Can the bank ‘UNCLEAR’ cleared funds?

[Nicola Bell]

Re: Hello Lovely People!

Hi Amethyst,

Thanks, yes, at the moment the mediation has taken place but as far as I know, the track has not been allocated.

Yes, on Des8’s recommendation I asked for disclosure under CPR31.6 and mentioned cost implications for non-compliance. The bank wrote back to say CPR31 doesn’t apply (referencing part 27), but would try.

I wrote back (again on Des8’s suggestion) mentioning the overriding interest (1.1(2) (a) – ensuring parties on equal footing and (d) ensuring it is dealt with expeditiously and fairly.

They responsed saying the IBDE file ‘not easily’ accessible, that they call recording is ‘not held by the bank’ and providing the statement as requested.

I sent a further request saying that this was of critical importance and that I believe it is reasonable to conclude – on the balance of probabilities – that this information is being purposefully withheld as it fatally undermines their case (OH's help with wording there!).

However, the document and recording that I want have not been specifically mentioned in their defence. (Although the issues that they would shed light on were)

Nicola

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hi,

quick update.

I rang the court this morning to ask about the disclosure issue, they said that the case is allocated to the small claims track and that I will hear from the court when it has gone to the local level. I assume that it is too late therefore to ask about the disclosure but it probably doesn't matter too much, it will be the bank's responsibility to make its case I guess, not for me to disprove their case (especially as they haven't made a clear one!)

Nicola

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Actually its for you to prove your loss!

You could file an application for a court order (http://www.justice.gov.uk/courts/pro...l/rules/part23) requesting disclosure, if you really think it will
undermine them

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello Des,

oops, sorry if I wasn't clear, I didn't mean it was for the bank to prove the case, I meant to support it's defence. What I meant was, that as the bank says that the cheque was at the clearing centre on the 13th - and thereby suggests it had only just arrived on the 13th but it is in the position to independently prove when it arrived if it wished to, then failure to provide that evidence (especially after I have requested disclosure and said that I believe the disclosure might fatally undermine their defence), could be seen as not wanting to prove when it arrived.

I wouldn't have paid too much attention to this except that the FoS believed that when the bank said that the cheque was at the clearing centre on the 13th, that this meant that this was when it arrived there and that is one main reason why my claim failed at the FoS.

Thank you for the reference to Rule 23. I looked this up using your link. At the moment as the case has been allocated to the small claim track but is not yet allocated to a particular court it seems to fall, between two bits of the provision so I think I will wait and see where it is allocated. Would I be right in assuming though that making an application would also delay things? Presumably the the court would take a while to process it and then the bank would have time to respond etc.

best wishes,

Nicki

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

hello Des,

oops, sorry if I wasn't clear, I didn't mean it was for the bank to prove the case, I meant to support it's defence.
I did realise that....was just being pedantic as it is necessary to keep to correct terminology. Make a slip and you find yourself back pedalling to rescue a situation!
What I meant was, that as the bank says that the cheque was at the clearing centre on the 13th - and thereby suggests it had only just arrived on the 13th but it is in the position to independently prove when it arrived if it wished to, then failure to provide that evidence (especially after I have requested disclosure and said that I believe the disclosure might fatally undermine their defence), could be seen as not wanting to prove when it arrived.

I wouldn't have paid too much attention to this except that the FoS believed that when the bank said that the cheque was at the clearing centre on the 13th, that this meant that this was when it arrived there and that is one main reason why my claim failed at the FoS.

Thank you for the reference to Rule 23. I looked this up using your link. At the moment as the case has been allocated to the small claim track but is not yet allocated to a particular court it seems to fall, between two bits of the provision so I think I will wait and see where it is allocated. Would I be right in assuming though that making an application would also delay things? Presumably the the court would take a while to process it and then the bank would have time to respond etc.
When you receive notice of allocation, you'll also have more paperwork to do! When you send that in will be the time to make the application. As it will show exactly when the cheque was received it will confirm the date of certainty and could be very important to you. Of course if the IBDE file was not made up on the anticipated date...............

best wishes,

Nicki

Comments in red

[Nicola Bell]

Re: Can the bank ‘UNCLEAR’ cleared funds?

yes, thanks, I appreciate the distinction now (and the importance of getting that terminology right - will make sure I remember it!). Also, I will consider the application later as I don't want to unnecessarily increase the chance of a delay at this stage ()due to holiday in the autumn.

