am not sure whether they would have any other defence to this action. When we know what their defence to your claim is then I'll come back to the thread.

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I have the impression that the cheque never actually cleared, and so it was never uncleared.
In your other thread (post 45) you stated the CO-OP "said that the funds had been 'entered onto the account as cleared funds due to the time it had taken for them to appear on the account', and were mine to use." This is not the same as saying the cheque was cleared.
You were advised of this because the person you were talking to believed in the certainty of fate rule, but unfortunately no one else seems to!

I don't believe the bank should have debited your account with £35000, at least not without discussing the matter with you first, as it was their errors that caused the problems.
However I believe you were credited with all your costs and awarded £500 .
Although I still think you are correct (and I might be alone in that!), I don't think you would win

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello,

details of the previous post could be found (I think) using the following - I had unwittingly used someone else's site by mistake, so have started my own thread this time.

http://www.legalbeagles.info/forums/...520#post505520

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I moved all of the £35k, leaving my original £9k in the account. When, a few days later, the bank took the £35k leaving a debit of £25k which stayed on the account until the bank completed its 'investigation' about a month later. It then applied about £300 in fees so, under duress I paid £25k to bring account to a nil balance

[nemesis45]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello again,

ha ha, yes I don't give up without a fight.

The £9k was not connected with the £35k. It just happened to be in the bank at the time - very unusually.

However, I am now taking the £9k issue to the small claims court as obviously £9k comes within its jurisdiction whilst £35k would have to go to the county court

Did you drawdown from the 35K?

nem

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello again,

ha ha, yes I don't give up without a fight.

The £9k was not connected with the £35k. It just happened to be in the bank at the time - very unusually.

However, I am now taking the £9k issue to the small claims court as obviously £9k comes within its jurisdiction whilst £35k would have to go to the county court

[seduraed]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I'm no expert but there may be something in the cheques act .

[nemesis45]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Hi Nicola,
Didn't think we would see you back with this.
What puzzles me is the was the 9K connected with the £34K??

nem

[Nicola Bell]

Can the bank ‘UNCLEAR’ cleared funds?

Hello again,

I raised an issue last year about my right (or otherwise) to funds from a cheque of £35,000. The issue raised was about clearing timescales. The issue raised some interest (and emotions!) but I want to look at it from a different viewpoint.

In brief, my cheque was deposited, ‘lost’ and then ‘found’ by my bank. Once found, my bank told me verbally that ‘due to the time involved’ the cheque had been placed onto my account as cleared funds and that I was clear to spend them. I did not accept this at face value, so the adviser checked with both his own line manager and also with the bank’s cheque clearance team and rang me back to confirm this was true.

Initially I disbelieved that the funds could be cleared and mine to keep but next day, with Google’s help, I realised it could be true. I therefore tried and withdrew the funds with no problem the day after they were shown on the account.

Later, the cheque bounced (I suffered no loss as the cheque was from my mother). However the bank then removed £9,000 that was already on my account as cleared funds and applied a £25,000 debit to offset their loss. The bank has never given a clear account of why it thinks it had an entitlement to take the funds. It does say that the cheque bounced, which is true, but this of itself does not entitle them to recover funds it had cleared.

My evidence that the funds were cleared is that:

1) The bank told me most vociferously (and after checking) that the cheque was cleared and that I could spend the money


2) I withdrew the money on what, on the bank’s evidence, would only be day 1 of the clearing cycle. In the normal clearing cycle you cannot withdraw money on day 1 of the clearing cycle.


3) This account had no overdraft facility and rarely had a balance above a few hundred pounds during the 35 years that it has been running.



My (admittedly self-interested) view is that, whilst the bank has the power to clear cheques at any point it decides to, once they take a considered decision to clear the funds, they are cleared and that is irrevocable. Once taken, the individual decision to clear takes precedence over any other timescale that might apply under the normal clearing procedure. In my view the bank may have made a misjudgement leading to a commercial loss in clearing the cheque but they cannot 'unclear' or ‘de-clear’ (there doesn’t even seem to be a word to describe this) funds once that decision is made. The rest of us have to live with our misjudgements and the bank has no mercy if we get it wrong. Surely they cannot take money out of my account to pay for their misjudgement. My understanding is that once the funds are cleared the bank takes on the role of guardian of my funds and they cannot simply take the money from my account unless they have a rule that allows them to or my permission.

So my questions are:

1) How is it determined factually whether the funds were cleared or not?


2) Once cleared does the bank have any power to 'unclear’ them and take them from my account?


I found this reference and explanation:

“Case; Dextra Bank and Trust Company Ltd v Bank of Jamaica UKPC 50 (26 November 2001)

The bank made a misprediction of what would happen, a prediction is an exercise of judgment and to act on the basis of prediction is to accept risk of disappointment. If you then complain of having been mistaken you are merely asking to be relieved of a risk knowingly run. The safe course for one who does not want to bear the risk of disappointment is to communicate with the recipient of the benefit in advance of fully committing.

Birks – Introduction to the law of restitution p 147”


Thanking you for taking the time to read this and I look forward to hearing any thoughts you may have about this,

Best wishes,


Nicola

[Nicola Bell]

Re: Hello Lovely People!

hi Calomili,

no problem, I didn't think you were moaning, completely understandable to mention this. I don't understand how the threads and site owner bit etc works at all. But yes, I agree with you I've found it really, really useful and I am surprised at how much time and trouble people have taken to respond to my issue, it almost got a bit heated which was interesting to do in writing! the final result wasn't what I was hoping for, but it was great to have the issue examined in detail from different points of view.

I wish you all the best (and will try to ensure I learn how to start a new thread if I need some more help in future),

Happy New year to you too,

best wishes,

Nicola

[calamoli]

Re: Hello Lovely People!

Hi Nicola

please don't worry - I wasn't moaning, honest! It just struck me that you may well not be getting all the views & input that your query obviously warrants (although admittedly, I'm assuming that from the volume of posts as I'm very much a novice, with no experience of your topic). I get what you're saying as I'm still very wobbly myself with finding my way around the site - but I'm just so glad to have found it - what a goldmine of information and an amazing group of genuine & supportive people!

Anyway, glad to hear that you've managed to sort your issue & I hope you got the result you wanted - I haven't read all the posts, but I'm sure you got some great feedback and advice as these guys clearly know their stuff.

Best wishes & Happy New Year. eace:

[Nicola Bell]

Re: Hello Lovely People!

Hello,
I'm really sorry as it looks as if somehow I've entered the wrong thread, I don't know how to start one but as it happens my issue is concluded so sorry again and it won't happen again :tinysmile_cry_t: (ps. I'm sure that you are popular in any event), regards,

Nicola

[calamoli]

Re: Hello Lovely People!

Blimey,

I've just noticed the 90 odd replies to my joining post & thought I was incredibly popular for a moment!

But wouldn't this lady get more attention to her questions if it was under her own thread - surely it's hidden from the majority here?

Just in case it matters. :tinysmile_grin_t: