Can the bank ‘UNCLEAR’ cleared funds?

[des8]

Re: Hello Lovely People!

Steve, you have quoted a maxim which means that any person seeking judicial action must be free of fraud or unfair conduct.
What is there in the posts to suggest Nicola has done anything improper, let alone have "filthy hands"?

She is the one wronged by the Bank (hence the paltry offer the Co-op were pushed into making by the ombudsman)

I think you owe her an apology.

[stevemLS]

Re: Hello Lovely People!

She presented two substantial cheques, both of which she knew would bounce, and expects to be able to retain the money - see post #4

[des8]

Re: Hello Lovely People!

Post 4 was an early post.
Read further (post 9 for starters) and you will see as information is drawn from the poster that it is more complex, there was no fraud and knowledge that the cheque would be returned unpaid was obtained late in the process and the bank confirmed the money was the poster's.

[stevemLS]

Re: Hello Lovely People!

As I said before, am done on this thread - the fact is the OP seeks Ł35k which she knows is not hers.

[des8]

Re: Hello Lovely People!

She seeks Ł9000
Why don't you read the thread!

[Amethyst]

Re: Hello Lovely People!

Any charges incurred should be refunded ( and have been ?? ) and an amount of compensation for the inconvenience ( Ł150 been offered ??)

Not sure why this has got so complicated or where Ł9k comes into it.

[stevemLS]

Re: Hello Lovely People!

We disagree (again).

Since the Judicature Acts 1873 - 1875 the courts have been obliged to bring principles of equity to all matters. I think any judge looking at the totality of this situation would throw any claim made by OP out on its ears.

Perfectly happy to be proved wrong. Any lawyer can only assess the strengths and weaknesses of a case. My view is this is one where a judge would witheringly dismiss it as being "totally without merit" - but plainly that is only my view.

[Amethyst]

Re: Hello Lovely People!

Right I've read back more, just trying to simplify it a bit as it seems to have gotten confused so bear with me.

One bit I'm not sure of is when did the Ł35k actually go into your account ?

Basics (ignoring charges and 2 cheques/cancelled etc)

1.Account Balance 9k
2.Cheque paid in Ł35k
3.Money taken out of Ł35k
4.Cheque bounced
5. so Bank took back Ł35k leaving account Ł26k overdrawn (and incurred charges/interest which has now been refunded?)
6. Ł35k paid back in ( presumably ?)
7. Balance Ł9k

[des8]

Re: Hello Lovely People!

The poster's claim arises because the banks t&c's state that if a cheque is deposited you can assume that at the end of six Business Days, the cheque is cleared.After this time you are protected from any loss if the cheque is subsequently returned .
Eight days after depositing the cheque she was assured by the bank she could safely withdraw the cash.

They subsequently reneged on this as the cheque was returned unpaid and took back the money.
Unpaid because the drawer cancelled it long after it should have cleared. Delays due to Bank's incompetence?
At the time she had Ł9000 in bank and thinks by keeping claim to that figure it would be allocated to small claims.

I believe she has a valid claim, but it should be for the Ł35000.
However I'm not confident she would win.
She is certainly not guilty of anything except trying to get the Bank to honour its commitments

Op away at moment (post 29)

[Amethyst]

Re: Hello Lovely People!

Thanks Des that's clearer.

Hence the certainty of fate references.

[Amethyst]

Re: Hello Lovely People!

What's the back up law on the 2 4 6 rules btw? (t&c's state wont remove without permission?)

http://www.chequeandcredit.co.uk/ just reference

[des8]

Re: Hello Lovely People!

There is no law!
It is an industry wide agreement of 2007 by banks to follow these timescales.
It is incorporated in the T&C's of all banks and therefore is part of the contract between customers and the bank.
As the only escape clause the banks have is fraudulent activity, it must follow that they will accept any losses caused by their mistakes. This would mean they cannot use the principle that one cannot profit by another's error (although of course a CC Judge may not see it that way).
In this case it is complicated because 8 days after paying in the first cheque the money failed to appear in depositors account.
On querying this the bank suggested cancelling the cheque and issuing another.
This was done, and lo and behold, both cheques appeared on the account within 24 hours.
This was queried with the bank who said the funds were there (from the first cheque) for the depositor to use.
The depositor assumes the cancellation was not effective.
The cheque drawer, an elderly person,was concerned the first cheque had cleared before cancellation, and so cancelled the second cheque.

It appears the bank made an errors in not putting the first cheque through the clearing system in a timely fashion,then assuring the account holder the money was available.

[Nicola Bell]

Re: Hello Lovely People!

hello,
this is interesting, thank you for contributions. Thank you especially des8 I can see why you're a VIP.

To respond to a few points, firstly this cannot be unjust enrichment (I have read ALL of Peter Birks book on this as part of my research over the 2 years!) It cannot be unjust enrichment because it is covered by a contract, if it is covered by a contract it cannot be unjust, it can be an enrichment, but not unjust. In fact, strangely it is in fact the bank that has been unjustly enriched.

Secondly, in the interest of accuracy, the bank did not say that 'the funds were there (from the first cheque)', they 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. The bank has not provided the most relevant recording, but one other recording I have confirms that I was told this at least 4 times, the call centre advisor makes it clear that he had checked with the cheque clearing team, he even gave me the name of the person he had checked with & offered to put me through directly to that person to confirm that this was indded correct. In addition, when the money management team rang me on the 17th they also confirmed that the cheque was shown as cleared on the account.

Thirdly, also in the interest of accuracy, I didn't assume the cancellation was not effective, I didn't understand what had happened but initially I just assumed that the call centre advisor had got it wrong, (the bank had got things wrong all week), but thinking about it on the evening of Friday 14th I thought that the call centre advisor was so sincere, that the following day - a Saturday- I started researching it and found that what he said was apparently true.

I agree that a judge may be unlikely to take the level of interest to work through all the machinations, but it does surely boil down to the fact that the bank did not make an error in clearing the cheque. It acted in accordance with it's T&C's in clearing the cheque, albeit a day late. The error was in taking the funds from my account with no apparent right to do so.

Thanks again

[des8]

Re: Hello Lovely People!

hello,

. Thank you especially des8 I can see why you're a VIP.
Thanks again

Thank you for your kind words, but just to ensure there is no misunderstanding, I bought the VIP monicker.
If you go to the "forum Home" page you too can become VIP.

The "bones" indicate the number of posts made by a member, and the "Green Dots" the reputation earned by peoples' thanks.
However thanks come for all sorts of things... not just advice.

The word of warning must be that on any forum one never knows the qualifications of the people posting, and therefore the advice must be treated with some caution.

Thanks for the detailed clarification.
One of the problems of fora is that posters try and condense their explanations, and because they are so close to their problem not all essential details are included.
Sometimes this leads to requests for clarification (post 8) or plain misunderstanding (post 24).

Anyway good luck whatever you decide to do, and feel free to return for more support.

[Nicola Bell]

Re: Hello Lovely People!

hello Des8,
just to say sorry for delay in responding, have had visitors, but thanks for all your support, I'll leave this for now but will use all the advice that you have given and when completed will come back to you to let you know what, if anything, materialises,

best wishes