My case is that T - the transaction day - is the day it is given to the post office, so I think that the date of receipt at the clearing centre isn't really central to my case, it has no clear place in the procedure as far as I can see, what do you think? I have (lots of copies of) the receipt the post office gave me though,

best wishes,

Nicki

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

I agree with you, but T&Cs give up to 2 days delay on date of certainty.
Perhaps the IBDE file might show they only needed one day, which would bring your withdrawal after that date had been reached.

[MissFM]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Nicola: At no time has the bank stated that the funds were not cleared.

Bank's defense: 34. Paragraph 28 is denied. Whilst the Defendant initially told the Claimant, mistakenly, that the First Cheque had cleared, the clearing timescales were subsequently explained to the Claimant. In addition, the Claimant was aware that both the First Cheque and the Second Cheque had been stopped by her mother and therefore could not have cleared.

44. Paragraph 38 is denied. For the reasons explained above, it is denied that the First Cheque or the Second Cheque cleared the Joint Account.

I do wish you luck Nicola. Believe me, I'm trying to help - but beginning to doubt my own sanity!

A reminder of a few of the more inconvenient facts that you will need to circumvent:



As the bank has pointed out, the “Certainty of Fate” rule is not relevant to your claim, as that principle would either
- have died in the water (paraphrase) when the cheques were cancelled by your mother with your knowledge.
or
- had the cancellation been outside the timescale (they argue that none of the transactions were), the cheque would have been unstoppable and the funds taken from your mother’s account anyway.



This makes legal and logical sense as the rule is intended to protect consumers from unexpected loss, uncertainty and fraudulence.
In any case the bank would have been entitled to recover the money from one or other of you, so that point is ultimately moot.



The fact that you were able to withdraw the funds – even the misinformation provided by multiple employees - doesn’t provide evidence either way on “certainty of fate”.
The bank has accepted that you might have been given misleading information by their operatives and you have subsequently (consequently?) been reimbursed for losses incurred. I would imagine that the court will also take into account that you have refused the extra Ł500 awarded by the FOS. By this I mean that, if you lose your claim, (or are awarded a lesser sum to the above?) costs may be awarded against you at the court’s discretion.



They are saying that their recovery of the funds appearing in your account (and erroneously understood to be “yours to keep forever”) is according to standard banking practice. My understanding is that It is customary to mark a credit to the recipient’s account of paid-in uncleared funds on or around T1 or 2 and “clear for value” – ie allow you access to those funds, having verified their existence - on T4.



The removal of the Ł35K upon confirmation of cheque#2 bouncing was within their T&C’s as your withdrawal of the funds in the certain knowledge that the funds were not available (the cheques had been stopped, so could never have cleared for fate) would constitute a request for an unarranged overdraft. In other words, although provisionally cleared (for value, but never for fate), when the cheques bounced (as you knew they would) the bank was within its T&Cs to recoup these funds from your account. The Ł9+K credit in your account, in this context, is a red herring.



As a matter of interest, you are incorrect when you say that the bank cannot make funds “cleared for value” before T4 – they can do this whenever they like. Hence (IMO) they cleared (“for value”, but not “for fate”) cheque#2 on T1 or 2, presumably in consideration of the cock-up on cheque#1, to avoid causing you further inconvenience and delay. They would also, by this point, have confirmed that your mother had the funds available to honour the cheque. The bank had no way of foreseeing that cheque#2 was also to be immediately stopped, nor that you were going to withdraw the money immediately upon appearance/cancellation of both cheques, outside business hours , despite your certain knowledge that both cheques had been stopped.



As you have asserted that this is all about cheque#1, a reminder of the bank’s stance in June 2014:



“The Co-operative reckons that the funds you withdrew were the proceeds from the second cheque and that you withdrew them only two days after it was deposited, therefore before the funds had cleared. It accepts, however, that you were advised that one of the cheques had cleared, and it is paying you Ł150 to make amends.” (From the Guardian reply to your query).


Your problem, in view of the above and the many, more erudite, contributions on this thread, remains in proving, on the balance of probability, any entitlement to further financial recompense. The funds could, demonstrably, never have “cleared for fate” whatever you were told at the time, you have suffered no material loss and have, indeed, both been reimbursed for the temporary losses suffered and offered further compensation for the cock-ups. Your claim, therefore, especially in the form you have presented it, does appear to be a claim for “punitive damages” (not claimable in UK).



However, I could be completely wrong – the judge might be seduced by your arguments and you might get a windfall in the form of a confused defence counsel.

And you do have Des

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Thanks Miss FM!:tinysmile_kiss_t4:

Don't necessarily agree with all you say, but ain't going to dispute with you.
I always try and remember that when two experts fight out in court, one loses even when he's convinced he's right.
I am concerned however for the outcome for Nicola.
It's worrying to be in a minority of one, although it doesn't necessarily mean one is mistaken; just that there are difficult concepts to be grasped:tinysmile_twink_t2:

[MissFM]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Thanks to Des, I share the respect, sorry for delay in replying.

MissFM, thanks for your consideration and response. I'm not sure exactly the reference about the original thoughts about 2-4-6? Banks are allowed to define their own rules when they accept deposits via the post office so another bank's rules would not apply. The bank is allowed to say they will take, 7,10,20 days if they choose to. However, once they have defined their own rules they are then obliged, under BCBOBS, to explain them clearly and to adhere to them. Is that what you meant?


Nicola

No, I meant this (from just before Christmas):

Des8, I've checked and it does say the business day after the day it is paid in is the first day, so I accept that this is game over. The bank leaves itself in a perilous position but it will not be me that tests the issue and at least we have a good understanding of the issues if someone else is in a similar position!

[MissFM]

Re: Can the bank ‘UNCLEAR’ cleared funds?

Thanks Miss FM!:tinysmile_kiss_t4:

Don't necessarily agree with all you say, but ain't going to dispute with you.
I always try and remember that when two experts fight out in court, one loses even when he's convinced he's right.
I am concerned however for the outcome for Nicola.
It's worrying to be in a minority of one, although it doesn't necessarily mean one is mistaken; just that there are difficult concepts to be grasped:tinysmile_twink_t2:

Nothing wrong with being a lone wolf, Des - it's even more worrying if everyone agrees with you.

I think everyone has an overriding concern for Nicola and perhaps we are all seeing different parts of the elephant in the room thinking it's a different beast entirely, or a collection of separate beasts.

Do you not think that the elegance of the argument, were it correct, mightn't be getting in the way of seeing the anomalies here though? :decision:

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

[QUOTE=MissFM;561353]]Do you not think that the elegance of the argument, were it correct, mightn't be getting in the way of seeing the anomalies here though? :decision:

But it is correct isn't it?

[stevemLS]

Re: Can the bank ‘UNCLEAR’ cleared funds?

My own view is that Nicola is on a perilous course and that des (apologies) is wrongfully encouraging her down that track.

I would like to see the "defence" which seems not to have been posted but which is being discussed.

Again, purely my view, but I think a DJ will dismiss this claim in seconds if they have properly read into it.

[des8]

Re: Can the bank ‘UNCLEAR’ cleared funds?

My own view is that Nicola is on a perilous course and that des (apologies) is wrongfully encouraging her down that track.
.

No need to apologise but I would point out that whilst I have agreed with Nicola that I think she has a valid claim and so supported and tried to clarify points, I have at all times urged caution as I am not convinced she will win. I don't regard that as encouragement,

[stevemLS]

Re: Can the bank ‘UNCLEAR’ cleared funds?

No disrespect intended des, please accept that.

I gave my own view on the claim months ago, guess we have to see how it comes out at trial.

I'd quite like to see the defence SoC